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Labour II | Labour III

. Enercare Home & Commercial Services v. UNIFOR, Local 975

In Enercare Home & Commercial Services v. UNIFOR, Local 975 (Div Ct, 2021) the Divisional Court considers contracting out in the context of the Labour Relations Act:
[43] This discussion must be placed in the broader context of the law’s response to conflict respecting contracting out by an employer. These conflicts arise often. They are usually addressed as grievances under a collective agreement or as alleged “unfair labour practices” under s.72(a) of the LRA.[35]

[44] Subsection 72(a) of the LRA provides:
No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act.
[45] A leading case on this issue is Westinghouse, where the Board found: “[i]t is well established in this jurisdiction that absent an express restriction in the collective agreement an employer is not restricted in contracting out or relocating work for genuine business reasons.”[36] Nevertheless, the Board noted that an employer cannot contract out work “to avoid having to deal with his employees collectively through a trade union or to avoid the possibility, in the abstract, of being subject to economic sanctions”.[37] To do so would be an unfair labour practice.

[46] In Kennedy Lodge, the Board followed Westinghouse, finding that generally employers may contract out absent an express contrary provision in the collective agreement.[38] The Board examined the “true or real motive” of the employer in contracting out for evidence of “anti-union motivation.”[39] The Board found that contracting out all of a “core function”, with the result that unionized employees were terminated, was a basis to infer improper intent.[40]

[47] In Sunnycrest Nursing Homes, the Board found that the employer subcontracted work and discharged employees to avoid collective bargaining, subvert the bargaining process and defeat the statutory rights of terminated employees.[41] The Board followed this analysis in Rapid Transformers Ltd.:
The Board has consistently indicated that while an employer is free to expand or contract its business, to contract out its work, or to change methods of production, it may only do so if it is motivated by genuine and legitimate business considerations, rather than a desire to defeat or impede employees in the exercise of their statutory rights.[42]
[48] I appreciate that the case law reveals “a blurred distinction in principle between an employer’s motivation based on economic considerations and motivation showing an anti-union animus.”[43] It is neither necessary nor useful to try to reconcile this tension in this decision. In any event, motive is a key inquiry in these cases, and this is determined by examining the impact of the contracting out on the employer, collective bargaining rights, and the history of the issue between the parties. What is crystal-clear from the cases is that a careful analysis of the context of the contracting out is essential to the analysis, to assess the effect of the contracting out on bargaining rights and to determine the employer’s motives in contracting out.
. Themelis v. Toronto

In Themelis v. Toronto (Div Ct, 2021) the Divisional Court considered the s.74 'duty of fair representation' of unions under the Labour Relations Act:
[8] Section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”), sets out the duty of fair representation by a union. It provides:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
[9] The duty of fair representation regulates a wide range of union activity, including where unions refuse to pursue grievances or settle grievances against the wishes of grievors: Green v. Canadian Auto Workers Union Local #222, 2000 CanLII 13370 (ON LRB), at paras. 10-14; Parker v. Service Employees International Union, Local 183, 2003 CanLII 4234 (ON LRB), at para. 22. Where decisions in this respect are tainted by (i) arbitrariness, (ii) discrimination, or (iii) bad faith, a union violates s. 74 of the LRA and its decisions can be set aside by the OLRB.

[10] The prohibitions against bad faith and discrimination “describe conduct in a subjective sense – that an employee ought not to be the victim of the ill-will or hostility of trade union officials”: Prinesdomu v. Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union (1975), 75 C.L.L.C. 16,196 (OLRB), at para. 27. If a union acts with personal animosity towards a member, it will violate the duty of good faith. If a union draws a distinction between bargaining unit members on bases which have no relevance to legitimate collective bargaining concerns, it violates the prohibition against discrimination: Bartlett v. A.C.T.W.U., Local 307, [1983] O.L.R.B. Rep. 2067, at para. 36.

[11] Arbitrary conduct refers to a lack of concern in decision making, which reflects a “summary”, “reckless” or “not caring” approach by a Union: Prinesdomu, at paras. 28-31. A union’s decision “will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations”: Bartlett, at para. 36. In the context of processing grievances, s. 74 requires that unions put their minds to the merits of each grievance and engage in a process of making rational decisions which cannot be regarded as either implausible or capricious: Rocca v. Ontario Catholic Occasional Teachers Assn., [1989] O.L.R.B. Rep. 371, at para. 26.
. Skof v. Bordeleau

In Skof v. Bordeleau (Ont CA, 2020) the Court of Appeal cited limitations to Weber v Ontario Hydro, the (otherwise) exclusive collective agreement jurisdiction case:
[16] I have already set out why the collective agreement does not have any application to this case, the principal reason being that the parties agreed that it would not. I would also note that McLachlin J. made it clear in Weber, at para. 67, that the “exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal”. This point was reiterated in Piko v. Hudson's Bay Co. (1998), 1998 CanLII 6874 (ON CA), 167 D.L.R. (4th) 479 (Ont. C.A.), leave to appeal refused, [1999] S.C.C.A. No. 23, where Laskin J.A. said, at para. 11:
Some disputes between employers and employees may not arise under the collective agreement; others may call for a remedy that the arbitrator has no power to grant. The courts may legitimately take jurisdiction over these disputes.
[17] In any event, I do not agree with the respondents that the essential character of the claim is related to the employment relationship. To the contrary, the essential character of the claim relates to disciplinary action taken by Bordeleau under his authority as Chief of Police. In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, Bastarache J. explained that just because a person is an employee does not per se bring a given dispute within the collective agreement. Rather, if the dispute arises out of disciplinary action in a regulatory context, the dispute does not fall within the collective agreement or the jurisdiction of an arbitrator. In this case, as was the case in Regina Police Assn. Inc., it is clear that the Legislature intended that matters of discipline would be governed by the PSA, as I shall explain.[2]
. Rukavina v. Ottawa (Police Services Board)

In Rukavina v. Ottawa (Police Services Board) (Ont CA, 2020) the Court of Appeal considered when a malicious prosecution lawsuit by a police officer against other police officers and the police board, was governed the collective agreement (as in Weber) or could proceed as a lawsuit. The court found that the action could proceed, as the appropriate issue was what the "essential nature" of the facts were [paras 30-66]:
[52] The facts relating to Mr. Rukavina are notably different. Mr. Rukavina is not alleging that he was unfairly disciplined by his employer. Rather, he is alleging that he was wrongfully charged with criminal offences after his fellow officers lied to the SIU and that his superior officers acted in a manner that continued to mislead the SIU. The allegations do not pertain to discipline. At their highest, these are allegations of criminal activity, knowingly and intentionally misleading a criminal investigation.
. Elementary Teachers Federation of Ontario v. York Region District School Board

In Elementary Teachers Federation of Ontario v. York Region District School Board (Div Ct, 2020) the Divisional Court commented on a difference between courts and labour arbitrators on the issue of binding precedent:
[86] In any event, it is well established that Arbitrators are not bound by any prior arbitration awards (Isabelle v. Ontario Public Service Employees Union, 1981 CanLII 44 (SCC), [1981] 1 S.C.R. 449, at p. 457; Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929). This was noted by Iacobucci J. in Weber, at para. 14:
The first significant difference between courts and tribunals relates to the difference in the manner in which decisions are rendered by each type of adjudicating body. Courts must decide cases according to the law and are bound by stare decisis. By contrast, tribunals are not so constrained. When acting within their jurisdiction, they may solve the conflict before them in the way judged to be most appropriate. In labour arbitration, the Arbitrator is not bound to follow the decisions of other Arbitrators, even when similar circumstances arise.
[87] Furthermore, the Supreme Court in Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 5-6, has recognized that labour arbitrators have considerable latitude to develop or modify doctrines appropriate in their field:
Labour arbitrators are not legally bound to apply equitable and common law principles . . . in the same manner as courts of law. Theirs is a different mission, informed by the particular context of labour relations.

To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance.
. The Society of United Professionals v. New Horizon System Solutions

In The Society of United Professionals v. New Horizon System Solutions (Ont CA, 2020) the Divisional Court stated the leading doctrine on interference with a union's representation of employees in the bargaining unit [s.70 of the Ontario Labour Relations Act]:
[24] Section 70 of the Act provides:
No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence. (emphasis added)
[25] Both parties had agreed at the hearing before the Board that the leading cases on the interpretation and application of s. 70 are Hotel & Restaurant Employee CAW Local 448 v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.) and Bernard v. Canada (Attorney General), 2014 SCC 13. In both these cases, the issue was whether s. 70 or a similar provision requires that a trade union be provided with contact information, such as home addresses and phone numbers, for the members of the bargaining unit it represents.

[26] In Millcroft, the Board set out the test for applying s. 70 (at para. 16):
A violation of section 70 of the Act does not require an anti-union animus. If the result of certain conduct is interference in the union’s capacity to represent its members, that can be sufficient to constitute a breach of the provision. The conduct may be lawful and bona fide; it may be free of any anti-union taint, yet if its effect is to harm the union’s capacity to represent its members, it may be a violation. It will be a violation if there is no business rationale for the interference.
In Bernard, the Supreme Court of Canada quoted the Millcroft decision with approval. In each of these cases, it was held that access to the employee contact information was necessary for the union to carry out its representative obligations.


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