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Labour (Ont) - OLRB Procedures. Gu v. Unifor Local 40 [fairness]
In Gu v. Unifor Local 40 (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour 'duty of fair representation' JR [LRA s.74], here from allegations that the union "refused her request to file an individual grievance with her employer ... and in doing so, acted in a discriminatory and harassing manner".
The court considered a fairness issue, here where the OLRB didn't hold a hearing to resolve the application:[38] The application is governed by the Act, which confirms that the Board has exclusive jurisdiction to respond to complaints that a union breached its duty of fair representation under s. 74. In doing so, at s. 99(3), the Act states that a Board is not required to hold a hearing.
[39] The discretion not to hold a hearing is also found in the Board’s Rules of Procedure:R. 39.1: Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application or part of the application without a hearing or consultation. In its decision, the Board will set out its reasons.
R. 41.2: In order to expedite proceedings, the Board or Registrar may, on such terms as either considers advisable, consult with the parties, conduct a pre-hearing conference, issue any practice direction, shorten or lengthen any time period, change any filing or delivery requirement, schedule a hearing, if any, on short notice, or cancel such hearing, or make or cause to be made such examination of records, or other inquiries as either considers necessary in the circumstances.
R. 41.3: Where the Board is satisfied that a case or part of a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations matters, the Board may decide an application by limiting the parties’ opportunities to present their evidence or to make their submissions, or without a hearing. [40] In this case, the Board received extensive written materials from Ms. Gu and Unifor. The Board requested and considered supplementary submissions from each party on several additional issues raised by the Board. Even if all Ms. Gu’s allegations against Unifor were taken to be true, the Board explained why Ms. Gu’s application failed to establish that Unifor breached its duty of fair representation.
[41] This court has confirmed the Board’s wide discretion to dispose of s. 74 applications in a summary fashion: Thomas v. United Food, 2021 ONSC 3015 at para. 31. I find that Ms. Gu has not established that the Board breached procedural fairness when it dismissed her application without holding a hearing. . Gu v. Unifor Local 40
In Gu v. Unifor Local 40 (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour 'duty of fair representation' JR [LRA s.74], here from allegations that the union "refused her request to file an individual grievance with her employer ... and in doing so, acted in a discriminatory and harassing manner".
Here the court considers limits on the OLRB's jurisdiction regarding "":[24] In considering the issue of jurisdiction on a s. 74 application, the Board referenced Re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA) and Najib Mankal and Others v. Unifor, 2018 CanLII 2091 (ON LRB), which confirm that the Board does not have jurisdiction over a union’s internal processes, by-laws, or constitutions. The Board drew a distinction between allegations arising from Unifor’s representation of Ms. Gu and allegations arising from Unifor’s internal processes, including Ms. Gu’s internal appeal. I find the Board’s decision to refuse to exercise jurisdiction over the latter was reasonable. . Parikh v. Walmart Canada Corporation et al. [limitation/delay]
In Parikh v. Walmart Canada Corporation et al. (Ont Divisional Ct, 2025) the Ontario Court of Appeal considers interlocutory motions within a labour JR, here where the JR was brought against an OLRB decision that refused "to extend the time for him to appeal an order dated November 30, 2022 made by a Ministry of Labour Inspector under the Occupational Health and Safety Act":[1] Mr. Parikh seeks judicial review of the decisions of the OLRB dated June 2 and 17, 2024 refusing to extend the time for him to appeal an order dated November 30, 2022 made by a Ministry of Labour Inspector under the Occupational Health and Safety Act.
[2] The Occupational Health and Safety Act allows appeals to the OLRB to be brought within thirty days of an inspector’s decision. Mr. Parikh advanced his appeal approximately 17 months after the order.
[3] The OLRB has the discretionary authority to extend the 30-day time limit. It chose not to do so in this case on the evidence and submissions before it. . McHayle v. Ontario Labour Relations Board
In McHayle v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court dismissed a JR, here against an OLRB denial of a 'duty of fair representation' case [LRA s.74] for delay (at the OLRB):[6] In a decision dated January 10, 2023, the Board dismissed the application on the basis of delay. The Board was aware Mr. McHayle had pursued complaints and litigation before the Financial Services Commission of Ontario, the Financial Services Tribunal and by judicial review to this court. It rejected Mr. McHayle’s reliance on this other litigation to justify his delay. It stated that a party who prioritizes other litigation does so at its own peril. The Board also was not persuaded by Mr. McHayle’s argument that the complexity of the issues justified his delay since he had no difficulty advancing them in other forums.
[7] The Board refused Mr. McHayle’s request for reconsideration. It did not accept it had committed an “obvious error” in its original decision.
[8] Mr. McHayle makes numerous submissions in his written material and oral argument before this court. I summarize his primary submissions as follows: (1) the Board erred by mischaracterizing his other litigation as showing that he prioritized litigation in another forum; (2) He only became aware of his cause of action against OPSEU shortly before he initiated the application before the Board; (3) The Board did not take into account all the necessary factors related to delay including that OPSEU had not suffered any prejudice; (4) there is no time limit in s. 74 of the LRA for filing a duty of fair representation application; (5) OPSEU’s discrimination is ongoing given the continued impact of Amendment 22 and (6) OPSEU’s conduct was unfair and violated his constitutional rights.
[9] There is no dispute that the standard of review for a decision of the Board is reasonableness. The Board’s decision to dismiss an application for delay is an exercise of discretion. The court will accord a high degree of deference to this type of discretionary decision.
[10] The Board’s decision in this case was reasonable. The Board was entitled to find Mr. McHayle’s decision to pursue other litigation was an unsatisfactory justification for the delay. In addition, it was open to the Board to presume prejudice in circumstances where Mr. McHayle did not start his application against OPSEU until over six years after his pension was transferred to the Public Service Pension Plan. The Board was not required to address all possible factors related to an assessment of delay. Instead, it was reasonable for the Board to emphasize as the most important factor that the delay was substantial and unjustified.
[11] Contrary to Mr. McHayle’s submission, s. 74 did not constitute a relevant legal constraint on the Board’s decision, even though it does not contain a time limit for bringing an application. The Board is entitled to control its own process. It relied on its own case law, which provides that an applicant has the onus of justifying a delay of more than a year and lengthy delays are presumptively prejudicial.
[12] I also do not accept Mr. McHayle’s submission that the Board was precluded from dismissing the application for delay because of what he says is OPSEU’s ongoing discrimination through Amendment 22. Mr. McHayle’s application was brought on his own behalf and sought the payment of the excess commuted value he claimed was due to him on his transfer to a managerial position in 2016. The application did not raise other circumstances or the specific losses of any other OPSEU members. Therefore, the application did not raise any facts that would allow the Board to address allegations of ongoing discrimination. It was not unreasonable for the Board to dismiss the application due to delay on the basis of Mr. McHayle’s particular circumstances.
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