Michael A. Church

Following the dismissal of the appellants' appeal of a refusal to certify a class proceeding regarding pension plan amendments, the respondents sought costs.

The appellants argued that no costs should be awarded, relying on the public interest and novel point of law provisions under the Class Proceedings Act, 1992.

The Divisional Court found no special circumstances to depart from the general rule that costs follow the event.

Applying the overriding principle of reasonableness, the court awarded costs to the respondents, including disbursements for a responding report on a fresh evidence motion.

The appellants appealed the decision of the motion judge refusing to certify their proposed class proceedings against the Ontario Northland Transportation Commission regarding amendments to its pension plan.

The appellants alleged the pension plan was an irrevocable trust and the amendments constituted a breach of trust.

The Divisional Court dismissed the appeals, finding that the motion judge made no errors of law, no palpable and overriding errors of fact, and that her conclusions on mixed fact and law regarding common issues, preferable procedure, and representative plaintiffs were reasonable and entitled to deference.

The applicant sought to enforce an order of the Ontario Labour Relations Board requiring the respondents to produce certain documents.

The respondents failed to comply with the Board's order and subsequently failed to produce the documents after being given an extension by the Divisional Court.

The Court found all three respondents in contempt, fining each $5,000 and ordering them to pay $5,000 in costs jointly and severally.

The applicant, a union member, filed applications under section 92 of the Labour Relations Act alleging that the union failed to provide an audited financial statement and that the statement eventually provided was inadequate.

The applicant withdrew the first application after receiving a statement for the union's general fund.

However, he argued the statement was inadequate because it omitted information about other discrete funds maintained by the union, such as the strike, contingency, and defence funds.

The Board agreed, finding that an adequate financial statement must include information about all discrete funds over which the union has exclusive control.

The Board directed the union to provide an adequate audited financial statement encompassing these other funds.

The applicant union applied to displace a bargaining unit of steeplejacks represented by the intervenor union in the ICI sector.

The intervenor argued that the applicant lacked status to bring the application because its designation order did not cover steeplejacks, relying on a previous Board decision.

The Board agreed, adopting the reasoning from the earlier decision that the applicant's general designation for restoration work did not overlap with the specific designation for steeplejacks.

The application for certification was dismissed.

At a case management consultation, the parties agreed to cancel a scheduled hearing date and adjourn several grievance referrals sine die for a period not exceeding one year.

The union parties agreed to meet to attempt to settle their dispute, with the assistance of the Board members if necessary.

The applicant union referred a grievance to arbitration under section 133 of the Labour Relations Act, 1995, alleging the employer violated the collective agreement by employing non-union members.

The employer failed to appear at the hearing.

Based on the union's evidence, the Board found the employer breached the agreement and ordered it to comply immediately.

The Board awarded the union $43,912.50 in damages for the breach, plus $749.00 for the filing fee.

The union and the employer filed cross-complaints alleging failure to bargain in good faith.

At the hearing, the Board noted that the negotiations were characterized by personal conflict unrelated to the bargaining issues, and that proceeding with a hearing would likely exacerbate the situation.

Exercising its discretion under section 96(4) of the Labour Relations Act, 1995, the Board declined to inquire into the complaints at this time, finding it would serve no labour relations purpose.

The Board adjourned the hearings and directed the parties to meet within three weeks to bargain in good faith and make every reasonable effort to conclude a collective agreement.

The applicant union brought applications alleging that the City of Toronto and the Toronto Parking Authority were a single employer or that a sale of business had occurred, alongside a construction grievance regarding the contracting of a parking garage to a non-union contractor.

The responding parties brought preliminary motions arguing res judicata based on prior PSLRTA proceedings and that the Board should decline to exercise its discretion under section 1(4) of the Labour Relations Act.

The Board rejected the res judicata argument but dismissed the related employer application, finding no labour relations mischief to remedy as the entities had operated separately for years without the union seeking to formalize bargaining rights.

The applicant union sought to adjourn the hearing of its certification application so it could be heard together with a newly filed section 96 unfair labour practice application concerning the termination of an employee.

The responding party employer opposed the adjournment, arguing the matters should be heard separately and it needed time to prepare.

The Board granted the adjournment, finding the applicant's explanation for the late filing reasonable and noting an overlap in evidence and witnesses between the pre-vote and post-vote events.

The Board directed the matters be scheduled together.

The Power Workers' Union (PWU) brought applications for certification to displace the incumbent bargaining agents for construction employees at Ontario Hydro.

The Ontario Labour Relations Board first determined that the PWU must establish it is a 'trade union' within the meaning of section 126 of the Labour Relations Act (a construction trade union) to bring such applications.

After a lengthy hearing, the Board concluded that the PWU is not a construction trade union because it does not have a history of representing construction employees separate and apart from other employees, nor does it possess the established characteristics of a construction trade union.

Consequently, the PWU's applications for certification were dismissed.

The applicants filed a complaint alleging that the responding parties breached section 79 of the Labour Relations Act, 1995 by failing to conduct an employee ratification vote for a memorandum of settlement in the construction industry.

The Ontario Labour Relations Board dismissed the complaint, finding that section 44 of the Act explicitly exempts the construction industry from mandatory employee ratification votes.

The Board held that a trade union in the construction industry is free to choose a ratification process that does not include a vote of employees, such as a vote of accredited delegates.

The applicant union filed a complaint regarding a work assignment dispute.

The responding union raised a preliminary objection, arguing that the matter had already been decided by an arbitrator under the Plan for Settlement of Jurisdictional Disputes, to which all parties were bound.

The Ontario Labour Relations Board agreed, finding that the applicant was bound by the Plan's decision through its collective agreement.

Applying the doctrine of issue estoppel, the Board exercised its discretion under section 99 of the Labour Relations Act, 1995 to decline to inquire further into the complaint, emphasizing the policy of deferring to private dispute resolution mechanisms agreed to by the parties.

The applicant union sought leave to withdraw its application for certification after the Board identified a potential irregularity in the membership evidence.

The employer opposed the withdrawal, arguing that the Board should proceed with the application on its merits to investigate the alleged forgery, especially since the union filed a second, identical application on the same day it sought to withdraw the first.

The Board held that the union's decision not to rely on the questionable membership evidence inherently carried the penalty of losing that support and delaying its certification efforts.

The Board found no abuse of process and noted that any limitation on employees' ability to oppose the second application arose from the statutory framework, not the union's conduct.

Following its usual practice when a request to withdraw is made after a meeting with a Board Officer, the Board dismissed the application.

A dissenting member would have denied the request to withdraw, noting that the union was not abandoning its claim to represent the employees.

The applicant union applied for certification to represent employees of the responding party.

A group of employees objected, raising several preliminary issues including the scheduling of expedited hearings, venue, notice to another union, the validity of membership cards, the adequacy of the Form A-4 declaration, the involvement of a perceived manager in organizing, and the relevance of a prior anti-union petition.

The Board dismissed all objections, finding that the union's membership evidence was valid, unambiguous, and superseded the prior petition.

The Board declined to order a representation vote and granted certification.

The union applied for certification for two of the employer's grocery stores.

The employer and a group of objecting employees raised preliminary issues regarding the timeliness of petition documents, the sufficiency of the union's membership evidence, and the propriety of the union's campaign literature.

The Board ruled that the petition in the first file was untimely, but the petition in the second file was timely.

The Board dismissed the employer's objections to the membership evidence, finding that the lack of a witness signature and the pre-signing of the receiver's line did not invalidate the cards.

The Board also found that the union's campaign literature did not improperly trade on the Board's neutrality.

The Board certified the union for the first store and directed a further hearing for the second store.

The applicant union referred a grievance to the Board alleging that water lancing work performed by the responding party at a nuclear power facility fell within the scope of the EPSCA collective agreement.

The Board considered whether the work constituted construction industry work or maintenance.

Finding that the water lancing was preventive maintenance designed to maintain boiler efficiency and prevent future repairs, the Board concluded it did not fall within the scope of the EPSCA agreement.

The application was dismissed to the extent it alleged a violation of that agreement.

The union applied for certification and alleged unfair labour practices by the employer, a university students' association.

The employer terminated two employees who were key union organizers and engaged in a pattern of harassment and intimidation during the organizing campaign.

The Board found that the employer violated sections 65, 67, and 71 of the Labour Relations Act.

Concluding that the true wishes of the employees were not likely to be ascertained due to the employer's contraventions, the Board exercised its discretion under section 9.2 of the Act to certify the union without a vote.

The applicant union alleged that the responding employers violated section 73.1 of the Labour Relations Act by using replacement workers during a lawful strike.

The employers brought a preliminary motion to dismiss the application, arguing that section 73.1, which came into force on January 1, 1993, did not apply because the strike and the hiring of replacement workers occurred prior to its enactment.

The majority of the Board dismissed the motion, finding that section 73.1 is not retroactive but applies prospectively to the ongoing status of a strike, prohibiting the continued use of replacement workers after the statutory preconditions are met.

The presumption against retrospectivity did not apply.

The union filed unfair labour practice complaints alleging that the employer laid off and terminated several employees due to their involvement in a union organizing campaign.

The employer claimed the layoffs were strictly due to economic difficulties and lack of work.

The Ontario Labour Relations Board found that the employer's actions were motivated, at least in part, by anti-union animus.

The Board ordered the reinstatement of the affected employees with compensation for lost wages and directed the employer to mail a notice of the decision to all bargaining unit employees.