Executive Summary: Key Legal and Evidentiary Issues

• The Ontario Labour Relations Board found that IUOE Local 793 had abandoned its bargaining rights for certain construction employees of Clean Water Works Inc.

• The Board determined that nearly a decade of inactivity and failure to secure a collective agreement supported the abandonment finding.

• IUOE argued that the Board failed to consider the union's intent and ongoing efforts to negotiate, particularly meetings in early 2021.

• The court held that the Board correctly applied established legal principles and reasonably concluded that any later activity could not revive abandoned rights.

• The Board’s reliance on objective conduct, rather than subjective intent, aligned with long-standing jurisprudence.

• Judicial review was dismissed, affirming the Board’s decision to grant certification to LIUNA in the relevant bargaining units.

Background of the labour dispute

This case stems from a long-running labour representation issue involving construction employees of Clean Water Works Inc. (CWW) in Ontario. The International Union of Operating Engineers, Local 793 (IUOE) had previously secured bargaining rights for certain non-industrial, commercial, and institutional (non-ICI) sector employees of CWW in designated geographic areas. However, IUOE never successfully negotiated a collective agreement for those workers in the specified zones, namely Board Areas 13 and 15 in eastern Ontario.

Labourers' application for certification

In 2021, the Labourers’ International Union of North America, Ontario Provincial District Council (LIUNA) applied to the Ontario Labour Relations Board (OLRB) for certification to represent the same group of employees. Since IUOE held historical bargaining rights, LIUNA’s application prompted a preliminary determination: had IUOE abandoned those rights due to inaction?

The Board’s abandonment and certification decisions

The Board held a detailed hearing, during which it reviewed IUOE’s activities since its certification in 2011. It found that IUOE had not taken meaningful or sustained steps to secure a collective agreement from approximately 2012 to 2020. While IUOE had requested conciliation early in the process and engaged in limited discussions in 2017 and 2018, those efforts were deemed insufficient. By 2020, the Board concluded, IUOE had objectively abandoned its bargaining rights.

The Board further found that IUOE’s subsequent negotiations in early 2021—even if genuine—could not “cure” the earlier abandonment. As such, it ruled there were no subsisting rights to block LIUNA’s certification, which was subsequently granted.

Judicial review and Divisional Court’s ruling

IUOE sought judicial review of five Board decisions, arguing that the findings were unreasonable and that the Board had failed to apply the core legal principle requiring an intention to abandon. IUOE also contended the Board ignored evidence of its continuous negotiation efforts and misinterpreted key documents such as the 2017 grievance settlement and the 2020 Oshawa certification application.

The Ontario Divisional Court, applying the reasonableness standard of review under Vavilov, dismissed IUOE’s application. The court held that the Board had applied well-established legal criteria for abandonment, focusing on objective conduct rather than subjective intent. The Board’s findings were consistent with jurisprudence such as G.S. Wark and other decisions emphasizing the importance of “actively promoting” bargaining rights. The court also upheld the Board’s interpretation of the 2017 and 2020 documents, finding no errors warranting judicial intervention.

Conclusion

The Divisional Court confirmed that the Ontario Labour Relations Board acted reasonably in concluding that IUOE had abandoned its bargaining rights for certain employees of Clean Water Works Inc. The certification of LIUNA was upheld, and IUOE was ordered to pay costs. This decision reinforces the legal standard that prolonged inactivity, without concrete bargaining efforts, may lead to a loss of union representation rights—even if the union subjectively intends to maintain them.