HomeMy WebLinkAbout2309-07-U - Boulam
ONT ARlO LABOUR RELATIONS BOARD
2309-07-U Violet Boulam, Applicant v. OPSEU, Local 593, Responding Party v. The
Clarendon Foundation (Cheshire Homes) Inc., Intervenor.
1. This is an application filed under section 96 of the Labour Relations Act, 1995, S.O.
1995, c.l, as amended (the "Act"), in which the applicant, Violet Bou1am, alleges that the
responding party, OPSEU, Local 593 ("the union"), breached section 74 of the Act. The
applicant's complaint concerns the union's alleged failure to represent her adequately at an
arbitration hearing into her discharge grievance with the result that her discharge was upheld at
arbitration. By way ofremedy, the applicant requests that the union take the matter to Divisional
Court to be judicially reviewed.
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BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; June 4, 2008
2. In its response to the application, the union requests that the application be dismissed
on a preliminary basis without a hearing or consultation on the following grounds:
1. The application is untimely in that the matters at issue crystallized well
over six months prior to the filing of this application;
2. The Board lacks jurisdiction to rehear the matters which were the
subject of the arbitration award at issue and, alternatively, there is no
jurisdiction or insufficient grounds to warrant an order that the arbitration
award be brought forward for judicial review;
3. The application is insufficiently particularized.
The union also requests, in the alternative, that an order for particulars be made.
3. Pursuant to Rule 39.1 of the Board's Rules of Procedure, the Board has the discretion
to dismiss an application without a hearing or consultation if the application does not make out a
case for the orders or remedies requested. In International Union of Bricklayers and Allied
Craftworkers, [1999] a.L.R.D. No. 1492, the Board summarized the approach to be used when
determining whether to dismiss an application because it does not disclose an arguable case for
the orders or remedies requested. The Board stated at paragraph 4:
4. 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:
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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.
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 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.
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In J Paiva Foods Ltd, [1985] OLRB Rep. May 690 the Board set out the
test at page 691 as follows:
4. In the present case, the applicant asserts, among other things, that she was represented
at the arbitration hearing by the union's steward, Don Martin, and that at no time prior to the
arbitration hearing did Mr. Martin meet with her to prepare her for the hearing. The applicant
contends that the very fact that the applicant was never prepared for the hearing is a reflection of
the union's lack of good faith in dealing with the matter. The applicant also asserts that, during
the hearing itself, Mr. Martin failed to conduct cross~examination of the witnesses that were
called by the employer to show that the applicant had been verbally abusive in the past.
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5. Having considered the allegations made by the applicant, which allegations the Board
must assume for the present purposes to be true and provable, the Board is not persuaded that it
should exercise its discretion to dismiss the application for failing to disclose a primafaGie case.
Even though the union disputes many of the applicant's allegations including those referred to
above, as the Board noted in Textron Automotive Interiors, [1999] O.L.RD. No. 2061, simply
because an applicant may be faced with reasonable and plausible explanations for the responding
party's conduct which would provide a complete defence is not sufficient forthe Board to dismiss
the application on the grounds that it does not disclose an arguable case for relief. The Board also
notes that the question of the appropriate remedy in the event that the applicant's allegations are
made out is best addressed after the Board has heard the merits of the application.
6. The Board is also not persuaded that the application should be dismissed on a
preliminary basis for any of the other reasons advanced by the union. With respect to the issue of
delay, the Board notes that the application was filed less than a year after the arbitration decision
was rendered and the union has not identified any significant prejudice to its ability to defend
against the complaint as a result of this delay. The union has also not disputed the applicant's
claim that she did not receive a copy of the arbitration decision upholding her discharge (despite
several requests for same) until approximately one week before she filed the present application
with the Board. Finally, the union has not identified which allegations made by the applicant it
asserts are not sufficiently particularized, nor is it apparent to the Board what further particulars
the union requires at this stage. Notwithstanding this, the Board finds it appropriate to direct that
the applicant provide any further particulars she may have concerning her complaint against the
union forthwith.
7. This application is referred to the Registrar to be listed for a consultation.
"Caroline Rowan"
for the Board