The Ontario Labour Relations Board (the “Board”) considered a preliminary motion by the respondent to dismiss an application under section 69 (sale of a business) and 1(4) (related employer) under the Labour Relations Act, 1995 (the “Act”) because the applicant (union) failed to show a prima facie case of a breach of the Act. The case is Molson Coors Canada (Toronto Brewery) and Sherway Warehousing Inc, 2014 CanLII 32353 (ON LRB) released on June 12, 2014.
The Board dismissed the motion and allowed the case to proceed on the merits. In doing so, it reviewed the manner in which it would assess a prima facie motion to dismiss.
Rule 39.1 of the Board’s Rules of Procedure provides as follows:
39.1 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.
Here is a link to the Annotated Rules of Procedure.
According to Vice Chair Rogers:
The Board has confirmed repeatedly that the threshold for establishing a prima facie case is not a high one (see Sault Ste. Marie,  O.L.R.D. No. 1846, at para. 7), but is “comparatively speaking extremely low” (see FMR Group Limited, 2013 CanLII 22062 (ON LRB), 2013 CanLII 22062 (ON LRB), at para. 16). Indeed, it has been held that only a “slight chance of success” is sufficient to keep an application alive “especially under subsection 1(4) and/or section 69 of the Act” (see FMR Group Limited, supra).
The Board went on to consider specific cases that have dealt with applications unders sections 69 and 1(4) of the Act. It is not surprising that a low threshold is imposed on a prima facie motion under these specific sections since, as the Board noted in Kingston, Frontenac, Lennox and Addington Community Care Access Centre, 2000 CanLII 26884 (ON LRB):
The Act contemplates that a union may have very little information to support its belief that businesses are related or that there has been a sale from one to the other. The Act therefore places an onus on the responding parties to such an application to produce all information relevant to the applicant’s claim. It is only in the most unusual circumstances then that the Board will dismiss an application under subsection 1(4) or section 69 of the Act on a preliminary basis. The Board must be convinced that it has all of the facts with respect to the alleged sale through the application or the agreement of the parties and that it could not make the declaration sought. The Board will only dismiss an application under subsection 1(4) if it can say that, assuming that the two entities are related, the Board would not exercise its discretion to make the declaration. (see the Durham Access to Care and Canadian Red Cross decisions, supra).
The Board was not prepared to dismiss either the section 1(4) or section 69 portions of the application since, the facts plead in the application, if proven and unanswered, could provide a basis for argument that those provisions apply.
The case provides a good review and summary of the approach that the Board will take when reviewing applications under section 1(4) and 69 of the Act on a motion to dismiss under section 39.1 of the Rules of Procedure.