Labourers’ International Union of North America, Ontario Provincial District Council v. S.S.T. Contracting Ltd.
0009-01-R Labourers’ International Union of North America, Ontario Provincial District Council, Applicant v. S.S.T. Contracting Ltd., Responding Party v. Operative Plasterers’, Cement Masons’, Restoration Steeplejacks International Association of the United States and Canada, Union Local 598, Intervenor.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J.G. Knight and G. McMenemy.
DECISION OF THE BOARD; May 16, 2001
1The Board (differently constituted) by decision in this matter dated May 4, 2001 directed the responding party to provide payroll records and certain other documents and the intervenor to provide particulars of its allegations by no later than May 11, 2001. The Board also noted that any response to the particularized allegations must be delivered and filed by June 1, 2001 and listed the matter for hearing on June 7, 2001.
2Counsel for the intervenor, by letter to the Registrar dated May 14, 2001 seeks an adjournment of the hearing that had been scheduled for June 7 on the basis that Steve Zarich, the only full-time representative of the intervenor will be attending the convention of the Canadian Conference of the Operative Plasterers’, Cement Masons’, Restoration Steeplejacks International Association of the United States and Canada, Union Local 598 in British Columbia from June 7 to June 11, 2001. Counsel pointed out that Mr. Zarich holds the office of Secretary-Treasurer with the Canadian Conference and is therefore required to attend the convention. Counsel indicates that the consent of the applicant and responding party was sought and suggested to them that the matter could proceed later in June, and in particular on June 22 and 25, 2001. Counsel for the intervenor also states that “…today the applicant informed our office that under no circumstances will they consent to an adjournment.” The Board has also received submissions from a representative of the responding party related principally to the particulars filed by the intervenor, but in which that representative states: “…on behalf of the employer, we are eager to see this matter resolved in a timely manner and will be present at the OLRB scheduled hearing on June 7, 2001.”
3The Board fixes hearing dates based on its ability to schedule a panel of the Board to conduct a hearing, having regard to the need for expedition in labour relations proceedings. Once a hearing has been scheduled and the parties notified of the hearing date, the Board does not ordinarily adjourn a hearing unless all of the parties consent to the adjournment or unless there are compelling reasons to do so. Generally, compelling reasons for an adjournment are circumstances which are beyond the control of the party making the request and where to proceed would seriously prejudice such party. See President Motor Hotel, [1985] OLRB Rep. Sept. 1414; Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138; Nortec Air Conditioning Industries Ltd., [1988] OLRB Rep. Sept. 910. The Board’s practice with respect to adjournments was set out by the Board more than 30 years ago in Nick Masney Hotels Limited, [1968] OLRB Rep. Nov. 833 in which the Board wrote:
…the Board’s decision to deny the respondent’s request for an adjournment was based on the Board’s practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party’s case is unable to attend because of serious illness….
(Application for reconsideration dismissed; [1968] OLRB Rep. Dec. 961; [1968] OLRB Rep. Dec. 965; application for certiorari granted, 1969 CanLII 394 (ON HCJ), [1969] 2 O.R. 797 (H.C.); appeal allowed and Board decision upheld 1970 CanLII 478 (ON CA), [1970] 3 O.R. 461 (C.A.).) The convenience of counsel or a party is of secondary concern to the Board in matters of scheduling. (See Osgood Floor Coverings Limited, [1983] OLRB Rep. June 936; Industrial Hardwood Products (1996) Ltd., [1997] OLRB Rep. Sept/Oct. 949; Joe Portiss, [1983] OLRB Rep. Sept. 1554.)
4Mr. Zarich is, according to counsel, required to attend the convention in British Columbia commencing on June 7th. One can safely assume that the dates for the convention were fixed well before the Board issued its decision of May 4, 2001. Mr. Zarich is the business representative of the intervenor and is intimately involved in this matter, as is apparent from the particulars filed by the intervenor and the submissions filed by the respondent dated May 14, 2001. It does not appear from the material filed by counsel for the intervenor that someone else can act in Mr. Zarich’s place, either at the convention or at the hearing. Although Mr. Zarich could choose not to attend the convention, his responsibility as secretary-treasurer requires him to be there. The Board also recognizes that it would not be a simple matter to adjourn the convention to permit Mr. Zarich to attend the Board’s hearing. Finally, the Registrar has advised the Board that the Board can convene a hearing of this matter on June 25, 2001.
5The intervenor acted promptly in seeking the adjournment and has provided substantial reasons why an adjournment of the hearing is required. Although strictly speaking, the circumstances giving rise to the intervenor’s request are not beyond its control (it has the ability to adjourn the convention) the date of the convention and the attendance of Mr. Zarich at it are more than a matter of convenience. In our view, the situation faced by Mr. Zarich is analogous to the circumstances which the Board has accepted as compelling reasons to grant an adjournment. Furthermore, the Board is in a position to reschedule the hearing relatively soon after the date that had been originally scheduled for the hearing of this matter. Given the grounds for the adjournment established by the intervenor and the Board’s ability to reschedule the hearing less than three weeks later, the Board is satisfied that despite the opposition to the adjournment by the applicant and intervenor, the hearing scheduled for June 7, 2001 should be adjourned to June 25, 2001.
6Therefore, the hearing of this matter is adjourned from June 7, 2001 to June 25, 2001. The hearing will take place on June 25, 2001 at the time and place set out in paragraph 8 of the Board’s decision dated May 4, 2001. The time for filing responses, as set out in paragraph 7 of that decision, remains unchanged.
7This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board