The applicant employer sought judicial review of the Ontario Labour Relations Board's decision to certify a union without considering the employer's late-filed response.
The Board had concluded that the word 'shall' in section 128.1(3) of the Labour Relations Act, 1995 was mandatory, precluding it from considering information filed after the two-day statutory time limit.
The Divisional Court applied the pragmatic and functional approach, determining the standard of review was correctness.
The Court held that the Board erred in its interpretation, finding that 'shall' in this context is directory and that the Board has the discretion to remedy the breach and consider late-filed information.
The application for judicial review was allowed and the matter remitted to the Board.
