Canadian Union of Public Employees and its Local 3977 v. Manitoulin-Sudbury Community Care Access Centre
2723-00-R Canadian Union of Public Employees and its Local 3977, Applicant v. Manitoulin-Sudbury Community Care Access Centre and Victorian Order of Nurses for Canada, Responding Parties v. Ontario Federation of Health Care Workers, Labourers’ International Union of North America, Local 1110, Intervenor.
BEFORE: Caroline Rowan, Vice-Chair, and Board Members J. A. Ronson and R. R. Montague.
DECISION OF THE BOARD; May 15, 2001
1This is an application under section 69 of the Labour Relations Act, 1995 (the "Act").
2By correspondence dated April 26, 2001, the intervenor, the Labourers’ International Union of North America, Local 1110 (the "Labourers"), has requested that this application be dismissed without a hearing or in the alternative that the Board direct the applicant to provide all material facts upon which they intend to rely. The Labourers have also requested that the applicant and the responding parties produce a number of documents in advance of the hearing.
3The Labourers request that the Board dismiss the application without a hearing on the ground that the applicant has not provided sufficient material facts in support of the remedies requested. In effect, the Labourers seek the dismissal of the application under section 69 of the Act on the basis that the applicant has not pleaded a prima facie case.
4The Board notes that it 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 application makes out a prima facie case (see The International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233; Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121). In addition, section 69(13) of the Act imposes an evidentiary onus on the responding parties in a proceeding under section 69 to "adduce at the hearing all facts within their knowledge that are material to the allegation that a sale of a business has occurred". As noted in Guaranteed Insulation’77 Limited, [1981] OLRB Rep. October 1394 at para. 16 by enacting section 69(13) "the Legislature has recognized that most, if not all of the facts relevant to the application lie with the respondents in proceedings under section 69".
5In the present case, the responding party, Manitoulin-Sudbury Community Care Access Centre states that it has no objection to the relief requested by the applicant, which includes a declaration that a sale of business has taken place, and the responding party, Victorian Order of Nurses, takes no position on the issue of whether there has been a sale of business. In the circumstances, the Board considers it inappropriate to dismiss the application under section 69 for failing to disclose a prima facie case where one of the responding party employers does not dispute that a sale of business declaration should issue and the other takes no position on that issue, except in the clearest of cases, where there is absolutely nothing in the application from which one could reasonably conclude that a sale of business has occurred. In the present case, the Board exercises its discretion and dismisses the motion to dismiss the application for failing to establish a prima facie case without determining whether the application has established a prima facie case. In view of the Labourers’ alternative request, the Board, however, directs the applicant to provide the other parties with a statement of all material facts upon which they intend to rely, which have not already been pleaded in the application.
6With respect to the Labourers’ request for production of documents, the applicant and the responding parties submit that the scope of the documents requested is too broad and that, in any event, the matter of disclosure should be deferred until after the meeting with the Labour Relations Officer. They further suggest that if the matter of production of documents is not resolved entirely at that time, the Labourers can renew their request for an order for production.
7In view of these submissions and to the fact that no hearing date has yet been set in this matter, the Board considers it appropriate to defer making an order for production until after the parties have met with the Labour Relations Officer appointed to confer with the parties. The parties are, however, directed to bring to that meeting copies of all documents in their possession that are relevant to this application. If the issue of production of documents is not resolved at that time, the Labourers may renew their request at that time or before then, in the event that the Board sets a date for hearing in this matter prior to the Labour Relations Officer’s meeting.
"Caroline Rowan"
for the Board