Ontario Labour Relations Board
File No.: 0722-00-U Applicant: Christian Labour Association of Canada Responding Party: Bibs Sarnia Limited o/a Tim Hortons
Before: Mary Ellen Cummings, Alternate Chair.
Decision of the Board: July 5, 2000
Decision
This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges that the responding party has breached sections 5, 70 and 72 of the Act. It is worth advising the parties at this early stage that the Board has determined on numerous occasions that section 5 of the Act is not capable of being breached.
Essentially, the applicant alleges that the responding party terminated Mark McDermott solely on account of his participation in the union’s organizing drive.
In its response, the employer has raised a number of preliminary issues. First, the employer asks the Board to strike paragraphs 3 to 5 of the application because they are being raised several months after they occurred and fail to disclose a prima facie case. In my reading of the application, I assumed that these paragraphs were intended merely as background or context, but did not form part of the substantive issues between the parties. If I am wrong in that view, the applicant is directed to advise both the Board and counsel for the employer, within 10 working days of the date of this decision, providing a response to the timeliness and prima facie issues raised by the employer.
The other issues raised by the responding party relate to whether or not it is appropriate to place certain documents before the Board. Those issues are best determined by the panel hearing the matter. However, it is useful to remind both parties that the Board makes its determination on the basis of the testimony of witnesses who give oral evidence at a hearing. While witnesses’ notes can become part of the proceeding, their significance is considerably less and can never replace oral testimony.
This panel is not seized.
“Mary Ellen Cummings”
for the Board