Ontario Labour Relations Board
3586-00-U Andrea Cocks, Donna Panke, Bruce Logan, Linda Corcoran, Gordon Wright & Yarek Choroszewicz, Applicants v. The Canadian Union of Public Employees, and its Local 4000, Responding Party v. The Ottawa Hospital, Intervenor.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; June 5, 2001
This is an application under section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the responding party has violated section 74 of the Act.
The responding party filed a response with the Board in which it seeks to have the application dismissed for failing to make out a prima facie breach of section 74 of the Act.
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.
Having reviewed the application, the Board is not of the view that there is no reasonable likelihood that the applicants can establish a violation of the Act based on the allegations they have made in the application. Accordingly, the request by the responding party to dismiss this application at this stage is hereby dismissed.
This matter is referred to the Registrar to be listed for hearing.
This panel of the Board is not seized with this matter
"John Morgan Lewis"
for the Board