Apollo Health & Beauty Care v. United Food & Commercial Workers International Union, Local 175
0276-01-U Apollo Health & Beauty Care, Applicant v. United Food & Commercial Workers International Union, Local 175, Responding Party.
0372-01-U United Food and Commercial Workers International Union, Local 175, Applicant v. Apollo Health & Beauty Care, Responding Party.
BEFORE: Caroline Rowan, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; May 25, 2001
1Board File No. 0276-01-U and 0372-01-U are both applications under section 96 of the Labour Relations Act, 1995 (the "Act").
2In its response to the application in Board File No. 0276-01-U, the responding party asks that the application be dismissed for failing to make out a prima facie case of a violation of the Act. In the alternative, the responding party asks that the application be consolidated with an application filed by the responding party with the Board on or about April 30, 2001 (Board File No. 0372-01-U), as that complaint arises from the same factual situation as this application.
3The Board in International Union of Bricklayers and Allied Craftworkers, Board File No. 1645-98-U and 1768-98-U, decision dated February 19, 1999, unreported, [1999] O.L.R.D. No. 1392, reviewed the approach used when determining whether to dismiss an application for failing to disclose a prima facie case, as follows 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., supra, 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.
4Having reviewed the allegations raised in the application in Board File No. 0276-01-U, the Board is not persuaded that it should exercise its discretion to dismiss the application without a hearing or consultation. The Board, however, directs that that application be heard together with the application in Board File No. 0372-01-U in the circumstances. The panel scheduled to hear these matters may determine whether it is appropriate to consolidate these applications.
"Caroline Rowan"
for the Board