Ontario Labour Relations Board
2087-01-U National Elevator and Escalator Association, Applicant v. International Union of Elevator Constructors, and its Locals 50, 90 & 96, Responding Party v. Thyssen Elevators Limited, Intervenor.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; November 29, 2001
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch.1 (the "Act") in which the applicant, the National Elevator and Escalator Association (“NEEA”) alleges that the International Union of Elevator Constructors and its Locals 50, 90 and 96 (“the IUEC”) have violated sections 17 and 71 in the manner in which it executed or altered agreements with employers who were not members of NEEA after August 30, 2001. The IUEC has filed a response denying the substance of the allegations and has given notice of this application to a number of employers who are not members of NEEA. One of those employers, Thyssen Elevators Limited, has filed an intervention, asserting it has certain legal rights which entitle it to be a party to this application.
2The IUEC has asked the Board to dismiss this application for failing to assert facts which could constitute a prima facie case. The Supreme Court of Canada described the proper standard for such a motion in Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), 74 D.L.R. (4th) 321 (S.C.C.) where the Court 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.
Applying this standard to the application, it is evident that the matter must proceed to hearing. I direct the Registrar to set this matter down for a hearing. Before that hearing the Board directs the parties to direct their minds to two issues.
3First, have all the so-called “independents” received a copy of the application? Since it is the IUEC which will know more certainly than NEEA how many “independents” there are who might be affected, and who they are, the Board directs the IUEC to serve all employers with whom it has signed a collective agreement covering work outside the Industrial, Commercial and Institutional sector of the construction industry with a copy of the application and this decision. Since the Board suspects that the information about who those employers are may in itself be a matter of contention between these parties, the IUEC is directed to file a copy of the certificate of delivery to those other employers (other than those already listed in the response), which certificate will not be released to the applicant absent agreement or a decision of the Board.
4Second, NEEA is directed to advise the Board within twelve days of this decision whether or not it opposes the request of NEEA for standing in this matter. If it does oppose its standing, NEEA is directed at the same time to include its reasons for opposing the request for standing in writing. Within ten days after receipt of NEEA’s submissions, the IUEC and Thyssen are directed to file their submissions in response. NEEA will have five days thereafter to file any reply submissions. None of these time periods include the days between December 20, 2001 and January 2, 2002 inclusive.
5The Board finds it appropriate to put counsel to the work of written submissions (if any are necessary) as the facts in this matter do not appear to be significantly in dispute, although the manner of characterizing them is. If the matter of standing is dealt with in advance, the case may be dealt with in a reasonably expeditious fashion.
6I will remain seized for the purpose of determining the issue of standing, but not for the merits of the application. The Registrar is directed to set this matter for hearing.
“David A. McKee”
for the Board