Ontario Labour Relations Board
Anthony Seivewright, Applicant v. ABC Climate Control System Incorporated, c.o.b. ABC Group Exterior Systems, Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; November 2, 2001
Decision
1These files consist of an application alleging that Mr. Seivewright (the applicant) was terminated from his employment at ABC Climate Control System Incorporated (the employer) on July 5, 2001 as an unlawful penalty for raising health and safety concerns, contrary to section 50 of the Occupational Health and Safety Act (“OHSA”) and/or he was terminated in consequence of support for a trade union, contrary to the Labour Relations Act, 1995 (the “Act”). The applications are identical, in that they rely on the same set of facts, but were brought separately presumably because they seek relief pursuant to the provisions of two different statutes.
2The employer seeks to have the applications dismissed on the basis that they fail to make out a prima facie or arguable breach that the Act and/or the OHSA was breached by the employer. In the alternative, the employer asks the Board to direct the applicant to particularize his applications, and in the event the applicant fails to do so, the Board should dismiss the applications because they fail to make out a prima facie case.
3The employer also submits that the applicant has delayed too much in bringing these applications and on that basis, the Board should decline to enquire into them.
4The Board will deal with the delay issue first. The applicant was terminated on July 5, 2001. These applications were brought on August 2, 2001, or less than one month later. There has been no delay. I appreciate that the applicant recites his 5-year work history, and alleges a pattern of conduct going back over that time, but the action of the employer about which he seeks a remedy is only the termination. Consequently, the Board concludes that there has been no delay.
5Turning now to the submission that the applicant has not made out a prima facie case, Rule 46 of the Board’s Rules of Practice permits the Board to dismiss an application when it does not make out an arguable case for the remedies sought:
- Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.
6In International Union of Bricklayers and Allied Craftsmen, [1999] O.L.R.D., the Board described the considerations it applies in determining whether or not the applicant has made out a prima facie case for the remedies sought:
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 (now Rule 46) 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, [(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 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.
7In considering whether a prima facie case had been pleaded, the Board assumes that all the allegations made are provable and proved. The Board has no regard, at this point, to the explanation or defences provided by the employer.
8Before making a determination with respect to this preliminary motion, the Board seeks the submissions of the applicant.
9The Board, in particular, asks the applicant to address whether and how he has made out an arguable case that sections 70 and 72 of the Act have been breached. The only relevant reference I found is at paragraph 7:
- On April 2, 2001, the applicant used his ten minute bathroom break to go to the smoking room. After smoking with a number of co-workers, he returned to his work station at the proper time. Up until that date, employees used their ten minute breaks as they pleased, although they were not allowed to leave the plant during working hours. However, on April 2, 2001, the applicant was verbally warned not to smoke during working hours, but his co-workers were not. Around that time there was a union organizing drive and the applicant suspected that the he was given the warning because he also handed out union cards and that the employer knew about it. Also the applicant thought he has been labelled as a trouble maker because of his November 22, 2000 work refusal and the fact that he spoke up at the March meeting about health and safety issues. [emphasis added]
10The highlighted sentence is the only thing pleaded as the basis for the conclusion at paragraph 13:
- It is the applicant’s belief that the respondent discharged him from work partly in response to his support for the union at the workplace contrary to section 96 of the Labour Relations Act, 1995.
11Rule 38 of the Board’s Rules of Procedure requires:
- Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
12In my view, the applicant has not complied with that Rule with respect to the allegation that he was terminated for reasons that breach the Act, but I would like to hear the applicant’s submissions, and particular, what the Board should do if it is not satisfied there has been compliance.
13With respect to the applicant’s allegations that the employer terminated him as a penalty for exercising his rights under the OHSA, at this point I will only say that the pleadings lack a certain “crispness” and any clear linkages between the applicant’s behaviour and the employer’s response.
14I am also interested in knowing whether the applicant’s termination resulted in any grievance proceeding.
15The applicant is directed to serve and file its submissions by no later than November 17, 2001. The Registrar is directed to place the submissions before this panel of the Board if convenient.
“Mary Ellen Cummings”
for the Board