Executive Summary: Key Legal and Evidentiary Issues

• SkipTheDishes failed to file a timely objection to a union certification application due to improper internal handling of service.

• The Labour Board refused to consider the late objection notice under section 8.1 of the Labour Relations Act.

• The company’s request for judicial review was dismissed as premature, as the certification process was still ongoing.

• The Court confirmed that judicial review of interlocutory decisions is only allowed in exceptional cases.

• Ongoing issues about worker classification and voter eligibility remain before the Labour Board.

• The Court found no undue prejudice or hardship warranting early judicial intervention.

Facts of the case
SkipTheDishes Restaurant Services Inc. operates a widely used food delivery platform. In April 2024, the Canadian Union of Postal Workers (CUPW) filed an application with the Ontario Labour Relations Board (OLRB) to certify a bargaining unit comprising food and alcohol couriers working for Skip in Hamilton. According to the Labour Relations Act, employers have two business days from receiving such an application to file a notice disagreeing with the union's estimate of the bargaining unit size under section 8.1. Although the application was delivered to Skip’s registered office, the company claimed it only became aware of it after the deadline had passed.

Skip attempted to file a late response and 8.1 notice arguing the proposed bargaining unit was inappropriate and that most couriers were independent contractors, not employees. However, the OLRB Vice Chair rejected the 8.1 filing as untimely and held there were no compelling reasons to exercise discretion to allow the late objection. The Vice Chair accepted only part of Skip’s late submission for limited use in determining the nature of the couriers’ employment status.

Procedural history and Board findings
Skip sought judicial review of the OLRB’s refusal to consider its section 8.1 objection. The company did not contest the finding that the application was properly delivered but argued that denying its objection created procedural unfairness. CUPW and the Board argued that the judicial review was premature since the certification process was still active and unresolved issues—including employment classification and ballot validity—remained before the Board.

The Divisional Court agreed. It ruled that the Board’s decision was interlocutory and did not justify judicial review at this stage. The Court emphasized that the law disfavors fragmenting administrative proceedings through early court intervention unless truly exceptional circumstances exist. It held that Skip’s hardship claims were speculative and that judicial review now would not resolve the broader certification process.

Outcome
The Divisional Court dismissed Skip’s application for judicial review, reaffirming the principle of judicial restraint in labour matters and upholding the autonomy of administrative decision-makers. The Court noted that Skip could raise all substantive issues, including those in the section 8.1 notice, during the ongoing Board hearings. Skip was ordered to pay $6,000 in costs to CUPW.