0556-01-R International Brotherhood of Electrical Workers, Local 586, Applicant v. Urtech Electric Inc., 3027317 Canada Inc./Bruce Mackie Electrical Contractors Ltd. c.o.b. as Urtech Electric a Division of 3027317 Canada Inc., 1221981 Ontario Limited carrying on business as S & S Electric Orleans Communications Inc., Responding Parties.
0557-01-G International Brotherhood of Electrical Workers, Local 586, Applicant v. 3027317 Canada Inc./Bruce Mackie Electrical Contractors Ltd. c.o.b. as Urtech Electric a Division of 3027317 Canada Inc., Urtech Electric Inc., 1221981 Ontario Limited carrying on business as S & S Electric Orleans Communications Inc., Responding Parties.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; December 27, 2001
By decision dated December 13, 2001 the Board (differently constituted) directed the parties to file submissions in response to the applicant’s request “that the Board deem Urtech Electric Inc. pursuant to Rule 41 of the Board’s Rules of Procedure to have accepted all of the facts stated in both Grievance Referral and the Section 69/1(4) Application, as Urtech had failed to respond to either proceeding”. The Board (again differently constituted) by decision dated December 14, 2001 directed Urtech Electric Inc. to make submissions with respect to the applicant’s request for an order for production of documents. The Board (as constituted when it issued its December 13, 2001 decision) by decision dated December 20, 2001 determined that it would be appropriate to defer consideration of the applicant’s request for Urtech Electric Inc. to be deemed to accept facts to the panel assigned to hear these matters on January 2 and 3, 2002. There has been no decision issued with respect to the request for production of documents that was the subject of the Board’s December 14th decision.
Counsel for Urtech Electric Inc. by letter to the Board dated December 21, 2001 advises that he was retained as of December 20, 2001 in connection with these matters. Counsel seeks an adjournment of the hearing presently scheduled for January 2 and 3, 2002 so that a proper response can be prepared. He also seeks to have the Board exercise its discretion under Rule 44 of the Board’s Rules to permit the late filing of a response. Finally, he objects to the request of the applicant to have the Board deem Urtech Electric Inc. to have accepted all of the facts alleged in the applications against it.
With respect to the last item requested by counsel for Urtech Electric Inc., the Board has already determined that that issue will be dealt with at the hearing. As for the adjournment and the extension of time to file a response, counsel for Urtech Electric Inc. asserts that his client “was not provided with any documentation relating to the above-noted matter until December 7, 2001.” He adds that Mr. Thibault, who I assume is a principal of Urtech Electric Inc., did not personally receive the relevant documents until December 10, 2001. Counsel also asserts that in reviewing the documentation provided by his client he discovered that all the information relating to the grievance referral (Board File No. 0557-01-G) was missing from the package of documents he received.
It is unclear from the material filed just how the necessary documents were delivered by the applicant to Urtech Electric Inc. since there are allegations that Urtech Electric Inc. ceased doing business in January 1996 and was dissolved pursuant to the Canada Business Corporations Act, R.S.C. 1985, c. C-44 as of March 6, 2000. There appears from the file material to be some confusion over the correct address of Urtech Electric Inc. and some of the other responding parties. It seems that counsel for Urtech Electric Inc. is suggesting that the requisite documents were not delivered to his client. It appears from the certificates of delivery appended to the applications filed in May 2001 that the documents in both applications were delivered to Urtech Electric Inc. to the attention of Bruce Mackie by Priority Courier on May 16, 2001.
It appears that the applicant, by letter to the Board dated August 3, 2001 sought to amend the proceedings by, among other things, providing a different address and different names for the individuals responsible for Urtech Electric Inc. The Board (differently constituted) by decision dated October 12, 2001 granted “leave to the applicant to amend its pleadings to include those submissions contained in its correspondence dated August 3, 2001.” That decision did not comment on whether the applications had been properly delivered to the responding parties prior to being filed with the Board, but did extend the terminal date in these matters to November 30, 2001. It also appears from a letter dated December 18, 2001 from counsel for the applicant that it has learned of yet another different address for Urtech Electric Inc. Counsel for the applicant indicates that all of the requisite material in these two matters was delivered to those new addresses and individuals responsible for Urtech Electric Inc. in August and early December 2001.
Rule 25 of the Board’s Rules requires an applicant to deliver its application to the responding party before or at the same time as the application is filed with the Board. Rule 155 (applicable to grievance referrals under section 133 of the Act) imposes a similar obligation. Section 133(2) of the Act requires that a grievance may be referred to the Board at any time after it has been delivered to the responding party. The failure to deliver the application or grievance referral or grievance to the responding parties before the application or grievance referral is filed with the Board might well permit an affected party to move for dismissal of the application or referral. It is important, as well, to emphasize that Rule 23 provides that the date of delivery of a document to a party is the date that document is actually received by that party or its authorized representative.
Counsel for Urtech Electric Inc. has raised concerns about his client having received all of the requisite material. I note, in that regard, that the Board has received several letters from a Robert Beaudry asserting that he sold his interest in Urtech Electric Inc. almost 10 years ago and indicates that he has had no interest or involvement with that company since it had closed. It appears that the applicant continues to treat Mr. Beaudry as a principal of Urtech Electric Inc. since it asserts that Mr. Beaudry’s address (225 Chem. Eardley, Alymer, Que.) remains an address for Urtech Electric Inc. Whether delivery to and receipt by Mr. Beaudry constitutes delivery to Urtech Electric Inc. may well be one of the first issues that will have to be determined at the hearing in this proceeding. If Urtech Electric Inc. or an authorized representative of Urtech Electric Inc. did not receive the requisite material before the applications were filed with the Board in May 2001, the applicant may well have some difficulty continuing with these matters if objections are raised by a responding party. While the Board may, for example, waive strict compliance with the Boards’ Rules with respect to the delivery of the referral in Board File No. 0557-01-G and the application in Board File No. 0556-01-R, the failure to deliver a document required by the Act within the time stipulated by the Act cannot by waived or ignored by the Board. See Associated Paving Ltd., [1998] OLRB Rep. Nov./Dec. 903; Sarnia Construction Association, [1999] OLRB Rep. Sept./Oct. 884 at 890-92; application for reconsideration dismissed [1999] OLRB Rep. Nov./Dec. 1091 at 1094-95; Professional Masonry Service, unreported decision dated November 10, 1999, Board File No. 2226-99-R, Q.L. cite [1999] OLRD No. 3475; merits decision [2000] OLRB Rep. Jan./Feb. 106; City of Kawartha Lakes Transit, unreported decision dated February 21, 2001, Board File No. 3368-00-R, Q.L. cite [2001] OLRD No. 678; Tony Sica Masonry, unreported decision dated February 25, 2000, Board File No. 3300-99-G, Q.L. cite [2000] OLRD No. 312. In Ron Pleau Electric Ltd., [1983] OLRB Rep. March 447 the Board wrote at page 448:
It is clear from the wording of section 124 [now 133] that if a trade union is of the view that an employer has violated the terms of a collective agreement, and the matter cannot be resolved informally, then its next step is to deliver a written grievance to the employer setting out the alleged violation. Once the grievance has been delivered, then either the union or the employer may elect to refer the grievance to the Board for a determination pursuant to section 124 [now 133] of the Act rather than have the matter proceed to arbitration under the procedures set forth in the collective agreement. If the grievance is referred to the Board, the Board acts in the same manner as does an arbitration board. That is, the Board assesses the validity of the allegations set forth in the grievance. Having regard to the requirements of section 124, the Board advised the parties that since no grievance had been filed with the respondents, or placed before the Board, the proceedings were clearly deficient.
A similar view was expressed by the Board in Tony Sica Masonry, supra, where the Board wrote:
Section 133 (2) of the Act provides that the referral of a grievance to the Board “… may be made at any time after the written grievance has been delivered to the other party.” Obviously, the grievance that is the subject of the referral must be the written grievance that was delivered prior to the referral being made to the Board under section 133 of the Act.
As there is no evidence before the Board that a written grievance to which this application relates was ever delivered to the responding parties or any of them prior to this application being filed with the Board, this application is dismissed.
In this case, it is by no means certain (given the confusion over the existence and correct address of Urtech Electric Inc.) that the actual grievance dated May 2, 2001 was delivered to Urtech Electric Inc. Despite the suggestion by counsel for Urtech Electric Inc. that the requisite material was not delivered to Urtech Electric Inc. in the manner and at the time certified by the applicant in the certificates of delivery filed in this matter, I am not prepared at this stage of the proceeding either to extend the time for filing a response or adjourn the hearing. There are obviously some significant factual differences between the parties. If the material was not delivered to, that is, received by Urtech Electric Inc. until sometime in December (or at all, in respect of Board File No. 0557-01-G) it is by no means certain that the time for filing responses has expired.
With respect to the request that the hearing be adjourned, I am not satisfied, in the absence of consent from the other parties, to adjourn the hearing scheduled for January 2 and 3, 2002 in these matters. It seems to me that there are a number of issues that might be addressed that will not require counsel for Urtech Electric Inc. to review all of the documents and the history of this proceeding. For example, should counsel for Urtech Electric Inc., or any of the other responding parties wish to pursue the issue of delivery of the application material to the responding parties or any of them, then that might well be one of the first items that the applicant and the responding parties will need to address. That is a narrow, discrete issue that should not require extensive preparation by counsel for Urtech Electric Inc. Furthermore, my decision dismissing the request for an adjournment is without prejudice to counsel renewing that request when the hearing does convene.
It seems to me that there are a number of preliminary issues that must be considered by the Board when the hearing in this proceeding convenes, including the request by Urtech Electric Inc. for an adjournment of the hearing and an extension of time to file a response, whether the application material in both of these proceedings and the original grievance were delivered in accordance with the Act and the Board’s Rules and the consequences, if any, that might result if they were not, the production issues raised by the applicant that was the subject of the Board’s decision in these matters dated December 14, 2001 and the request by the applicant that the facts alleged in its application be deemed to have been accepted Urtech Electric Inc. There may well be other issues that the parties might wish to address when the hearing convenes on January 2, 2002.
These matters are to proceed as scheduled before the Board on January 2 and 3, 2002, subject to the panel of the Board assigned to hear them determining whether to grant the adjournment request by Urtech Electric Inc., should it renew its request when the hearing convenes.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board