Elizabeth Balanyk v. Ontario Nurses' Association
[1987] OLRB Rep. September 1121
2544-86-U; 3504-86-U Elizabeth Balanyk, Complainant v. Ontario Nurses' Association, Respondent v. Greater Niagara General Hospital, Intervener; Elizabeth Balanyk, Complainant, The Greater Niagara General Hospital, Ontario Nurses' Association, Patricia Stuart, Marianne Orcutt, Al Weier and Liz Woods, Respondent
BEFORE: Harry Freedman, Vice-Chair and Board Members L. C. Collins and I. F. Davidson.
APPEARANCES: William S. Challis, Lynn Harper and Elizabeth Balanyk for the complainant; Donald F. O. Hersey, Q. C., Jill Welch, Felicity D. Briggs and Liz Woods for the Ontario Nurses' Association, Liz Woods and Marianne Orcutt; Louisa Davie, Al Weier, Mary Grady and Pat Stuart for the Greater Niagara General Hospital, Pat Stuart and Al Weier.
DECISION OF THE BOARD; September 11, 1987
1These are two complaints filed pursuant to section 89 of the Labour Relations Act. The complaint in Board File No. 2544-86-U alleges that the respondent trade union violated section 68 of the Labour Relations Act. Certain individuals were originally named as respondents in that complaint, but by decision dated April 21, 1987, the Board, differently constituted, noted the withdrawal of that complaint against those individuals. The complaint in Board File No. 3504-86-U alleges that the named respondents violated sections 64, 66 and 70 of the Act. These two complaints were listed for hearing together before this panel of the Board.
2When the hearing convened, the Board entertained brief submissions from counsel for the complainant with respect to whether the Board should rule, as a preliminary matter, on whether it was a court of competent jurisdiction within the meaning of section 24 of the Canadian Charter of Rights and Freedoms. The Board did not deal with that motion as a preliminary matter.
3The Board then received argument on a motion made in respect of the complaint in Board File No. 3504-86-U by the counsel for all of the respondents in that complaint. They moved for the dismissal of the complaint before a hearing into the merits pursuant to Rule 71 of the Board's Rules of Procedure on the grounds that the complaint did not disclose a prima facie case for the remedy requested. Following the submissions of all counsel, the Board made the following oral ruling:
Counsel for the respondents in this complaint have moved to dismiss this complaint on the grounds that it does not disclose a violation of the Act and does not make out a case for the relief requested. The complaint alleges that the various respondents violated sections 64, 66 and 70 of the Labour Relations Act by conduct which intimidated the complainant in the exercise of her right to seek proper representation.
The complainant is a registered nurse employed by the respondent hospital and is in a bargaining unit represented by the respondent trade union. She has filed a complaint against the trade union claiming a violation of section 68 of the Act about its conduct. The allegations made in this complaint include all of the allegations that she makes in that complaint under section 68 of the Act.
We entertained this motion, which has taken up over two days of hearing, without initially considering the merit of proceeding in this way. The motion is made pursuant to section 71 of the Board's Rules of Procedure which provides in part:
"Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal."
Section 71 gives the Board the discretion to dismiss this motion without determining whether the parties making the motion have persuaded the Board that they have established the necessary grounds for allowing the motion.
In International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233 the Board, in addressing itself to the exercise of discretion under section 71 wrote at paragraph 4:
"Section 71(1) of the Rules provides:
'Where an application or complainant does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.'
Although counsel for the respondents contended that the Board has a duty to dismiss a complaint which does not make out a prima facia case, section 71(1) clearly provides the Board with a discretion. In some circumstances it is eminently appropriate for the Board to exercise its discretion under that provision to dismiss a complaint where it is apparent that no useful purpose would be served in listing the complaint for hearing since the facts as alleged could not support an argument that a violation of the Act had occurred (see, for example, Heist Industrial Services, 63 CLLC ¶16,263; Patternmakers Association of Hamilton and Vicinity, [1970] OLRB Rep. Sept. 688; Ernest D'Andrea, [1975] OLRB Rep. Aug. 646; Local 1285 United Automobile Aerospace & Agricultural Workers Union of America, [1975] OLRB Rep. Apr. 387; Masonry Contractors' Association (Toronto-Incorporated), [1970] OLRB Rep. Dec. 1124; and Woodall Construction Company Limited, [1979] OLRB Rep. June 597). However, where as in the present proceedings, the complaint raises subtle questions of fact that are largely dependent upon the inferences that may properly be drawn from circumstances and events that occurred over a relatively lengthy period of time, combined with important and relatively complex issues of labour relations law and policy, the Board is of the view that it is not appropriate to dismiss the matter pursuant to section 71(1) without a full hearing on the merits. Accordingly, the respondent's motion to dismiss this complaint without a hearing pursuant to section 71(1) of the Rules is hereby dismissed."
The Board has also stated that a motion to dismiss a complaint because no prima facie case has been made out should only be allowed where there is no reasonable likelihood that the complainant can succeed. The Board in J. Paiva Foods Limited, [1985] OLRB Rep. May 690 wrote at page 691:
"The Board's discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged. This approach has been set out in the International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233 at page 234....
See also Caravelle Foods, [1983] OLRB Rep. June 875 at page 881 where the Board stated:
The words 'prima facie' in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.
[emphasis added]
See also Shaw v. McLeod, (1982), 1982 CanLII 2140 (ON HCJ), 35 OR. (2d) 641."
In this case, the complainant's theory is that the respondents acted together to interfere with the exercise of her right under the Labour Relations Act to be properly represented in dealing with the respondent hospital in relation to certain allegations made about her conduct. Without repeating the precise allegations of impropriety that were made, counsel for the complainant, in essence, submits that the complainant can bring a complaint against the respondents under sections 64, 66 and 70 in relation to the conduct which she alleges interfered with the exercise of her right to be represented.
We have, during the course of argument on the motion, dismissed the complaint in relation to section 64 of the Act on the grounds that the complainant has no status to bring a complaint alleging a violation of that section. Section 64 protects the rights of a trade union, not individuals or members represented by that trade union. See T.I.A. Limousine Operators Association, [1979] OLRB Rep. Aug. 810; Dufferin Aggregates, [1983] OLRB Rep. July 1031.
The argument made by the complainant is a novel one and while we have some doubt at this stage that the theory of the complainant's case, on the allegations as pleaded, give rise to a violation of the Act, we are not prepared to say, as we must if we are to allow the motion, that "... the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached." See Caravelle Foods, [1983] OLRB Rep. June 875 at 881.
The complaint against the respondent trade union under section 68 of the Act will be proceeding in any event. Much of the evidence that will be relevant in the instant complaint will also be relevant to the complaint against the trade union under section 68. In a case such as this, it does not appear to us that the hearing will be abbreviated to any significant degree by ruling on the respondents' motion at this stage. Additionally, we are of the view that the circumstances in this case are similar to the situation faced by the Board in the International Association of Bridge, Structural Ornamental Iron workers, supra, that is, the complaint raises questions of fact that depend upon inferences that can be drawn from the evidence together with difficult questions of law and policy relating to the extent to which an individual can seek to obtain a remedy from parties that are alleged to be interfering with a trade union's duty of fair representation owed to that individual under the Act.
Therefore, we hereby dismiss the respondents' motion. In doing so, we are not, and we emphasize the word not, determining that the complaint does make out a prima facie case. Rather, we are deciding that in the circumstances of this case, it is inappropriate to rule on that issue as a preliminary matter.
4Following the Board's oral ruling, the parties agreed that these two complaints be consolidated. Therefore, having regard to the agreement of the parties, the Board directed that these two complaints be consolidated.
5Counsel for the complainant sought to have the Board determine that the respondent hospital proceed first in adducing evidence. After receiving the submissions from counsel for the complainant, and having regard to the position of the counsel for all of the respondents, who opposed counsel for the complainant on that procedural issue, the Board ruled that the complainant would proceed first to adduce evidence, followed by the respondent trade union and the individual respondents represented by the trade union and then followed by the respondent employer and the individual respondents represented by the employer.
6This matter is referred to the Registrar to be listed for hearing before this panel of the Board on November 26, 30, December 10, 14, 21, 22, 23, 1987; January 18, 19, 20, 21, 27, 28, February l, 2, 3,and 4, 1988.