Ontario Public Service Employees Union v. Corporation of the County of Brant
1399-00-U Ontario Public Service Employees Union, Applicant v. Corporation of the County of Brant, Responding Party.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; November 15, 2000
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c. 1 as amended, (the “Act”) alleging a violation of sections 70, 72 and 76 of the Act in which the responding party moves to have the application dismissed for failing to set out a prima facie case. The Chair of the Board authorized me to sit alone to hear and determine this matter pursuant to section 110(14)(a) of the Act.
2The application asserts that the responding party refused to employ Dale Vining when it began to operate the ambulance service (Brant County Ambulance Services) that had been owned by Canadian Medical Response (“CMR”). The application alleges that Mr. Vining was a union steward of the applicant when the applicant represented the employees working for Brant County Ambulance Services and that he and the applicant played a significant role in having the responding party take over the ambulance service from CMR rather than tender the ambulance service to CMR. (It appears from the application that the Brant County Ambulance Service was a crown agency but was owned by CMR. As a result of changes to the Ambulance Act, ambulance services were to be provided by an upper level municipality, such as a region or county either by having that municipality operate the service or by tendering the service to a private operator.)
3The application alleges that the manager of CMR, Charles Longeway, was hired by the responding party to manage the ambulance service. It also asserts that applicant’s and Mr. Vining’s activities in having the responding party take over the ambulance service was adverse to the interests of CMR and Mr. Longeway. The application alleges that Mr. Vining was an experienced paramedic who sought and was refused employment with the responding party. The application alleges that Mr. Vining was told by Mr. Longeway that he had not been hired “because of previous difficulty working with management.” The application also alleges that the applicant is engaged in an organizing campaign among the employees of the responding party working as paramedics.
4The application asserts that the responding party’s refusal to hire Mr. Vining is penalizing him for his union activities as a union steward and in the applicant’s campaign to have the responding party operate the ambulance service. It also asserts that the refusal to hire Mr. Vining has interfered with the administration of the applicant and “may potentially place a chill on the applicant’s organizing activities.”
5The responding party in its response denies the allegations that Mr. Vining’s union activity was a consideration in the decision not to hire him and provides a detailed explanation for that decision. It denies having knowledge of the applicant’s organizing campaign at the time the decision not to hire Mr. Vining was made. The responding party submits that the applicant has failed to set out a prima facie breach of section 70, 72 and 76 of the Act in its application which is why this application has come before this panel of the Board at this time.
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), 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; and Hunt v. Carey Canada Inc., (1990), 1990 CanLII 90 (SCC), 74 D.L.R. (4th) 321 (S.C.C.) where the Supreme Court of Canada wrote at page 333:
Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C., O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.
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 applicant can establish a violation of the Act based on the allegations it has made in its application, or in the words of the Supreme Court of Canada, that it is “plain and obvious” that the allegations in the application do not disclose a violation of the Act.
7The application clearly asserts that Mr. Vining was engaged in activities on behalf of the applicant and had been a union steward of the applicant. The responding party, through its manager, knew of Mr. Vining’s role with applicant. The application also asserts that Mr. Vining was experienced and qualified for the work for which the responding party was hiring employees, he had applied for employment to perform that work and was refused employment. The application alleges that the refusal to hire Mr. Vining penalized him for his activity on behalf of the applicant as well as interfering with the administration of the applicant.
8This application, in my view, at the very least, requires an explanation from the responding party for its refusal to hire Mr. Vining. (The responding party has done so in its detailed response to the application.) Although a response may provide the complete answer to the application, the Board, when deciding whether to dismiss an application for failure to establish a prima facie case, must assume all of the facts alleged in the application are true. The Board cannot have regard to the factual assertions and denials contained in the response. From that perspective, I am satisfied that in this case the Board would find that the responding party violated the Act in its refusal to hire Mr. Vining.
9Furthermore, because this application alleges that the Mr. Vining was refused employment contrary to the Act, section 96(5) of the Act becomes applicable. Section 96(5) of the Act provides:
On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.
It seems to me that if an application under section 96 of the Act against an employer contains sufficient particulars so as to place the burden of proof that the employer did not act contrary to the Act on the employer, then the Board would not be able to conclude that “there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged” or that “the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.” There are allegations contained in the application in this case that place the burden of proof on the employer pursuant to section 96(5) of the Act. In these circumstances, even if the only evidence presented to the Board at the hearing was that the responding party refused to hire Mr. Vining, the Board would probably conclude that the responding party had violated the Act by reason of section 96(5). See ICB Warehousing, [1976] OLRB Rep. Oct. 621.
10Therefore, the Board is not persuaded that the applicant has failed to set out a prima facie breach of section 70, 72 and 76 of the Act. The request by the responding party to dismiss this application at this stage is hereby dismissed.
11This matter is referred to the Registrar to be listed for hearing.
12This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board