0820-01-G International Brotherhood of Electrical Workers, Local 894, Applicant v. Stensca/Procon Ltd., Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; June 25, 2001
This is a referral of a grievance to the Board for determination under section 133 of the Labour Relations Act, 1995, S.O. 1995, c. 1, (the “Act”). The Alternate Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act. The referral was made on June 13, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on June 14, 2001 by the applicant having delivered a copy of the necessary documents required by Rule 155 of the Board’s Rules of Procedure to the responding party by giving them to Priority Post on June 13, 2001 who assured the applicant that they would be delivered on Thursday, June 14, 2001 by no later than 5:00 p.m. The Registrar faxed a Confirmation of Filing of a Referral of Grievance to Arbitration (Form B-67) to the fax number provided for the responding party in the application, 416-299-4739 on June 15, 2001 at 9:58 a.m.
Rule 155 of the Board’s Rules of Procedure provides, in part:
Before, or at the same time as, filing its application with the Board, the applicant must deliver the following to the responding party:
Thus, it is clear that the Board’s Rules require that the applicant must deliver to the responding party (that is, the responding party must receive) the application and other requisite material before or at the same time as that application is filed with the Board. (In our opinion, an application that is delivered to the responding party and filed with the Board on the same day complies with Rule 155 since the Board considers the time an application was filed as being the day on which the application was filed. See Harnden & King Construction Ltd., [1987] OLRB Rep. Dec. 1510 at 1512; Bond Place Hotel, [1982] OLRB Rep. Aug. 1135 at 1137-38; Windsor Tube & Metal Inc., [1977] OLRB Rep. June 396.) That has not happened in this case.
An applicant in a section 133 proceeding contravenes the Board’s Rules and risks dismissal of its application for a failure to comply with the Rules if it files its application before the necessary material has been delivered to, that is, received by the responding party. Although the Board does have the power under Rule 44 to relieve against the strict application of the Rules, in my view, before Board exercises its discretion under Rule 44 to do so, it must be sure that the responding party has not been prejudiced. Furthermore, at the very least, the disposition of the matter will invariably be delayed in order to ensure that the responding party does have the opportunity to address, if it wishes to do so, the issue of prejudice and whether the Board should proceed with the matter.
As of the date of this decision, the responding party has not filed a Request for Hearing and Notice of Intent to Defend/Participate (Form A-87). Counsel for the applicant, in a letter to the Board dated June 25, 2001 seeks to have the Board grant the remedies it seeks in its referral to the Board due to the responding party’s failure to file Form A-87 and to attend the settlement meeting with a labour relations officer on June 20, 2001 without having the matter proceed to a hearing.
The grievance that was referred to the Board is dated May 24, 2001. It seeks to recover contributions and deductions for the hours worked by the responding party’s employees during the month of April 2001 that the responding party has failed to remit and for the hours worked in each succeeding month for which the responding party fails to make the required remittances. Those amounts are due on the 10th day of the month following the month in which the hours are worked and if not paid by the 20th day of the month in which they are due, an additional 10% as liquidated damages are due and damages continue to accrue on those unpaid amounts at the rate of 2% per month (24% per year) on the outstanding amounts, including damages.
The referral filed with the Board on June 13, 2001 indicated that the responding party had failed to make the required remittances for the month of May, 2001 (which were due on June 10, 2001) and also sought the 10% liquidated damages in respect of both the April and May remittances, although the referral to the Board had been filed before the date on which the liquidated damages for the failure to remit deductions and contributions for the hours worked in the month of May would become payable.
Under the circumstances, in view of the irregularity in the filing and delivery of the referral (that is, filing the referral with the Board before delivery to the responding party) and the claim for damages that arose after the date the referral was filed with the Board, the Board is not prepared, at this time to proceed to grant the applicant the order it seeks. Nevertheless, the Board is also cognizant of the responding party’s failure to respond to the grievance and referral and thus is not inclined to have this matter proceed to a hearing, unless the responding party does file a Form A-87.
Section 133 of the Act provides, in part:
(7) The Board is not required to hold a hearing if the responding party does not file any material.
(8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.
(9) If the Board accepts the referral, the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48(10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.
- In addition, the Chair of the Board has the authority to make rules to give effect to the various statutory powers conferred upon the Board. Section 110(17) of the Act provides:
The chair may make rules governing the Board’s practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.
Furthermore, the Board has very wide powers to require a party to provide particulars, documents, and any other information the Board deems necessary. (See sections 111(2)(a) and (b) of the Act.)
The Board’s Rules in respect of section 133 proceedings place a substantial burden on the applicant. As well as filing certain material with the Board, the applicant must provide to the responding party:
A copy of the application
A copy of the Notice of grievance referral.
A blank copy of the Request for Hearing and Notice of Intent to Defend (Form A-87, i.e. the form the responding party requires to file its response.
A blank response form for the responding party’s use.
A copy of the Board’s Rules with respect to section 133 referrals (i.e. Part VIII of the Rules, being Rules 143-163) and Information Bulletin No. 20 which provides the responding party with further information about the process involved in a section 133 application (including the consequences of default).
The only thing a responding party must do to avoid default proceedings is to complete the Form A-87 supplied by the applicant and deliver it to the Board and the applicant within five days of the date of the Board’s Confirmation of Filing (Form B-67). Form A-87 requires little more than the responding party’s name and address and an assertion that the responding party wishes to defend against the grievance referral. The substance of that defence is contained in the response which is not due until 9:30 a.m. on the day set for hearing.
The Board’s Rules require quick responses from responding parties in many sorts of applications. In an application for certification, for example, a responding employer (who is often unfamiliar with proceedings under the Act) must respond within two days after the application was served on it. In a section 133 proceeding, the responding party has some relationship with the applicant and therefore should have some understanding of the contractual and statutory context in which a grievance referral arises. In any event, the Form B-67 faxed to the responding party contains the following warning in bold print:
The failure to file a timely Request in the way required by the Board’s Rules of Procedure may result in the referral being decided without a hearing and without further notice to the defaulting party.
The Board’s Rules deal specifically with the consequences of failing to file the Form A-87. Rules 160 to 162, which are part of the Rules package delivered to the responding party by the applicant, provide as follows:
If a responding party does not deliver and file a “Request for Hearing and Notice of Intent to Defend” (Form A-87) in the way required by these rules, he or she may automatically be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing (if one is scheduled), and decide the case (or part of the case) upon the material before it without further notice.
Where the facts stated in the application are deemed to be true and the Board considers that it can make a finding of liability, but cannot determine the question of damages, the Board may decide the liability issue under Rule 160 and leave the damages issue to be determined at an oral hearing.
Where the Board decides or has decided a case (or part of a case) under Rule 160, the responding party may not file a Request or a response, or take any other step in connection with the application, other than a reconsideration application, except with the permission of the Board.
The applicant has filed sufficient material to permit the Board to grant it the relief it seeks without a hearing should the responding party continue to do nothing to respond to this proceeding. The Board is inclined to do so unless the responding party files a Form A-87 and can provide some reason for the Board not relieving against the applicant’s failure to comply with Rule 44. Thus, the Board will extend the time for the responding party to file Request for Hearing and Notice of Intent to Defend/Participate (Form A-87) to Thursday, June 28, 2001. Should the responding party continue to ignore this proceeding, the Board will deal with the matter based on the material the applicant has filed and should be in a position to issue a decision in this matter on Friday June 29, 2001.
The hearing scheduled for June 27, 2001 is hereby cancelled and will be rescheduled only if the responding party files a Form A-87 on or before Thursday, June 28, 2001. This panel of the Board remains seized with this matter.
“Harry Freedman”
for the Board