Executive Summary: Key Legal and Evidentiary Issues

• The admissibility of new affidavit evidence on judicial review, which was not before the original decision maker, was questioned but ultimately not considered necessary to resolve.

• The reasonableness of the Ontario Labour Relations Board’s (OLRB) decisions to dismiss both the Duty of Fair Representation complaint and the reconsideration request was scrutinized under the Vavilov reasonableness standard.

• The procedural fairness of the OLRB’s process, including whether Mr. Johnston had a full opportunity to present his case and whether the Board engaged with his core claims, was challenged.

• The Union’s discretion in settling or withdrawing grievances as part of a global settlement, and whether this constituted a breach of its duty of fair representation under section 74 of the Labour Relations Act, was a central issue.

• The timeliness and merits of Mr. Johnston’s application for reconsideration of the OLRB’s decision were considered, particularly regarding statutory deadlines.

• The appropriateness of awarding costs to the respondents, given Mr. Johnston’s financial circumstances and the Union’s failure to file a costs summary, was addressed.

Facts of the case

David Johnston was employed as a Relief Operator by Pan-Oston Ltd., a company manufacturing retail store fixtures in Peterborough, Ontario. As a member of Unifor Local 1987, his employment was governed by a collective agreement between the Union and the Employer. In May 2022, Pan-Oston arranged for employees to participate in a training session funded by the Canada-Ontario Job Grant (COJG), which required participants to complete a registration form containing personal information. The Employer pre-filled these forms, but Mr. Johnston refused to sign due to privacy concerns. Despite the Union’s legal department expressing no concerns about the information required, Mr. Johnston and others continued to refuse, resulting in escalating discipline: a verbal warning, a written warning, a one-day suspension, and eventually a three-day suspension for insubordination. The Employer also alleged the employees were engaging in an unlawful strike.

The Union responded by grieving the disciplinary actions and filing an unfair labour practice complaint with the OLRB, alleging discriminatory discipline against union representatives. Many of the grievances, including the unfair labour practice complaint, were resolved through a global settlement between the Union and the Employer, while some grievances were withdrawn and others remained outstanding and proceeded to arbitration.

The Duty of Fair Representation complaint

On 29 June 2023, Mr. Johnston filed a Duty of Fair Representation complaint with the OLRB under section 74 of the Labour Relations Act, alleging that the Union mishandled and prematurely withdrew several grievances without proper communication or adherence to grievance procedures. The Union responded that it had acted reasonably, prioritizing the interests of the bargaining unit as a whole in entering the global settlement, and that some grievances remained outstanding and were still being pursued.

There was confusion over the status of various grievances, prompting the OLRB to direct Mr. Johnston to clarify which grievances were at issue. After submissions from all parties, the OLRB tabulated the status of each grievance, determining which were settled, withdrawn, outstanding, or outside the scope of the complaint.

The OLRB’s decisions and policy considerations

In its decision dated 10 July 2024, the OLRB dismissed Mr. Johnston’s Duty of Fair Representation complaint for all grievances except two (49 and 51), which were confirmed as outstanding and proceeding to arbitration. The Board found that the Union’s decisions to settle or withdraw grievances, including those related to Mr. Johnston’s suspensions, were not arbitrary, discriminatory, or in bad faith. The OLRB applied established legal principles, including the Supreme Court’s guidance in Canadian Merchant Service Guild v. Gagnon, confirming that unions are not required to take every grievance to arbitration and may make trade-offs in the interests of the broader membership.

The Board also addressed Mr. Johnston’s concerns about the registration form, finding no evidence that the Union had failed to reasonably investigate his claims. The OLRB dismissed the reconsideration request as untimely and, even if it had been timely, found no new evidence that would have changed the outcome.

Judicial review and the court’s analysis

Mr. Johnston sought judicial review of the OLRB’s decisions, raising three main issues: the admissibility of new affidavit evidence, the reasonableness of the OLRB’s decisions, and the procedural fairness of the process. The Divisional Court, applying the reasonableness standard from Vavilov and recognizing the deference due to the OLRB under the Labour Relations Act’s privative clause, found that the Board’s decisions were justified, intelligible, and transparent. The court held that Mr. Johnston had been given a full and fair opportunity to present his case, and that the OLRB’s procedures and reasons were consistent with statutory requirements and natural justice.

Outcome and costs

The court dismissed Mr. Johnston’s application for judicial review, finding no basis to interfere with the OLRB’s decisions. No costs were awarded to the Union or the Employer, considering Mr. Johnston’s financial situation and the Union’s failure to file a costs summary. The successful parties in this matter were the Ontario Labour Relations Board, Unifor Local 1987, and Pan-Oston Ltd., with no monetary award or costs ordered in their favor.