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Labour (Ont) - Remedy. Red N' Black Drywall Inc. v. Carpenters' District Council of Ontario
In Red N' Black Drywall Inc. v. Carpenters' District Council of Ontario (Div Court, 2024) the Divisional Court considered a 'successor employer' issue [LRA s.69], here in what may be characterized as 'union busting'.
Here the court alludes to the respondent union's argument that a judicial review may be dismissed on the court's JRPA 2(1) discretionary authority ["the court may"] for "admitted anti-union motivation and actions":[31] The respondents submitted that this is one of the rare cases in which the court should exercise its discretionary authority to refuse to consider an application for judicial review in view of the admitted anti-union motivation and actions of the applicants and their owner. We do not rule out the potential for such an outcome. However, as the court is dismissing the proceeding on its merits, it is unnecessary for us to consider whether in these circumstances relief should not be granted on equitable grounds. . Ontario Secondary School Teachers' Federation v. Ontario
In Ontario Secondary School Teachers' Federation v. Ontario (Div Court, 2023) the Divisional Court considered OLRB labour JRs by the two teachers' unions (the EFTO and the OSSTF), here regarding the "duty to bargain in good faith pursuant to s. 17 of the Labour Relations Act". The OLRB dismissed the OSSTF application entirely - but allowed the EFTO application, though without any remedy.
These quotes consider the EFTO JR on the issue of the (non-)remedy, which the court holds can be assessed on a private civil standard (ie. misrepresentation):[112] I agree with the arguments advanced on behalf of the Crown on the issue of appropriateness of remedy. The test articulated by the OLRB, although applied in a labour relations context, is similar to that which would apply to any claim for compensation for misrepresentation. Damages are meant to be truly compensatory and proven on the evidence based on the evidence in its totality. It is for this reason that such a claim must not only prove the making of the misrepresentation, it must also prove there was actual reliance on the misrepresentation and that it caused the damages sought.
[113] In this case, the OLRB determined on the totality of the evidence before it that no clear line of causation could be drawn between the Crown’s misrepresentation and the outcome of the EFTO negotiations. There were too many moving parts involved in the negotiations and several factors to be considered apart from that misrepresentation that entered into ETFO’s determination to settle on the terms of its memorandum of settlement with the Crown. What either party said they wanted to achieve, did because the misrepresentation had been made, or would have done if the misrepresentation had not been made, is relevant but in no way determinative of, a conclusion as to arriving at a conclusion as to whether or not the probabilities favour ETFO’s claim for monetary compensation. The OLRB, based on the evidence before it and applying its deep knowledge of the factors involved in collective bargaining, decided the EFTO had not proven its entitlement to economic damages to the extent required to entitle it to monetary compensation.
[114] In my view, the decision of the OLRB in this case to fashion a remedy designed to expose and sanction the Crown’s misrepresentation and breach of its duty to bargain in good faith is more than symbolic. Apart from being a widely circulated expression of disapproval of a breach of the Act that has an obvious negative impact on the Crown, it is a remedy that undoubtedly has the potential to play a role of use to ETFO in the next stages of the ongoing relationship between the parties, and in negotiations that they must engage in.
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