0471-01-U Ronald Douglas, Applicant v. Laundry and Linen Drivers and Industrial Workers Union, Local 847, Affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Responding Party v. Columbia MBF Inc., Intervenor.
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; June 14, 2001
This is an application filed under section 96 of the Labour Relations Act, 1995, R.S.O. 1995, c.1, as amended (the “Act”) in which the applicant Ronald Douglas alleges that the responding party, Teamsters International Union Local 847 (the “union”), violated section 74 of the Act.
In its response, the union submits that this application should be dismissed because it has failed to establish a prima facie case of a violation of section 74 of the Act.
The Board notes that when assessing whether an application makes out a prima facie case for the relief requested, it must treat all of the allegations of fact contained in the application as being true and provable. In International Union of Bricklayers and Allied Craftworkers, [1999] O.L.R.D. No. 1392, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, the Board reviewed its approach to determining whether to dismiss an application because it does not disclose a prima facie case as follows at paragraph 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
- In determining whether to dismiss an application for failing to make out a prima facie case, the Board must have regard only to the allegations made in the application and must accept those allegations as fact. The Board cannot rely on the responding party’s explanation of the facts provided in the response or to the facts contained in the responses, which might contradict the allegations made by the applicant. As the Board stated in Textron Automotive Interiors, unreported decision dated July 8, 1999, Board File No. 2095-98-U at paragraph 8:
Simply because the applicant will be faced with reasonable and plausible explanations for the Union’s conduct which would provide a complete defence to the allegation that the Union violated the Act is not sufficient to permit the Board to dismiss the complaint at the request of a responding party on the grounds that it does not disclose a prima facie case.
In the present case, the applicant states in his application that he has lost his employment with Columbia MFG Inc. and that he has filed seven grievances alleging a violation of various articles of the collective agreement. The applicant further alleges that the union “has done nothing to stop the plans Columbia refusal to employ force retirement union since January 19th 2001…” By way of remedy, the applicant seeks, among other things, that his grievances be processed to arbitration.
Although the allegations made in the application are not entirely clear, it appears that the gist of the applicant’s complaint is that his employer had been seeking to force him to retire, that he was unwilling to do so, and that his employer has nonetheless since terminated his employment. Finally, the applicant complains that the union has not assisted him in resolving his grievances/complaints in this regard including securing his reinstatement to employment. Having reviewed the allegations set out in the application, the Board is not satisfied that it should exercise its discretion to dismiss this application without a consultation in the circumstances.
This application is referred to the Registrar to set a date for a consultation.
“Caroline Rowan”
for the Board