Employment and Labour Law

The responding party employer brought a preliminary motion to dismiss the applicant's complaint under the Occupational Health and Safety Act (OHSA) for want of a prima facie case.

The applicant alleged she was terminated as a reprisal for reporting sexual harassment by her supervisor, arguing that sexual harassment constitutes a workplace hazard under the OHSA.

The employer argued the OHSA only covers physical hazards and that the Human Rights Code is the proper forum.

The majority of the Board dismissed the motion, finding it was not plain and obvious that the complaint would fail, as the OHSA's definition of 'hazard' is broad and could arguably encompass sexual harassment.

A dissenting member would have granted the motion, finding the OHSA inapplicable to sexual harassment.

The applicant trade union applied for certification, and a representation vote was held.

The responding employer sought to dismiss the application, alleging that a union representative accosted and spoke to employees outside the building where the polling station was located, thereby violating the Labour Relations Act, 1995.

The Board dismissed the employer's request, finding no prima facie case that the union representative intimidated, coerced, or unduly influenced voters.

The Board noted that electioneering outside the polling area is permissible absent improper conduct.

As more than fifty percent of the ballots were cast in favour of the applicant, a certificate was issued.

The applicants, classified employees in the Ontario Public Service, filed applications alleging that their trade union breached its duty of fair representation by agreeing to process their outstanding classification grievances through an expedited mediation-arbitration process without their consent.

The trade union and the employer brought a motion to dismiss the applications for failing to make out a prima facie case.

The Board found that the trade union had the right to settle or dispose of grievances without the individual applicants' consent, and that the decision to use an expedited process to resolve a long-standing backlog of cases was not arbitrary, discriminatory, or in bad faith.

The applications were dismissed without a hearing on the merits.

The applicants sought to terminate the bargaining rights of the responding trade union.

A representation vote was held, resulting in a narrow majority in favour of the union retaining its bargaining rights.

Following the vote, several employees alleged that a vocal union supporter had uttered threats and intimidated employees in the days leading up to the vote, and requested a new vote.

The Board held a hearing to assess the allegations.

Finding the evidence of the employees to be fragmentary, internally inconsistent, and influenced by the highly partisan atmosphere of the decertification campaign, the Board preferred the union supporter's denial.

The Board concluded that the allegations of threats were not established and dismissed the application to annul the vote.

The applicant trade union filed an unfair labour practice complaint alleging various violations of the Labour Relations Act, 1995 by the responding employer.

The Board declared a sale of business had occurred and amended the responding party's name.

However, the Board exercised its discretion under section 96 of the Act not to inquire further into the complaint, finding that litigating the matter would likely interfere with ongoing collective bargaining between the parties.

The applicant union sought a declaration under subsection 1(4) of the Labour Relations Act, 1995 that Canada Stampings & Dies Ltd. and Stamptech Ltd. are one employer.

The Board found that the two businesses were related or associated, as they served the same general market, employed the same mode of production, and were under the common control and direction of the same principal.

The Board exercised its discretion to issue the declaration, finding that the establishment of the new operation had an adverse effect on the union's existing bargaining rights by transferring work and potential growth away from the original bargaining unit.

The declaration was made retrospective to the date the union filed its grievance.

The applicant employer brought an application under section 91 of the Labour Relations Act to resolve a jurisdictional dispute regarding the assignment of instrumentation work.

Historically, pneumatic instrumentation was assigned to the I.A.M. and electronic instrumentation to the I.B.E.W. Due to technological changes, the employer assigned pneumatic work to the I.B.E.W. to improve efficiency, which the I.A.M. grieved.

The Board found it had jurisdiction to hear the application and concluded that the existing demarcation line was irrational.

The Board ordered that jurisdiction over pneumatic instrumentation be shared on an interim basis.

The applicant union applied for certification and a representation vote was held.

Several employees objected to being included in the bargaining unit, raising concerns related to community of interest.

The Board applied the test from The Hospital for Sick Children and concluded that the objecting employees' allegations, even if true, would not change the result of the application.

As more than fifty percent of the ballots were cast in favour of the applicant, the Board issued a final decision without a hearing, defined the appropriate bargaining unit, and directed that a certificate issue to the applicant.

The applicant employer associations sought relief under section 144 of the Labour Relations Act, 1995, alleging that the responding union and its business manager threatened an unlawful strike.

The dispute arose over the employers' right to transfer employees to a shutdown job site at Imperial Oil.

The union asserted that a local by-law and past practice prohibited such transfers after a shutdown commenced, and threatened to discipline members who accepted transfers.

The Board found that the union's conduct constituted a threat to call or authorize an unlawful strike, as the union could not resort to self-help or threats of work stoppage to enforce its interpretation of the collective agreement.

The Board granted the application and issued cease and desist orders.

The union filed a certification application but withdrew it before a representation vote upon learning the employer had more employees than anticipated.

The Board permitted the withdrawal without imposing a bar.

The employer sought reconsideration, arguing that section 7(9) of the Labour Relations Act, 1995 mandates a bar upon withdrawal.

The Board held that section 7(9) grants discretion to determine whether to impose a bar and its length.

Finding no abuse of process and that employee wishes had not yet been tested, the Board declined to impose a bar.

A certificate was issued in the union's subsequent successful application.

The Christian Labour Association of Canada (CLAC) applied for certification to displace the incumbent union, Local 47, as the bargaining agent for roofers at Covertite Eastern Limited.

Local 47 alleged that the employer and working foremen unlawfully supported CLAC's organizing campaign.

The Ontario Labour Relations Board found that the employer, motivated by a desire for lower labour rates, clearly communicated its preference for CLAC to the employees and linked future work opportunities to supporting CLAC over Local 47.

Concluding that this constituted employer support under section 15 of the Labour Relations Act, the Board dismissed CLAC's certification application.

The applicant developer sought a declaration and direction under section 144 of the Labour Relations Act, 1995, alleging that the responding party trade union threatened an unlawful strike.

The union's business representative had threatened to picket the applicant's construction site if a non-union masonry contractor continued to perform work.

The Board found that the threat to picket constituted a real threat to call or authorize an unlawful strike, as union members would likely refuse to cross the picket line.

The Board issued a cease and desist order against the union.

During an ongoing hearing, the responding party sought to introduce the applicant's subpoenaed medical records, which the applicant opposed on the basis of relevance.

The applicant had previously sought to rely on summary medical reports without calling the physicians to testify.

The Board held that the subpoenaed medical records were relevant since the applicant intended to rely on medical evidence.

The Board ruled that the onus of calling the physicians rested with the applicant, and if she chose not to call them but still relied on the reports, the responding party would be entitled to rely on the subpoenaed records in response.

The union filed a complaint alleging the employer breached its duty to bargain in good faith when its Board of Directors refused to ratify a tentative collective agreement.

The union argued the employer's negotiating team had apparent authority to bind the corporation.

The Ontario Labour Relations Board found that the union knew the agreement was subject to ratification, so there was no apparent authority.

The Board also found the employer's refusal to ratify was justified by a sudden change in financial circumstances.

However, the Board held that the employer breached its duty to bargain in good faith by failing to provide its negotiating team with an adequate mandate during bargaining.

The employer was ordered to develop an unconditional proposal and return to the bargaining table.

The applicants filed an application for termination of bargaining rights.

The Board requested submissions on the timeliness of the application.

The union provided a document showing a conciliation officer was appointed on December 8, 1995.

The applicants argued it was unfair to apply the Board's rules regarding the application date and alleged the union sought conciliation to thwart the application.

The Board found no compelling reason to waive its rules and noted it is not improper for a union to time a conciliation request strategically.

The application was dismissed as untimely.

The applicant employer sought to terminate the responding party trade union's bargaining rights under section 64 of the Labour Relations Act, 1995, alleging the union obtained its certificate by fraud.

The employer claimed the union filed membership evidence for individuals it knew were not employed by the employer.

The Board dismissed the application on preliminary objections, finding that the employer had received notice of the original certification application but failed to respond.

The Board held that the union's assertion of the employer's identity in the certification application, even if incorrect, did not constitute fraud, as the employer had the opportunity and obligation to dispute it during the certification process.

The applicant union requested reconsideration of a Board decision that denied a second representation vote and an oral hearing.

The union argued that the original vote was held on a Friday, a day when the employees did not work, resulting in only one of five eligible voters casting a ballot.

The Board dismissed the request, finding that an oral hearing was unnecessary as all factual propositions asserted by the applicant were accepted as true.

The Board further held that it is the responsibility of the party desiring a vote to be scheduled on a particular date to advise the Board, and the failure of employees to attend the vote did not warrant scheduling a second voting day.

The applicant Labourers' union brought a jurisdictional dispute application regarding the assignment of concrete forming work on a parking garage project.

The employer had assigned the work to a composite crew of Labourers and Carpenters.

The Carpenters' union claimed exclusive jurisdiction over the work.

The Board considered various criteria, finding that area practice was inconsistent but that the employer's past practice strongly favoured the composite crew assignment.

The Board declined to hold a full hearing to hear oral evidence on employer practice, noting that jurisdictional disputes are determined by consultation based on filed briefs.

The Board confirmed the employer's assignment of the work to the composite crew.

The applicant union referred two construction industry grievances to the Board, alleging the responding party employer violated the subcontracting provisions of the Provincial Agreement.

The employer disputed the Board's jurisdiction, arguing the work fell outside the industrial, commercial and institutional (ICI) sector and requested a sector determination.

The Board held that it had jurisdiction to arbitrate the grievances and that a sector determination was unnecessary, as the Provincial Agreement's terms extended to all sectors where the union held bargaining rights with the employer.

The applicant union (AAHP:O) sought a declaration that the employer properly assigned the work of a newly hired Genetic Counsellor to its bargaining unit.

The responding union (ONA) argued the work belonged exclusively to its nurses' bargaining unit, as nurses had historically performed the work.

The employer and AAHP:O advocated for a composite crew approach, allowing both nurses and non-nurses to perform the role depending on their qualifications.

The Board held that ONA's collective agreement language protecting work normally performed by nurses, combined with the employer's past practice of exclusively using nurses for the role since 1976, outweighed the employer's preference for a multi-disciplinary approach.

The Board ordered the employer to restore the assignment of the work to the ONA bargaining unit.