Court File and Parties

CITATION: Ontario Secondary School Teachers' Federation v. Ontario, 2023 ONSC 6284

DIVISIONAL COURT FILE NOS.: 187/22 and 367/22

DATE: 20231220

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Stewart, Baltman and Lococo JJ.

BETWEEN:

Court File No. 187/22

The Ontario Secondary School Teachers' Federation Applicant

• and –

The Crown in Right of Ontario and The Ontario Labour Relations Board Respondents

• and -

Court File No. 367/22

Elementary Teachers’ Federation of Ontario Applicant

• and –

The Crown in Right of Ontario and The Ontario Labour Relations Board Respondents

Counsel: Kristen Allen and Emily Home, for the Applicant, The Ontario Secondary School Teachers’ Federation Lisa Compagnone and Katie Ayers, for the Respondent, The Crown in Right of Ontario Andrea Bowker, for the Respondent, The Ontario Labour Relations Board Howard Goldblatt, Anna Goldfinch and Char Wiseman, for the Applicant, Elementary Teachers’ Federation of Ontario

HEARD in Toronto by videoconference: April 3rd, 2023

REASONS FOR JUDGMENT

Stewart J.

Nature of the Applications

[1] These applications for judicial review were heard on the same date before the same panel of the Divisional Court. The underlying issues raised in both applications stem from determinations by the Ontario Labour Relations Board (“OLRB”) in decisions dated February 25 and June 6, 2022 following a joint hearing before it.

[2] In its decision of February 25, 2022, the OLRB dismissed the application of The Ontario Secondary School Teachers’ Federation of Ontario (“OSSTF”) which had sought a declaration that The Crown in Right of Ontario (“Crown”) had violated its duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “Act”).

[3] OSSTF seeks review of the decision of the OLRB in that regard on the basis that the decision to dismiss its application was unreasonable.

[4] In that same decision, the OLRB allowed the application of the Elementary Teachers’ Federation of Ontario (“EFTO”) which had sought the same relief as that sought by OSSTF. The OLRB found that the Crown had breached s. 17 of the Act in its negotiations with EFTO.

[5] By a further decision dated June 6, 2022 the OLRB issued its determined remedy: a declaration that the Crown had violated the Act and an order that its decision be delivered to all EFTO members by a method to be agreed upon by the parties. No monetary damages were ordered to be paid.

[6] EFTO seeks review of the decision of June 6, 2022 on the basis that the OLRB failed to provide any remedy to the EFTO and its members or that the remedy ordered is wholly inadequate in the circumstances, and is therefore unreasonable.

The Parties

[7] OSSTF is the bargaining agent for all secondary school teachers employed by public district school boards in Ontario, and for 86 bargaining units of education workers employed by the public, Catholic and francophone school boards. OSSTF represents approximately 60,000 workers.

[8] EFTO is the bargaining agent for all elementary teachers employed by the public district school boards in Ontario and some education workers. EFTO represents approximately 81,000 workers.

[9] The Crown funds education in Ontario and is a mandatory participant in central collective bargaining under the School Boards Collective Bargaining Act, 2014, S.O. 2014, c. 5 (“SBCBA”).

Salary Grid Issue

[10] Most education workers in Ontario are paid in accordance with a salary grid set out in their relevant collective agreements negotiated on their behalf by their unions. The salary grid provides for determination of a member’s salary based on experience, qualifications and various other factors. Members can be entitled to increased pay on the salary grid on an annual date depending on these factors. This increase in pay is known as “grid movement”.

[11] The collective agreements for 2008-2012 gave most education workers’ bargaining units an entitlement to grid movement on September 1 of each school year if they met the designated criteria for movement.

[12] In the 2012 round of collective bargaining, two other unions not involved in these applications, the Ontario English Catholic Teachers’ Association (“OECTA”) and the Association Des Enseignantes Et Des Enseignants Franco-Ontariens (“AEFO”), entered into an agreement with the Crown that resulted in the delay of activation of grid movement from September 1 of each school year to the 97th day of each of the 2012-2013 and 2013-14 school years. The OSSTF and ETFO did not agree to this “grid delay”. Nevertheless, this same grid delay was imposed on the OSSTF and ETFO by means of the provincial legislation commonly known as Bill 115.

[13] OSSTF and ETFO were among the unions that launched an application to the Superior Court of Justice challenging Bill 115 on the basis that it breached s.2(d) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. This constitutional challenge was ultimately successful (see: OPSEU v. Ontario, 2016 ONSC 2197).

[14] Further, at the end of the 2013-2014 school year OSSTF, ETFO, OECTA and AEFO took the position that the grid delay was to apply only for the 2012-2013 and 2013-2014 school years and could not extend into the 2014-15 school year. These unions filed grievances alleging that the failure of their employers to provide grid movement as of September 1, 2014 for the 2014-2015 school year was a breach of their collective agreements.

[15] Following the judicial determination that Bill 115 was unconstitutional, the issue of damages resulting from the breach was remitted back to the parties. OSSTF settled its claims for damages, but its remedy did not include damages for any claims arising out of the alleged loss of grid movement in 2014-2015.

[16] All of the unions involved in the court proceedings ultimately resolved their damages issues through negotiation except for ETFO which brought its damages issues back to the application judge for determination. ETFO and the Crown then agreed to proceed by way of mediation/arbitration under s. 84 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[17] Prior to any judicial determination of remedy flowing from their successful constitutional challenge, ETFO and OSSTF had filed these applications with the OLRB which led to the decisions now sought to be reviewed. Those applications contained allegations that the Crown had failed to bargain in good faith in the collective bargaining process toward achieving collective agreements for 2014-2017.

[18] On February 1, 2022, the application judge awarded ETFO a total amount of $103,100,000 to be distributed among teachers for the 2012-13 and 2013-14 school years as the remedy for the constitutional breach, but did not deal with the matter of any damages relating to the 2014-15 school year. The application judge stated that the further $21,000,000 claimed by ETFO, an amount based on what had been paid to OECTA (a non-applicant), was not factored into the award as it was the subject of a separate proceeding before the OLRB.

[19] The proceeding before the OLRB raised issues arising out of the parties’ collective bargaining, not ones that resulted only from the passing of legislation that had been successfully challenged on constitutional grounds.

Collective Bargaining

[20] At about the same time as their grid grievances were filed, OSSTF and ETFO began the process of collective bargaining for the 2014-2017 collective agreements. Negotiations were carried on in earnest into the following year.

[21] The 2013-2014 agreements had expired on the same day across the sector and new collective agreements were to commence on September 1 in the year following their expiry, all with a three-year term.

[22] The SBCBA came into force on April 8, 2014. It changed the structure of bargaining in the education sector in advance of the expiry of the collective agreements.

[23] The operation of the SBCBA ensures that the education sector unions will bargain all “central terms” of their collective agreements concurrently with the Crown.

[24] Accordingly, the SBCBA introduced a two-tiered bargaining structure under which bargaining agents representing education workers would bargain central terms, such as wages and benefits, at a “central table” with the Crown and their designated employer bargaining agency. “Local terms”, by contrast, were to be negotiated between each local bargaining unit and employer school board without the participation of the Crown. As a result, the Crown became a statutorily-mandated participant to collective bargaining in this education sector.

[25] The SBCBA further prescribed the earliest date upon which notice to bargain may be served. In 2015, this meant that all central bargaining across the sector commenced at the same time, with the Crown negotiating at separate tables with each of the designated bargaining agents and their corresponding employer bargaining agency.

[26] Under the SBCBA, the Crown is the only participant to central bargaining that is present at all tables. Accordingly, the Crown has the opportunity for (and advantage of) full awareness of each set of negotiations, as well as the state of their progress and of the dynamics in each bargaining relationship.

[27] The lead negotiator for the Crown was Brian Blakely, Director of the Labour Relations Branch at the Ministry of Education. Blakely was involved in the negotiations with each of OSSTF, ETFO and OECTA. Also involved in the negotiations for the Crown was Andrew Davis, Executive Director of the Ministry of Education’s Finance Division.

[28] The lead negotiator for OSSTF was Brad Bennett, its Director of Negotiations and Contract Maintenance.

[29] In August 2015, in the context of OSSTF negotiations, Blakely told Bennett that the other education workers’ unions would “end up in the same place” on compensation, and that OSSTF would not get “left behind” because it settled first.

[30] On August 20, 2015, OSSTF was the first union to reach a memorandum of settlement with the Crown. The terms of this settlement provided that grid movement would be restored as of September 1, 2015, but did not provide any compensation for lack of grid movement for the 2014-2015 school year.

[31] Following ratification of the settlement, OSSTF then instructed its bargaining units to withdraw their grid grievances relating to the 2014-2015 school year.

[32] On August 25, 2015, OECTA entered into a memorandum of settlement with the Crown. Unlike OSSTF’s agreement, the OECTA agreement contained a term that permitted the 2014-2015 grid movement grievances to be maintained.

[33] On September 16, 2015, AEFO also reached a memorandum of settlement with the Crown that contained the same provision regarding the maintenance of grievances as that of OECTA.

[34] As of mid-September 2015, ETFO had not yet reached any final memorandum of settlement with the Crown and their collective bargaining continued into the fall of that same year and after the OSSTF, OECTA and AEFO settlements had been reached.

[35] Sharon O’Halloran, General Secretary for ETFO, participated in the collective bargaining process along with her colleague, Victoria Reaume.

[36] In September 2015, the Crown proposed to ETFO that it withdraw its grid movement grievances. ETFO told the Crown that it did not intend to withdraw the grievances, as preserving them was an important issue for ETFO as one of the lead plaintiffs in the Bill 115 Charter challenge. Those grievances were directly connected to the effect of Bill 115 and ETFO’s efforts to restore grid movement. Its position with respect to maintaining those grievances was firm.

[37] On October 8, 2015 (as found by the OLRB in its decision) Blakely told ETFO that it must withdraw its grievances as a condition of settlement. At this point in these negotiations, Blakely represented to the ETFO negotiators that all the other unions had been required to withdraw their grievances and that no exception would be made for ETFO.

[38] On November 2, 2015, ETFO settled upon terms of its new collective agreement which included the settlement by withdrawal of its grid movement grievances. It was the last of the education workers’ unions to do so.

[39] OECTA and AEFO, being those unions that had preserved their grid movement grievances in their collective agreements with the Crown, actively pursued them and were ultimately successful in the results achieved.

OLRB Hearing

[40] In April 2018, OSSTF and ETFO each filed applications with the OLRB, alleging that the Crown negotiators had intentionally misled them during the bargaining process. By doing so, the Crown had violated its duty to bargain in good faith and was in breach of the provisions of both the Act and the SBCBA.

[41] At the hearing before the OLRB, the OSSTF argued that it was only due to its having been assured by the Crown negotiator that no other union would end up better off with respect to compensation for the grid movement delay that it agreed to the memorandum of settlement and withdrew its grid movement grievances.

[42] ETFO claimed that the misrepresentations by the Crown negotiator that suggested that it has successfully extracted agreements from the other unions to withdraw their grid grievances had induced it to settle the grid movement issue, and was a breach of the duty to bargain in good faith.

[43] The OLRB heard considerable evidence from witnesses called by the parties to testify as to what was said and what occurred during the negotiations, including the evidence of most of the front-line negotiators involved in the collective bargaining discussions underlying the claims of bad faith asserted by the unions. Unsurprisingly, this evidence was conflicting on several points.

[44] With respect to the OSSTF negotiations, Bennett testified that the Crown negotiators repeatedly said that there was not going to be any money for any of the unions to get grid movement on September 1, 2014. The Crown negotiators presented the concept of “net zero” at the beginning of bargaining, asserting that the cost of restoring grid movement on September 1, 2014 could be used to offset any possible gains in spending on favourable terms or a future wage increase that he actually described “net zero” in broader terms in future years.

[45] Bennett swore that Blakely had assured him that no money for grid movement in 2014-2015 would be provided to any other unions and maintained that it was for that reason that OSSTF settled upon the terms of its memorandum of settlement with the Crown. It was also as a result of this assurance that OSSTF instructed each of its bargaining units to withdraw their grid grievances for the 2014-15 year once the collective agreements were ratified.

[46] Blakely stated that in sector-wide education bargaining, unions watch each other closely to ensure bargaining outcomes follow a pattern. He acknowledged that unions within a sector that conclude negotiations generally seek a “me too” clause that entitles them to the benefit of more favourable terms negotiated by other unions in later rounds of bargaining. There was a strong history of “me too” clauses in education bargaining, and the Crown had in the past found those clauses helpful in achieving settlements. It does not appear that this approach was pursued or employed in this case.

[47] The evidence before the OLRB therefore was that the OSSTF wanted to restore grid movement effective September 1, 2014. In response, Blakely told Bennett many times there was no money for grid movement on September 1, 2014, although grid movement might be possible later. Blakely agreed that Bennett’s evidence that “all education sector unions would come out the same in terms of wage increases and grid treatment” correctly summarized the Crown’s position that there was no money for any education sector union to get any grid movement before September 1, 2015.

[48] By way of further background, an arbitrator’s decision in July 2015 had dismissed a grid movement grievance brought by AEFO. Bennett acknowledged that this decision established a precedent that was unhelpful to OSSTF, and that he knew about it before OSSTF settled on the terms of its new collective agreement. He also agreed that OSSTF weighed the fact of that decision in its determination to withdraw its own grievances.

[49] On August 11, 2015, Bennett told a mediator involved in the negotiations that OSSTF wanted parity among the unions, and then was told in a “sidebar discussion” that the Crown was willing to talk about discussions at other tables to achieve this. Bennett also said that Blakely assured him around this time that other unions “would end up in the same place on compensation”, and that OSSTF would not “get left behind” because it settled first. Bennett said that he believed that this assurance included all grid movement issues.

[50] Bennett also had testified that he understood “compensation” to include any proposals on grid movement. Bennett did not say that he was specifically told by Blakely or anyone else on behalf of the Crown that compensation included the right to grieve the grid movement issues.

[51] Blakely agreed that he told Bennett that compensation would be the same at all the tables, and that no other union would end up better off with respect to compensation than OSSTF. He acknowledged in cross-examination that the grid movement grievances before September 1, 2015, if successful, could lead to some compensation by way of damages, and that the Crown wanted all the grid movement grievances to be withdrawn because they represented a slight risk that compensation would not be the same at all the tables.

[52] Blakely denied that OECTA achieved a form of grid movement when it negotiated the right to keep its grievances. He testified that he considered that OECTA’s preservation of its grid movement grievances only established a remote risk that members might get some compensation, but that the preservation of that right to grieve did not qualify as “grid movement”.

[53] Davis provided similar evidence, maintaining that the Crown wanted to treat everyone equally with respect to compensation and that is what it achieved by the agreements to delay grid movement to September 1, 2015. He further testified that he believed that the preservation of grid grievances by OECTA would provide them with nothing more than a moral victory. The effect of the collective agreement language agreeing to delay restoration of the grid until September 1, 2015 would defeat any argument that the freeze did not continue past August 31, 2014.

[54] The negotiators for the Crown said that they never demanded that OSSTF withdraw the grid movement grievances, nor did they ever make it a strict condition of settlement. Blakely testified that the Crown only expected all the unions, including OSSTF, to withdraw their grid movement grievances as a consequence of having agreed to delay grid movement.

[55] Bennett ultimately declared that it was because he considered that he had been assured that money for grid movement in 2014-2015 would not be provided to the other unions that the offer by the Crown was accepted. It was believed by him to be the best agreement that could be reached in the circumstances.

[56] Bennett also believed the withdrawal of the grievances was a necessary and logical consequence of giving up its bargaining demand for grid movement before September 1, 2015, and that the funds saved by agreement to delay grid movement could be used to fund future salary increases. However, he maintained that if OSSTF had known OECTA was going to be allowed to continue its grievances, OSSTF likewise would have maintained its right to pursue its grievances.

[57] The negotiations between the Crown and the EFTO continued for more than two months after the OSSTF had settled on the terms of its collective agreement.

[58] The evidence of the EFTO witnesses established that, in October 2018 during the final stages of negotiations, a conversation among O’Halloran, Reaume and Blakely took place in a hallway.

[59] O’Halloran testified that at that time they were told by Blakely that ETFO must withdraw all grid movement grievances as all such grievances had to be, and had been, deemed settled by all the other educational sector unions.

[60] Blakely initially denied that this meeting happened, and said that he would not have had a meeting without a school board representative present. In cross-examination, however, he admitted that it was possible that such a conversation had occurred, and that it was also possible that ETFO was persuaded to withdraw the grievances based on that hallway conversation. Blakely testified that, if the conversation occurred, he would have told ETFO that everyone needed to withdraw their grid grievances because that was the Crown’s objective.

[61] O’Halloran said that this representation made by Blakely contributed to EFTO’s decision to settle on the terms of its memorandum of settlement with the Crown and to withdraw its grid movement grievances.

OLRB Decision – OSSTF

[62] Following the hearing, the OLRB dismissed the OSSTF’s application. Although the OLRB accepted that the Crown negotiator had told OSSTF that no other union would end up better than OSSTF with respect to “compensation” for grid delay to induce OSSTF into an agreement, it found that the Crown did not actually demand that the outstanding grid grievances must be withdrawn as a condition of settlement. Further, it noted that there had been no evidence of any specific discussion of whether compensation clearly included a right to continue the grid movement grievances.

[63] Ultimately, the OLRB found that Blakely’s statement about all unions ending up in the same place regarding compensation related to the fact that all unions grid movement would recommence in September 2015. Compensation did not include grid movement grievances nor the ability to continue those grievances.

[64] The OLRB found the Crown negotiator’s statements about compensation simply related to funding available for resumption of grid movement.

[65] The OLRB also noted that the OECTA memorandum of agreement that permitted the continuance of its grid movement grievances was not a secret. Even though that agreement had been concluded after the OSSTF agreement, the OSSTF still could have raised the issue with the Crown at the time of its discovery, as its own agreement had not yet been ratified by its membership. It chose not to do so.

[66] In summary, the OLRB concluded that OSSTF had not proven that it had been lied to by the Crown negotiators or otherwise misled. In its decision, the OLRB stated:

In my view, the analysis of OSSTF’s position could end here. Based on what was said across the table, the Crown’s reference to compensation was about the funding available for resumption of grid movement. There is no evidence that the Crown said it was broader than that. OSSTF did not ask what were the consequences to the grievances. It assumed the quid pro quo for agreeing to resume grid movement on September 1, 2015 was that the grievances would be withdrawn. OECTA assumed otherwise.

Therefore, I do not find that the Crown created a construct and broke its promise that no other union would end up better on compensation when it agreed that OECTA could keep its grievances.

[67] Based on these, and other, findings of fact, the OLRB found that it had not been proven by OSSTF that any misrepresentation had been made by the Crown to it or that the Crown had breached its duty to bargain in good faith. As a result, the OSSTF application was dismissed.

OLRB Decision – ETFO

[68] The OLRB preferred the evidence of the ETFO witnesses to the effect that the Crown negotiator had told them that it had deemed all grid grievances to be settled and found this representation to be misleading. OECTA had, in fact, at the time been able to preserve its rights to continue its grid movement grievances.

[69] The OLRB also found that this statement was a breach by the Crown of its duty to bargain in good faith that the breach undermined the ETFO’s ability to rationally participate in bargaining, and that it contributed to its decision to agree to deem the grid grievances settled. However, the OLRB found that this misrepresentation was not the only factor in EFTO’s decision to agree to deem the grievances settled.

[70] The OLRB noted that right up until October 2015 ETFO had strongly resisted withdrawing its grid movement grievances and had made significant efforts during bargaining to restore grid movement. The OLRB also determined that ETFO was induced to withdraw its grid movement grievances in part because of what because of what Blakely told them on October 8.

[71] However, the OLRB also found that the evidence as a whole supported a conclusion that EFTO likely would have withdrawn the grid grievances at some point in the bargaining in any event, and despite the misrepresentation made to in by the Crown, as there were other reasons why that would have happened. The onus was on ETFO to demonstrate on a balance of probabilities that this was an issue that would have either been bargained to impasse or agreed to by the parties in ETFO’s favour, and the evidence was insufficient to support such a conclusion.

[72] The OLRB found that the Crown, when negotiating with OECTA, was aware of OECTA’s unique position on the grid movement grievances impacted the bargaining. The OLRB found that the Crown must have known that, if ETFO maintained its grievances, this could well lead to the undesirable result of significant conflict with OSSTF which had given up its right to grieve. The OLRB considered this to be a further reason for the Crown not to have agreed with the ETFO’s position if pursued.

[73] The OLRB therefore considered it to be unlikely that the Crown would have agreed to permit ETFO to continue its grid movement grievances, having secured agreement from the other most similarly situated education union to settle and withdraw theirs. Although it accepted that these grievances were important to ETFO, the OLRB found it had not been established that the issue likely would have been bargained to impasse or that the parties would have agreed to preserve the grid movement grievances.

[74] In effect, the OLRB found that EFTO had not demonstrated on a balance of probabilities that, but for the misrepresentation, it would have achieved what it had hoped with regard to the grid movement grievances.. Indeed, the OLRB found that the Crown likely would not have agreed to the maintenance of the ETFO grid movement grievances. ETFO therefore had not discharges its burden to establish to the requisite degree that the Crown would have capitulated on the issue had they held firm.

[75] Having found that the Crown in these circumstances nevertheless had breached its duty to bargain in good faith, the OLRB found that it was appropriate for there to be some form of remedial order. The OLRB issued a declaration that the Crown violated the Act, and ordered that the decision be delivered to all members of ETFO. No monetary damages were awarded.

Jurisdiction

[76] This Court has jurisdiction to hear and determine these applications for judicial review pursuant to ss. 2(1) and 6(1) of the Judicial Review and Procedure Act, R.S.O. 1990, c. J.1.

Standard of Review

[77] The parties agree that the standard of review with respect to the decisions under review is one of reasonableness (see: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653).

OSSTF Motion to Admit Fresh Evidence

[78] The decision of the OLRB to dismiss OSSTF’s application relied, among several other things, upon its finding that the Crown did not demand OSSTF to withdraw its grid movement grievances or do so on the basis of any misrepresentation. OSSTF claims that this finding is an error and that Blakely admitted during cross-examination that he asked for and received from OSSTF an undertaking to withdraw its grid delay grievances. The OLRB does not record or provide an official transcription of its proceedings, so this purported evidence is not in a certified official transcript of the proceedings.

[79] On this judicial review, OSSTF sought leave to file as fresh evidence the affidavit of Bob Fisher, an OSSTF staff representative who attended the hearing before the OLRB. The evidence sought to be admitted includes Fisher’s recollection of the evidence given at the hearing as well as notes taken by him.

[80] OSSTF submits that Fisher’s evidence is necessary because of the OLRB’s finding that the Crown did not require the withdrawal of the grid delay grievances in its negotiations with OSSTF. OSSTF argues that this conclusion was arrived at without evidence and was made despite a contrary admission from Blakely.

[81] Alternatively, OSSTF argues that the fresh evidence is necessary to evaluate the extent to which this alleged factual error had an impact upon the reasoning of the OLRB. It also argues that the fresh evidence is necessary to show that the OLRB failed to account for Blakely’s alleged admission in the decision, and that a denial of natural justice occurred as a result.

[82] In the further alternative, OSSTF submits that a new exception to the general rule against admitting such evidence should be made where an administrative body creates no record or transcript of viva voce evidence, and the underlying decision does not account for what OSSTF describes as a “critical evidentiary conflict”.

[83] The Crown opposes the motion to admit fresh evidence on the basis that none of the established exceptions apply to allow its admission, and there is no basis to establish a new exception. Hearing notes have consistently been rejected for not satisfying any of the exceptions.

[84] Further, OSSTF had a full opportunity to raise the issue of whether the Crown required an undertaking, to submit specific evidence to that effect before the OLRB, and to make final argument on the point with reference to the evidence said to be in support of its position in that regard. The OSSTF did not do so.

[85] Additionally, the Crown argues that OSSTF’s submission conflates the applicable standard of reasonableness in this instance with procedural fairness. There was no conflict on the facts. Even if there were such a conflict, a decision maker is not required to make explicit findings of every element in the facts that lead to its conclusion.

[86] The Crown also submits there is no credible basis to create a new exception to admit hearing notes taken by a party’s representative. This is an attempt to unduly expand the exceptions. Hearing notes taken by a representative are inherently inappropriate to admit as evidence because they raise concerns of reliability, accuracy, independence and objectivity, especially when taken by one of the parties (See: Keeprite Workers’ Independent Union et al. and Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.), leave to appeal to S.C.C. refused, 35 N.R. 85 n).

[87] The OLRB also submitted that the affidavit evidence should not be admitted because it does not satisfy the established requirements, nor does it fall into the Keeprite exception where it is being tendered to demonstrate an absence of evidence.

[88] The OLRB submits that an argument that an administrative body did not take evidence into account is an issue of reasonableness, and not natural justice. It notes that OSSTF submitted to the OLRB at the hearing a summary of evidence, including hearing notes, which are different than what the OSSTF seeks to have admitted as fresh evidence on this judicial review. It points to the potential this raises for an unsuitable comparison of the notes of all parties as well as those of the adjudicator were such evidence admitted.

[89] The motion is characterized by the Respondents as a mere attempt to seek a re-weighing of the evidence that was before the OLRB by this court in order to secure a more favourable result.

[90] For the reasons advanced by the Crown and the OLRB, I am of the view that the “fresh” evidence sought to be tendered by OSSTF is not fresh, does not meet the test for admission nor should it qualify for the establishment of a new exception to the test for the admission of fresh evidence.

[91] I agree with both Respondents that this attempt by OSSTF to either augment or impugn the record is actually made in to support an argument that the OLRB ought to have made different findings of fact, and ought to have weighed the evidence differently. It must be remembered that this is an application for judicial review in which the basic standard of review is one of reasonableness. Even an appeal is not a forum that allows an opportunity simply to re-argue the case in the hope of securing a different outcome.

[92] Accordingly, the motion to admit fresh evidence is dismissed.

Was the Decision to Dismiss OSSTF’s Application Reasonable?

[93] OSSTF submits that, despite the fact that the claims of bad faith bargaining made by OSSTF and ETFO are related to what they describe as “nearly identical misrepresentations”, the OLRB treated the evidence of Blakely about what he said to the parties as being isolated and distinct. Accordingly, the OLRB reached opposing conclusions in each application.

[94] The OSSTF points to what it characterizes as two logical inconsistencies in the OLRB’s decision. First, the OLRB found the Crown did not require a withdrawal of OSSTF’s grid delay grievances, but did find “it is more likely than not that the Crown told ETFO that it had to withdraw its grievances as a condition of settlement, like all other unions” in the EFTO application. Given that OSSTF settled its agreement before ETFO, OSSTF says that is one of the “other unions”, making it inconsistent to find that the Crown did not require OSSTF to withdraw it grievances.

[95] Second, the OLRB accepted that Blakely linked the withdrawal of grid delay grievances to grid movement compensation, but rejected that the representations Blakely admitted he made to OSSTF about parity in grid treatment or compensation encompassed the grievances.

[96] The OSSTF submits the OLRB did not explain why some of Blakely’s evidence was rejected and some was accepted. The OSSTF agrees that the OLRB reasoned its acceptance of O’Halloran’s evidence over that of Blakely’s but submits where there was contradiction between Blakely and Bennett regarding discussions of the grievances at the table, there was no indication of a contradiction, and as such no reasoning for the resolution of the contradiction. This is not transparent. OSSTF further submits that the OLRB’s finding that the representations by Blakely did not encompass parity between the unions regarding the grid delay grievances did not take into account the conflicting testimony of Blakely about how he viewed the grid delay grievances to be part of compensation.

[97] The Crown submits the OLRB’s decision is internally rational and contains no mistake as to the facts. There is no evidence in the record or elsewhere that the alleged issue of a demand by the Crown for an undertaking from OSSTF that it withdraw its grid grievances was ever put before the OLRB. There is no evidence that this was demanded of the OSSTF. The Crown submits the principal issues before the OLRB were whether the commitment regarding compensation was broad enough to include the preservation of grid grievances, and whether the Crown created a false construct to mislead the OSSTF into believing other unions were withdrawing their grid grievances.

[98] The Crown further submits that any representations made to another are not relevant to the OSSTF application. It is also important to understand that these negotiations occurred at different times and different stages as the collective bargaining ensured over several weeks. Representations made to one party in bargaining is not determinative of representations made to another.

[99] The Crown submits the OLRB was transparent with how it arrived at its findings that the Crown made representations on compensation to the Applicants, and how it determined that the representations on compensation to the OSSTF did not include grid movement grievances. The Crown submits that as there was no contradictory evidence presented at the hearing, no reference to it was necessary.

[100] As already noted, this is an application for judicial review, not an appeal. The only issue before us is whether the decision is reasonable, and in accordance with the hallmarks of reasonableness as set out in Vavilov.

[101] In reviewing a decision of the OLRB, this Court must be cognizant of its expertise in all matters of labour relations, including those involved in collective bargaining. Deference must be afforded to this expertise which will include the multiplicity of considerations that will have a bearing on the conduct of the parties to collective bargaining, both present and future. It is trite to observe that collective bargaining in a situation like this occurs against a backdrop of a continuing relationship between the parties, a fact that will have a bearing on the objectives of the parties that may bend and shift during the course of such negotiations (see: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th), at para. 92. See also Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779, 476 D.L.R. (4th) 342).

[102] I agree with the Crown’s arguments in this regard. There was ample evidence before the OLRB that permitted it to draw the inferences and conclusions set out in its decision.

[103] In my view, the reasons for the decision to dismiss of the OSSTF application conform with all requirements as outlined in Vavilov. They are logical, transparent, and flow reasonably from the evidence presented at the hearing. Accordingly, OSSTF has not established that the decision is unreasonable and I see no basis upon which interference with it would be justified.

Was the Remedy Awarded to the ETFO Reasonable?

[104] EFTO submits that the decision of the OLRB dealing with the remedy arising from its successful application is unreasonable in both reasoning and outcome because: (a) the OLRB applied the wrong standard of proof; (b) the OLRB applied the wrong threshold; (c) the OLRB failed to give ETFO the benefit of the doubt in assessing the evidence; (d) the OLRB employed fallacious logic in its evidence assessment; and (e) the decision fails to award any compensation as a result of the Crown’s violation of the Act.

[105] The standard of proof for compensatory damages is reasonable probability: but for the Crown’s bad faith bargaining, EFTO would have more likely than not obtained the benefit. However, EFTO submits the OLRB held it to a standard of certainty or near certainty. If the correct standard was applied, it would have been concluded that ETFO would have maintained its grid grievances, and it was more likely than not that the ETFO’s grievances would have succeeded at arbitration. The threshold at issue here was whether, but for the Crown’s bad faith bargaining, ETFO would have preserved and succeeded in its grievances. This was not the threshold applied by the OLRB. The OLRB’s threshold was whether the issue of the grievances would have been bargained to impasse. But for the Crown’s misrepresentation, ETFO likely could have maintained its grievances without bargaining to impasse, as the OECTA had. However, EFTO submits the impasse test is contrary to jurisprudence and arbitrary.

[106] EFTO submits the OLRB failed to accord ETFO the “benefit of the doubt” in assessing its evidence for compensation, and the OLRB openly acknowledged doing so. The aggrieved party is to be accorded the benefit of the doubt to ensure it does not bear the cost of uncertainty created by the wrongdoing committed against them. This is in recognition of the fact that the aggrieved party has already proven a violation of the duty to bargain in good faith. The OLRB’s flawed approach in this case fails to fulfil the remedial purpose of s. 96(4) of the Act. As well, in its assessment of the evidence. EFTO submits the OLRB employed fallacious logic in assessing the evidence. The OLRB erred in inferring that the ETFO’s assessment of the merits of the grievances in the context of AEFO’s loss at arbitration and the potential remedy via the constitutional challenge of Bill 115 were factors, in and of themselves, that would have caused ETFO to withdraw its grievances. There was no evidence that these contributing factors could have been sufficient for ETFO to withdraw its grievances. This finding was contrary to the OLRB’s findings about the importance of the grievances to EFTO and the impact of the Crown’s misrepresentations.

[107] EFTO submits it was unreasonable for the OLRB to conclude that the Crown’s misrepresentation did not include treating OSSTF with parity regarding the grid delay grievances. The OLRB failed to address the contextual evidence, well understood by negotiators, when evaluating whether the parties would have understood a promise of parity on compensation for grid delay to include grievances claiming compensation for grid delay. The Applicant submits the evidence before the OLRB reflected that all parties shared a common understanding of a link between the grievances and what terms were bargain for re: grid movement. The OLRB’s analysis focused narrowly on semantics but ignored critical surrounding context. The context was necessary for the OLRB to come to a reasonable decision.

[108] Lastly, EFTO submits the outcome of the award is unreasonable. Failing to award compensation to the ETFO puts the ETFO in the same position it would have been had it not pursued a bad faith complaint at all, or if the complaint had been found to be unsubstantiated. It cannot be disputed that but for the Crown’s misrepresentation, there was a reasonable probability that ETFO would have maintained and successfully pursued its grievances. The harm suffered by ETFO has been left unaddressed and left the Crown’s violation unsanctioned, stripping protections for a breach of the duty to bargain in good faith.

[109] The Crown submits that the decision as to remedy was reasonable. The OLRB correctly identified the standard of proof and threshold issue as “but for the Crown’s grievances?” The OLRB concluded that EFTO had not shown that such an outcome was more likely than not. The OLRB indicated it had not been made sufficiently clear that the issue would have been bargained to impasse and that it was not prepared to find same.

[110] The Crown submits the OLRB was correct in finding that the evidentiary foundation for entitlement to damages had not been established by EFTO. As a result, EFTO was not entitled to the benefit of any doubt. The evidence supported a finding that the misrepresentation may have influenced the timing but did not support a finding that it was critical to the substance of the decision. The OLRB’s approach to the “benefit of the doubt” was consistent with its jurisprudence. The OLRB thoroughly evaluated the evidence before it and applied the law to the evidence. The OLRB considered the key pieces of evidence thoroughly and fairly and given the evidence before it rejected EFTO’s assertion that, but for the misrepresentation it would not have withdrawn its grievances.

[111] Lastly, the Crown submits the OLRB properly applied precedent in awarding no damages or a monetary award. The OLRB properly found that awarding a monetary remedy that would be unable to improve the bargaining relationship is unnecessary to advance the purposes of the Act. The Crown submits the OLRB’s determination that damages were not warranted is reasonable. The Crown submits if damages have been awarded, it would have been a punitive approach inconsistent with the purpose of the Act as any award of damages should be for the purpose of redressing a specific loss that has been proven.

[112] I agree with the arguments advanced on behalf of the Crown on the issue of appropriateness of remedy. The test articulated by the OLRB, although applied in a labour relations context, is similar to that which would apply to any claim for compensation for misrepresentation. Damages are meant to be truly compensatory and proven on the evidence based on the evidence in its totality. It is for this reason that such a claim must not only prove the making of the misrepresentation, it must also prove there was actual reliance on the misrepresentation and that it caused the damages sought.

[113] In this case, the OLRB determined on the totality of the evidence before it that no clear line of causation could be drawn between the Crown’s misrepresentation and the outcome of the EFTO negotiations. There were too many moving parts involved in the negotiations and several factors to be considered apart from that misrepresentation that entered into ETFO’s determination to settle on the terms of its memorandum of settlement with the Crown. What either party said they wanted to achieve, did because the misrepresentation had been made, or would have done if the misrepresentation had not been made, is relevant but in no way determinative of, a conclusion as to arriving at a conclusion as to whether or not the probabilities favour ETFO’s claim for monetary compensation. The OLRB, based on the evidence before it and applying its deep knowledge of the factors involved in collective bargaining, decided the EFTO had not proven its entitlement to economic damages to the extent required to entitle it to monetary compensation.

[114] In my view, the decision of the OLRB in this case to fashion a remedy designed to expose and sanction the Crown’s misrepresentation and breach of its duty to bargain in good faith is more than symbolic. Apart from being a widely circulated expression of disapproval of a breach of the Act that has an obvious negative impact on the Crown, it is a remedy that undoubtedly has the potential to play a role of use to ETFO in the next stages of the ongoing relationship between the parties, and in negotiations that they must engage in.

Conclusion

[115] For these reasons, the application brought by OSSTF is dismissed.

[116] The application brought by EFTO is also dismissed.

Costs

[117] In accordance with the agreement of the parties to waive costs, there will be no order for costs as against any party to either application.

Stewart J.

I agree _______________________________

Baltman J.

I agree _______________________________

Lococo J.

Released: December 20, 2023