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4.5 Remedial Powers of the Ontario Labour Relations Board

See also: The Changing Workplaces Review

4.5.1 Interim Orders and Expedited Hearings

Background

Before 1993, the Labour Relations Act (LRA) expressly provided the OLRB with the power to grant interim orders in limited circumstances, such as jurisdictional disputes. Although the OLRB did not have the express power to make interim orders with respect to other substantive or procedural matters, it appears to have done so on occasion, pursuant to its general powers.

Amendments in 1993 to the LRA provided the OLRB with a broad power to make substantive interim orders. Interim relief could be requested with respect to any “pending or intended proceeding” (i.e., even if the main application had not yet been filed) and was not limited to unfair labour practice complaints in the certification context. The OLRB was empowered to consider a variety of applications seeking interim relief with respect to hiring, workplace postings, union recognition, operation of a subcontracting clause, scheduling changes, permission to choose vacation time, prohibiting work stoppages, and other matters.

The 1993 amendments also introduced a provision for expedited hearings in cases where a worker was disciplined or terminated in the context of a union organizing drive. Upon request by the union, the OLRB was required to begin its inquiry into the complaint within fifteen days of the application, and to continue hearing the complaint on consecutive days from Mondays to Thursdays until the hearing was completed. The OLRB was then required to render its decision within two days.

In 1995, the 1993 provisions regarding interim orders and expedited hearings were repealed. The OLRB retained the power to make interim orders with respect to procedural matters, but was expressly prohibited from ordering the interim reinstatement of an employee.

In 1998, the LRA was further amended to provide that the provisions of the Statutory Powers Procedure Act, permitting administrative tribunals to make interim decisions and orders, did not apply to the OLRB.

In 2005, the LRA was amended to restore the OLRB’s power to make interim orders where workers are terminated or disciplined during an organizing campaign. Currently, the OLRB is empowered to make interim orders requiring an employer to reinstate an employee in employment on such terms as it considers appropriate. Furthermore, the OLRB may make interim orders respecting the terms and conditions of employment of an employee whose employment has not been terminated, but whose terms and conditions of employment have been altered, or who has been subject to reprisal, penalty or discipline by the employer.

The power to make such interim orders is dependent on the OLRB being satisfied that the applicant has established:

  • the circumstances giving rise to the pending proceeding occurred at a time when a campaign to establish bargaining rights was under way;
  • there is a serious issue to be decided in the pending proceeding;
  • the interim relief is necessary to prevent irreparable harm or is necessary to achieve other significant labour relations objectives;
  • the balance of harm favours the granting of the interim relief pending a decision on the merits in the pending proceeding.

The OLRB is prohibited from exercising its powers to order interim relief if it appears that the alteration of terms and conditions, dismissal, reprisal, penalty or discipline by the employer was unrelated to the exercise of rights by an employee under the LRA.

The Chair of the OLRB also has the power to make rules for expedited proceedings where interim relief is requested.

The LRA does not impose on the OLRB a specific timeframe for commencing proceedings in relation to interim orders or for rendering a decision. However, the OLRB has issued guidelines providing for the scheduling of hearings of applications for interim relief within four to six days after filing. Additional filing requirements and timelines are set out in the OLRB’s Rules of Procedure.

Other Jurisdictions

Ontario appears to have taken a unique approach by expressly setting out in the LRA the conditions in which the OLRB can make substantive interim orders. In every jurisdiction where the labour relations board or commission is expressly provided with a general power to make interim or provisional orders (i.e., Alberta, British Columbia, Manitoba, New Brunswick, Quebec, Saskatchewan and the federal jurisdiction), the test for application has been developed by the board or commission rather than set out in legislation.

With the exception of Newfoundland and Labrador, all Canadian provinces and the federal jurisdiction expressly provide that labour relations boards have the power to make interim or provisional orders. The scope of this power varies depending on the jurisdiction and is not always restricted to circumstances where workers are terminated or disciplined during an organizing campaign.

In six provinces (Alberta, British Columbia, Manitoba, New Brunswick, Quebec, and Saskatchewan) and the federal jurisdiction, labour relations boards are expressly provided with a general power to make interim or provisional orders where there has been an alleged contravention of their labour legislation or unfair labour practice, or to protect the rights of a party.

In Nova Scotia and Prince Edward Island (as well as Ontario, as described above), the power of the labour relations board to provide interim relief is expressly limited to certain circumstances. In Nova Scotia, the board may make interim orders regarding ongoing and potential work stoppages caused by unlawful lock-outs or strikes or by jurisdictional disputes. In Prince Edward Island, the board may issue an interim order regarding the assignment of work in a jurisdictional dispute.

The jurisprudence developed by boards and commissions varies by jurisdiction; some grant interim relief if the applicant meets the three-part common law test established by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General),[72] which requires an applicant for interlocutory injunctive relief in Court to demonstrate that:

  • there is a serious question to be tried;
  • irreparable harm will result if the relief is not granted; and
  • the balance of inconvenience favours the order.

The courts have a residual discretionary power to grant interlocutory relief, such as an injunction. This power flows both from various statutes and from the inherent jurisdiction of the courts over interlocutory matters.[73] Likewise, administrative tribunals are often granted the authority to provide interim relief, either by their enabling statutes or by virtue of section 16.1(1) of the Statutory Powers Procedure Act (or an equivalent statutory provision in other jurisdictions),[74] which gives certain tribunals the power to make interim decisions and orders.

Submissions

Unions argue that unfair labour practices committed by employers in the context of a union certification campaign can cause irreparable harm to the campaign and interfere with, and frustrate, the exercise of the employees’ constitutional rights to join a union and engage in collective bargaining. Unions assert that, too often in organizing campaigns, they are placed at a significant disadvantage when employers “hit hard and fast” in an effort to derail the organization of its employees, including acting in ways that are currently prohibited by the LRA. Unions generally agree that too many employers are prepared to risk being found in violation of the LRA in order to achieve an immediate result. They further argue that the adverse impact of employer misconduct can be profound and that organizing efforts are further disadvantaged without expedited hearings before the OLRB.

Union stakeholders support expanding the OLRB’s power to issue substantive interim orders on “such terms as the Board considers appropriate” in any case where unfair labour practices are alleged, and provided that evidence is adduced by the applicant to establish a factual foundation sufficient to meet the test for the granting of interim relief. It is argued that such interim relief power is a useful and necessary element of the OLRB’s remedial toolkit that, from 1993 to 1995, was used effectively by the OLRB to stabilize the workplace, pending an adjudication of an unfair labour practice complaint.

In addition, unions have asserted that the current statutory test requiring the applicant to prove irreparable harm should be eliminated and the granting of interim relief should be decided on a less stringent legal test.

Employers tend to oppose broader substantive interim order powers on the basis that interim orders grant a remedy before a violation of the LRA has been found by the OLRB.

Options:

  1. Maintain the status quo.
  2. Implement one or more of the following:
    1. restore the power of the OLRB to issue interim orders and decisions pursuant to section 16.1(1) of the Statutory Powers Procedure Act;
    2. broaden the scope of the OLRB’s remedial power by providing the OLRB, in cases of alleged unfair labour practices, with the ability to grant interim relief on “such terms as the Board considers appropriate”;
    3. eliminate the requirement that an applicant for interim relief prove that the relief is necessary to prevent irreparable harm or is necessary to achieve other significant labour relations objectives, and/or substitute less demanding standards;
    4. eliminate statutory requirements that must be met by an applicant for interim relief and leave it to the OLRB to develop its own jurisprudence about when it will issue interim orders; and
    5. require that the OLRB expedite hearings for interim relief by establishing prescribed statutory time limits so that hearings proceed without unnecessary delays.

4.5.2 Just Cause Protection

Certification to First Collective Agreement

Background

The focus of this discussion is whether there should be protection against unjust termination of employees from the time a union is certified or voluntarily recognized until the effective date of the first collective agreement. In first contract negotiations, this protection would extend to employees who are engaged in a strike or who are locked out by the employer before implementation of the first collective agreement.

A similar issue arises after the expiry of a collective agreement, during negotiations for a renewal collective agreement, when the union is in a legal strike position and the employer is entitled to lock out employees. Under the current LRA, employees are vulnerable to termination without cause by an employer unless such termination is the result of an unfair labour practice. This issue is dealt with separately in section 4.4.2.2 of this Interim Report.

Statutory “just cause” protection for employees generally provides protection for employees from unjust discharge by an employer. Commonly, such statutory protection allows an employee who asserts that there was no cause for termination to bring a complaint of unjust dismissal before a neutral third party adjudicator with jurisdiction to determine the issue. In such proceedings, the legal burden to prove just cause falls on the employer who must prove, on a balance of probabilities, that such action was justified. The adjudicator has jurisdiction to decide whether just cause exists and the dismissal is warranted and, where no cause is proven, to order an appropriate remedy (including damages and reinstatement) or to substitute a lesser penalty if there was wrongdoing by the employee but the discipline imposed by the employer was excessive.

The goal of a just cause provision is to ensure that employees are not treated unjustly by the exercise of management’s authority to terminate employees. Virtually without exception, collective agreements in Ontario contain provisions permitting the grievance and arbitration of employee discipline cases. Arbitrators may determine whether an employee has been discharged or otherwise disciplined for cause and may substitute another penalty for the discharge or discipline that the arbitrator deems just and reasonable.

Pursuant to the provisions of the LRA, an employer is prohibited from dismissing, threatening to dismiss or imposing any other penalty if the purpose is to prevent an employee from joining a union or from exercising any rights under the Act. As a result, the OLRB has jurisdiction to protect employees from unjust discipline or discharge only if they are discharged or disciplined for exercising their rights under the LRA, (e.g., because they have joined a union or participated in other lawful activities related to organizing or certification of a union, including participating in collective bargaining). If the OLRB finds an employer has terminated or disciplined an employee because of the exercise by the employee of his or her rights under the LRA, it has jurisdiction to award damages, and to reinstate the employee in cases of termination. In such cases, the burden of proving that the employer did not act contrary to the LRA lies on the employer.

In practical terms, this means that after certification, but before a first collective agreement is in place, an employee has no protection against unjust termination by the employer unless the termination is motivated in whole or in part by the employee’s exercise of rights under the LRA.

Once the first collective bargaining agreement is effective, employees will have protection against unjust dismissal or discipline because of the just cause provisions contained in virtually all collective agreements. Even after the expiry of a collective agreement, employees in the bargaining unit will have protection against unjust dismissal or discipline because the terms and conditions of employment are frozen until the union and the employer are in a position to engage in a legal strike or lock-out.

Amendments to the Labour Relations Act, introduced in 1993, provided that a just cause provision was deemed to be in effect during:

  • the interval following certification or voluntary recognition and before a first collective agreement was entered into;
  • the course of the collective agreement; and
  • strikes, lock-outs, the open period before a new collective agreement was in operation, or until the union was decertified.

The legislation allowed for a lesser standard for “cause” to apply during an employee’s probationary period. These provisions were repealed in 1995.

Other Jurisdictions

Three Canadian labour relations statutes contain just cause protections during periods where no collective agreement is in force. The federal jurisdiction provides just cause protection during the period from the date of certification to the date when a first collective agreement is implemented. British Columbia’s legislation provides that an employer may not discharge, suspend, transfer, lay-off or discipline an employee except for proper cause when a union is conducting a certification campaign. Saskatchewan’s law states that, in circumstances where no collective agreement is in force, the board has certified a union, and an employee is terminated or suspended for a cause other than a shortage of work, an arbitrator may determine whether there is just cause for the termination.

Submissions

Unions have supported the restoration of a provision for just cause protection during the period subsequent to certification and prior to the first collective agreement. They argue that because employees do not have such protection until the collective agreement is in place, some employers “clean house” and terminate employees where cause for termination does not exist. Not only can such conduct erode the confidence of employees in the newly certified bargaining agent but it will likely also create issues that are very difficult to resolve in collective bargaining. Access to just cause protection will help to ensure stability in the workplace during the critical period following certification until implementation of a first contract.

Employers did not comment on this specific LRA issue in their written submissions with respect to this Review. However, we expect that employers would generally take the position that: the existing provisions of the LRA are sufficient to protect employees who exercise their rights under the LRA, including the right to organize and participate in collective bargaining; that before concluding the collective agreement, employers should not have their rights to manage the enterprise curtailed; and that unions are in a position to resolve issues relating to the termination of employees as part of the collective bargaining process, all while conceding that, like other collective bargaining issues, just cause issues can be very difficult to resolve.

Options:

  1. Maintain the status quo.
  2. Provide for protection against unjust dismissal for bargaining unit employees after certification but before the effective date of the first contract.

4.5.3 Prosecutions and Penalties

Background

In Ontario, anyone who contravenes the LRA may be subject to OLRB orders and prosecution before the provincial courts. However, it is important to evaluate whether these provisions act as a sufficient deterrent for unlawful activity.

The OLRB has broad general remedial powers to provide compensatory relief where there has been unlawful activity under the LRA. For example, the OLRB has previously ordered awards for damages, benefits, interest, organizing and negotiating costs, harassment and indignity, and prospective losses. However, the OLRB does not make orders that are primarily intended as deterrence or to punish the wrongdoer.

A prosecution for a violation of the LRA may be commenced before the Ontario Court of Justice but only with the prior written consent of the OLRB. The applicant has a heavy onus to persuade the OLRB that nothing else would resolve the issue and that prosecution is consistent with the promotion of good labour relations in the province.[75] If the OLRB grants consent, the applicant may initiate a private prosecution against the alleged wrongdoer.

Upon conviction of an offence, individuals can be fined up to $2,000 and corporations and unions can be fined up to $25,000. Each day that a contravention continues may constitute a separate offence. These maximum amounts have not changed since 1990.

Prosecutions under the LRA are very rare. In the period from 2004-2014, the OLRB dealt with thousands of unfair labour practice complaints, but only received 29 applications for consent to prosecute, and only three were granted.

Some illegal activity under the LRA could result in penal consequences, where parties are found in contempt for disobeying court orders or orders of the Board filed in court and enforced as an order of the court. For example, engaging in an illegal strike has been and is still the most serious of illegal activities in the labour law field. If unions or employees engage in illegal strikes, especially in essential services such as health care, or in sensitive areas such as transportation or education, there is a risk of severe consequences. Where public safety is threatened, the consequence for unions and their members of defying legislation or court orders prohibiting illegal strike activity or directing employees to return to work can and has resulted in fines and even imprisonment.

Other Jurisdictions

All Canadian provinces and the federal jurisdiction have taken a similar approach. Labour relations boards or commissions have general remedial powers and offences are prosecuted before the courts. However, there are some differences. For example, the Manitoba Labour Board is expressly permitted to order monetary awards of up to $2,000 for an unfair labour practice, even where the unlawful activity has not resulted in any monetary damages or loss. Consent to prosecute is not required in British Columbia and Quebec, whereas all other jurisdictions require some form of consent unless an exemption applies.[76] The maximum fines for conviction of a general offence also vary depending on the jurisdiction, ranging from $100 to $5,000 for individuals and $500 to $100,000 for employers, corporations, and unions. Prince Edward Island also mandates minimum fines.[77] Many jurisdictions, such as Quebec, set out different fines for certain types of contraventions, such as unlawful work stoppages.

In the United States, the approach under the National Labor Relations Act (NLRA) is similar to Ontario. The National Labor Relations Board (NLRB) has broad remedial powers but the prosecution of offenses is before the courts. The right of an individual to initiate a private prosecution in the courts was removed following a 1981 decision by the United States Supreme Court.[78]

In 2015 in the United States, the Workplace Action for a Growing Economy (WAGE) Act was introduced.[79] Although the WAGE Act is unlikely to be made into law, it proposes several amendments that could deter unfair labor practices, including:

  • triple back pay for workers who are unlawfully terminated or face retaliation;
  • civil penalties up to a maximum of $50,000 per violation and doubled penalties (maximum $100,000) for repeat violations;
  • private civil actions for workers injured by an unfair labor practice;
  • personal liability for officers and directors in certain circumstances; and
  • joint and several liability for employers where violations of the NLRA involve employees supplied by another employer.

Submissions

No submissions were made to us on this precise issue although a strong general theme of all the submissions to us from the worker advocate community and unions was that there was a widespread disregard for the law as evidenced by allegations of non-compliance with the ESA and LRA. Employer illegal activity during organizing campaigns and the need for effective action to stop it was a pervasive theme in the submissions of many unions.

General Options:

In the ESA sections of the Interim report, there is a discussion about the desirability of dispensing with prosecutions in the courts and giving the OLRB the authority to impose administrative monetary penalties of up to $100,000 per infraction where violations of the legislation are found to have occurred. If the OLRB were given jurisdiction to impose similar administrative monetary penalties for violations of the LRA, the same model could apply. Concurrently the ability to commence prosecutions before the courts could be removed.

The OLRB has stated that there are good reasons for the Board not being responsible for imposing penalties because if it did, it could be difficult for it to maintain its “accommodative and settlement role”:

There is little doubt that penalties could be devised which would provide second thoughts to anyone intent on violating The Labour Relations Act. But the Legislature did not provide the Board with this role and probably with good reason. Section 85 of the Act is a section that sets out penalties for contraventions of the legislation and allocates the role of applying these penalties to the Provincial Court. … This is not to deny that effective remedies will likely have a deterrent effect, but the primary purpose of a remedy should not be punishment. If it were otherwise, the Board’s accommodative and settlement role under section 79 and more generally would be a most difficult one to maintain. Offenders would be wary of compromise lest their candor be subsequently met by stiff penalties issued by the very agency that encouraged an informal and early resolution of a complaint.[80]

In one of the few cases where consent to prosecute was granted, the OLRB recognized that there is “a useful labour relations principle to be served in deterring parties from acting as if they are simply free to ‘opt out’ of the collective bargaining regime and the [LRA] and its provisions.”[81]

Since the 1975 amendments to the LRA which gave the OLRB broad remedial powers, it appears to be a near universal consensus in labour law circles is that the approach which stresses the importance of the relationship between the parties as opposed to “punishment” is the better one. A defining feature of labour law has been that the search for appropriate remediation should trump concerns over deterrence.

In recent years, these views have been increasingly challenged. In the United States, as seen above, the general approach until now has mirrored the approach in Canada but there has been widespread criticism from organized labour (the AFL-CIO) and some members of United States Congress over the lack of penalties for employers who violate the law. A former chairman and member of the NLRB (1997-2011) has questioned the fact that there are no penalties in labour law for employers who illegally retaliate against workers, and argues that greater penalties and higher and consequential damages are required.[82]

A criticism of the existing system in Ontario is that there is no credible threat of prosecution for violations of the LRA and no real deterrence (except in the case of illegal strikes) and that, as a result, serious unfair labour practices occur too regularly. The costs of violating the LRA – legal fees, compensatory remedies and a slap on the wrist by the OLRB – could be viewed by some as a cost of doing business and a small investment in achieving the ultimate objective of being able to operate a business without a union. The same can be said about union breaches of the duty of fair representation where the consequences of not arbitrating an employee grievance can be very serious for the employee and yet carry little if any meaningful consequences for the union which fails to process the grievance properly. Absent deterrence, is breaking the law simply part of the game- like a flagrant foul in basketball or serious fighting in hockey? The policy question is whether there can be an effective system of law in any area, especially one as adversarial as labour law, without any deterrent to help ensure that conduct stays within the mandated rules.

Underpinning the architecture of the existing system may be a policy bias against the prosecution of offences by private parties. There are jurisdictions that do not permit private parties to prosecute violations of the applicable labour legislation. Indeed, if violation of the LRA could result in the imposition of significant monetary penalties and private prosecutions were permitted, then there would be a risk that unions, employees or employers would use the threat of or the initiation of prosecutions for improper purposes and not in the public interest.

If the OLRB were given the jurisdiction to impose administrative monetary penalties for violations of the LRA, it is not suggested that private parties would also have standing to ask the OLRB to impose such a penalty. Rather, complaints might be initiated or existing complaints joined by the Ministry of Labour or by the Ministry of the Attorney General whose role would be to represent the public interest. In this model, only the government would have standing before the OLRB to ask for the imposition of an administrative monetary penalty where violations are found to have occurred.

For purposes of enforcement of both the LRA and the ESA, perhaps the Province would consider the creation of a new position, a Director of Labour Enforcement, whose responsibility would be to determine if and when the state would seek the imposition of administrative monetary penalties under either statute. Unions, employees and employers could refer complaints of unlawful activity to the Director, who would determine if there is a public policy interest in achieving an outcome that would better reflect the seriousness of the violation(s) alleged.

The employer, union, employee, or other respondent would know at the outset the potential risk arising from the Ministry proceeding or participating in a hearing before the OLRB. If the Director of Enforcement were going to seek an administrative monetary penalty, over and above a remedy for the complainant(s) or other employees whose rights have been violated, the respondent would be advised not only of the details of the alleged violations but also of the amount of the administrative monetary penalty being sought by the Director.

The current complaints driven process is essentially a two-party process with the complainant and a respondent being the parties in a position to resolve their own litigation. If the Director participated in the litigation as a party, a settlement by other parties could not bar the Director from pursuing a case at the OLRB for purposes of seeking an administrative monetary penalty. In a case where the Director of Enforcement sought the imposition of an administrative monetary penalty, the participation of the Director of Enforcement would not preclude a settlement on the question of the amount of the administrative penalty – perhaps subject always to the approval of the OLRB. The Director will be in the best position to assess the strengths and weaknesses of a case, to assess how best to serve the public interest and to take into account the views and the rights of the parties in deciding whether and on what terms to settle.

If the OLRB were to be given an expanded jurisdiction to impose significant monetary sanctions up to $100,000 per infraction, there is also reason to consider giving the OLRB jurisdiction to order an unsuccessful respondent to pay the cost of the investigation and the costs of the hearing incurred by the Director of Enforcement.

Similarly, it may be prudent to consider stipulating that revenue generated from the exercise of a power conferred or a duty imposed on the OLRB does not form part of the Consolidated Revenue Fund but could be used for various purposes including educating employees and employers about their rights and obligations under the LRA, or similar purposes.

Under this option, a Director of Enforcement could also have responsibility for ESA prosecutions, and/or for Occupational Health and Safety Act (OHSA) matters.

Specific Options:

  1. Maintain the status quo.
  2. Increase the penalties under the LRA.
  3. Eliminate the requirement for consent to prosecute and allow private prosecutions for breaches of the LRA in the courts.
  4. Eliminate the requirement for consent to prosecute and do not permit private prosecutions for breaches of the LRA, but only prosecution by the state.
  5. Eliminate prosecutions in the court and give the OLRB the authority to impose administrative penalties as per the model of the Ontario Securities Commission.
  6. Create a position of Director of Enforcement, situated in the Ministry of Labour, or in the Ministry of the Attorney General.

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