United Brotherhood of Carpenters and Joiners of America, Lake Ontario District Council v. Lardale Construction, 2001 CanLII 15234

United Brotherhood of Carpenters and Joiners of America, Lake Ontario District Council v. Lardale Construction

4193-98-G United Brotherhood of Carpenters and Joiners of America, Lake Ontario District Council, Applicant v. Lardale Construction, Lardale Construction Inc. and Mel-Ron Construction Limited, Responding Parties.

4196-98-R United Brotherhood of Carpenters and Joiners of America, Lake Ontario District Council, Applicant v. Lardale Construction, Lardale Construction Inc., Mel-Ron Construction Limited, Responding Parties.

BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members G. Pickell and G. McMenemy.

APPEARANCES: Norm Jesin, David Watson, Joel Neville and Frank Godfrey for the applicant; David Cowling, Larry Kernohan and Dale Kernohan for Lardale Construction and Lardale Construction Inc.; Liz Keenan, Deborah Van Schyndel, Budd Kernohan and Nicole Brown for Mel-Ron Construction Limited.

DECISION OF THE BOARD; December 21, 2001

1Board File No. 4196-98-R is an application pursuant to the provisions of section 69 and 1(4) of the Labour Relations Act, 1995, S.O. 1995, c.1 ("the Act"). Board File No. 4193-98-G is a construction grievance under section 133 of the Act.

2On November 22, 2001 the Board invited submissions from the parties as to whether it should recuse itself from continuing to hear these matters. The reason for that invitation was that the Board was being asked to make a determination which might have required consideration of confidential communications made to the Board Members of this panel during a mediation.

3The Board is required to determine the consequences of the Carpenters' breach of the Minutes of Settlement concerning photocopying charges concluded on June 12, 2001. Those Minutes read:

Board File Nos. 4193-98-G

4196-98-R

MINUTES OF SETTLEMENT

BETWEEN:

United Brotherhood of Carpenters and

Joiners of America, Lake Ontario District Council

(the "Applicant")

• and -

Lardale Construction, Lardale Construction Inc.,

Mel-Ron Construction Limited

(the "Responding Parties")

1. Documents already copied by the Responding Parties will be produced to the Applicant immediately, except for copies not at the Board on today's dates which will be provided on the Inspection date.

2. The Applicant will attend at the Responding Party, Mel-Ron Construction Limited, on Thursday, June 14, 2001 for the purpose of inspecting documents. The Applicant will attend at the Responding Party, Lardale Construction Inc.'s premises on Thursday, June 21, 2001. If further inspection is required Counsel for the Applicant will arrange with the appropriate Counsel for the Responding Party to facilitate and co-ordinate further inspection. If copies of documents are required they will be provided to the Applicant at a cost of $0.15 per copy.

3. If there are any issues arising out of the inspection of documents these issues will be raised first among Counsel, but if they cannot be dealt with among Counsel, they will be raised with the Board no later than July 13, 2001. If there are issues raised the party(s) opposite must provide its position on these issues by July 20, 2001. Any response must be provided by July 25, 2001.

4. The Applicant will pay to each of the Responding Parties on or before August 1, 2001 the sum of $1,000.00 with respect to copies already made, unless the Application is withdrawn prior to that date.

Dated this 12th day of June, 2001 in the City of Toronto.

("L. Kernohan") ("Joel L. Neville")

Lardale Applicant

Larry Kernohan

("Bud Kernohan")

Mel-Ron

Bud Kernohan

4The Carpenters paid the sum of $1,000 contemplated in paragraph 4 of the Minutes of Settlement, but they did so late, after August 1, 2001. They are therefore in breach of the Minutes of Settlement.

5The parties' written agreement was concluded on the basis of the mediation efforts of the Board Members of this panel. The parties accept that the Minutes of Settlement are unambiguous. There is therefore no need to rely upon extrinsic evidence to interpret its provisions. Arguably, the question of the consequences of the Carpenters' breach of the Minutes of Settlement can be determined purely on the wording of the Minutes. However, Lardale wishes the Board to have regard to the Carpenters' overall conduct of the case thus far, as well as representations made during the mediation process—which might not be reflected in the wording of the Minutes of Settlement—when it determines the consequences of the Carpenters' breach of the Minutes of Settlement. Lardale contends that the consequence which should flow from the Carpenters' breach of the Minutes of Settlement is dismissal of both applications.

6The Board has carefully considered the submissions of the parties. It has concluded that it will indeed recuse itself from the hearing of Lardale's request to have the applications dismissed on the basis of the Carpenters' breach of the Minutes of Settlement. A different panel of the Board should deal with that issue.

7The reasons for the decision of this panel of the Board to recuse itself are the following. The request by Lardale to have regard to representations made during the mediation process is of concern to the Board. Firstly, regardless of whether or not the representations made are accurately reflected in the Minutes of Settlement, the Board has serious doubts as to whether any evidence can be presented concerning those representations (given that the mediation was a privileged occasion, it resulted in an agreement and the agreement has no ambiguity). Secondly, the Board Members mediated the differences between the parties and aided them to conclude the Minutes of Settlement. In these circumstances, assuming (without finding) that evidence of the representations can be presented to the Board, it is not appropriate, in our view, for the Board Members to be involved in the hearing of that evidence, given their involvement.

8Accordingly, this panel of the Board will recuse itself from having to decide on the implications of the Carpenters' breach of the Minutes of Settlement. That question should be decided by a different panel of the Board.

9The next question is whether this panel should recuse itself altogether, for all purposes in respect of these applications. That is not necessary in our view. A possible outcome of the consideration of the Carpenters' breach by another panel is that the applications will be dismissed. That is what Lardale (and Mel-Ron) seeks. That would dispose of both matters. If, however, the panel considering that issue comes to the conclusion that the Carpenters' breach will not result in the dismissal of the applications, then there is no reason, in our view, why we should not continue to hear the applications. The advantage of this panel of the Board doing so is that we have already heard some evidence and it would be wasteful for the parties to have to start the matters afresh when that is not necessary.

10These matters are therefore referred to the Registrar to assign a different panel to hear the request by the employers that the applications be dismissed on account of the Carpenters' breach of the Minutes of Settlement. Depending upon the outcome of that hearing, this panel may yet be required to continue with the hearing of the applications.

"Christopher J. Albertyn"

for the Board