1608-01-R; 1619-01-U Ontario Public Service Employees Union, Applicant v. Kingston, Frontenac, Lennox and Addington Community Care Access Centre and Providence Continuing Access Care Centre (St. Mary’s of the Lake Hospital location), Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; September 14, 2001
Board File No. 1608-01-R is an application under section 69 and/or subsection 1(4) of the Labour Relations Act, 1995, as amended (“the Act”). Board File No. 1619-01-R is an unfair labour practice complaint alleging various violations of the Act. Both were filed on September 5, 2001.
The applications seek production of certain documents from the responding parties. In each application, the applicant requests the Board’s permission to add facts and remedies after the respondents have complied with their respective disclosure requirements. In addition, the applicant requests (without providing reasons) that it be permitted an extension to disclose all relevant documentation, in addition to the materials already filed by the applicant, that it has in its possession. However, by letter dated September 13, 2001, counsel for the applicant advises the applicant has disclosed all documentary evidence in its possession, as well as the material facts on which is relies.
By letter dated September 11, 2001, counsel for the responding party, Providence Continuing Care Centre (St Mary’s of the Lake Hospital location), hereinafter referred to as “PCCC”, objects to the position taken by the applicant in respect of filing further facts and documents after the responses have been filed. Counsel for PCCC requests a direction from the Board requiring the applicant to produce and file all material facts and documents on which it intends to rely, an extension for the filing of PCCC’s response until ten days after the additional facts and documents are produced by the applicant, and an order prohibiting the applicant from relying on any facts or materials not disclosed in its application or supporting materials. Counsel for Kingston, Frontenac, Lennox and Addington Community Care Access Centre joined in the requests of counsel for PCCC, through correspondence dated September 13, 2001.
The Board’s Rules of Procedure provide the necessary guidance in dealing with these preliminary matters. Rules 24, 25, 26, 28, 29, 30 deal generally with applications, responses, and the materials that are required to be filed in respect of each. Rules 85 and 86 apply specifically to applications and responses in section 69 and/or subsection 1(4) matters, and they provide as follows:
An application under section 69 and/or section 1(4) of the Act must include a list of all documents upon which the applicant intends to rely and copies of those documents, if the applicant has them.
A responding party in an application under section 69 and/or subsection 1(4) of the Act must file with the Board and deliver to all parties a list of all relevant documents and copies of those documents not later than ten (10) days after the response was due to be filed.
As is readily apparent, the applicant in a section 69 and/or subsection 1(4) matter must file copies of all documents within its possession or control that it relies upon. Implicit in, though not entirely clear from, the applicant’s request for an extension of time (as set out in the application itself), is that it had certain documents, but had not yet disclosed them. Counsel’s letter of September 13, 2001 appears to confirm, however, that the applicant has no further documents to disclose.
Equally apparent from a reading of Rule 86 is that the responding parties must provide copies of all relevant documents to the applicant not later than 10 days after the response is due to be filed. The applicant has, in Schedule A of the application, put the responding parties on notice with respect to certain documents in which it is interested, and which it contends are relevant. If those documents are relevant and within the responding parties’ possession or control, they must be disclosed within 10 days following the due date for the response. It may well be that the applicant will be satisfied with the scope of the responding parties’ disclosure, but if not, no doubt it will raise the issue with counsel for the responding parties, and, if necessary, with the Board.
With respect to counsel for PCCC’s request that the Board make an order prohibiting the applicant from relying on any facts or materials not disclosed in its application or supporting materials, the Board declines to do so at this time. It may be that, following the exchange of materials contemplated by the Board’s Rules of Procedure, the parties learn of new facts and materials of which they were not previously aware. Any one of them may move to amend their pleadings as a result, and the Board might be called upon to determine the appropriateness of such a motion. For these reasons, the Board is not prepared at this stage to issue the order requested by counsel for PCCC.
Having regard to counsel for the applicant’s letter of September 13, 2001 in which she advises there are no other facts or documents within the applicant’s knowledge or possession respectively, and in which she expresses no objection to an additional period for the filing and delivery of the responses, the Board hereby directs that the responses be filed and delivered on or before October 3, 2001.
“Patrick Kelly”
for the Board