2602-00-OH Bancroft DeSouza, Applicant v. Graphic Printing Roller Ltd., Innovative Roller Technology Inc., Brian Venis, Jim Martin and Sana Ahari, Responding Parties.
BEFORE: Harry Freedman, Vice-Chair
APPEARANCES: Winston G. Mattis and Bancroft DeSouza for the applicant; Peter Straszynski, Brian Venis and Jim Martin for the responding parties.
DECISION OF THE BOARD; April 27, 2001
1This is an application for relief under section 50 of the Occupational Health and Safety Act, R. S. O. 1990, c. 0. 1 (the “Act”) alleging, among other things, that the responding parties had engaged in reprisals against the applicant by reason of his seeking enforcement of the Act. Those alleged reprisals included a failure to grant wage increases and interference with the applicant seeking election to the joint health and safety committee at the responding parties’ workplace. At the time this application was filed in November 2000, the applicant was an employee of one of the two responding parties. When this matter came before me for hearing on April 26, 2001 the applicant had been discharged from his employment.
2Counsel for the applicant sought leave to amend the application to include allegations relating to the applicant’s discharge from employment and remedial relief in respect of that discharge. The applicant had been dismissed from employment in January 2001. Counsel also advised that there had been an organizing campaign among the responding parties’ employees and that the United Steelworkers of America had filed an application under section 96 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as am. (Board File No. 3260-00-U) that is currently pending before the Board relating to the applicant’s termination of employment. (Counsel for the responding parties indicated that the United Steelworkers of America had filed an application for certification but had lost the representation vote that had taken place in January 2001.) Counsel for the applicant suggested that this application and the application in Board File No. 3260-00-U be heard together or be consolidated since both proceedings, if the amendment requested is permitted, would relate to the applicant’s termination of employment.
3Counsel for the responding parties indicated, after taking instructions, that although the applicant had not provided any notice that he would be seeking to amend his application and had delayed seeking relief in this application in respect of his discharge from employment until the day of hearing before me, the responding parties would not object to an amendment to this application to include allegations relating to the termination of the applicant’s employment. Counsel for the responding parties also pointed out that before the Board could consolidate this application with the application in Board File No. 3260-00-U, the applicant in that proceeding (the United Steelworkers of America) must have notice and an opportunity to make submissions about whether this application and its application should be consolidated or heard together.
4Counsel for the applicant indicated that he would need some time to prepare particulars and requested that this hearing be adjourned so that he could file those additional allegations. Counsel for the responding parties suggested that although I had indicated that I would not bind the panel of the Board scheduled to hear this matter when it comes back for hearing, I should, at the very least, indicate that the next day of hearing (which would include the first day of hearing in Board File No. 3260-00-U) should deal with the preliminary and procedural issues only.
5In view of the responding parties’ consent to having the applicant amend this application (without prejudice to their right to raise preliminary objections based on delay with respect to all of the allegations and the remedies requested or any other defence they may have to this application proceeding further or on the merits) the Board directs the applicant to deliver to the responding parties and to the Board on or before May 10, 2001 the allegations he wishes to make and the remedies he seeks arising from his termination of employment with the responding parties in January, 2001. The Board directs the responding parties to deliver to the applicant and to the Board on or before May 24, 2001 their response to those additional allegations and remedies.
6I am also satisfied that this matter and the application in Board File No. 3260-00-U should be listed for an initial hearing together on a date to be fixed by the Registrar in consultation with counsel in both this application and the application in Board File No. 3260-00-U. Whether these two matters will be heard together, consolidated or heard one after another is a matter that the panel assigned to these two matters can determine after receiving the parties’ submissions on that procedural issue at that time. In addition, the responding parties wish to raise preliminary matters relating to whether the applicant has established a prima facie case in its application and whether this application should be dismissed on the grounds of delay or on other grounds. There may be other preliminary objections that the responding parties may wish to raise in relation to this application.
7The responding parties asserted that the actual employer of the applicant at the times relevant to this proceeding was Innovative Roller Technology Inc. Counsel submitted that although the two corporate responding parties shared the same premises and that there was some common management, the employees of the two companies did not intermingle and were dealt with as discrete employee groups, each with their own payrolls and work assignments. Whether the identity of the employer is determined as a preliminary matter or during the course of these proceedings is another issue that is left to the panel of the Board assigned to this application.
8Therefore, this matter is referred to the Registrar to be listed for one day of hearing together with the application in Board File No. 3260-00-U in consultation with counsel. The purpose of the hearing on that day is to hear the submissions of the parties as to how these two matters will be heard by the Board and any other procedural or preliminary issues that the parties might wish to raise at that time. The Board also wishes to make clear that listing the application in Board File No. 3260-00-U for hearing together with this application does not in any way preclude the parties in Board File No. 3260-00-U reaching a resolution of only that matter prior to the scheduled hearing.
9The Registrar is directed to provide a copy of this decision to the parties in the application in Board File No. 3260-00-U.
10This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board