1254-01-R International Brotherhood of Electrical Workers, Local 353, Applicant v. Canber Electric Inc., Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited, Responding Parties.
0587-01-G International Brotherhood of Electrical Workers, Local 353, Applicant v. Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited, Responding Parties.
BEFORE: Inge M. Stamp, Vice-Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; November 13, 2001
- Further to the Board’s decision in these matters dated October 30, 2001 a Labour Relations Officer posted notice to employees affected by the application under sections 1(4)/69 of the Labour Relations Act, 1995 (the “Act”). To date no submissions have been received by the Board. In the absence of any response by either the responding parties or any employees of the responding parties, the Board will determine these matters based on the materials filed pursuant to the Board’s Rules of Procedure.
Board File No. 1254-01-R
This is an application under sections 69 and 1(4) of the Act requesting that the Board find the responding parties are one employer for the purposes of the Act and/or a sale of a business took place by Canber Electric Inc. to the other named responding parties. The application was made on July 26, 2001. The accompanying Certificate of Delivery (Form A-24) stated that the responding parties were served on July 24, 2001 by delivering a copy of the necessary documents required by Rule 25 of the Board’s Rules of Procedure to the responding parties by no later than July 25, 2001 at 5:00 p.m. The Registrar faxed a Confirmation of Filing on July 30, 2001 at 15:36.
The applicant requested the Board make its decision based on the materials filed without the necessity of holding a hearing. Rule 41 provides:
If a party receiving notice of an application does not file a response in the way required by these Rules, he or she may be deemed to have accepted all of the facts stated in the application, and the Board may cancel a hearing or consultation, if one is scheduled, and decide the case upon the material before it without further notice.
The Notice to the Responding Party and/or Affected Party of Application Under Section 69 and/or Subsection 1(4) of the Act (Sale of Business and/or Related Employer) (Form C-9) delivered to the responding parties states in paragraph 7:
The Board's Rules of Procedure describe how a response must be filed with the Board, what information must be provided and the time limits that apply.
If you do not file your response and other required documentation in the way required by the Board's rules, the Board may not process your response and documents, and may decide the application without further notice to you. Furthermore, you may be deemed to have accepted all the facts stated in the application.
Please consult the Board's Rules of Procedure before completing your response. Copies of the Board's Rules may be obtained from the Board's offices located on the 2nd floor at 505 University Avenue, Toronto, Ontario (Tel. (416) 326‑7500).
Canber Electric Inc was incorporated by Articles of Incorporation on February 21, 1977. The Board notes that paragraph 1 of Schedule “A” incorrectly refers to the date of incorporation as being “February 21, 1997”, however the Articles of Incorporation filed with the application show the date to be February 21, 1977. This is obviously a clerical error and the Board finds that February 21, 1977 is the date of incorporation for Canber Electric Inc.
The applicant has held bargaining rights to represent electricians and electrical apprentices employed by Canber Electric Inc. since February 17, 1977, pursuant to a voluntary recognition agreement with that company
Canber Contracting Inc. was incorporated by Articles of Incorporation on February 28, 1978.
Canber Electrical Consulting Inc. was incorporated by Articles of Incorporation on August 28, 1980.
Canber Electric Inc., Canber Contracting Inc. and Canber Group Limited’s Articles of Incorporation show the same registered office address – 271 Glidden Road, Brampton, Ontario. David Roy Osmond is shown as the sole administrator for these three entities.
Canber Electric Consulting Inc.’s Corporation Profile Report names Robert G. Osmond as its sole administrator. The registered office address for this company is 1516 Glen Rutley Circle, Mississauga which is the home address of Robert G. Osmond.
Robert G. Osmond is not a journeyman electrician or an apprentice. He is an accountant and was the office manager of Canber Electric Inc.
The responding parties used the corporate names interchangeably with suppliers and when registering vehicles used by the responding parties.
After declaring personal bankruptcy in March 2001, David Roy Osmond laid off its one electrician, John Trudeau and indicated that Canber Electric Inc. was now inactive and he, David Roy Osmond, was becoming a consultant.
The applicant filed a grievance with respect to John Trudeau asserting that the responding party, Canber Electric Inc., had underreported the number of hours worked by Mr. Trudeau for a number of years (Board File No. 0587-01-G). David Roy Osmond responded to the grievance by letter dated May 21, 2001, advising the applicant that Canber Electric Inc. and “other companies” were inactive.
The suppliers continue to have an account with Canber Electrical Consulting Inc. One person, who is not a member of the applicant, has been observed doing bargaining unit work under the direction of David Roy Osmond using one of the service vehicles formerly driven by Trudeau for Canber Electric Inc.
The business of Canber Electric Inc. is now being performed under David Roy Osmond’s control and direction with Canber Electrical Consulting Inc.
The Board is satisfied that the applicant has established both a legal and factual basis that the responding parties are one employer having regard to the provisions of section 1(4) of the Act. Therefore the Board hereby declares that Canber Electric Inc., Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited are one employer for the purposes of the Act as of the date of incorporation of each of the named responding parties.
The Board further finds that Canber Electric Inc., Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited are bound to the principal agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.
The applicant indicated if the Board found that the responding parties were one employer for the purposes of the Act it would not pursue the section 69 application. That application is hereby dismissed.
The hearing into this matter scheduled for November 15, 2001 is hereby cancelled.
Board File No. 0587-01-G
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 referral was made on May 17, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on May 17, 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 Courier on May 17, 2001 who assured the applicant that they would be delivered on Friday, May 18, 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, 905 281-9924 on May 22, 2001 at 10:23 a.m.
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). The Board’s Rules of Procedure explicitly stipulate the consequences of failing to comply with the filing requirements contained in the Rules.
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.
Accordingly, we shall proceed on the basis that all of the allegations of fact set out in the referral to the Board and in the grievance material have been accepted by the responding party and therefore can be relied on by the Board in making a determination of this matter. The Board therefore finds that:
(a) The responding parties are bound to the Principal Agreement between the Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario and the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario and have violated the agreement by underreporting the number of hours worked by John Trudeau, the grievor, when making remittances to the various trust funds on his behalf. The responding parties have violated articles 906 and section 10 of the Master Portion and section 21 clauses 900E.1, 900E.4, 1000 and 1002 of the applicant’s appendix.
- In view of the Board’s findings in paragraph 10 above, the Board therefore:
(a) declares Canber Electric Inc., Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited are bound to the Principal Agreement and have violated that agreement by underreporting the number of hours worked by John Trudeau, the grievor, when making remittances to the various trust funds on his behalf. The responding parties have violated articles 906 and section 10 of the Master Portion and section 21 clauses 900E.1, 900E.4, 1000 and 1002 of the applicant’s appendix;
(b) orders Canber Electric Inc., Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited to pay forthwith damages of $30,000.00 to the applicant on the grievor’s behalf for distribution to the various trust funds;
(c) orders Canber Electric Inc., Canber Electrical Consulting Inc., Canber Contracting Inc. and The Canber Group Limited to pay the amount of $214.00 to the applicant pursuant to section 133(13) of the Act.
- The hearing scheduled for November 15, 2001 is hereby cancelled.
“Inge M. Stamp”
for the Board