Tucci v. Ontario Labour Relations Board, 2026 ONSC 1794
CITATION: Tucci v. Ontario Labour Relations Board, 2026 ONSC 1794
DIVISIONAL COURT FILE NO. DC-25-00000660-00JR
DATE: 20260414
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.T. Bale, O’Brien and Brownstone JJ.
BETWEEN:
David tucci
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD, ONTARIO ENGLISH CATHOLIC TEACHERS’ ASSOCIATION
Respondents
COUNSEL:
David Tucci, self-represented
Callum Hutchinson, for the Dufferin-Peel Catholic District School Board
Aaron Hart, for the Ontario Labour Relations Board
Bernie Hansen, for the Ontario English Catholic Teachers’ Association
HEARD at Toronto: March 23, 2026
REASONS FOR DECISION
Brownstone J.
[1] In this application for judicial review, the applicant, Mr. Tucci, seeks an order quashing decisions of the Ontario Labour Relations Board dated April 22, 2025 (the April decision), and July 10, 2025 (the Reconsideration decision) (together, the OLRB decisions). He asks the court to remit the matter to the OLRB for a new hearing.
[2] The OLRB decisions dismissed Mr. Tucci’s application on the basis that it was a collateral attack on an earlier OLRB decision and therefore an abuse of process. The OLRB determined the application should also be dismissed on the bases of unreasonable delay and failure to plead a prima facie case.
[3] Mr. Tucci submits that the OLRB failed to consider his submissions, thereby breaching procedural fairness and rendering its decisions unreasonable. In his written submissions, Mr. Tucci also submits that the OLRB misapplied the principle of res judicata.
[4] For the reasons that follow, I would dismiss the application.
Procedural History
[5] Mr. Tucci is a secondary-school teacher at the respondent Dufferin-Peel Catholic District School Board (the School Board). He is a member of the Ontario English Catholic Teachers’ Association (the Association). From January 2022 to October 2023, the Association filed six grievances on Mr. Tucci’s behalf. The arbitration of those grievances is scheduled to take place in September 2026.
[6] Mr. Tucci first applied to the OLRB for orders against the School Board under s. 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1. in July 2024 (the first application). Mr. Tucci submitted he had been repeatedly subjected to reprisals by the School Board.
[7] The relevant portions of section 50 of the Act provide:
50 (1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.
(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.
[8] The School Board moved before the OLRB to dismiss the first application on the basis that Mr. Tucci had submitted his complaints to arbitration. That is, under subsection 50(2) of the Act, a person bringing an application may proceed either to settlement by arbitration or by complaint to the OLRB. The School Board submitted that, given that the Association had launched six grievances on Mr. Tucci’s behalf that were on their way to arbitration, Mr. Tucci was precluded from proceeding with the application to the OLRB.
[9] In a decision dated December 17, 2024 (the December decision), the OLRB determined that the allegations contained in the six grievances are “more or less congruent” with the reprisal incidents referred to in the OLRB application. The OLRB therefore dismissed his application. The OLRB stated that the dismissal was “without prejudice to Mr. Tucci’s ability to file a further complaint involving any issue(s) in this application not dealt with at arbitration”, subject to some reservation of rights for the School Board.
[10] Mr. Tucci did not seek a reconsideration of that decision. Instead, on February 24, 2025, he started a second application before the OLRB under s. 50 of the Act. The School Board again moved to dismiss the application on four bases: abuse of process, delay, prior determination of the application’s subject matter by the Workplace Safety and Insurance Board, and failure to establish a prima facie case.
[11] On April 3, 2025, the OLRB directed Mr. Tucci to provide submissions in response to the School Board’s motion. In its directions, the OLRB stated in part as follows:
It does not appear that the allegations in this application are different than the allegations set out in Mr. Tucci's earlier reprisal application. The application here makes no mention of that earlier application or the Board's decision dismissing it.
Before addressing the merits of Dufferin-Peel's motion to dismiss, the Board wishes to hear from the applicant. Mr. Tucci is to provide his complete submissions by no later than April 17, 2025. If the Board does not hear from Mr. Tucci, he will be deemed to have consented to the motion and this application will be dismissed. In light of the motion under Rule 39.1 of the Board's Rules of Procedure asserting [that the application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true], the applicant may not amend or make additions to his application. To permit an applicant to attempt to correct deficiencies relied upon by the responding party would be manifestly unfair.
[12] Mr. Tucci made submissions to the OLRB on April 17, 2025. His submissions responded to the School Board’s grounds for its motion to dismiss. He submitted first, that the OLRB retains jurisdiction over reprisal claims not covered in grievances; second, that there was not sufficient delay to warrant a dismissal of his application; third, that the issue of reprisals is outside the WSIB’s jurisdiction; and fourth, that he ought to be able to correct deficiencies noted in the December decision.
[13] The OLRB released its April decision on April 22, 2025, granting the School Board’s motion to dismiss Mr. Tucci’s application. The OLRB reviewed the December 2024 OLRB decision in detail. It went on to review the law applicable to determinations of abuse of process and collateral attack. The OLRB found the Mr. Tucci’s application was a collateral attack on the December decision and was an abuse of process. The OLRB went on to hold that it also would dismiss the application on the bases of delay and Mr. Tucci’s failure to plead a prima facie violation of the Act.
[14] On July 10, 2025, the OLRB issued its Reconsideration decision, which denied Mr. Tucci’s request for relief by way of reconsideration of the April decision. The OLRB found there was no basis for it to reconsider the April decision.
Standard of review
[15] As noted above, Mr. Tucci seeks to review the April decision and the Reconsideration decision. The presumptive standard of review for the OLRB decisions is reasonableness.: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 17; Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, 476 D.L.R. (4th) 421, at para. 53, leave to appeal refused, 2023 67201 (S.C.C.).
[16] With respect to issues of procedural fairness, the reviewing court is to determine whether the administrative tribunal’s procedure was fair having regard to all the circumstances: Afolabi v. Law Society of Ontario, 2025 ONCA 257, at para. 60.
Analysis
[17] In his oral submissions, Mr. Tucci focused solely on the OLRB’s alleged failure to consider the submissions he made to it, which he submits denied him a right to be heard and breached natural justice. He also submits that this failure rendered the OLRB decisions unreasonable, because the decisions were not grounded in the evidentiary record.
i) The OLRB considered Mr. Tucci’s submissions
[18] Mr. Tucci acknowledges that the OLRB decisions referred to his submissions. However, he submits the OLRB erred in failing to grapple with them in any meaningful way.
[19] Mr. Tucci made the following submissions to the OLRB:
a. That the subject matter of the grievances was not congruent with the subject matter of the OLRB application;
b. That it is incorrect for the OLRB to defer to the grievance arbitration;
c. That there is no reason to dismiss the application for delay because:
i. delay alone is insufficient to justify dismissing proceedings, a submission for which he relied on the case of Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 SCR 307,
ii. there was no inordinate delay and whatever delay there was caused more prejudice to Mr. Tucci than to the School Board,
iii. the arbitration process would be delayed even longer than the OLRB process,
iv. any delay could be mitigated and managed by expediting pre-arbitration steps,
v. the School Board’s conduct exacerbated the delay; and
d. That his pleading deficiencies could be remedied if the OLRB granted him leave, which he sought, to file supplementary material.
[20] With respect to his first submission, that the matters were not congruent, the OLRB stated in its April decision that “[m]uch of Mr. Tucci's submissions address the argument set out in his application, namely, that the pending grievances do not assert reprisal contrary to section 50 of the Act and therefore the Board retains jurisdiction over this matter.” The OLRB went on to refer to the December decision and noted there was nothing different about the allegations before it, as compared to what had been before the OLRB in December.
[21] The OLRB specifically addressed Mr. Tucci’s submission that the matter ought not be “deferred to arbitration”. It noted that the issue is not an OLRB decision to defer to arbitration. Rather, the issue is that s. 50(2) requires an applicant to choose between arbitration and a complaint to the OLRB, and Mr. Tucci had clearly elected arbitration. This aspect of the Board’s decision was reasonable.
[22] The OLRB went on to address Mr. Tucci’s submissions about delay, It expressly referred to Blencoe, which had been raised only by Mr. Tucci, not the School Board and which in any event was not about the delay in bringing an application, but delay by an administrative body. The OLRB noted that Mr. Tucci did not dispute that the last incident at issue occurred about 17 months before he started his application, and that Mr. Tucci did not address any of the OLRB’s case law about delay. The OLRB considered factors relevant to delay set out in the case law. It noted that delays in the arbitration process were beyond its control and stated that “Mr. Tucci offers no explanation for the delay in this case other than to attempt to minimize it”. The April decision found that nothing in Mr. Tucci’s submission provided a reason to depart from the principle established in case law that in cases of delay of over 12 months, prejudice to the responding party is presumed.
[23] Finally, the April decision found that Mr. Tucci’s application contains only conclusory statements which are insufficient to establish a prima facie violation of the Act.
[24] In his request for reconsideration, Mr. Tucci submitted that the ORLB erred in each of the three conclusions on which it found his application should be dismissed: relitigation, delay, and failure to establish a prima facie violation of the Act.
[25] In the Reconsideration decision, the OLRB:
a. rejected Mr. Tucci’s submission that the alleged statutory reprisals are distinct from the subject-matter of the grievances;
b. held that the April decision had found the subject matter of the grievances and the application was substantially congruent and there was no obvious error in that conclusion;
c. rejected Mr. Tucci’s attempt to expand the grounds of his application in his request for reconsideration;
d. disagreed with Mr. Tucci’s submission that the “without prejudice” caveat in the December decision permitted him to re-commence his application to the OLRB before the grievance process played out;
e. rejected Mr. Tucci’s submission that the collateral attack doctrine had been improperly applied in the April decision;
f. held that Mr. Tucci’s second application was an impermissible attempt to relitigate the matters that had been dealt with in the December decision; and
g. rejected Mr. Tucci’s submission that he should be permitted to amend his application to set out a prima facie violation, when he had not complied with the initial requirement to do so, which is clearly set out in the OLRB’s rules.
[26] Mr. Tucci points to paragraph 26 of the Reconsideration decision as evidence that the OLRB did not consider his submissions about delay. That paragraph states:
- Mr. Tucci was given the opportunity to respond to that part of the motion seeking dismissal for delay. He failed to make any such submissions. In its April 3, 2025 decision directing submissions from the parties, the Board specifically noted that "[i]f the Board does not hear from Mr. Tucci, he will be deemed to have consented to the motion and this application will be dismissed". In the absence of any submissions from Mr. Tucci on either the issue of delay or failure to plead a prima facie case, the Board accepted the motion and stated that if it had not already dismissed the application on the basis of collateral attack and abuse of process, it would have dismissed the application on these grounds. It is too late for Mr. Tucci to now plead these issues. I will nonetheless briefly address his arguments.
[27] That paragraph must be read with the paragraphs that follow. Those paragraphs went on to review the portion of the April decision that addressed delay and the prima facie case issue. The Reconsideration decision then stated:
The applicant says the Board's finding of delay was flawed because it did not consider that the [School Board’s] obstruction, namely, refusing to release video evidence (the IPC Order), and withholding employment records for his WSIB claim delayed his ability to plead his case, because it assumed prejudice without evidence while ignoring Mr. Tucci's documented harms, and because the 2026 arbitration date exacerbates the delay rending the dismissal of this application unjust.
Although he did not make these arguments when invited to do so (and therefore cannot make them now), I simply note that he could have filed a timely application based upon his own knowledge of the events at issue and thereafter sought disclosure of documents through the Board's processes. He provides no reason why the alleged withholding of evidence prevented him from doing so. The Board will not order the disclosure of documents or video evidence prior to the filing of an application. Further, the Board assumed prejudice to [the School Board] in keeping with the principles set out in the City of Mississauga, supra.
[28] A tribunal’s reasons are not assessed against a standard of perfection; the tribunal is not required to address in detail every submission that is made to it. Further, the reasons are to be read holistically, not as a “line by line treasure-hunt for error”. The court is not to take isolated comments and read them outside of the context of the entire decision: Vavilov, at paras. 91, 102-103, and 128.
[29] When applying these principles, I find the OLRB appropriately considered and referred to Mr. Tucci’s submissions. While the Reconsideration decision includes a statement that Mr. Tucci “failed to make any such submissions” about delay, that statement must be read with the remainder of the April decision and the Reconsideration decision. As noted above, the April decision clearly addressed Mr. Tucci’s main points about delay. The April decision also noted that Mr. Tucci failed to address the OLRB case law about delay and failed to provide an adequate explanation for the delay. The Reconsideration Decision noted Mr. Tucci could have made a timely application while awaiting disclosure of the School Boards materials; that is, it found that the School Board’s conduct was not an adequate explanation for the delay. Essentially, the OLRB found Mr. Tucci’s submissions to be non-responsive on the factors relevant to the specific delay concerns in his case.
[30] In my view, the OLRB decisions sufficiently addressed Mr. Tucci’s submissions. They adequately dealt with the substance of his arguments and pointed out respects in which his submissions were lacking. As illustrated above, the OLRB decisions demonstrate that the OLRB requested, received, reviewed, and considered Mr. Tucci’s submissions. In so doing, the OLRB proceeded in a fair manner. I find no merit in Mr. Tucci’s submission that he was denied procedural fairness by the OLRB’s failure to consider his submissions.
[31] Nor do I find any merit in Mr. Tucci’s submission that the OLRB decisions are unreasonable because they did not respond to the evidentiary record. As explained above, the OLRB decisions responded to Mr. Tucci’s submissions, and provided a coherent, rational chain of analysis that justifies their conclusions.
ii) The OLRB reasonably found the application was barred by the December decision
[32] Mr. Tucci submitted in his written argument that the OLRB improperly applied the doctrine of res judicata. He submitted that he ought to have been able to bring the second application because there were new facts and allegations of continuing reprisals. The December 2024 decision permitted him to file a fresh application, given its “without prejudice” language reproduced in paragraph 9 above.
[33] The School Board submitted to the OLRB that Mr. Tucci’s application should be dismissed “under the doctrines of abuse of process, res judicata, cause of action estoppel and issue estoppel.” The OLRB based its decisions on this issue on the doctrines of collateral attack and abuse of process. It outlined the proper legal principles governing this issue and determined that the December decision had determined the very issue Mr. Tucci sought to raise in his second application.
[34] There is no suggestion that the OLRB incorrectly articulated the appropriate legal principles. Mr. Tucci’s submission is that the OLRB improperly applied them. This ground is therefore reviewable on a reasonableness standard.
[35] I agree with the School Board that the December decision is properly read as leaving open the possibility that, once the grievance arbitration process had concluded, Mr. Tucci could return to the OLRB if there were matters that had not been dealt with in the grievance arbitration. The December decision did not provide Mr. Tucci with a license to re-start his application before the grievance arbitration process was completed.
[36] The OLRB properly considered the principles governing abuse of process and collateral attack, reasonably found that the December decision had determined the very issue Mr. Tucci sought to raise before the OLRB a second time, and found that this was not permissible. This was an entirely reasonable decision grounded in the record before the OLRB and carefully explained.
[37] There is no basis on which to interfere with the OLRB’s decisions.
Disposition
[38] I would therefore dismiss the application for judicial review. The School Board seeks costs of just under $15,000. It seeks costs on a substantial indemnity scale because of the continued re-litigation of the same matter. Mr. Tucci submits those costs are excessive.
[39] Bearing in mind the narrow focus of Mr. Tucci’s arguments before this court, I find that a proportionate, fair, and reasonable sum for Mr. Tucci to pay is $7,500 inclusive of disbursements and HST. No costs are sought by or against the OLRB and I would not order any.
“Brownstone J.”
“I agree. S.T. Bale J.
“I agree. O’Brien J.”
Date: April 14, 2026
CITATION: Tucci v. Ontario Labour Relations Board, 2026 ONSC 1794
DIVISIONAL COURT FILE NO.: DC-25-00000660-00JR
DATE: 20260414
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
S.T. Bale, O’Brien and Brownstone JJ.
BETWEEN:
David tucci
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, DUFFERIN-PEEL CATHOLIC DISTRICT SCHOOL BOARD, ONTARIO ENGLISH CATHOLIC TEACHERS’ ASSOCIATION
Respondents
REASONS FOR Decision
L. Brownstone J.
Released: April 14, 2026