Executive Summary: Key Legal and Evidentiary Issues

• Reasonableness of the Ontario Labour Relations Board’s certification of United Food and Commercial Workers International Union, Local 633, as a craft bargaining unit for meat department workers at the Queensway Sobeys under s. 9(3) of the Ontario Labour Relations Act, 1995.
• Evaluation of whether the Queensway Store meat department workers constitute an appropriate bargaining unit under s. 9(1) of the Ontario Labour Relations Act, 1995, despite being approximately 15 employees out of about 200 store employees.
• Consideration of Local 633’s and its predecessor’s long history of representing supermarket meat department employees, including approximately 60 bargaining units at Metro grocery stores and at least 15 or 16 at Loblaws grocery stores.
• Allegation by Sobeys that the Board’s alternate s. 9(1) route to certification improperly conflated the test for an appropriate bargaining unit under s. 9(1) with that for a craft unit under s. 9(3), and that the outcome was “absurd.”
• Application of the Vavilov reasonableness standard and strong judicial deference to labour relations boards, including recognition that “few tribunals have received more judicial deference than labour tribunals.”
• Dismissal of Sobeys’ application for judicial review, with the court upholding the Board’s Decisions and ordering Sobeys to pay Local 633 costs of $8,500, with no costs sought by or against the Ontario Labour Relations Board.

Factual background and parties

Sobeys Capital Inc. operates a supermarket at 125 The Queensway, Toronto, known in the reasons as the “Queensway Store,” with about 200 employees and nine different departments, including a meat department. The meat department consists of meat cutters, meat clerks, seafood operators and seafood clerks. All of those employees except the seafood clerks report directly to the Queensway Store’s meat manager, while the seafood clerks report to the seafood operator and thus indirectly to the meat manager.

United Food and Commercial Workers International Union, Local 633, applied to the Ontario Labour Relations Board for certification as the bargaining agent for the meat department workers. The Board found that Local 633 and its predecessor local have represented supermarket meat workers for decades and that Local 633 continues to do so. The Board noted evidence that Local 633 bargains on behalf of approximately 60 existing bargaining units at Metro grocery stores and at least 15 or 16 Loblaws grocery stores, and that examples of collective agreements were entered into evidence showing representation of meat department employees over the years, including to the present day. Local 633 is a separate local union with its own executive and is the bargaining agent for meat department employees in stores where United Food and Commercial Workers International Union, Local 175, represents the remaining supermarket employees.

The OLRB’s main and reconsideration decisions

In its decision dated August 20, 2024 (the “Main Decision”), the Ontario Labour Relations Board certified Local 633 as a craft bargaining unit for the meat department workers of the Queensway Store under s. 9(3) of the Ontario Labour Relations Act, 1995. In the alternative, the Board found that Local 633 was an appropriate bargaining unit under s. 9(1). Sobeys applied to the Board for reconsideration of the Main Decision. On April 17, 2025, in the “Reconsideration Decision,” the Board refused reconsideration.

Sobeys argued before the Board that the craft unit certification was contrary to previous Board decisions under s. 9(3), particularly International Brotherhood of Electrical Workers Local Union 1687 v. Kidd Creek Mines Ltd., and that the certification ran against the Board’s general aversion to small units and fragmentation of bargaining units. Sobeys emphasized that Local 633 had not applied for stand-alone craft union certification of a supermarket meat department since 1994 and that its applications had historically been in conjunction with Local 175 for the remainder of store employees.

Local 633 responded that it and its predecessor have a long and ongoing history of representing supermarket meat department employees and that it represents numerous such employees in Ontario, including the Metro and Loblaws units referred to by the Board. Local 633 also pointed to prior Board decisions in which it had been certified as a craft unit for meat department workers, including cases such as H. W. Gluck Limited (Keswick I.G.A.) and Longo Brothers Fruit Markets Inc.

In the Reconsideration Decision, the Board stated that the Main Decision did not contradict Kidd Creek Mines and that it represented a preservation of the status quo. The Board observed that the Ontario Legislature has not repealed s. 9(3) and that, notwithstanding comments in Kidd Creek Mines about the restrictive treatment of craft unionization, the Board had granted meat department certificates thereafter. The Board referred to evidence that Local 633 is a separate local with its own executive and is the bargaining agent for approximately 75 meat department bargaining units in Ontario. It concluded there was no statutory or policy-based impediment to Local 633 seeking its historical craft unit in the circumstances.

Judicial review: standard of review and issues

Sobeys brought an application to the Ontario Superior Court of Justice, Divisional Court, to judicially review the Main Decision and Reconsideration Decision. The application was heard at Toronto on October 28, 2025, by a panel composed of Lococo, Nakatsuru, and Kurz JJ.

There was no dispute that the application must be determined on a standard of reasonableness, as established in Canada (Minister of Citizenship and Immigration) v. Vavilov and applied in labour relations cases such as Turkiewicz v. Bricklayers, Masons Independent Union of Canada, Local 1. The court noted that the reasonableness standard is “robust,” that its starting point is the principle of judicial restraint, and that courts must avoid a “rubber-stamping process” while being attentive to the specialized knowledge of administrative decision makers. The court emphasized that the applicant bears the burden of demonstrating unreasonableness and that any shortcomings or flaws must be sufficiently central or significant to render the decision unreasonable.

The court also cited authority that labour relations boards are entitled to the highest levels of judicial deference for matters within their exclusive jurisdiction, referring to Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, and the Court of Appeal’s statement in Ball v. McAulay that few tribunals have received more judicial deference than labour tribunals and that nothing in Vavilov detracts from that posture.

The court identified three issues: whether the Board’s determination under s. 9(3) of the Ontario Labour Relations Act, 1995 was reasonable; whether its determination under s. 9(1) was reasonable; and whether the Decisions created an absurd outcome.

Policy terms and statutory provisions in issue

Two key provisions of the Ontario Labour Relations Act, 1995 were directly in issue. Section 9(3), the crafts unit provision, provides that any group of employees who exercise technical skills or are members of a craft by reason of which they are distinguishable from other employees and commonly bargain separately and apart from other employees, through a trade union that according to established trade union practice pertains to such skills or crafts, shall be deemed by the Board to be a unit appropriate for collective bargaining if the application is made by a trade union pertaining to the skills or craft. The provision also permits inclusion of persons commonly associated in their work and bargaining with the group and states that the Board is not required to apply the subsection where the group is included in a bargaining unit represented by another bargaining agent at the time of the application.

Section 9(1) requires the Board, upon an application for certification and subject to subsection 9(2), to determine the unit of employees that is appropriate for collective bargaining, provided that the unit consists of more than one employee. The Board may also conduct a vote to ascertain the wishes of employees regarding the appropriateness of the unit.

The court described the Board’s general s. 9(1) approach, with reference to Canadian Union of Public Employees v. Hospital for Sick Children, as involving a balancing of factors such as community of interest, employer administrative structures, employees’ functional coherence, and any likely adverse effects, including fragmentation of employees into several units. The summary test from Hospital for Sick Children is whether the unit sought encompasses a group of employees with a sufficiently coherent community of interest that they can bargain together on a viable basis without causing serious labour relations problems for the employer.

Analysis of the s. 9(3) craft unit issue

Sobeys argued that the Board’s certification of Local 633 as a craft unit for the Queensway Store meat department was contrary to previous Board decisions under s. 9(3), especially Kidd Creek Mines. It relied on Kidd Creek Mines for the proposition that the craft unit provision effectively precludes the development of new craft unions and limits the extension of craft bargaining patterns beyond traditional boundaries, and that a union must already commonly bargain separately and apart from other employees and have traditionally represented employees with the craft skills of the proposed members.

Sobeys submitted that Local 633 could not satisfy this test because it had not applied for stand-alone certification of a group of supermarket meat department employees since 1994 and had previously done so only in conjunction with Local 175, which represented the balance of the supermarket employees.

Local 633 responded that it and its predecessor local have represented supermarket meat workers for decades and continue to do so, and that it represents many supermarket meat department employees in Ontario, including the Metro and Loblaws units mentioned in the evidence. It pointed to Board decisions such as H. W. Gluck Limited (Keswick I.G.A.) and Longo Brothers Fruit Markets Inc., where the Board certified Local 633 as a craft unit for meat department workers despite the presence of Local 175 for the remaining employees.

The court noted that in Kidd Creek Mines the Board held that a trade union seeking a craft unit must put before the Board a coherent body of collective bargaining experience to demonstrate that it commonly bargains on behalf of such employees, separately and apart from other employees, and that the rationale for that test was the legislature’s intent to preserve the status quo of already existing craft bargaining units rather than extend craft representation rights. The court further observed that Kidd Creek Mines recognized that it may not weaken a union’s claim to a craft unit that it negotiates in conjunction with other unions, and that the Board did not wish to create a disincentive to joint bargaining.

The court referred to later Board decisions, including International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators, Local 173 v. Niagara Falls Imax Theatre, which stated that the Board does not gauge bargaining history by counting units or collective agreements but considers the quality of the bargaining history, who has been represented historically, how long that history is, and whether the applicant has been consistent in maintaining its practice of representing only those for whom it is claiming craft status.

Adopting the reasons given by Local 633 and the Board, the court found that the Decisions regarding s. 9(3) were reasonable. It concluded that the Board looked to the quality and duration of Local 633’s representation of supermarket meat department workers, that Local 633’s cooperative relationship with Local 175 did not bar certification, and that the absence of a recent application for sole certification did not disentitle Local 633 from seeking certification. The court held that there was no statutory or policy-based impediment, so long as s. 9(3) remains in force, to Local 633 continuing its history of representing craft workers in circumstances such as those before the court.

Analysis of the s. 9(1) appropriate bargaining unit issue

Turning to the s. 9(1) issue, the court noted that the OLRB applied the Hospital for Sick Children framework in determining whether the proposed unit was an appropriate bargaining unit. The Board found that although all employees at the Queensway Store shared certain terms and conditions of employment—such as the proximity of their workspaces, shared lunch and break rooms, and common workplace rules, policies, procedures and pay scales—employees from different departments had little interaction, and each department had its own specific responsibilities.

Based on these findings, the Board concluded that the level of functional integration of the primary duties of the store’s various departmental employees would not lead to labour relations harm if Local 633 were certified. The Board added that because of the specific delineation of responsibilities in each department, there was little risk of confusion of responsibilities between departments.

The Board then addressed the concern about fragmentation of bargaining units. It reviewed several previous cases in which certification was denied to small units because of the risk of fragmentation and distinguished them on the facts. It further found that none of the other departments at the Queensway Store belonged to a craft or possessed a specialized skill with a similar history of bargaining separately and being represented by a dedicated union such as Local 633. The Board noted that the normal practice is to grant an “all employee” certificate for the remainder of a grocery store’s departments in addition to granting one to Local 633 for the meat department, and stated that the concerns it normally has regarding departmental bargaining units did not have the same likelihood of resulting in concrete labour relations concerns in this case. The Board concluded that a meat department bargaining unit would not set a precedent for other single department bargaining units at the Queensway Store.

The court found that these conclusions were available to the Board on the evidence and within the Board’s expertise. It therefore held that the Board’s s. 9(1) determination was reasonable.

Analysis of the alleged “absurd” outcome

Sobeys argued that the Decisions created an “absurd” outcome by requiring it to bargain with a small bargaining unit of 15 meat department workers, representing about eight percent of the Queensway Store’s approximately 200 employees, while the remaining employees were non-unionized. Sobeys submitted that the Board did not adequately explain why the meat department workers differed so significantly from other employees or why the Decisions did not create a risk of proliferation of other small groups’ applications for certification.

Local 633 responded that Sobeys is a sophisticated and well-resourced grocery chain and that Local 633 has extensive experience negotiating on behalf of meat department employees. It pointed to the Board’s finding that the proposed bargaining unit would not likely cause labour relations problems and argued that the Decisions therefore did not create an absurd result.

The court noted that Sobeys’ arguments about absurdity largely repeated its unreasonableness arguments regarding ss. 9(3) and 9(1). Having already found that the Board’s determinations under those provisions were reasonable, the court rejected the claim of absurdity. It observed that the Board considered Sobeys’ objections in light of its expertise, was aware of the anomaly of a small unionized unit within a larger non-unionized store, and found that such a model can work. The court added that the Decisions did not constitute a precedent for certification of other departments at the Queensway Store because no other department had the history of prior craft certification that would support an application under s. 9(3). The court further stated that if Local 175 were to apply to unionize the balance of the Queensway Store, that would bring the store into line with other stores supporting dual unionization.

On this basis, the court held that the Decisions did not create an absurd result.

Outcome and monetary orders

For the reasons set out in the judgment, the court dismissed Sobeys’ application for judicial review. The court upheld the Ontario Labour Relations Board’s Main Decision and Reconsideration Decision, including the certification of United Food and Commercial Workers International Union, Local 633, as the bargaining agent for the meat department workers at the Queensway Store.

On costs, the reasons state that the parties agreed that if Local 633 were successful, Sobeys would pay it costs of $8,500, and the court so ordered. No costs were sought by or against the Ontario Labour Relations Board. As a result, the successful party was United Food and Commercial Workers International Union, Local 633, and the total monetary amount ordered in its favour was $8,500 in costs.