Labour (Ont) - Duty of Fair Representation. 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:
 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:. Speck v. OLRB
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. 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.
 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,  O.L.R.B. Rep. 2067, at para. 36.
 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.,  O.L.R.B. Rep. 371, at para. 26.
In Speck v. OLRB (Div Ct, 2021) the Divisional Court considered a judicial review of an OLRB duty of fair representation case. One of the issues was procedural fairness for failure to allow the appellant to advance his case fully:
 Public decision-makers who make administrative decisions that affect the rights, privileges or interests of an individual have a general duty of procedural fairness. That duty can be heightened when decision-makers make an administrative decision that can affect a person’s profession or employment: Baker, at para. 20.. Ali v. Ontario Public Service Employees Union
 To determine whether a party before a tribunal has been accorded procedural fairness, a reviewing court must conduct an assessment of the procedures and safeguards required in a particular situation and determine whether the appropriate level of procedural fairness was accorded by the Board: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11,  1 S.C.R. 249, at para. 74. Baker sets out five factors for consideration to determine the content of procedural fairness: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the administrative body: Baker, at paras. 23-27.
 By the terms of s. 99 of the Act, the Board has the discretion to not even hold a hearing with respect to duty of fair representation complaints under s. 74. Section 110(16) of the Act empowers the Board to “determine its own practice and procedure”, which need not even accord a right to call evidence at an oral hearing: Harrison v. Ontario Labour Relations Board, 2015 ONSC 3275, at para. 40. Rule 41.3 of the Board’s Rules of Procedure permits the Board to exercise discretion with respect to the scope of evidence permitted in matters proceeding under s. 99 of the Act, which governs s. 74 complaints, including by limiting the presentation of evidence or submissions, or by proceeding without a hearing.
 Nor do we consider that the applicant was denied the opportunity to present evidence and make submissions in respect of the Union’s request for summary dismissal of his application. In fact, the Board granted the applicant’s request for an extension of time to file his submissions to address both the delay issue and the Constitutional Question that he wished to raise, and expanded its initial 10-page limit to 20 pages in its decision of October 16, 2018.
In Ali v. Ontario Public Service Employees Union (Div Ct, 2022) the Divisional Court cited law that duty of fair representation cases should generally be delayed until the full process has been concluded (prematurity):
 The principal argument advanced by the applicant was that the OLRB made a “blanket ruling,” the effect of which is that no complaint of a breach of the duty of fair representation can ever be determined before the completion of the grievance process.. Thomas v. United Food
 In the April 2020 decision, the Vice-Chair cited the OLRB’s decisions in Berry v. Ontario Liquor Boards Employees’ Union, 2000 CanLII 4417 (ON LRB) (April 11, 2000) at para. 3, McPherson v. S.E.I.U. Local 528, 2006 CanLII 1622 (ON LRB) at para. 11, and Simpson v. Canadian Union of Public Employees Local 1764, 2004 CanLII 15609 (ON LRB) at para. 20. In each of those cases fair representation complaints were dismissed as premature. In Berry, Alternate Chair Cummings wrote, at para. 3:
The Board has consistently held that there is no good labour relations purpose to be served enquiring into a duty of fair representation complaint where the grievance at the heart of the complaint is still under discussion in the workplace parties’ grievance and arbitration procedure. OPSEU acknowledges that, as a general rule, fair representation complaints are not adjudicated until the completion of the grievance process. The rationale for this practice was explained in Zhang v. CUPE Local 79, 2016 CanLII 48776 (ON LRB) at paras. 39-40:
39. Where a trade union files grievances on behalf of an employee and is continuing to process them in a timely fashion at the time a section 74 application is made to the Board, the section 74 application is described as “premature,” and is not decided by the Board, but is rather dismissed. This approach makes sense as the arbitration hearing may result in an award that is favourable to the Applicant, she may not wish to pursue a complaint against CUPE. The rule is not, however, inviolable. Section 96(4) of the LRA invests the OLRB with a discretion to inquire into a complaint of a contravention of the LRA, including the duty of fair representation. Indeed, as the Zhang decision intimates, one circumstance in which a departure from the general rule could be warranted is where a grievance is not being processed in a timely fashion.
40. Regardless of the outcome of the arbitration hearing, if she wishes to base her complaint on CUPE’s conduct during that hearing, it only makes sense that the hearing run its course and all of her allegations be particularized prior to CUPE being required to respond to her complaint or the Board being required to decide it.
In Thomas v. United Food (Div Ct, 2021) the Divisional Court considered what is essentially a laches issue at the OLRB below, dealing with a s.74 duty of fair representation case:
 There is no time deadline set out in the LRA for bringing a complaint respecting a Union’s duty of fair representation. The timelines for bringing such a complaint are left to the OLRB's discretion. Where a person brings a complaint that the Union has violated its duty of fair representation, s. 96 of the LRA gives the OLRB wide-ranging discretion whether to inquire into the complaint. Section 99(3) of the LRA provides that the OLRB is not required to hold a hearing to determine a DFR complaint.
 Advisory Bulletin 12 posted, on the OLRB's website, provides in regard to a s.74 complaint, in part, that: "While there is no statutory time limit for filing an application, excessive delay without a good explanation may cause an application to be dismissed."
 Rule 5 of the OLRB's Rules of Procedure, posted on its website, provides:
Rule 5 Obligation to Make Allegations PromptlyJurisprudence
5.1 Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
 The OLRB has developed a body of jurisprudence on how to assess delay in the context of s.74 complaints. In its initial March 15, 2019 decision in this matter, it referenced at paragraph 6, its decision in The Corporation of the City of Mississauga as follows:
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: the length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years. (emphasis added in paragraph 6 of the OLRB's decision in this matter quoting this decision). The Applicant relies upon the OLRB's decisions in Chrysler Canada Ltd. and June Jacobs v. Canadian Union of Public Employees and its Local 1385 in support of the proposition that where delay is less than one year, the onus is on the responding party to demonstrate actual prejudice sufficient to justify dismissing a complaint without a hearing on its merits.
 However, in Nicola Gradojevic the OLRB explained that there is no bright line when the delay in filing an application under section 74 of the LRA results in prejudice to another party:
The Board has attempted to offer some guidance by identifying the one-year mark when it will presume that there is prejudice as a result of the delay. But that does not mean that a delay of 11 months has no prejudice or that it is not reasonable to presume that there will be prejudice to the parties. The Board's own jurisprudence makes it clear that dismissal for delay is an exercise of discretion, reflecting factually based determinations on a case by case basis.