Corporation of the City of Peterborough v. Peterborough Professional Fire Fighters' Association, Local 519, 1991 CanLII 4448

0151-90 Corporation of the City of Peterborough, Applicant v. PeterboroughProfessionalFireFighters' Association, Local 519, Respondent

Before : Patricia Hughes, Alternate Chair; Donald Dudar and Geri Sheedy, Members

Appearances: Richard Taylor and Murray Hynes for the Applicant; Cathy Lace, Paul Brown, Judy Harris and Kitch Millard for the Respondent

Cite As: Peterborough (1991), 2 P.E.R. 86

Practice and Procedure -Prima facie case

On a motion for dismissal for failure to make out a prima facie case, a tribunal must decide whether the applicant has made out a case on the faceofthe writtenmaterialithas filed as the application. A failure to establish a prima facie case means that even if the applicant could prove all its allegations, the tribunal could do nothing for it. It is not necessary to hear evidence. It is appropriate to examine only the application on such a motion. The Tribunal will look at the effect of the application as a whole; it will not requireanapplicanttouse"technical" or"legal"language. The fact that an application raises a "novel" point will not result in dismissal. The Tribunal must distinguish between those cases in which further particulars arerequiredandthosesituationsinwhichthereisnocaseatall. It will only dismiss a case without a hearing onthe meritswhenitis"plain and obvious"thata hearingonthe meritscannotleadtoa result contemplated by the legislation. In this case, the application does not disclose a violation of the Act nor a basis upon which the Tribunal can grant the remedy requested.

Pratique et procédure - Cas à première vue

Lorsqu'ilétudieunemotionconcernantledéfaut d'établir une affairea premièrevue,leTribunaldoit décider si l'auteur de la requête s'est fondé sur les preuves écrites qu'il a déposées comme requête. Le défaut d'établir une affaire à première vue signifie que même si l'auteur de la requête peut prouver toutes ses allégations,leTribunalnepeutrienfairepourlui. Il n'est pas nécessaire d'entendre les preuves. Il convient seulement d'examiner la requête relative à une telle motion. Le Tribunal étudiera les conséquences de la requête dans son ensemble; il n'exige pas de l'auteur de la requête qu'il utilise des termes «techniques» ou «juridiques». Le fait qu'une requête soulève une «nouvelle»questionn'entraînepassonrejet. Le Tribunal doit établir des distinctions entre les cas où des renseignements supplémentaires sont nécessaires et les cas où il n'existe aucune cause. Il rejettera une affaire sans audience seulement s'il est «évident» qu'une audience sur le bien-fondé de l'affaire ne peut pas donner un des résultats qu' envisage la loi. Dans le cas présent, la requête ne divulgue pas une infraction à la Loi et ne constitue pas non plus une raison pour permettre au Tribunal d'accorder le recours demandé.

DECISION OF THE TRIBUNAL, MARCH 21, 1991

1. The applicant in this case, the Corporation of the City of Peterborough ("the City"), requested a hearing under subsection 24(6) of the Pay Equity Act, 1987 ("the Act") with respect to an order of a Review Officer dated September 7, 1990. The order directed the parties "to meet and complete a pay equityplanand itsschedule ofadjustmentsconsistent withthe provisions ofthe Pay Equity Act, 1987 and

the document negotiated by their joint pay equity committee" (the document referred to was attached to and formed part of the order); it also directed the parties to "implement (the plan) immediately" with adjustments retroactive to January 1, 1990 (the mandatory posting date for this employer).

2 Counsel for the respondent, the Peterborough Professional Fire Fighters' Association - Local 519 ("the Fire Fighters"), argued that the City's application should be dismissed because it did not present a case which could be remedied by the Tribunal (in other words, that the City had not established a prima facie case).

3 Counsel for the City takes the position that the Tribunal does not have the authority to dismiss an applicationsolely on the basis of the written material; he argues that he isentitledto callevidencebecause paragraph 25(1)(b) of the Act provides that the Tribunal"shallhold a hearing.. . ifa requestfora hearing, asdescribedin subsection 23(4) or 24(6), is received by the Hearings Tribunal". He concedes thatifwe permitted him to call evidence and the Fire Fighters then moved for a "non-suit" (that is, that there is no case to answer on the basis of the evidence led by the applicant), we would have the authority to dismiss at that stage. In any case, he submits the City has established a prima facie case. Alternatively, he maintains that if we decide that the City has not established a prima facie case, it should be allowed to amend its application, a request to which counsel for the Fire Fighters objects.

4 We have concluded that the Tribunal has the authority to dismiss an application for failure to present a prima facie case. We also conclude that it is appropriate to dismiss this application on that basis. Our reasons for both conclusions follow below.

5 We first examine whether the opportunity to call oral evidence is a necessary component of a "hearing" within the meaning of paragraph 25(1)(b) of the Act, since if it is, we could not dismiss on the basis of the pleadings.

6 On a motion for dismissal on the basis of failure to make out a prima facie case, a tribunal must decidewhetherthe applicant hasmadeout a case onthe faceofthe writtenmaterialfiledasthe application. For this purpose, the applicant is permitted to make itsbestcase bytreating everything it has alleged as if it were true. A failure to establish a prima facie case means that even if the applicant could prove all its allegations,the tribunalcould do nothingforitbecause the facts alleged do not constitute a violation of the relevant statute. If the applicant's best case does not provide the basis for a remedy, the application is dismissed; if it would provide a basis for a remedy, however, the assumption of truth is forgotten: the case proceeds to permit the applicant to prove its allegations and the respondent to respond to them.

7. An applicant must make out a set of circumstances which, if proved, the Tribunal can rectify in the mannerrequestedbytheapplicant. There are times when the applicant maymakeoutacasewhichcould be rectified by the Tribunal, but does not provide sufficient information for the respondent to answer the casefully;thenthe Tribunalmightorder the applicant toprovidefurtherparticularsabout the circumstances underlying its claim. But such cases must be distinguished from those in which it is clear on the material filed by the applicant thatthe Tribunalcould notrectifythe circumstancessetout by the applicant in the manner

requested;thenthereisno point inproceeding:hencethe authoritytodismissforfailuretoestablisha prima facie case.

7 This motion is analogous to that which may be made underRule21.01oftheOntario Rules of Civil Procedure that a pleading be struck out "on the ground that it discloses no reasonable cause of action or defence". The Ontario Court of Appeal succinctly summarised the law under Rule 21.01 in Trendsetter Developments Ltd. v. Ottawa Financial Corporation (1989), 33 C.P.C. (2d) 16: "[t]he law is well established that [on such a motion], allthe factspleadedinthe statement ofclaimmustbe deemed to have been proven, and the Court should make the order only in plain and obvious cases which it is satisfied to be beyond doubt".

8 By virtue of its status asaquasi-judicialbody,bothunder the common law and under the Statutory Powers Procedure Act, R.S.O. 1980, c. 484 ("the SPPA"), the Tribunal must ensure that all the requirements of natural justice are met, generally in what are considered "trial-like" procedures. The entitlement to call evidence in a hearing is reflected in the provisions of the SPPA and natural justice principles. Indeed, hearings before the Tribunal will normally involve the calling oforaltestimony and the productionofdocumentaryevidence. But that entitlement or practice is not absolute. Restrictions on the extent and nature of evidence are expressly set out inthe SPPA and have developed in the common law. Most obviously, for example, the witness giving the evidence must be competent to do so and the evidence must be relevant to the dispute between the parties. The entitlement and restrictions both respond to the need to balance all parties' needs in a fair hearing.

9 Paragraph 29(2)(c) of the Act provides that the Tribunal "may make rules for the conduct and management of its affairs and for the practice and procedure to be observed in matters before it ". This is consistent with subsection 23(1) of the SPPA: "A tribunal may make such orders or give such directions inproceedingsbeforeitasitconsiderspropertopreventabuseofitsprocesses ". Itisanabuseofprocess topermita matterto proceed whenitcanbe plainlyand obviouslydeterminedbeforetheproceedingsbegin thatthe Tribunalcannot give a remedy even whenitassumesthatithasbeforeitthe best case the applicant is able to establish.

11. Counsel's submissions fail to distinguish between "a hearing" and "a hearing on the merits". A hearing on the merits involves a hearing on the actual dispute between the parties. On occasion, however, the Tribunal's ruling on a preliminary objection will dispose of a case so that it does not proceed to a hearing on the merits. While normally the Tribunal will schedule an oral hearing when a request for a hearing is made to the Tribunal under subsection 24(6) of the Act, there may be any number of reasons why the matter is never heard on the merits. Tociteoneobviousexample:apartymayobjecttoa Review Officer order on a basis recognized under the Act, but there is anobjectionthat the employer is actually covered by federal legislation, not provincial. If the Tribunal decides that the employer involved is not subject to provincial law because the type of work falls within federal jurisdiction, it will dismiss the case as being outside the Tribunal's jurisdiction. The hearing will not proceed to the merits of whether the objection to the order is valid. An issue such as the Tribunal's jurisdiction will likely require evidence, either in the form of an agreedstatement offactsor oraltestimony, but itdoesnotnecessarilyinvolve a hearing on the merits of the application filed with the Tribunal. By comparison, the issueraisedherebydefinitionprecludes the

callingoforaltestimony, but itdoes involve whatis,ineffect,forthe purposesofthe motiononly, anagreed statement of facts: that is, the application filed by the City.

10 Thefactsallegedintheapplication are, for the purposes of the motion, tantamount to evidence or, indeed, are tantamount to findings of fact by the Tribunal. It is as if we heard the evidence and concluded that the City was right. The City cannot be better off than to have all its allegations of fact accepted; what further evidence could it call? Any further evidence would be redundant or would merely serve to assist the City in trying to establish facts additional to those already accepted as true.

11 Under these circumstances, the City is not prejudiced or denied natural justice if the Tribunal refuses toallowittocallevidence. Counsel had full opportunity to make submissions on the motion itself, including full opportunity to explain to the Tribunal how the application makes out a prima facie case. He made thosesubmissionsattheoralhearingscheduledafterthe Cityfileditsapplicationrequestinga hearingbefore the Tribunal.

12 We conclude that paragraph25(1)(b)ofthe Act does not automatically entitle the applicant to call oralevidenceregardless of its relevance and purpose and that the Tribunal is not thereby precluded from dismissing for failure to plead a prima facie case. Having concluded that we have the authoritytodoso, we now turn to the particular circumstances of this case and explain why it is appropriate to dismiss the City's application on that basis.

13 There was some dispute about the documents which we should examine before making such a determination. CounselfortheCityargues we should consider the applicant's reply. But that ignores the significance of the application. The applicant makes out its case in the application: that is the purpose of the application, to tell everyone involved what the nature of the applicant's case is. The response allows the respondent to state its position on the applicant's case and to raise any other issues relevant to the disputesetoutbytheapplication. The replyisanopportunityfortheapplicanttostateitspositiononthose matters raised by the response. It is not for the purpose of raising new issues. Indeed, Rule 3.01 of the Tribunal's Rules of Practice providesthat"[a]nypartymayprepare a replyto the facts,events,and issues which were raised in a response" (emphasis added). The reply cannot domore thanthe application for the purpose of determining whether the applicant has established a prima facie case:one cannotfind there a case which has not been made out in the application. Accordingly, it is appropriate to examine the application only on such a motion.

14 The application form (Form1)relatesto Rule 1 of the Tribunal's Rules of Practice which sets out the obligation of an applicant to state the case it wishes to make. Rule 1.02 requires a "completed application" to include, among other things:

1.02 . . . b) a general statement of the complaint, the Review Officer order objected to, or the reason for the request for a hearing by the Applicant;

c) a clear and concise statement of the facts, events, and issues which form the basis of the application, but shall not include the evidence intended to prove the facts, events, and issues; d) the remedy sought by the Applicant;

Rule 1.03 then states that " [a] party will not be permitted to raise a fact, event, or issue not set out in the application, response or reply except with leave of the Tribunal".

17. The application form itself reflects and reiterates Rule 1. Section 4 of the form, called "Case Summary", instructsanapplicantto "Describe briefly the reasonforyour requestfor ahearing"(emphasis in original). At the bottom of the space provided a "Note" appears: "You must complete the Particulars (Section 5) of this Application". Section 5, entitled "Particulars", explains what information the applicant must provide and why:

TheRespondentand OtherPartiesto this Applicationareentitledto knowthefacts,events and issues upon which you base your objection or complaint. This should include: what did or did not happen, who was involved, and when and where these events took place. Do not include the evidence intended to prove these facts, events and issues.

There follows another warning about not being able to raise facts, events or issues not set out in the application, unless the Tribunal grants leave to do so. Section 6, the "Remedy" section asks applicants: "Howdo you wish the order, decision, or plan changed? Describe what you wish the Tribunalto order as a result of this Application. Include all monetary and other redress you seek" (emphasis in original). The application form also has space in Section 9 for "Other Statements".