1078-01-U Labourers’ International Union of North America, Ontario Provincial District Council on its own behalf and on behalf of its affiliated Local Unions 183, 247, 493, 506, 527, 607, 625, 837, 1036, 1059, 1081 and 1089, Applicant v. Labourers’ Employer Bargaining Agency, Construction Labour Relations Association of Ontario and Sudbury Construction Association, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair, and Board Members J. G. Knight and A. Haward.
DECISION OF THE BOARD; December 7, 2001
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1, as am. brought by a constituent member of the Labourers’ Employee Bargaining Agency, alleging that the responding parties violated sections 17, 45 and 70 of the Act.
2The first day of hearing in this matter is scheduled for Wednesday, December 19, 2001. Counsel for the applicant, by letter to the Board dated December 5, 2001, requests that the Board order the responding parties to provide a statement of all of the material facts upon which they intend to rely at the hearing of this matter. Counsel for the applicant also advises the Board that he wrote counsel for the responding parties on that day to advise that he was asking the Board to make that order as well as requesting production of a number of documents. Counsel for the applicant indicates in both his letter to the Board and to counsel for the responding parties that he intends to raise as a preliminary matter at the hearing the responding parties’ failure to plead material facts as an alternative to the allegations made by the applicant despite having denied most of the facts alleged by the applicant. He also submits that the documents he has requested from the responding parties are at the very least arguably relevant to the issues raised in the application and that if such documents are not produced, that matter will also be raised at the hearing.
3It appears that counsel for the responding parties served the applicant and other affected parties with their response to this application on July 23, 2001. The response was filed with the Board on that same day. The Board issued its notice of hearing in this matter on September 13, 2001. It appears from the material before us that the first time the applicant sought production and more facts from the responding parties was when its counsel sent both the Board and counsel for the responding parties his letter of December 5th.
4Rules 28 through 31 apply to responses. Rule 30(d) provides:
Any response filed with the Board must include the following details:
d) where the responding party relies on a version of the facts different from the applicant's, a detailed statement of all material facts on which the responding party relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly;
Rule 42 sets out the consequences that may result should a responding party (or an applicant) not provide the facts on which they rely in the material they file with the Board. Rule 42 provides:
No person will be allowed to present evidence or make any representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.
Finally, with respect to document disclosure, Rule 36 is applicable. Rule 36 provides:
Each party must file with the Board not later than ten (10) days before the first date set for hearing or consultation three (3) copies of all documents upon which it will be relying in the case (for the use of the panel). At the same time, each party must deliver copies of those documents to each of the other parties.
Since the hearing is scheduled for December 19th both the applicant and the responding parties ought to have filed sufficient copies of all of the documents upon which they intend to rely at the hearing of this matter before now since 10 days before December 19th (not including Saturdays and Sundays—see rule 1(e)) is December 5th.
5The applicant requested on December 5, 2001 that the Board order the responding parties to provide all material facts upon which they intend to rely at the hearing of this matter. That request is dismissed. The obligation on the responding parties to set out prior to the hearing the material facts on which they intend to rely is found in the Board’s Rules of Procedure. The Board cannot possibly know before the hearing what facts the responding parties may wish to prove through evidence. It is entirely possible that the responding parties may not want to adduce any evidence and may well be content to deal with the issues in this case through the witnesses called by the applicant. The applicant may, if it wishes to do so, raise the matter of the responding parties’ alleged failure to comply with the Board’s Rules at an appropriate time during the course of the hearing. Should the applicant do so, then that will be another issue for the panel of the Board assigned to hear this matter to determine.
6We note that the applicant did not seek a pre-hearing production order. Rather counsel for the applicant in his letter to counsel for the responding parties, indicated that he would be prepared to “receive copies of these documents and records on the date of the hearing provided that I have an opportunity to review the documentation with my client and, if necessary, an opportunity to review the documentation with your office if clarification or further documentation is required.” While it will be up to the panel of the Board assigned to hear this matter to determine how it will proceed on December 19th, both parties should be prepared to start the hearing on that day rather than expect to use that scheduled day of hearing to engage in an exchange and review of documents.
7This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board