Sheet Metal Workers’ International Association, Local 30 v. Atlantic Hvac Systems Ltd., 2001 CanLII 7486

0942-01-G Sheet Metal Workers’ International Association, Local 30, Applicant v. Atlantic Hvac Systems Ltd., Responding Party.

BEFORE: Laura Trachuk, Vice-Chair.

DECISION OF THE BOARD; July 9, 2001

[1]. 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 June 26, 2001. The accompanying Certificate of Delivery (Form A-86) states that the responding party was served on June 25, 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 facsimile transmission and purolator courier on June 25, 2001. 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, 905-760-2626 on June 27, 2001 at 14:32.

[2]. 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.

[3]. 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.

[4]. 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.

[5]. 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.)

[6]. 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:

1. A copy of the application

2. A copy of the Notice of grievance referral.

3. 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.

4. A blank response form for the responding party’s use.

5. 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).

[7]. 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.

[8]. 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.

[9]. 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:

160. 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.

161. 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.

162. 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.

[10]. 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 party is bound by the collective agreement between the Ontario Sheet Metal and Air Handling Group and Sheet Metal Workers’ International Association and Ontario Sheet Metal Workers’ Conference;

(b) the responding party has violated the collective agreement and in particular Articles 34, 35 and Clause 18 of Appendix K by failing to remit various contributions and deductions on behalf of the applicant’s members for the months of February, March, April and May 2001.

(c) the applicant is entitled to damages in the amount of $12,262.08 for the outstanding contributions.

(d) the applicant has incurred $214.00 in costs in connection with the filing of this matter.

[11]. In view of the Board’s findings in paragraph 10 above, the Board therefore:

(a) declares that the responding party is bound by the collective agreement between the Ontario Sheet Metal and Air Handling Group and Sheet Metal Workers’ International Association and Ontario Sheet Metal Workers’ Conference;

(b) declares that the responding party has violated the collective agreement an in particular Articles 34, 35 and Clause 18 of Appendix K by failing to remit various contributions and deductions on behalf of the applicant’s members for the months of February, March, April and May 2001.

(c) orders the responding party to pay to the applicant on its own behalf and on behalf of its members $12,262.08 for the outstanding remittances forthwith.

(d) orders the responding party to pay the amount of $214.00 to the applicant pursuant to section 133(13) of the Act.

[12]. The applicant has also asked the Board to order the responding party to pay specified amounts for penalties and liquidated damages. Clause 18 of Appendix K provides for liquidated damages on outstanding contributions of 10 per cent for the first month and five per cent per month thereafter including the unpaid liquidated damages. However Article 33 in the main body of the agreement provides that “Notwithstanding Clause 18 of all Appendices the following provisions shall apply…”. Article 33.4 then provides that a penalty of 20 per cent after four weeks be paid by a delinquent employer for any outstanding contributions. That suggests that Article 33 prevails over Clause 18 of Appendix K. However, the applicant asks the Board to order both the liquidated damages under Clause 18 of Appendix K and the penalty referred to in Article 33. The Board is not prepared to make those orders until it has the opportunity to consider submissions with respect to the relationship of the sections referred to in the grievance referral. The Board hereby directs the applicant to file submissions with respect to the interpretation of the collective agreement provisions with respect to liquidated damages and penalties cited in its grievance referral on or before July 16, 2001. After considering the submissions the Board will decide whether to issue a further order.

[13]. The hearing scheduled for July 13, 2001 is hereby cancelled.

“Laura Trachuk”

for the Board