2199-00-U Amalgamated Transit Union, Local 113 and Vipool Sukhram Applicants v. Toronto Transit Commission, Responding Party.
BEFORE: Patrick Kelly, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF PATRICK KELLY, VICE CHAIR, AND BOARD MEMBER R. R. MONTAGUE; January 22, 2000
1This is an application filed pursuant to section 96 alleging unfair labour practices, and corresponding violations of sections 5, 70, 72 and 76 of the Act. The application was originally brought by the trade union (“the ATU”), and filed on October 26, 2000. The responding party (“the TTC”) filed its response on November 9, 2000. In its response, the TTC contended, among other things, that the application should be dismissed without a hearing for failing to make out a prima facie violation of any of the sections cited above. With respect to sections 5 and 76, the TTC pointed out that these sections refer to a “person”, that a trade union is not a “person” within the meaning of the Act, and that as the only applicant in this matter is a trade union, the application fails to disclose a violation of these sections.
2On November 15, 2000 the ATU wrote to the Board, seeking to amend the application by adding as an applicant party the employee of the TTC, Mr. Vipool Sukhram, whose dismissal and grievance form the underpinnings of the application. It also requested that the application be amended with the addition of certain allegations of fact which occurred the day prior to the filing of the application, and some two weeks after. The ATU then went on to address the TTC’s prima facie motion, arguing among other things that, with the addition of Mr. Sukhram (a “person” within the meaning of the Act) as an applicant, the TTC’s prima facie motion in respect of sections 5 and 76 of the Act should be dismissed.
3On November 16, 2000 the TTC wrote to the Board objecting to the ATU’s November 15, 2000 letter in its entirety, characterizing it as a “reply” and pointing out that replies are not contemplated by the Board’s Rules of Procedure. The TTC went on to argue that there must be some finality to the pleading process in order for the parties to know the case for which they must prepare and to which they must answer.
4On December 11, 2000, the ATU requested to amend the application once again with the addition of certain allegations of fact said to have occurred after the filing of the application on October 26, 2000. The TTC replied by letter dated December 13, 2000 objecting to this latest request to amend the application. The reasons included those set out in the TTC’s correspondence of November 16, 2000, described above.
5The Board is of the view that the various requests to amend the application should be permitted. Contrary to the assertion of the TTC, the alleged new facts are arguably relevant to the issues in dispute, and do not significantly expand the application. Whether or not the alleged facts, are, as the TTC suggests, a misrepresentation of the truth is not a reason to deny the request to amend pleadings. Pleadings may or may not be provable. The TTC also objects that the new allegations relate to “without prejudice” communications between the parties. That is not apparent on the face of materials that have been provided to the Board, but, in any event, that objection appears more in the nature of an admissibility of evidence issue which is appropriate for the consideration of the panel assigned to the hearing of this matter. With respect to the TTC’s submission that the new allegations cannot be considered in a prima facie motion seeking the dismissal of the application, no authority was provided for such a position. The Board can see no reason why, in determining the prima facie issue, it should not consider all the applicant’s allegations, including those which are now submitted, are arguably relevant, and most of which could not have been within the applicant’s knowledge at the time of the filing of the application. Moreover, it would not make sense to consider the prima facie motion in the absence of the addition of Mr. Sukhram as an applicant, because, in the event we ruled in favour of the motion as it pertains to sections 5 and 76, a new application could well be filed by Mr. Sukhram in his own capacity.
6The argument by the TTC concerning finality of pleading has merit, but is not applicable at this stage of the matter. There comes a point in any proceeding when, in the interests of fairness, positions must by necessity crystalize. That point has not, in our opinion, been reached in this matter.
7The application is amended by adding Vipool Sukhram as an applicant, and by the addition of the allegations of the ATU as set out in its correspondence of November 15, 2000 and of December 11, 2000.
8The establishment of a prima facie case is not subject to a particularly onerous standard. We are satisfied that the material facts set out in the application as herein amended could, if proven, give rise to a finding of a violation of one or more of the sections cited in paragraph 1 above.
9The TTC’s prima facie motion is denied.
10We are not seized.
“Patrick Kelly”
for the majority
DECISION OF BOARD MEMBER J. A. RONSON; January 22, 2001
I would set the matter down for hearing so the issues before the Board could receive the benefit of viva voce evidence.
“J. A. Ronson”