Ontario Labour Relations Board
1599-01-U Carlos H. Rodas, Applicant v. Labourers’ International Union of North America, Local 183, Responding Party v. D. Crupi & Sons Limited, Intervenor.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; November 26, 2001
1Carlos H. Rodas alleges that the Labourers’ International Union of North America, Local 183 (“Local 183”) violated section 74 of the Act when its business representative, Gaetano Strazzanti, told Mr. Rodas Local 183 could not do anything about his termination of employment because the employer of Mr. Rodas, D. Crupi & Sons Limited (“Crupi”) told Mr. Strazzanti that Mr. Rodas was no longer needed. Mr. Rodas alleges that Crupi had called him back to work on previous occasions but after Crupi told him that there was no work available, someone else was working in his position. Mr. Rodas alleges that Local 183 acted arbitrarily by doing nothing other than talking to Crupi and accepting what they said. Implicit in that allegation is that Local 183 carried out only a cursory review of the circumstances rather than investigate the matter thoroughly. The Chair of the Board authorized me pursuant to section 110(14)(a) of the Act to sit alone to determine this matter.
2Crupi filed an intervention in this matter in which it outlined the circumstances of hiring and termination of Mr. Rodas. It asserts that the employment of Mr. Rodas was terminated due to a lack of work. It also asserts that following his termination, no one worked in the position in which Mr. Rodas had worked.
3Local 183 filed a detailed and comprehensive response to the application. It submits that this application should be dismissed for failing to disclose a prima facie case. It also contends that even if there was anything in the allegations that could make out a violation of the Act, it took steps to investigate the matter as soon as Mr. Rodas brought his concerns to the attention of Mr. Strazzanti and following that investigation, determined that Crupi had not violated the collective agreement in the manner in which it terminated the employment of Mr. Rodas. It also asserts that Mr. Strazzanti advised Mr. Rodas that there is no right of recall under the collective agreement. It also alleges that it referred Mr. Rodas to another contractor bound by the collective agreement to perform work within the same classification as the job he had done while employed by Crupi but Mr. Rodas refused to report for work with that other contractor.
4The threshold test an applicant must meet to establish a prima facie case is relatively low. Simply put, an applicant must plead facts, which if proved, may establish a violation of the Act. Another formulation of the test is that there is a reasonable likelihood the Board would find a violation of the Act if the allegations in the application, taken on their own and without regard to any facts asserted by the other parties, were proved. The corollary of the low threshold an applicant must meet to establish a prima facie case is the high threshold a responding party must cross to persuade the Board that an applicant has failed to make out a prima facie case. In Caravelle Foods Ltd., [1983] OLRB Rep. June 875 the Board described the test used to decide whether to grant a motion to dismiss an application for failing to set out a prima facie case 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.
The standard used by the courts for dismissing a case for disclosing no reasonable cause of action is similar, if not identical, to what the Board uses in determining whether to dismiss an application for not disclosing a prima facie case. The Supreme Court of Canada in Hunt v. Carey Canada Ltd., (1990), 1990 CanLII 90 (SCC), 74 D.L.R. (4th) 321 described the appropriate test 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.
In Corporation of the County of Brant, [2000] OLRB Rep. Nov./Dec. 1106 the Board at page 1108 articulated its approach to a motion to dismiss an application for failing to disclose a prima facie case in the following terms:
…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.
See also Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121 at page 1123; Lyndhurst Hospital, [1996] OLRB Rep. May/June 456 at 465-66; J. Paiva Foods Ltd., [1985] OLRB Rep. May 690 at 691: International Union of Bricklayers and Allied Craftworkers, Board File Nos. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, Q.L. cite [1999] O.L.R.D. No. 1392, at paragraphs 4 and 5.
5I am unable to conclude that there is no reasonable likelihood that the allegations contained in the application of Mr. Rodas, when taken on their own and without regard to anything said in either the intervention or response, if proved, would not establish a violation of the Act. Mr. Rodas alleges that Local 183 said it could not do anything about his situation and merely accepted what Crupi said about there being no work available for Mr. Rodas, yet someone else was working in the same job from which he was terminated for a lack of work. There is, in my view, a reasonable likelihood that those allegations, if proved, would likely sustain a finding of arbitrary representation contrary to section 74 of the Act. Therefore the motion to dismiss this application for failing to disclose a prima facie case must be dismissed.
6Nevertheless, despite having dismissed Local 183’s motion to dismiss this application, the intervention filed by Crupi and the response filed by Local 183 provide what would appear to be a complete answer and explanation for what had taken place in respect of Mr Rodas and the termination of his employment with Crupi in July 2001. If the circumstances described and facts alleged in the detailed response filed by Local 183 and the intervention filed by Crupi, are accurate, this application would be dismissed. That is, there are explanations for what took place which, if established, would demonstrate that Local 183 had carried out its obligations under section 74 of the Act in a manner that would be the antithesis of arbitrary, discriminatory or in bad faith.
7In essence, Local 183 submits that it investigated the complaint of Mr. Rodas by contacting Crupi to determine whether Crupi acted in accordance with the collective agreement, determined that Crupi had a slow down in work and did not require to have the work done that Mr. Rodas had been hired to perform, advised Mr. Rodas about what it learned from Crupi, informed him that there had not been a violation of the collective agreement by Crupi and that there were no recall rights under the collective agreement, offered to find him other employment with another contractor and did secure another job for Mr. Rodas within his classification with another contractor. In addition, it asserts that when Mr. Rodas also indicated to Local 183 that there was some issue about Crupi still owing him wages, Local 183 contacted Crupi and as a result, Crupi paid all outstanding wages owing to Mr. Rodas. While the Board cannot as a preliminary matter dismiss a complaint that discloses a prima facie case even though the responding party has provided a complete answer, which if proved, would result in the dismissal of the complaint, nevertheless the Board does have an overriding discretion to refuse to inquire into a complaint under section 96 of the Act when it considers the matter in its entirety, having regard to all of the circumstances as disclosed by the application and responses.
8Section 96 of the Act confers discretion on the Board to determine whether it will inquire into any complaint alleging a violation of the Act. The Board in Brant Haldimand-Norfolk Catholic District School Board, [2001] OLRB Rep. March/April 292 commented upon the exercise of that discretion at page 301:
The fact that a complaint is filed, does not mean that the Board is obliged to enquire into it. Rather, the Legislature has given the Board a discretion in this regard; and in the exercise of that discretion, the Board looks at such factors as: any delay in filing the complaint; whether the case makes out an arguable case for a breach of the provisions of the Act relied upon by the complainant; the likelihood of success; the nature and utility of any remedy that might flow; the cost implications for the parties and the public; whether, overall, some statutory or labour relations purpose would be served by the litigation exercise; and so on. It is important for the Board to expend its limited resources in a manner that is consistent with the objects of the statute (see section 2 of the Act), and that is sensitive to labour relations realities.
It appears from the file material that the parties met with a Labour Relations Officer to endeavour to effect a settlement of this matter and no settlement was reached. Section 99 of the Act permits the Board to determine a complaint alleging a violation of section 74 without a hearing. Although the Board has dismissed the motion made by Local 183 to dismiss this application, the Board is of the view that requiring the parties to attend a consultation to deal with this matter is not necessary until the Board has had the opportunity to consider whether it will exercise its discretion under section 96 of the Act to refuse to inquire into this application.
9The Board’s exercise of discretion under section 96 will be informed by what position Mr. Rodas takes in reply to the submissions made by Local 183 and Crupi. The response of Local 183 sets out what appears to be a full and complete answer to the complaint made by Mr. Rodas. The intervention filed by Crupi also provides some context for the complaint. The Board must be satisfied that there is some useful labour relations purpose in allowing this application to proceed further.
10The Board therefore directs Mr. Rodas to prepare a statement in reply to the response and intervention filed by Local 183 and Crupi respectively indicating what facts he accepts and what facts he disputes, and the factual basis for those, if any, he disputes and any submissions he wishes the Board to consider when determining how it will exercise its discretion. The Board further directs Mr. Rodas to file that statement and submissions with the Board and deliver that statement and submissions to Local 183 and Crupi within 20 days of the date of this decision, that is on or before Monday, December 17, 2001. Local 183 and Crupi need not file any response or submissions unless directed to do so by the Board. The Board will consider whether to exercise its discretion under section 96 of the Act to refuse to inquire into this application based on the material before it after the expiry of the time for filing the statement and submissions.
11This panel of the Board remains seized with this matter.
“Harry Freedman”
for the Board