Court File and Parties
Drywall Acoustic Lathing and Insulation Local 675, United Brotherhood of Carpenters and Joiners of America, Applicant v. Robert D. Kelso carrying on business as C.N.R. Contracting, St. Lawrence Drywall and H & R Contracting, Responding Parties v. Charles Farrell, c.o.b. as C.N.R. Contracting, Intervenor.
Before: Harry Freedman, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.
Decision of the Board: February 24, 2000
Decision
1This is an application under sections 69 and 1 (4) of the Labour Relations Act, 1995, S.O. 1995, c. 1 (the "Act") for declaratory and other relief. Each of the responding parties and the intervenor requested that the Board dismiss the application in so far as it seeks relief based on a “sale of a business” under section 69, on the basis that the applicant has failed to establish a prima facie case in its application.
2The application alleges that the responding party C.N.R. Contracting is a related employer to St. Lawrence Drywall and H & R Contracting. It alleges that the principal of St. Lawrence Drywall and H & R Contracting is also carrying on business through C.N.R. Contracting. The allegation that there has been a sale of a business within the meaning of the Act is pleaded as an alternative to the request for a declaration that the three responding parties are related.
3The Board has the discretion to dismiss a motion to dismiss an application on the grounds that it does not disclose a prima facie case without determining whether the party making the motion has failed to persuade the Board that application does not establish a prima facie case. (See The International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. 233; Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121.)
4It is clear that the application will be proceeding with respect to the request for a declaration under section 1 (4) of the Act. There is often an overlap between allegations made to support a declaration under section 1 (4) and to establish a sale of a business under section 69 of the Act. For example, where the “key man” in a business moves from a business which is bound by a collective agreement to a “new business” that movement could give rise to a finding of sale of a business. (See, for example Deluxe Electrical Contractor Ltd., [1990] OLRB Rep. November 1335; Aquicon Construction Co. Ltd., [1994] OLRB Rep. December 1611; Steeles Electric, [1994] OLRB Rep. May 603 at paragraph 40; Ably Concrete Floor Limited, [1991] OLRB Rep. May 579; Stucor Construction Ltd., [1987] OLRB Rep. 614; Base Electric Co. Ltd., [1978] OLRB Rep. Feb. 140.) Where there is a transfer of a business for which a trade union holds bargaining rights from one entity to another as a result of a disposition, section 69 of the Act provides that the bargaining rights secured by a trade union for that business continue to attach to that business while it is carried on by the entity that acquired the business. Nevertheless, because a business may move from one entity to another without a disposition having occurred, section 1 (4) of the Act “fills the gap” to ensure that when a business for which bargaining rights were acquired by a trade union continues to exist in a different entity, those bargaining rights are not ephemeral but continue to apply to that business being carried on by that different entity. We are of the view that an application under section 69 of the Act will often give rise to considerations relevant to the Board deciding whether to issue a declaration under section 1 (4) of the Act.
5Section 69 (13) of the Act imposes an obligation upon responding parties to “adduce at the hearing all facts within their knowledge that are material to the allegation” that a sale of a business has occurred. It is therefore, in our opinion, entirely inappropriate to dismiss an application alleging a sale of a business under section 69 of the Act for failing to disclose a prima facie case when it is combined with an application for a declaration under section 1(4) of the Act, except in the clearest of cases, where there is absolutely nothing in the application from which one could reasonably conclude that a sale of a business has transpired. That does not mean, however, that an applicant is not required to provide particulars to support its allegations if requested to do so by a responding party.
6Under these circumstances, and particularly as this application will be proceeding in any event to deal with the remedy requested by the applicant under section 1 (4) of the Act, the Board, in the exercise of its discretion to dismiss a motion to dismiss an application for failing to establish a prima facie case without determining whether the application has established a prima facie case, hereby dismisses the motion made by the responding parties to dismiss the application in so far as it relates to an application for relief under section 69 of the Act.
7This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board