Sheet Metal Workers’ International Association Local Union 285 v. Custom Gas Heating Limited
1527-01-R Sheet Metal Workers’ International Association Local Union 285, Applicant v. Custom Gas Heating Limited o/a National Heating and Air Conditioning Sales, Morriston Mechanical Consultants & Technicians, and Marvelle Mechanical Inc., Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; September 28, 2001
1The applicant, by letter from its counsel dated September 20, 2001, in this proceeding under sections 69 and 1(4) of the Labour Relations Act, 1995, S.O. 1995, c. 1, as amended (the “Act”) for declaratory and other relief requests an order confirming that its application was properly delivered to Custom Gas Heating Limited o/a National Heating & Air Conditioning Sales (“National”). Counsel for the applicant provided a copy of that letter to counsel for two of the three responding parties. The Registrar provided a copy of the letter to the responding parties and instructed that their comments, if any, with respect to that letter from counsel for the applicant were to be received by the Registrar on or before September 26, 2001. There have been no comments filed by any of the responding parties.
2The Alternate Chair of the Board authorized me to determine this matter pursuant to section 110(14)(a) of the Act.
3The applicant made this request after having received a response filed by Marvelle Mechanical Inc. (“Marvelle”) and Morriston Mechanical Consultants and Technicians (“Morriston”) in which they assert that the application had not been properly served on National. The applicant in its application alleged, among other things, that it holds bargaining rights for National by virtue of a decision and certificate issued by the Board on July 30, 1996 and also claims that it holds bargaining rights for Morriston by virtue of a voluntary recognition agreement dated February 24, 1998 executed by Morriston.
4Marvelle and Morriston filed a single response and are represented by the same counsel. No response has been filed by Custom. The applicant, Marvelle and Morriston agree that National is bankrupt. The applicant’s counsel, in his letter to the Board of September 20, 2001 advises that upon learning of the bankruptcy of National, he contacted the trustee in bankruptcy and was advised by the trustee to provide notice of the application to the receiver. The applicant submits in the alternative that it had effected service on National because John Ciardulli, one of the principals of Marvelle was also a principal of National, and the application was received by Mr. Ciardulli.
5In our view, it is not necessary or appropriate at this time to make the determination the applicant requests. The applicant asserts it has delivered the application to National in at least two different ways. It is not apparent that the applicant is seeking any relief from National in this application or that this application would prejudice National (or its creditors, as it is bankrupt) if it proceeds. The other two responding parties in their response have raised the objection with respect to the adequacy of service on National. Even assuming that they have standing to object to the manner in which delivery of the application was effected on National, a proposition with which we have considerable doubt, it is clear (unless the responding parties take issue with the assertion of counsel for the applicant that he contacted the trustee, was advised by the trustee to deliver the application to the receiver and did so) that the receiver, the trustee and one of the former principals of National are all aware of this proceeding. If delivery of the application to National remains a matter in dispute and should a responding party wish to raise that objection to having the Board proceed with this application when the hearing of this application commences, the panel of the Board assigned to hear this application can determine whether the objection has any merit including the standing of the party or parties raising the objection.
6The Board therefore declines to issue an order confirming that the application was properly delivered to National as requested by the applicant. The Board is not dismissing the applicant’s request; rather it is simply remitting the determination of the applicant’s request to the panel of the Board assigned to hear this application.
7This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board