Philip J. Wolfenden

The respondent sought early dismissal of the human rights application under s. 45.1 of the Human Rights Code, arguing that a prior complaint to the Financial Services Commission of Ontario (FSCO) regarding the Ontario Pension Benefits Act had appropriately dealt with the substance of the application.

The Tribunal denied the request, finding that the FSCO proceeding did not address the applicant's core allegation that his exclusion from the defined benefits pension plan constituted age discrimination.

The applicant filed human rights applications against his former employer and union following the termination of his employment and a subsequent grievance settlement.

The respondents requested dismissal under section 45.1 of the Human Rights Code, arguing the matters were appropriately dealt with in the grievance proceeding.

The Tribunal dismissed the application against the employer, finding the grievance settlement and release appropriately dealt with those allegations.

However, the Tribunal allowed the application against the union to proceed, as the allegations of discrimination by the union were not addressed in the grievance process.

The Tribunal also dismissed the applicant's claim for breach of settlement, noting section 45.9 only applies to settlements of human rights applications.

The employer and an intervenor employee requested reconsideration of a Board decision that declared a sale of business and related employer status between Volta and Urban.

They argued that a subsequent certification vote where employees rejected the union, and a three-year delay in issuing the decision, warranted reconsideration.

The Board dismissed the requests, finding that the certification vote did not extinguish the union's prior bargaining rights and that the delay, while excessive, did not justify overturning the decision, though it might be relevant to mitigating damages in the related grievance referrals.

The employer, Urban Electrical Contractors, requested reconsideration of a Board decision declaring it bound to a provincial collective agreement.

The Board noted that an employee, Danny Ajamian, had previously attempted to challenge the decision but was mistakenly turned away by a Board Solicitor.

The Board directed that if the employee wished to make submissions regarding the reconsideration request, he must deliver them to the union and the employer by a specified date, and set a schedule for responsive submissions.

In a union certification application, the parties disputed whether lead hands, linemen, and senior deburrers should be excluded from the bargaining unit.

The employer failed to file particulars, so the Board proceeded based on the union's statement of facts.

The Board found that the disputed employees did not exercise managerial functions under section 1(3) of the Labour Relations Act, as their involvement in discipline and scheduling was limited and infrequent.

The Board also rejected the argument that they lacked a community of interest with the rest of the bargaining unit, noting that minor differences in working conditions do not create serious labour relations problems.

A final certificate was issued to the union.

In an ongoing application for certification, the employer requested a representation vote under section 8(3) of the Labour Relations Act, alleging that the union submitted fraudulent membership cards and prevented appropriate communication with employees.

The union brought a motion to restrict the inquiry into the scope of the bargaining unit, arguing the employer was bound by an agreement from a prior certification application.

The Ontario Labour Relations Board dismissed the union's motion, finding no basis for res judicata or issue estoppel.

The Board also denied the employer's request for a vote, concluding that the allegations of fraud lacked particularity and that the union had achieved the requisite 55% support for automatic certification.

The Board revoked the appointment of a Labour Relations Officer and directed a hearing to resolve the remaining bargaining unit configuration issues.

The complainant union alleged that the grievor was discharged by the respondent employer because of his union sympathy, contrary to the Labour Relations Act.

The respondent argued that the reverse onus provision in section 89(5) of the Act violated the presumption of innocence in section 11(d) of the Canadian Charter of Rights and Freedoms.

The Ontario Labour Relations Board held that it had jurisdiction to consider the constitutional challenge but dismissed it, finding that section 89(5) is civil and remedial, not criminal, and thus does not contravene the Charter.

On the merits, the Board found overwhelming evidence that the employer unlawfully terminated the grievor and interfered with the union, ordering immediate reinstatement with compensation.

The applicant employer bargaining agency alleged that during a province-wide strike in the industrial, commercial and institutional (ICI) sector of the construction industry, the respondent affiliated bargaining agents continued to supply union members to certain contractors.

The Ontario Labour Relations Board found that the supply of men during a province-wide strike constituted an unlawful arrangement contrary to section 146(2) of the Labour Relations Act.

The Board also held that trade unions have an ongoing obligation under section 148(1) to take reasonable steps to ensure that a strike is called and authorized uniformly, and that the respondents breached this duty by permitting members to work.

Cease and desist orders were issued.

The union filed a complaint alleging that the employer discharged the grievor because of her union activity, contrary to section 66 of the Labour Relations Act.

The employer maintained that the grievor was discharged pursuant to its disciplinary practice after receiving a third written warning for violating published rules.

The Board found that the employer established good cause for the discharge and that there was insufficient evidence to infer the employer had knowledge of the grievor's union activities or acted out of anti-union animus.

The complaint was dismissed.

Two trade unions applied for certification to represent carpenters and construction labourers employed by the respondent in the construction industry.

The Board determined the appropriate bargaining units, including both the industrial, commercial and institutional (ICI) sector province-wide and all other sectors in the relevant geographic areas.

Because the unions challenged the accuracy of the employee lists filed by the respondent, and there was overlap between the lists of carpenters and labourers, the Board appointed a Board Officer to inquire into the composition of the bargaining units and report back before making a final determination on certification.

The applicant employer sought a declaration that a strike continued by the respondent union after the sale of a business was unlawful.

The Board held that under section 63 of the Labour Relations Act, the sale of a business suspends a union's right to strike until the statutory preconditions, including notice to bargain and conciliation, have been exhausted with the successor employer.

However, the Board declined to exercise its discretion to declare the strike unlawful because the employer had taken the position that the sole employee was terminated, creating substantial uncertainty.

The application was dismissed.

The complainant, an owner-operator of a crane, alleged that the respondent union breached the Labour Relations Act by negotiating a subcontracting clause that required owner-operators to have an agreement with the union, and then refusing to sign such an agreement with him.

This refusal effectively prevented him from working on unionized construction sites.

The Ontario Labour Relations Board dismissed the complaint, finding that owner-operators were not employees within the meaning of the provincial collective agreement, and therefore the union owed them no duty of fair representation under section 60 or 136(1).

The Board also found no violation of section 60a regarding hiring hall referrals, nor any unlawful intimidation or coercion under section 61.

The union applied for certification and filed an unfair labour practice complaint, alleging the employer threatened employees with dismissal if they voted for the union.

The Board found that a foreman threatened one employee, violating sections 56 and 58(a) of the Labour Relations Act.

However, the Board dismissed the request for automatic certification under section 7a, finding the single isolated incident insufficient.

The Board ordered the employer to post a notice of its violation and directed a new representation vote.

The complainant union alleged that the respondent employer failed to bargain in good faith during negotiations for a first collective agreement, specifically regarding the issue of union security.

The employer took a firm position against compulsory dues check-off, offering only voluntary check-off.

The Board found that the employer had engaged in rational and informed discussion and was entitled to take a firm position on union security.

The complaint was dismissed, with one Board member dissenting on the grounds that the employer's rigid stance on union security constituted surface bargaining.

The union applied for certification and filed an unfair labour practice complaint regarding an employer's campaign letter distributed prior to a representation vote.

The vote resulted in a 60-60 tie.

The union alleged the letter violated a prior settlement agreement prohibiting communications indicating victory or defeat in a previous discharge complaint, thereby constituting undue influence under section 56 of the Labour Relations Act.

The majority of the Board dismissed the application and complaint, finding the employer's letter did not breach the settlement agreement and fell within the parameters of acceptable employer response to union propaganda.

A six-month bar on further certification applications was imposed.

One Board member dissented, arguing the letter breached the settlement and warranted a second vote.

Following the sale of a business and the intermingling of unionized and non-unionized employees, the Board ordered a representation vote.

The union won the vote.

The successor employer argued the vote should be set aside due to union propaganda and that, regardless of the vote, the predecessor's collective agreement should be declared no longer binding because it was unsuitable for the new operation and should not apply to non-unionized transferred employees.

The Board upheld the vote and held that under section 55 of the Labour Relations Act, the collective agreement continues in force and applies to all employees falling within the scope of the bargaining unit, including those transferred from the successor's other operations.

The employer's request to terminate the collective agreement was dismissed.