Executive Summary: Key Legal and Evidentiary Issues

• Reasonableness of the Ontario Labour Relations Board’s dismissal of the applicant’s duty of fair representation complaint under s. 74 of the Labour Relations Act, 1995.
• Adequacy of the union’s efforts to communicate with the grievor and advance his termination grievance, including attempts to obtain supporting medical documentation.
• Sufficiency and timing of the applicant’s medical and chiropractic evidence to prove incapacity to respond to the employer’s July 6, 2022 return-to-work ultimatum.
• Impact of the prior arbitration award on the employer’s mandatory COVID-19 Vaccination Policy and its termination on the applicant’s later non-attendance.
• Significance of the Ontario Labour Relations Board’s factual error about the applicant’s response to the union’s November 28, 2023 letter, and whether that error was material.
• Application of the Vavilov reasonableness standard to both the original Ontario Labour Relations Board decision and the reconsideration decision.

Facts of the case

The case arises from the termination of long-service employee Peter Miasik, who had worked for 24 years at the Etobicoke Casting Plant of Fiat Chrysler Automobiles Canada (FCA Canada). His employment was governed by a collective agreement, and he was represented by Unifor Local 1459. In October 2021, FCA Canada implemented a mandatory COVID-19 Vaccination Policy, requiring employees to comply or face workplace consequences. In early January 2022, after Mr. Miasik failed to comply with the policy, he was placed on an unpaid leave of absence. The union filed an individual suspension grievance on his behalf on January 5, 2022.
While that suspension grievance was pending, several Unifor locals pursued a policy grievance against FCA’s Vaccination Policy. An arbitration award issued on May 25, 2022, held that the policy was reasonable only up to the date of the award, but not reasonable going forward. In response, FCA declared the policy of no force or effect as of June 25, 2022, and recalled all employees who had been suspended or placed on leave under the policy. Workers, including Mr. Miasik, were instructed to return to work on June 27, 2022. He did not return to the workplace.
On July 6, 2022, FCA sent a letter advising that he had been absent without leave since June 27, 2022. The letter warned that if he did not return to work or provide satisfactory evidence explaining his absence by July 13, 2022, his employment would be deemed terminated. On July 10, 2022, before that deadline, he was involved in a motor vehicle accident. The decision notes that the extent of his injuries is unclear, though the collision report indicates his wife was injured at the scene.
By letter dated July 14, 2022, FCA terminated his employment due to his absence and lack of communication about the reasons for that absence. Mr. Miasik later asserted that his injuries from the motor vehicle collision rendered him unable to respond to the July 6, 2022 letter within the specified timeframe. On July 15, 2022, Unifor Local 1459 filed a termination grievance, arguing that his injuries should excuse both his failure to attend work and his failure to communicate with the employer by the July 13 deadline.

Union–employee communications and evidentiary issues

Following the termination grievance, the union began to gather information and evidence. On July 25, 2022, the union contacted Mr. Miasik to set up a call to discuss the grievance, and a phone meeting occurred on July 27, 2022. During this meeting, the union asked him to provide documents that could substantiate his claim that the collision had rendered him unable to respond to FCA’s July 6 letter. A follow-up email on July 29, 2022 reiterated the request and stressed that the union was looking for “anything to help fight for your job.”
Throughout August 2022, the union and the grievor communicated about the documentation the employer was requesting. Mr. Miasik supplied some documents, which the union passed on to FCA. At a second grievance meeting on September 9, 2022, FCA told the union that the information was insufficient and requested more specific documentation about his injuries and medical visits immediately following the collision. The employer particularly sought proof that he had been incapacitated during the critical period when he was supposed to respond to the July 6 letter.
The union relayed these requests to Mr. Miasik and repeated them several times through September and October 2022. On October 31, 2022, he provided notes from his treating physician and chiropractor, showing treatment dates. These records indicated that he first saw his physician on July 22, 2022 and his chiropractor on July 12, 2022. FCA remained unsatisfied, taking the position that the notes did not demonstrate that he had been incapable of responding to the July 6 letter by the deadline.
In late December 2022, another grievance meeting with FCA took place. The union then arranged a January 9, 2023 call with Mr. Miasik to discuss that meeting and the status of his grievance. The union again tried to explain the kind of documentation FCA wanted to see, aimed at establishing incapacity in the immediate aftermath of the collision and during the relevant period leading up to the employer’s deadline. The decision records that he did not provide any further documentation that would specifically address his condition during that crucial time.
The union continued to meet with FCA over the following months and attempted to contact the grievor by telephone on several occasions to secure the missing information. According to the decision, his preference was to communicate by email, but the union sought phone discussions to have a “frank” and detailed exchange about what was required. This divergence in communication preferences later became part of his complaint that the union failed to represent him fairly.

The duty of fair representation complaint

On November 22, 2023, more than a year after the collision and termination events, Mr. Miasik filed a complaint with the Ontario Labour Relations Board, alleging that Unifor Local 1459 had breached its duty of fair representation under s. 74 of the Labour Relations Act, 1995. That provision prohibits a union, as long as it represents a bargaining unit, from acting in a manner that is arbitrary, discriminatory, or in bad faith when representing any employee in the unit, whether or not the employee is a union member.
Shortly thereafter, on November 28, 2023, the union wrote to him advising that FCA had again denied the grievance at a meeting held on September 7, 2023. The letter emphasized that the employer continued to request documentation that had not been provided, and that the union had been trying—without success—to reach him by telephone. It further advised that the grievance had not yet been withdrawn and asked him to contact the union as soon as possible, warning that the grievance could be withdrawn absent his cooperation.
The Ontario Labour Relations Board held an in-person hearing on the complaint on August 26, 2024. Both sides made submissions. On August 28, 2024, the Board issued its decision dismissing the complaint. It concluded that the union had not breached its s. 74 duty of fair representation. The Board found that in order to succeed at arbitration, the union would have had to show that the grievor was reasonably incapable of complying with FCA’s July 6, 2022 direction and that the union had repeatedly asked for evidence to substantiate that incapacity. The evidence supplied to date, in the Board’s words, “fell woefully short” of what was required.
The Board acknowledged that the union might have done more to communicate its expectations but held that its conduct did not rise to the level of being arbitrary. It found that the union had communicated the employer’s need for documentation showing incapacity to respond to the July 6 directive, and had made repeated efforts to obtain that information from Mr. Miasik. The Board also noted his preference for email communication, but held that it was not for him to dictate the mode of communication to his union, and it accepted as reasonable the union’s desire to speak directly with him by telephone about the documentation required before deciding whether to advance his grievance to arbitration.

The reconsideration decision

On September 17, 2024, the applicant sought reconsideration of the Board’s August 28 decision. He argued that the Board had made a factual error in finding that he had not responded to the union’s letter of November 28, 2023. In fact, he had filed his duty of fair representation application on November 24, 2023, and responded to the November 28 letter by email on December 12, 2023.
On October 21, 2024, the Board released its reconsideration decision. It acknowledged that there was indeed a factual error concerning his response to the November 28 letter, but concluded that this was not a material error warranting reconsideration. The Board reasoned that both the filing of the complaint and his subsequent response to the November 28 letter occurred after the period during which he alleged the union had breached its duty. The core question was whether Unifor had acted arbitrarily, discriminatorily, or in bad faith in its representation before November 24, 2023. The later email exchange simply did not bear on that prior conduct. The Board held that the factual flaw was not “sufficiently central or significant” to render the original decision unreasonable and dismissed the reconsideration request.

Judicial review before the Divisional Court

Mr. Miasik then applied to the Ontario Divisional Court for judicial review of both the original Board decision and the reconsideration decision. The parties agreed that the governing standard of review was reasonableness as articulated in the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov. Under that standard, the Court’s task was to assess whether the Board’s decisions, including their reasoning and outcomes, were transparent, intelligible, justified, and consistent with the statutory scheme, rather than to substitute its own view of the merits.
In challenging the reasonableness of the original decision, the applicant argued that the Board’s conclusion that the union had not acted arbitrarily was unsupported by the evidence. He contended that Unifor failed to communicate with him for 13 months, did not take appropriate steps to move the grievance toward resolution, and did not adequately clarify what documentation the employer needed. The Divisional Court examined the record in light of these arguments and the Board’s analysis.
The Court highlighted that the Board had specifically addressed the union’s efforts to communicate and obtain information. The Board had found that Unifor needed to be able to show at arbitration that he was reasonably incapable of complying with FCA’s July 6 directive, had repeatedly requested documentation to substantiate that incapacity, and had clearly notified him that what had been provided so far fell well short. Additionally, the record showed there had been a call on January 9, 2023 after a December 2022 grievance meeting, as well as multiple attempted telephone contacts thereafter. This evidence contradicted the applicant’s assertion of a 13-month communication vacuum.
The applicant also submitted that the union had failed to explain what specific documentation was missing. The Divisional Court noted that he acknowledged the union had requested information and documentation substantiating his incapacity to respond to the July 6 letter. The emails from the union indicated that while a doctor’s letter dated August 18, 2022 had been provided, FCA continued to request documentation addressing his inability to respond from the date of the accident through to that letter, focusing tightly on the time window relevant to his non-attendance and lack of response. The Court accepted the Board’s conclusion that, while the union might have been more explicit, its communication was not arbitrary given that he was the person who knew what information and documentation might exist and the union clearly did not hold that information itself.

Outcome of the judicial review

On the question of whether the Board’s decision was reasonable, the Divisional Court held that there was evidence on which the Board could conclude that the union had tried to communicate with the applicant, had reasonably pursued the grievance but had been hampered by his failure to provide the requested documentation, and had made efforts to clarify what the employer was seeking. The Court concluded that the Board’s decision was transparent, intelligible, justified, and supported by the evidentiary record, and therefore met the Vavilov reasonableness standard.
Regarding the reconsideration decision, the Court accepted that the Board had made a factual mistake about whether the applicant responded to the November 28, 2023 letter. However, it agreed with the Board that this error was not material to the duty of fair representation analysis, because both the filing of the complaint and the December 12, 2023 response post-dated the period in which the alleged breach occurred. The Court found that the applicant had not shown that the error was “sufficiently central or significant to render the decision unreasonable.”
Accordingly, the Divisional Court dismissed the application for judicial review. It recorded that the parties were not seeking costs and ordered that the application be dismissed without costs. As a result, the successful parties were the respondents, the Ontario Labour Relations Board and Unifor Local 1459, and no monetary award, damages, or costs were ordered in their favour; the total amount ordered was therefore $0.