Mark Contini

The applicant union sought judicial review of four Ontario Labour Relations Board decisions that required it to enter into a collective agreement with the respondent employer following a final offer vote under s. 42(1) of the Labour Relations Act, 1995.

The union had refused to sign the agreement, arguing it would break a pattern agreement applicable to the non-ICI construction sector.

The Divisional Court found the Board's decisions unreasonable, holding that the Act does not require a union to object to a final offer vote at the outset, and that the Board unreasonably excluded the existence of a pattern agreement as a justification for refusing to sign.

The application was allowed and the matter remitted to a different panel of the Board.

EllisDon applied for judicial review of an Ontario Labour Relations Board decision that admitted a photocopy of a 1958 working agreement and found the unions were estopped from enforcing it for only two years.

The Divisional Court held that the OLRB erred in law by admitting the document as a business record or ancient document without assessing its reliability.

Furthermore, the Court found that the OLRB's decision to limit the estoppel to two years was unreasonable, as EllisDon had permanently lost the opportunity to seek a legislative solution.

The Court quashed the OLRB's decision and dismissed the unions' grievances, ruling the estoppel must be permanent.

At a hearing before the Human Rights Tribunal of Ontario, the respondent objected to the applicant being represented by an unlicensed agent.

The proposed representative argued he fell under a Law Society Act by-law exemption for providing pro bono services to a friend.

However, he acknowledged providing legal services in respect of more than three matters per year, which disqualified him from the exemption.

The Tribunal excluded the representative and adjourned the hearing on consent, issuing procedural directions for document disclosure and witness statements.

The applicant filed a human rights application alleging his employer failed to accommodate his disability following a workplace injury, and that his union discriminated against him.

The union requested that the application against it be dismissed under s. 45.1 of the Human Rights Code, arguing the pre-2009 allegations were already addressed in three duty of fair representation complaints before the Ontario Labour Relations Board (OLRB).

The Tribunal agreed, finding the OLRB had appropriately dealt with the substance of the allegations by applying human rights principles.

The Tribunal also dismissed the 2009 allegations, noting that a union's mere failure to file a grievance does not constitute discrimination under the Code.

The application against the union was dismissed, but the union was granted intervenor status.

The applicant sought declarations terminating bargaining rights held by the responding unions.

On the first day of the hearing, the parties agreed to address a constitutional issue after determining the merits of the application.

The parties also agreed to move the venue of the hearing to Sault Ste.

Marie to accommodate witnesses.

The Board cancelled the previously scheduled date and fixed new dates for hearing evidence in Sault Ste.

Marie and argument in Toronto.

In a referral of a grievance in the construction industry, the responding party raised preliminary issues including the abandonment of bargaining rights.

The responding party argued that because the collective agreement had automatically renewed nine times without union contact, the evidentiary burden shifted to the union to explain its inactivity.

The Board agreed, directing the applicant union to proceed first with its evidence regarding both the existence of the collective agreement and the abandonment issue.

The appeal concerned whether a labour arbitrator had exclusive jurisdiction to determine an employee’s entitlement to long term disability benefits payable under an insurance policy maintained pursuant to a collective agreement.

The court held that recent jurisprudence, including Pilon, did not extend arbitral jurisdiction to a dispute between an employee and an insurer over policy benefits where the issue was the insurer’s liability under the policy.

The arbitrator also erred in joining the insurer as a party defendant where no dispute properly implicating the insurer was before him.

The appeal was dismissed and the Divisional Court’s order quashing the award was upheld.

The intervenor, ADM-Agri Industries Limited, requested reconsideration of a 1991 Board decision certifying the applicant union for employees of McCarthy Milling Limited, arguing the Board lacked constitutional jurisdiction because the flour mill was a federal work.

The union brought a preliminary motion to dismiss the reconsideration request.

The Board granted the union's motion, declining to entertain the reconsideration request.

The Board noted that the union and ADM had subsequently negotiated a collective agreement, meaning the bargaining rights from the original certificate had merged into the agreement.

Reconsidering the 1991 certificate would not resolve the ongoing constitutional issues between the union and ADM, and the Board declined to address complex constitutional questions in the context of a delayed reconsideration request.

The union referred several grievances to arbitration, alleging that the municipal employer violated the subcontracting provision of the collective agreement by engaging outside contractors not in contractual relations with the union.

The Board interpreted the subcontracting provision, which was imposed during first contract arbitration, as restricting the employer's ability to let subcontracts but not prime contracts.

Applying this distinction, the Board dismissed five of the six grievances, finding that the contracts in question were either prime contracts, involved maintenance rather than construction work, or did not involve work covered by the collective agreement.

One grievance was allowed, as the Board found the contract was in the nature of a subcontract for work that would otherwise have been performed by the employer's own employees.

The union applied under section 40a of the Labour Relations Act for a direction to settle a first collective agreement by arbitration.

The employer, bound by a pre-existing multi-party agreement providing employment guarantees for native workers, refused to negotiate terms for native employees that might conflict with that agreement.

The Board found that the employer's rigid adherence to the third-party agreement and refusal to recognize the union's comprehensive bargaining authority over all employees in the unit constituted a refusal to recognize the union.

Given the complex third-party interests impeding bilateral negotiations, the Board directed the settlement of the first collective agreement by arbitration.

The union grieved the employer's refusal to hire two rodmen referred from the hiring hall.

The employer had discharged the grievors four years earlier for reporting to work under the influence of alcohol and maintained it was not obligated to rehire them.

The Board found that the employer acted unreasonably in refusing to hire the grievors, as they were not advised at the time of their 1985 discharges that they were ineligible for future rehire.

The grievance was allowed, with the Board remaining seized of damages.

The complainant union filed a jurisdictional dispute complaint regarding the assignment of work by a subcontractor.

The respondent union had initially filed a grievance demanding the work, but later withdrew it.

The respondent union then brought a motion arguing the Board lacked jurisdiction or should decline to inquire into the complaint since there was no longer a demand to change the work assignment.

The Board held that, assuming it had jurisdiction, it was appropriate to exercise its discretion not to inquire further into the complaint because the underlying dispute had disappeared with the withdrawal of the grievance.

The complaint was dismissed.

The applicant union sought certification and filed photocopied membership evidence after the original cards were lost in the mail.

A group of objecting employees filed statements of desire but failed to attend the scheduled hearing, having mistakenly assumed their written request for a venue change would automatically adjourn the matter.

The Board declined to consider the objectors' statements due to their failure to attend despite clear notice.

The Board also accepted the photocopied membership evidence, finding that the union had made a diligent search for the lost originals and fully disclosed the circumstances.

An interim certificate was issued to the union.

In a jurisdictional dispute over the application of aluminum cladding or lagging over insulation, the respondent Sheet Metal Workers brought a preliminary motion to dismiss the complaint.

They argued that the work in dispute was sheet metal work, a compulsory certified trade under the Apprenticeship and Tradesmen's Qualification Act, and could therefore only lawfully be assigned to journeymen or apprentice sheet metal workers.

The Board dismissed the preliminary motion, finding that the Apprenticeship Act does not provide any trade with an exclusive jurisdiction and that trade jurisdictions in the construction industry frequently overlap.

The Board concluded it would be inappropriate to determine the issue without a full hearing on the merits.

The applicant trade union applied for certification of a bargaining unit of construction labourers, including surveyors, employed by the respondent in the industrial, commercial and institutional sector of the construction industry.

The Board dismissed the intervention of another union for lack of status.

The Board found that the applicant did not have an established trade union practice of representing surveyors in the construction industry, whereas the intervener had a history of such representation and was the designated employee bargaining agency for surveyors.

The Board concluded it could not determine an appropriate bargaining unit that included trades other than those contained in the applicant's designation order, and dismissed the application.

During a pre-hearing conference for a jurisdictional dispute regarding asbestos removal in residential buildings, the parties disagreed on whether the complainant employer was bound by a collective agreement in the residential sector.

The Ontario Labour Relations Board determined that the employer, as a member of the Master Insulators Association of Ontario Inc., was bound by the collective agreement.

The Board found that the agreement's terms explicitly covered all sectors of the construction industry, except the electrical power systems sector, and the union's attempt to negotiate a separate residential agreement did not negate the existing agreement's application to the residential sector.

The complainant union alleged that the respondent employer violated section 64 of the Labour Relations Act by refusing to provide a physical copy of the Master Plan detailing welfare benefits under the collective agreement.

The employer argued that providing access to the document at its head office and answering questions by phone was sufficient.

The Board held that the refusal to provide a copy interfered with the union's ability to represent its members and fulfill its duty of fair representation under section 68.

The Board also declined to defer the matter to arbitration, noting that the complaint raised a novel issue regarding statutory rights under section 64.

The employer was directed to provide the union with a copy of the Master Plan.

The applicant, an employee, applied to the Ontario Labour Relations Board to terminate the bargaining rights of the respondent union.

The applicant submitted a document containing signatures of employees who wished to decertify the union.

The document was a photocopy of individual sheets that had been pasted together, with the originals allegedly sent to the union's head office.

The union did not present evidence to contradict this claim.

The Board accepted the document as evidence of the employees' wishes, finding that the signatures collected by the applicant were obtained voluntarily.

The Board ordered a representation vote to determine if the employees wished to continue being represented by the union.

One Board member dissented, arguing that the petition should have been rejected due to its form and the circumstances of its circulation.

The Minister of Labour referred a question to the Ontario Labour Relations Board regarding his authority to appoint a conciliation officer.

The union had requested conciliation for a 1984-1985 collective agreement, but the employer objected, arguing that the union failed to give timely notice to bargain under the 1983-1984 agreement, resulting in its automatic renewal.

The Board found that the union's late notice, given months after the agreement's expiry, did not constitute valid notice under section 53(1) of the Labour Relations Act.

Consequently, the collective agreement was automatically renewed, and the Minister lacked the authority to appoint a conciliation officer.

The applicant union, CUPE, applied for a declaration under section 62 of the Labour Relations Act that it had acquired the rights, privileges, and duties of the predecessor union, the Bethesda Service Employees Association, following a merger vote.

The employer took a neutral position, but a group of employees objected, suggesting some employees had second thoughts after the vote.

The Board found that the merger vote was well-attended and properly conducted, and that the employees' concerns did not warrant refusing the declaration or directing a new representation vote.

The Board granted the declaration of successor rights.