3387-00-U Derick M. Gardner, Applicant v. National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), CAW Local 222, Responding Party v. General Motors of Canada Limited, Intervenor.
BEFORE: Harry Freedman, Vice-Chair
DECISION OF THE BOARD; April 30, 2001
The applicant filed this application under section 96 of the Labour Relations Act, 1995, S. O. 1995, c. 1, as amended (the “Act”) on February 16, 2001 alleging that the responding party violated section 74 of the Act by not taking his grievance (Grievance No. B16733) to arbitration. The applicant alleges that the responding party acted in bad faith in its representation of him when it failed or refused to refer his grievance to arbitration after indicating to him that it had intended to do so. The Chair of the Board authorized a Vice-Chair under section 110(14.1) of the Act to sit alone to determine this matter.
The applicant filed a grievance (Grievance No. B16733) dated December 11, 1995 over the intervenor’s assignment of overtime to another employee. The overtime assignment related to performing work at the Saturn Plant in Springhill, Tennessee. According to the material filed by the applicant, the grievance was processed through the grievance procedure, and ultimately, by notice dated January 26, 1998, the grievance was appealed to arbitration by the responding party. There is nothing in the applicant’s material that indicates when the responding party decided that it would not proceed to arbitration with the applicant’s grievance.
The responding party, in its response, explains why there is, in its opinion, no merit to the grievance. Its position is that there was no violation of the collective agreement and therefore the matter cannot proceed to arbitration. The intervenor, in its intervention, states that the responding party withdrew the grievance after meetings with the intervenor on September 21 and October 7, 1998. The intervenor confirmed the withdrawal by a letter to the responding party dated October 8, 1998.
The responding party submits that the application should be dismissed on the grounds that the applicant’s grievance has no merit because there was no violation of the collective agreement when the applicant did not receive the overtime assignment that is the subject of Grievance No. B16733. The response filed by the responding party points out that the overtime in issue was performed at the Saturn Plant in Springhill, Tennessee, which is outside of the applicant’s overtime group, outside of the plant where the applicant worked, outside of the company by whom the applicant was employed (General Motors of Canada Limited) and outside of the country. It stated that the overtime groups under the collective agreement are defined within a classification and within a plant and that the applicant had no superior rights to claim the overtime work in Springhill, Tennessee that was assigned by the intervenor to another employee.
The intervenor submits that the applicant has failed to disclose a prima facie case for establishing violation of section 74 and in any event, the application should be dismissed by reason of undue delay. The intervenor asserts that the grievance was withdrawn by the responding party in October, 1998, yet this application was not filed until February 16, 2001, in excess of two years from the date of the withdrawal of the grievance.
The burden on a party seeking to have an application dismissed for failing to establish a prima facie case is an onerous one. The Board has in The County of Brant, [2000] OLRB Rep. Nov./Dec. 1106 set out the relevant principles that are applicable in determining whether an application has made out a prima facie case at pages 1107-08:
The 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.
- In this case, the applicant alleges that his grievance was processed through the grievance procedure and was referred to arbitration, but did not proceed to arbitration. The applicant alleges that the responding party acted in bad faith (which is not an allegation of fact, but a conclusion) when it did not proceed to arbitration. Nevertheless, some explanation, in my view, is warranted for the change of heart. For more than two years the responding party pursued the grievance on the applicant’s behalf and submitted it to arbitration, but then withdrew the grievance. I note that the responding party and the intervenor both have provided detailed and comprehensive submissions concerning the reasons why the responding party did not actually proceed to arbitration with Grievance No. B16733. But, as the Board noted in the County of Brant, supra at page 1109:
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.
The applicant may have a great deal of difficulty in demonstrating why his grievance was meritorious in the face of the detailed explanations provided by the responding party and the intervenor and why the responding party acted contrary to the Act when it refused to proceed to arbitration with a grievance that it, on the basis of its submissions, determined did not establish a violation of the collective agreement. The Board cannot, however, at this stage, deprive the applicant of his opportunity to hear and respond to the responding party’s and intervenor’s submissions with respect to the merits of his application on the basis that he has not established a prima facie case.
The applicant has, in my view, presented an application that, on its face, indicates conduct that may, if not answered, make out a violation of section 74 of the Act. That is all that is necessary for this matter to proceed further to be listed for consultation by the Registrar, subject to the preliminary objection raised by the intervenor with respect to undue delay. The Board is not persuaded that the applicant has failed to set out a prima facie case of a violation of the Act. Therefore, the motion by the intervenor to dismiss this application on the basis that the applicant has failed to set out a prima facie case is dismissed.
The intervenor also submitted that this application should be dismissed on the basis of undue delay. The intervenor submits that the responding party agreed to the withdrawal of Grievance No. B16733 in October 1998 and that it confirmed that withdrawal in a letter to the responding party dated October 8, 1998. While a delay of over two years is certainly excessive and would warrant dismissal of an application in the absence of a compelling and persuasive explanation (see City of Mississauga, [1982] OLRB Rep. March 420; Sheller-Globe of Canada, Ltd., [1982] OLRB Rep. Jan. 3, application for judicial review dismissed, (1983), 1983 CanLII 1655 (ON HCJ), 42 O.R. (2d) 73; Douglas G. Poole, [1984] OLRB Rep. June 856; Concrete Construction Supplies, [1982] OLRB Rep. Oct. 1446) there was nothing in any of the material filed by the parties to indicate when the applicant was advised either by the responding party or the intervenor that the responding party had withdrawn his grievance on October 8, 1998. In my view, if the intervenor wishes to seek to have an application dismissed on the grounds of undue delay, it is incumbent to set out when the applicant knew of the withdrawal of the grievance or when the fact of the grievance having been withdrawn was communicated to the applicant. It is also significant, in my view, that the responding party has not asserted undue delay as a basis for dismissing the application. Nevertheless, before determining the preliminary objection based on undue delay, I am of the view that the responding party and the intervenor must advise the Board of the date when the applicant knew or ought to have known of the withdrawal of Grievance No. B16733. The applicant must also provide the Board with the date that he submits he learned of the responding party’s withdrawal of Grievance No. B16733 and with his explanation for the passage of time between the date he learned of the withdrawal of the grievance and February 16, 2001, the date that this application was filed with the Board.
The Board therefore directs the responding party and the intervenor to deliver to the Board and to the applicant within 15 days of the date of this decision a concise statement setting out when they allege that the applicant knew or ought to have known of the responding party’s decision to withdraw Grievance No. B16733 and all of the facts on which they rely in support of that allegation.
The Board directs the applicant to deliver to the Board and to responding party and the intervenor within 15 days of the date of this decision a concise statement setting out the date when he learned of the withdrawal of Grievance No. B16733 and all of the facts on which he relies to explain the passage of time between the date he learned of the withdrawal of the grievance and February 16, 2001.
This panel of the Board shall determine whether the Board is in a position to decide the preliminary objection to the application based on delay on the basis of the material filed, and if so, will determine that preliminary objection.
“Harry Freedman”
for the Board