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Much to the chagrin of the business community, on November 3, 2004, the Ontario government introduced Bill 144, The Labour Relations Statute Law Amendment Act, 2004 ("Bill 144"). The purpose of the proposed amendments, according to the Minister of Labour, Chris Bentley, is to "restore fairness and balance to the labour relations system" in Ontario. However, these changes are more likely to inspire litigation than achieve the often-repeated "balance" espoused by the Minister of Labour.

Effectively, Bill 144 aims to reverse some of the changes implemented by the former Conservative government. For example, Bill 144 would provide the Ontario Labour Relations Board (the "Board") with the power to automatically certify a union if an unfair labour practice is found to have been committed. Automatic certification, however, undermines the stability of labour relations by ignoring the importance of trade union legitimacy. As illustrated by the following cases, the exercise of this power has in the past produced some disconcerting results:

• In Wal-Mart Canada Inc.[1] the union was certified in the employer's Windsor location after losing a certification vote 151 to 43. This result flowed from the Board's finding that Wal-Mart had contravened the Ontario Labour Relations Act, 1995 (the "Act") when it refused to answer employees' questions about whether the store would remain open if the union won. Ultimately, the Windsor store was decertified before a collective agreement was established.
• The Board also determined that automatic certification was appropriate in Royal Shirt Company Limited[2] because the employer had violated the Labour Relations Act by interfering with the union's organizing campaign. In that case, the union was automatically certified despite having received only one (1) signed membership card. Again, the union was decertified before a collective agreement was negotiated.

Bill 144 also proposes to grant the Board power to order "interim relief". This power allows the Board to grant interim reinstatement to terminated union organizers while they wait for the Board to rule on whether their dismissal was indeed for just cause or related to their organizing activities.

• For example, in East Side Mario's,[3] two employees were dismissed because it was believed they were stealing from their employer. As both employees had been union organizers, they were reinstated on an interim basis.
• In another case,[4] an employee was terminated after lying to company officials about another employee's theft. Despite the fact that he admitted lying to the company regarding the theft, the employee was remarkably reinstated on an interim basis due to his involvement in the union's organizing drive.

Under Bill 144 we appear to be headed "back to the future" and, if the past is any indication, into a period of increased litigation over certification issues. The following is a brief overview of the proposed amendments.

CERTIFICATION REMEDIES FOR UNFAIR LABOUR PRACTICES

Bill 144 empowers the Board to certify a union where an employer breaches labour relations legislation during a union organizing campaign. If an employer contravenes the Act during a union organizing campaign such that the employees' true wishes are not likely to be ascertained through a representation vote or the union is unable to demonstrate that 40 per cent or more of the proposed bargaining unit were members of the union at the time the certification application was filed, the Board may order a representation vote or a second representation vote, or certify the union without a vote.

INTERIM REINSTATEMENT

Bill 144 also authorizes the Board to make interim relief orders for violations that occur during union organizing campaigns. The Board would be able to reinstate, on an interim basis, workers who were dismissed or disciplined during a union organizing campaign because of their efforts to organize. To obtain interim relief, an applicant would have to establish the following:

• the unfair labour practice occurred during a union organizing campaign;
• there is a serious issue to be decided in a pending proceeding;
• the interim relief is necessary to prevent irreparable harm or to achieve other significant labour relations objectives; and
• the balance of harm favours the granting of interim relief pending a final decision on the merits in the pending proceeding.

The Board may not grant interim relief if the employer's actions were a legitimate exercise of management rights and were not related to the exercise of any employee rights under the Act. This standard, however, is very difficult to meet in an interim relief proceeding. Essentially, in order to avoid interim reinstatement, the employer is required to prove, on a balance of probabilities, that the discipline or dismissal was not motivated by anti-union animus or any other grounds prohibited by the Act.

UNION SALARY DISCLOSURE

The requirement that unions disclose the names and annual remuneration of all directors, officers and employees earning $100,000 or more in salary and benefits will be eliminated under Bill 144. This requirement has been viewed as somewhat provocative.

UNION DECERTIFICATION POSTER

Under Bill 144, unionized businesses would no longer be required to post information outlining the procedures for union decertification. This has also been viewed as provocative, largely because there is no reciprocal requirement for employers to post certification information.

CONSTRUCTION INDUSTRY

In recognition of the mobile and ever-changing nature of the construction industry, Bill 144 proposes to re-establish card-based certification for the construction industry only. This method of certification would be added to the existing voting system, thus providing two possible ways of certification in the construction sector. In this card-based system, a union may be certified automatically if 55 per cent or more of the employees in the bargaining unit sign union cards. A representation vote would be held if a union signed up more than 40 per cent but less than 55 per cent of employees in the bargaining unit. If less than 40 per cent of the employees signed union cards, the certification application would be dismissed.

Further, Bill 144 would recognize the distinct nature of the residential construction industry by making permanent the existing special bargaining and dispute resolution regime for the residential construction sector in the City of Toronto, the regional municipalities of Halton, Peel, York, Durham and Simcoe County. This special regime was established after consecutive strikes paralyzed the residential construction industry in 1998.

Bill 144 provides that all collective agreements in the residential construction sector would be deemed to expire April 30, 2007, and every third year thereafter on April 30. In the year the agreement expires, notice to bargain may be given on or after January 1 and no strike or lock-out may be called after June 15. Further, either party may apply to have an arbitrator settle the matters in dispute.

The purpose of this document is to provide information as to developments in the law.  It does not contain a full analysis of the law nor does it constitute an opinion of Ogilvy Renault or any member of the Firm on the points of law discussed.

For further information, please contact one of the following lawyers:

David J. Bannon (416) 216-3907
dbannon@ogilvyrenault.com

Richard J. Charney (416) 216-1867
rcharney@ogilvyrenault.com

Thomas Comeau (416) 216-2320
tcomeau@ogilvyrenault.com

Daphne Fedoruk (613) 780-1540
dfedoruk@ogilvyrenault.com

Anne K. Gallop (416) 216-4038
agallop@ogilvyrenault.com

Mary J. Gleason (613) 780-8635
mgleason@ogilvyrenault.com

Michael F. Horvat (416) 216-3999
mhorvat@ogilvyrenault.com

Charles E. Hurdon (613) 780-8653
churdon@ogilvyrenault.com

Kristen Lopes (416) 216-3925
klopes@ogilvyrenault.com

John Mastoras (416) 216-3905
jmastoras@ogilvyrenault.com

Michael G. McFadden (416) 216-3973
mmcfadden@ogilvyrenault.com

Dan G. Palayew (613) 780-8637
dpalayew@ogilvyrenault.com

Darren S. Power (613) 780-8663
dpower@ogilvyrenault.com

Karen Tobin (416) 216-1859
ktobin@ogilvyrenault.com

Caroline Ursulak (416) 216-4003
cursulak@ogilvyrenault.com

Kimberley Walters (416) 216-4274
kwalters@ogilvyrenault.com

John B. West (416) 216-3976
jwest@ogilvyrenault.com

Russel W. Zinn (613) 780-8672
rzinn@ogilvyrenault.com

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David J. Bannon
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416.216.3907
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Richard J. Charney
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416.216.1867
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Daphne Fedoruk
Ottawa
613.780.1540
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Anne K. Gallop
Toronto
416.216.4038
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Mary J. Gleason
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613.780.8635
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Michael F. Horvat
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Charles E. Hurdon
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613.780.8653
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John Mastoras
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416.216.3905
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Michael G. McFadden
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416.216.3973
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Darren S. Power
Ottawa
613.780.8663
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John B. West
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416.216.3976
jwest@ogilvyrenault.com
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