Ontario Nurses’ Association v. Board of Management of the District of Kenora Homes for the Aged, 2000 CanLII 3772

Ontario Nurses’ Association v. Board of Management of the District of Kenora Homes for the Aged

1345-00-R Ontario Nurses’ Association, Applicant v. Board of Management of the District of Kenora Homes for the Aged, and Canadian Union of Public Employees, Responding Parties v. Communications, Energy and Paperworkers Union of Canada and its Local 321; Dryden Regional Health Centre; and Office and Professional Employees International Union and its Local 521, Intervenors.

1436-00-R Office and Professional Employees International Union and its Local 521, Applicant v. Board of Management of the District of Kenora Homes for the Aged, Responding Party v Patricia Region Senior Services Inc.; Communications, Energy and Paperworkers Union of Canada and its Local 321; Ontario Nurses’ Association and Dryden Regional Health Centre, Intervenors.

3977-99-U Communications, Energy and Paperworkers Union of Canada and its Local 321, Applicant v. Patricia Region Senior Services Inc. and The District of Kenora Home for the Aged Board of Management and/or Pinecrest Home, Responding Parties.

3979-99-R Communications, Energy and Paperworkers Union of Canada and its Local 321, Applicant v. Patricia Regional Senior Services Inc. and The District of Kenora Home for the Aged Board of Management and/or Pinecrest Home, Responding Parties v. Office and Professional Employees International Union and its Local 521, Canadian Union of Public Employees and its Local 1072; Dryden District General Hospital and Ontario Nurses’ Association, Intervenors.

BEFORE: Marilyn Silverman, Vice‑Chair

DECISION OF THE BOARD; October 18, 2000

Decision

1. These are four applications filed under section 96, section 69 and subsection 4 of section 1 of the Labour Relations Act, 1995, S.O. 1995, c.1 (the “Act”). There are a number of parties.

2. On September 7, 2000 the parties attended at the Board and agreed to adjourn that day of hearing. They also agreed that two of the parties would provide submissions on two preliminary issues and have those issues determined prior to the next day of hearing. Those two parties are the responding party, Patricia Region Senior Services Inc. (“PRSSI”) and the applicant/intervenor the Communications, Energy and Paperworkers Union of Canada and its Local 321(the “CEP”). Those issues are:

a) whether the Board should allow the filing of additional particulars by the CEP in Board File Nos. 3977-99-U and 3979-99-R.

b) whether to dismiss the CEP’s application under section 96 ( Board File No. 3977-99-U without a hearing under Rule 46 of the Board’s Rules of Procedure on the basis that that application discloses no prima facie case.

The Request to Amend Particulars

3. PRSSI requests that the Board not grant the CEP’s request to amend its pleadings in Board File Nos. 3977-99-U (the unfair labour practice complaint) and 3979-99-R (the sale of a business/related employer application). The CEP is the applicant in these two applications. These application were filed on March 31, 2000. The two other applications in which the CEP has been added as an intervenor were filed on August 4, 2000 and August 16, 2000. In its intervention in these later applications, the CEP filed additional allegations upon which it intends to rely and which form the subject matter of this preliminary dispute.

4. PRSSI submits that some if not all of the allegations were known to the CEP at the time of filing of the original allegations. In the PRSSI’s view they are prejudiced as a result of these late filings by the CEP. It relies on two Board decisions - Board of Education for the City of North York, [1977] O.L.R.B. Rep. Apri. 845 and J.C.V.R. Packaging Inc., [1993] O.L.R.B. Rep. Nov. 4344.

5. The CEP submits that all but one of the pleadings sought to be added are based on facts that occurred after the filing of the original March 31, 2000 applications. The only pleading that does not fall into that category is one concerning a funding discussion that occurred during the negotiations for the current collective agreement. They assert that for the most part the additional allegations were raised at the time that they became relevant and available.

6. Having reviewed the submissions and authorities presented this is an appropriate case to allow the CEP to add the requested particulars. The particulars were provided to PRSSI in August 2000 for a hearing that will now begin in November 2000. No specific prejudice has been elucidated and it does not appear to that there is any prejudice to the PRSSI in allowing these additional particulars. The Board has the discretion in respect of Rule 42 which provides for the timely filing of material facts. In the circumstances of these cases, that discretion should be exercised by granting of the CEP’s request to amend the applications as requested.

Dismissal of the CEP’s Unfair Labour Practice Complaint without a Hearing

7. Board File No. 3977-99-U is an unfair labour practice complaint filed by the CEP. PRSSI contends that the facts relied upon by the CEP in this application could not support a finding that a violation of the Act has occurred and consequently requests that the application be dismissed without a hearing. Specifically, PRSSI contends that there is no nexus between the sale of a business/related employer application and the unfair labour practice complaint.

8, In order for the Board to dismiss an application on the basis that it discloses no prima facie case, it must assume that all the facts pleaded in the application are true and determine that even if such facts were true there would be no violation of the Act from which a remedy could flow. Having reviewed the particulars submitted in support of the unfair labour practice

application I cannot conclude that if these facts were found to be true they not make out a case for a remedy. Specifically some of the allegations concern issues related to job security and dealing directly with employees. In the case of International Association of Bridge, Structural and Ornamental Ironworkers, [1982] O.L.R.B. Rep. Feb. 233 the test set out for a party seeking to make out a prima facie case is whether the facts alleged could support an argument that a violation of the Act had occurred. That determination does of course conclude that the facts alleged are either established or would in the circumstances of a particular case succeed in establishing a violation. It is simply that such an argument may be supported.

9. Based on the above, I am not prepared to dismiss the CEP’s unfair labour practice complaint in Board File No. 3977-99-U without a hearing or consultation.

10. The Board notes that PRSSI contends that the CEP’s unfair labour practice complaint ( Board File No. 3977-99-U) should be deferred to arbitration. It wishes to re-assert this position following this decision on the no prima facie case motion and/or following a determination as to the order of proceedings. As this matter was not made part of the agreement of the parties for preliminary determination and as PRSSI’s position on it may be affected by agreements or determinations on the order of proceedings in the hearing of these applications, this motion for deferral to arbitration may be raised before the panel scheduled to hear these applications.

11. Having regard to the above determinations and the request of the parties, these matters are hereby consolidated.

12. The hearing continues on November 23 and 24, 2000, and February 15, 16, 22 and 23, 2001 at the Valhalla Inn, 1 Valhalla Inn Road, Room #5, Thunder Bay, Ontario. On November 23, 2000 and February 15 and 22, 2001 the hearing convenes at 10:30 a.m.. On November 24, 2000 and February 16 and 23, 2001 the hearing commences the regular time – at 9:30 a.m.

13. I am not seized.

“Marilyn Silverman”

for the Board