Kenneth Robert Hall v. Teamsters Union Local 230
1406-00-U Kenneth Robert Hall, Applicant v. Teamsters Union Local 230, Responding Party v. Dufferin Custom Concrete Group, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; November 21, 2000
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) that the responding party has breached section 74 of the Act.
2The basis of the complaint is the applicant’s allegation that the responding party has refused to grieve the applicant’s submission of prescription receipts on his behalf to the insurance carrier.
3The applicant requests a number of remedies, many of which the Board would have no jurisdiction to consider.
4Both the responding party (the “union”) and the intervenor (the “employer”) take the position that no grievance could be filed by the union as the underlying basis to the claim occurred during a strike. Both union and the company submit it was clear that the company had notified the union that it would not cover benefits during the period of a strike. The union further alleges that it informed its members, at various meetings, that if a member had a benefit claim it should be submitted before a strike took place.
5Both the intervenor and the responding party ask that this application be dismissed as in their submission the application does not disclose a prima facie case
6The Board in International Union of Bricklayers and Allied Craftworkers, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, [1999] O.L.R.D. No. 1392, had occasion to discuss the approach used by the Board when determining whether to dismiss an application because it did not disclose a prima facie case. The Board stated at paragraphs 4 and 5:
The test that a responding party must meet in order to persuade the Board that an application should be dismissed on the basis that there is no prima facie case established in the application is, in my view, a strict one. An applicant should not be deprived of the opportunity to have a hearing on the merits of his or her application simply because the argument is novel or the circumstances giving rise to the application are unusual. In Caravelle Foods, [1983] OLRB Rep. June 875 the Board characterized the test a responding party must meet in seeking to have an application dismissed on a prima facie motion in the following terms at page 881:
The words ‘prima facie case’ 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.
In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 the Board set out the test at page 691 as follows:
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.
Where, however, the Board is satisfied that the responding party bringing the prima facie motion has met the burden imposed, it is incumbent on the Board to dismiss the application, thereby conserving the limited resources of the Board for matters that do require a hearing. As Mr. Justice Grange said in Shaw v. McLeod, 1982 CanLII 2140 (ON HCJ), 35 O.R. (2d) 641:
I concede that on this motion if, after a careful review of the law, the Court determines that he [the Plaintiff] cannot possibly succeed, then his action should be mercifully dispatched.
See also Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121 at page 1123; Lyndhurst Hospital, [1996] OLRB Rep. May/June 456 at 465-66. Therefore, a responding party that seeks to have the Board dismiss an application before the hearing on the grounds that the application fails to set out a prima facie case for a violation of the Act must satisfy the Board that there is no reasonable likelihood that the application can establish a violation of the Act based on the allegations it has made in its application.
7The responding party has filed a very full and complete response. There is, however, some conflict between the pleadings of the applicant and the responding party. In these circumstances the Board is not prepared to dismiss the application at this time.
8However, the Board would advise the applicant that to find that the responding party has breached section 74 of the Act, an applicant must demonstrate that the union’s actions are:
“arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see, for example, I.T.E. Industries Limited, [1980] OLRB Rep. July 1001]; or
discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or
“in bad faith” – that is motivated by ill-will, malice, hostility or dishonesty.
In assessing a complaint, the Board considers whether the actions of the union fall into one of these three categories. Mistakes or misjudgements by the union are not illegal under the Act. Further, the fact that a grievance does not go to arbitration does not, in itself, establish any arguable breach of the Act.
9In these circumstances the applicant should be put on notice that if the events set out in the pleadings filed by the respondent are proven, the chances for success for the applicant would appear to be very limited. If it is established that indeed the applicant’s claim for benefits related to a time when a strike was in process, then the union’s decision not to process the grievance would appear to be a reasonable decision and not one that this Board would likely interfere with.
10The matter is directed to the Registrar to schedule a consultation hearing in the normal course
“Timothy W. Sargeant”
for the Board