Stranger than Fiction, Volume II

Here's a fun little case that was released earlier this year, about a fellow suing OLG because he didn't win enough:  Tal v. Ontario Lottery Corporation.

Now, to be clear, this is not the class-action suit that was attempted on behalf of problem gamblers alleging a failure to take appropriate measures to exclude them from casinos.  That issue is not one to be treated with levity.  The Tal case, on the other hand...well, it could be argued that it wasn't treated with enough levity.

In a nutshell, here's what happened:  Mr. Tal bought a ticket for Lotto 6/49, and matched four of six numbers.  This case was about how much that entitled him to.

Smaller winners have prizes in fixed amounts:  People who match 2/6 + Bonus would get $5.  3/6 got $10.  However, beyond that, prizes were defined with reference to the total prize pool.  They create a "Pools Fund", and 9% of it is allocated to 4/6 winners, to be divided up amongst all the people who matched 4/6.

In the particular draw that Mr. Tal matched 4/6, 9% of the prize pool was just over 1.3 million dollars.  Not bad, but the trouble is that there were more than 20,000 tickets that matched 4/6, with whom Mr. Tal had to share the 1.3 million, with the result that he was paid $66.90.

Mr. Tal, unhappy with his winnings, argued that he shouldn't have to share, but should get the entire 9% of the Pools Fund.

And yes, he actually sued OLG, taking that position.  OLG brought a motion for summary judgment, and the result decision by Justice Stinson, linked above, is perhaps the longest and detailed way of saying "That's absurd" that I've ever seen.

Other Cases Involving the Same Plaintiff

Mr. Tal, not surprisingly, was self-represented in this proceeding.  Figuring that this couldn't have been his first introduction to the Courts, I checked my legal databases for decisions involving him.  And found quite a lot.  The only other one on CanLII is Tal v. Koor, relating to Mr. Tal fighting against the setting aside of a default judgment.  Said Justice Campbell:

 Mr. Tal remains of the view that he is entitled to utilize to his advantage those specifics of the Rules of Civil Procedure that he chooses, without regard to the other obligations on a party mandated by the Rules.
...
 It is indeed unfortunate that some self-represented litigants think that by reading the Rules of Civil Procedure, they can achieve a result that ignores the overall purpose of the Rules as set out in Rule 1.04, and the discretion that will likely be exercised by judges and masters to achieve that end.

In another database, I found another case, in fact more recent than the OLG case (though one week before the Court hit him with a costs order in excess of $17,000 in the OLG case), in which he tried to sue the OMB for denying him standing to participate in a hearing.  Also summarily dismissed.

Then there's last year's decision in Tal v. Usher (appears related to the Koor case), relating to an eviction of Mr. Tal in 2007.  His action was dismissed as frivolous and vexatious.

Indeed, there is case law online about this same individual going back to 1983 (Re Silver Elms Holdings, relating to a corporation owned by Mr. Tal), in which the Court notes the following:

Although a stranger to the action in the strict sense of the term, Tal was at all material times the president, the sole director and the governing mind of Silver Elm and he had, from the vantage point of the practical immunity of an insolvent company from the discipline of costs, made a practice of defending actions where he had no real defence, of launching appeals and, as illustrated in this hearing, of greatly lengthening trials without ultimately producing a case with any merit.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Bank Manager not really a "Manager"

The majority of my blog entries revolve around Provincially-regulated matters.  You often see me discussing the effects of Ontario employment statutes.  Yet that isn't the only legal regime at work in Ontario.  A handful of industries are Federally regulated instead, such as banking, telecommunications, and interprovincial transportation.  (Federal government employees are also, naturally, Federally regulated, but they fall into a different framework from most private sector employees as well.  I have enough experience with Federally regulated employees - both private and public sector - to be comfortable with the frameworks, but they are quite complicated.)

The Canada Labour Code is a rather massive labour/employment statute in the Federal sphere, covering similar subject matter to several Ontario statutes (such as employment standards, labour relations, and occupational health and safety).

But there is one rather unique feature of the Canada Labour Code, found in Division XIV (Unjust Dismissal):  With certain limitations, non-unionized employees can seek reinstatement to their positions when unfairly dismissed.  There is no Provincial equivalent.  (Rather, reinstatement in the Provincial non-union context is a remedy restricted to very select circumstances to illegal - not just unfair - reasons for terminations.)

Division XIV has its own complaint process, that people can use instead of Court.  (Court proceedings are still available to non-union employees, and the same common law principles apply as in the Provincial context.  But you can't get reinstatement that way.)

There are several prerequisites to getting into the Division XIV adjudication:

(1)  You work for a Federally regulated undertaking;

(2)  You are not a member of a bargaining unit (i.e. unionized);

(3)  You have been terminated after more than 12 months of service;

(4)  There is not another recourse mechanism in another Act of Parliament (as there would be for, say, public sector employees);

(5)  The termination was for reasons other than a shortage of work or discontinuance of the job function; and

(6)  You are not a "manager".

The first five are pretty straightforward, but the sixth is trickier, for several reasons.  Firstly, the exception isn't built into Division XIV, but is in a different part of the Code.  (To put this in context, Division XIV starts at s.240; the managerial exception is buried in s.167.)  This makes it easily missed by people who are not familiar with the Code.  Another difficulty is that "manager" is not actually defined in the Code.

This brings us to a recent decision in Roda v. Bank of Montreal, by Referee John Stout, in a matter referred to adjudication under Division XIV.  Mr. Roda was a branch manager at a BMO branch, and was dismissed.  He brought a complaint under Division XIV, and BMO argued that, as a manager, Division XIV recourse was not available to him.  So Referee Stout had to decide whether or not he had jurisdiction to hear the case on its merits, determining whether or not Mr. Roda was a "manager" within the meaning of the Canada Labour Code.  In a detailed analysis, he concluded that Mr. Roda's decision-making powers and any discretion he had were very limited, and he was kept on a tight leash by the bank, and accordingly was not really a "manager" despite his title.

If this decision holds up, it is likely to have repercussions across the banking industry.  There are a number of prominent judicial decisions involving dismissal of bank managers, and in my own practice I have dealt with dismissed bank managers from time to time as well.  From my observations, there doesn't seem to be a great deal of variation in how the big banks treat their managers, neither in the length of the leash nor the tendency to hold the branch manager accountable for anything that goes wrong nonetheless.  Accordingly, most (though not all) terminations of branch managers are based on allegations of cause, which occasionally get upheld in Court.  In most cases, the worst case scenario for the bank is that it may be required to provide pay in lieu of notice.  However, this decision could curtail the bank's right to terminate managers on a not-for-cause basis, with the result that most dismissed branch managers will be entitled to seek a reinstatement remedy.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Truck Salesman was not Constructively Dismissed

The Court recently released its decision in McMillan v. Selectrucks.  Mr. McMillan worked for Selectrucks as a salesman from 2004 to 2007, at which point he gave two weeks' notice.  Selectrucks sent him home immediately and paid him out the two weeks' notice he had given.  (This is a common practice for many employers.)  Mr. McMillan started another job within two weeks.

McMillan developed a strong customer base and was successful in his role.  Then, a fellow salesman (Mr. Kenny) was promoted to a managerial role over him.  It is not uncommon that such a change in reporting structure can foment such conflict as to make the continued employment relationship untenable, generating a constructive dismissal.  Mr. McMillan contended, unsuccessfully, that this is what happened in this instance.

His arguments included several factors:

(1)  Mr. Kenny breached company policy by permitting alcohol consumption in the workplace, and this made Mr. McMillan uncomfortable because he has had alcoholics in his family.  The Court did not accept that such conduct by Mr. Kenny would really affect the contractual relationship with Mr. McMillan.

(2)  Mr. Kenny gave preferential treatment to another employee by assisting him to develop a client base, thus hurting Mr. McMillan's earning potential.  Perhaps true, yet in context it was evident that Mr. Kenny usually assisted new salespeople (and this other employee was new to the sales role) - and that had included Mr. McMillan when he started - to develop a client base.  Ultimately, given that Mr. McMillan's earnings were still increasing, it was pretty clear that Mr. Kenny wasn't seriously undercutting Mr. McMillan's earnings, even if he was perhaps showing favouritism to this other employee.

(3)  Mr. McMillan accused Mr. Kenny of abusive and improper treatment.  The Court dealt with most of these as being symptomatic of a difference in style - Mr. McMillan was accustomed to a more civil atmosphere in car dealerships, and was unaccustomed to the 'macho' atmosphere in a commercial truck dealership:  The Court ultimately seems pretty accepting of Mr. Kenny's "rough" management style in context.

I also note that the employer made an argument that Mr. McMillan's failure to complain should bar allegations of constructive dismissal, whereas Mr. McMillan explained that he was afraid of reprisals if he had gone over Mr. Kenny's head.  The Court embarks on a thorough analysis of that issue: The fear of reprisals is understandable, and it is a matter of common sense that an employee should not complain lightly about their manager.  That being said, if Mr. Kenny's conduct was already making the employment relationship intolerable, there was little to be lost by doing so.  (I have had occasions to give employee clients exactly the same advice.  While employees are often more afraid to complain than they are to simply quit, if the alternative is quitting then there is absolutely nothing to be lost by pursuing a complaint first.  If they get recourse, then that is great.  If not, then they're in the same position, except with perhaps a somewhat stronger constructive dismissal argument).

However, in the full context of a small work environment in which Mr. McMillan was an outsider, the Court concluded that it was understandable that he hadn't complained, and this wasn't a full bar to a constructive dismissal claim.  I note that these events all took place prior to Bill 168, and I wonder how that Bill would change the analysis.

There was more serious misconduct.  Mr. Kenny brushed off Mr. McMillan's concerns about not getting proper statutory holiday pay, and then was upset when Mr. McMillan did go over Mr. Kenny's head.  However, with no evidence of actual reprisal (perhaps just a souring of the relationship), it was hard to say that it constituted constructive dismissal.

Worse, Mr. Kenny once took Mr. McMillan in "a bearhug or a headlock", after Mr. McMillan understandably said something unflattering about the Habs.  It was horseplay, but unwelcome horseplay, and therefore an assault.  The Court is highly critical of this behaviour:  "it is hard to imagine a professional work environment where that would be appropriate.  These people were not adolescent boys in the schoolyard."

Yet, given the full context, including the fact that it was not close to the time of Mr. McMillan's resignation, and that Mr. McMillan could not be said to fear further violence, this assault did not create a constructive dismissal despite its seriousness.

None of the conduct could be said to go to the heart of the employment contract, so there was no constructive dismissal.  While the relationship may have soured, giving rise to Mr. McMillan's decision to find employment elsewhere, none of Mr. Kenny's conduct repudiated the contract.

My Thoughts

I very much like Justice Corbett's analysis in this case.  The one aspect that cause me concern is that there is, perhaps, too much casual acceptance of otherwise inappropriate conduct as being acceptable machismo in the context of the specific work environment.  Where an employer dismisses an employee for just cause, it is a defence for the employee to respond that the alleged misconduct was "condoned" by the employer, that it was common practice within the workplace.  So if there's a culture that condones profanity, it's hard to fire an employee for swearing.  Yet this decision seems to apply the principle in reverse:  It was acceptable to treat Mr. McMillan in harsh and unprofessional ways because it was common in the culture of the workplace?  The subtext is that an employer can expect its employees to grow thicker skins, depending on the culture of the workplace.  Especially in light of Bill 168, that is clearly not true now, but I don't really think it was true then, either.

Yet, at the end of the day, the conclusion that Mr. McMillan was nonetheless very successful in his position, and that the overall tension between him and his manager did not amount to a constructive dismissal, appears to be well-supported on the facts.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Is Your Workplace in Compliance with Bill 168?

In June 2010, amendments to Ontario's Occupational Health and Safety Act became effective, requiring most employers to implement policies and programs dealing with harassment in the workplace and violence in the workplace.  It was big news in the HR field and employment law field at the time, and most large employers amended their policy manual to bring themselves into compliance.  Yet many workplaces did not.

Many employers don't make much use of policies.  I strongly recommend the implementation of a good policy manual for just about any workplace - and I can assist in the development of such - but one of the striking aspects of Bill 168 is that it made certain policies legally mandatory.  Not just a good idea.

Especially in light of the mandatory requirement, there are a lot of risks associated with not having them.  First, it's a quasi-criminal offence:  An employer can be charged for breaching the Occupational Health and Safety Act.  When injuries occur due to such breaches, fines typically run upwards of five digits, and it isn't at all uncommon to see fines in excess of $100,000.  Earlier this year, Metro Ontario was fined $350,000 (plus, as always, a 25% victims surcharge) after a young worker was killed at a Mississauga store.

Even beyond those liabilities, however, there's the additional risk that liability could be incurred in respect of employees.  If an employee is the victim of harassment or violence in the workplace, it will be much easier for an employee to make out a case for constructive dismissal, possibly seeking aggravated damages in addition to all else, if the employer has neglected its statutory obligation to provide a recourse mechanism.

On the flip side, while this hasn't worked its way through into the jurisprudence yet, I expect that it will be much harder than before for an employee to make out a constructive dismissal case on the basis of harassment where they haven't taken advantage of recourse made available to them in a properly-implemented policy.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Summary Judgment Motion Fails Against HBC

Aileen Thorne worked for HBC for about 37.5 years before she was terminated without cause on February 1, 2011 at age 59.  At the time of her termination, she was making just under $40,000 per year and was an "allocation associate", whatever that means.

It turns out that the meaning of "allocation associate" is pretty contentious.

She has sued in wrongful dismissal, seeking pay in lieu of reasonable notice.  The usual factors are length of employment, age of the employee, availability of replacement employment, and character of employment.  Length of employment and age of the employee are usually pretty uncontroversial (though occasionally there's a fight about the former), and availability of replacement employment is not often closely analysed.  But character of employment...that is more difficult:  Front-line employees with no significant responsibility don't get much; skilled labourers and managers get more.  So there's often a fight about what the employee's duties actually entailed.

The facts of this case are like looking into a file of my own from last year, that settled this winter.  Similar employer, comparable length of service, and the most significant fight being over the level of responsibility exercised by the employee.

Let me explain that, on files such as these, the margins are often very small for a plaintiff.  For old employees with such incredible lengths of service, you can probably expect a notice period at a minimum of 12 months, ranging up as high as 24 months (seldom higher), depending on level of responsibility and other factors - so $40,000 to $80,000, right?

Wrong.  For an employee with such long service in an employer as large as HBC, the statutory minimum entitlements max out both termination pay and severance requirements, being a total of 32 weeks pay on termination.  8 months, roughly.  So if you walk away with 12 months at the end of the day, that actually only means an additional 4 months, which would mean $13,000 in this case.  Minus taxes.  Minus any EI overpayments that might be generated.  Minus any mitigation earnings.  Minus legal fees.

I've occasionally used contingency fee retainers for employee-side files, but I don't like to, for a couple of reasons.  Between EI and taxes, an employee's take-home entitlements on additional pay in lieu of notice is fairly modest.  If the lawyer then takes a percentage of the gross, then the employee often doesn't get anything - or occasionally actually still comes out behind.

In the Thorne case, Ms. Thorne brought a motion for summary judgment, presumably to try to deal with the matter expeditiously and save on legal fees.  And recently, the Rules of Civil Procedure expanded the scope of motions for summary judgment, allowing motions judges to assess factual disputes in limited ways.  In this case, however, the motions judge found that this was not an appropriate case in which to do so.

However, the judge reserved costs to the trial judge (rather than awarding them to HBC, the successful party on the motion), which is a real mercy to a plaintiff under such circumstances.  As well, HBC's affidavits had suggested that, since it wasn't taking the position that the notice period would be less than 12 months, they were contemplating a further voluntary payment to the plaintiff, which the judge suggested that this was something that should be "carefully considered by a fair and compassionate employer".  Shades of Brito v. Canac Kitchens, no?


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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The Corporate Veil and the Identity of the Employer

Corporate Law 101:  A corporation is a legal person, and can enter into contracts, and (subject to personal guarantees, etc.) is the only one responsible for its own contractual obligations...unless one of about a hundred exceptions applies.

But that's what the 'corporate veil' is all about.  If I own a corporation, and the corporation incurs liabilities, then unless the plaintiff can convince a Court to ignore the corporate veil, the plaintiff can only enforce a judgment against the corporation's assets, and not against my personal assets.

When you get into employment law, this principle occasionally triggers the question of "who is the employer?"

The Superior Court recently decided the Asselin v. Gazarek et al. case, which dealt with a complex scenario involving interrelated corporations with common owners.

Let's set up the cast of characters.  There are three corporations, being Sheridan Chevrolet Cadillac Ltd. ("Sheridan"), the Pickering Auto Mall Ltd. (a "Saturn" dealership), and Gazarek Realty Holdings Ltd.

Gazarek Realty Holdings Ltd. is a real estate holding corporation and was, in essence, the landlord for Sheridan and Saturn.  But it was a little bit more than that:  Gazarek Realty Holdings Ltd. is solely owned by Gerald Gazarek, who also owned Sheridan, and whose daughter Leslie owned Saturn.  So it's all a family affair.  Operationally, there was also an unusual connection:  For tax reasons, the holding corporation paid the salaries of managers at the dealerships, and was reimbursed for these payments by the dealerships.

Mr. Asselin started working for Saturn in 2006, and was 'transferred' to Sheridan (terminated and rehired?) in 2008, but was terminated in 2009.  Both dealerships closed in 2009 and have no assets.  The holding corporation continues to have assets, however.  So the main question became whether or not the holding corporation was a common employer.  (The length of the notice period and applicability of punitive damages were also in question, but they were all secondary to the question of whether or not the holding corporation was liable.)  The Court concluded that the holding company was not liable.

In 2001, the Ontario Court of Appeal considered the question of 'what makes a common employer' in the Downtown Eatery (1993) Ltd. v. Ontario case, in which there was a "highly integrated or seamless group of companies" operating a nightclub together.  The Court of Appeal succinctly drew the test of a common employer as "where effective control of the employee resides".

In this case, the Court raised three problems with Asselin's position:

Firstly, Asselin was not a manager, so his salary was paid by the dealerships, not the holding company.  The Court acknowledges that the result might have been different otherwise, but the fact that he was paid by the dealerships distinguished it from case law (such as Sinclair v. Dover Engineering Ltd.) in which the employee worked for one company but was paid by another.

Secondly, the holding company didn't assert any control over Asselin's employment.  One could easily imagine a scenario where payment of the managers would give the holding company effective control, but the fact that it was a purely technical arrangement for which the corporation was fully reimbursed suggested that there was not effective control.

Thirdly, the evidence did not support a contention of interrelation as in the Downtown Eatery case; rather, the dealerships carried on their own business with minimal interaction with the holding company.

Accordingly, the holding company is not liable, and the judgment for reasonable notice was only against the dealerships...which have no assets.  Does that mean that Asselin is completely out of luck?  Maybe.  It might depend on what assets were in the corporation previously and what happened to them; there are "oppression" remedies that could be available.

As an interesting side note, the employer had initially alleged cause and only paid the statutory minimums, so Asselin tried to rely on the Brito v. Canac Kitchens case (which I discussed in this post, which is arguably inconsistent with established case law) seeking punitive damages, but the judge dismissed this claim fairly summarily.

My Thoughts

I have concerns about this decision.

On the point that the holding company was paying his managers but not him, I understand the distinction and I'm less inclined to question it, but from a policy perspective I wonder it Justice Conway's disposition of it is too summary.  In a footnote, he notes that the nature of the tax advantage sought wasn't discussed at trial.  The fact that it wasn't Asselin's salary is important, yet the holding company was still managing a portion of the dealerships' payroll expenses in an arrangement which clearly was not arms-length.  Part of the reason (from the plaintiff's perspective, the entire reason) for the common employer doctrine is to prevent employers from structuring their affairs so as to protect their assets from claims by employees, and a non-arms-length delegation of payroll to a third-party corporation should definitely raise alarm bells that the Court should at least peek behind the corporate veil to see what's going on there.

On the second point, the test is "effective control", and the Court points out that the holding company exercised no control over the managers.  However, that would seem to gloss over the fact that the holding company and one of the dealerships had the same directing mind, which was also non-arms-length with the directing mind of the other dealership.  To suggest that the holding company had no "effective control" is basically saying that "When Gerald told the managers what to do, he wasn't acting in relation to his role in the holding company."  Did he put on a different hat?

It has to be more nuanced than that, and it is very difficult to draw a meaningful distinction of 'effective control' when both corporations are controlled by the same person.

On the third point, the finding that there was not sufficient integration between the companies glosses over a number of facts.  Firstly:  They use common professionals to assist them.  I wouldn't suggest that we should use the fact that they retained only one lawyer in this proceeding against them (though one would expect a conflict of interest for a lawyer representing all three parties if they were at arms length), but they clearly got the same accounting advice as well.  The fact that they both engaged the same non-arms-length management payroll structure tends to work against an allegation that they were all independently run.

Secondly:  The dynamics of the 'transfer' to Sheridan are also quite unlike anything you might see in companies that are not related.  The Court did not explore the dynamics in much detail, because the defence conceded that nothing turned on whether or not Sheridan and Saturn were both liable (a brilliant concession, perhaps?).  Leslie's evidence was that he was terminated because they were having problems with him, but she 'inquired' to see if there was a place for him at Sheridan.  ("Hey Dad, I've got this problem employee I want to get rid of; want to take him off my hands?")

Thirdly:  When Sheridan terminated him after three months, he received ROEs from parts of his statutory notice from Sheridan and from Saturn.  While Leslie testified that the failure to provide the same upon his termination from Saturn was an oversight, which was corrected when she was told he was fired from Sheridan, the fact alone that she was so promptly told of his termination from Sheridan is also indicative of operational integration.  (And, if they weren't related, arguably a breach of Sheridan's duty of good faith and fair dealing.)

Most of those facts I'm pointing to deal with integration between the dealerships (and not necessarily the holding company).  Ultimately, the defence didn't fight much about whether or not the dealerships were integrated, and so they are jointly and severally liable.  But the fact of integration between the dealerships suggests against these being autonomous and independent operations, as the Court found, and - with the involvement of the holding company in their affairs - it is difficult to see how, if the two dealerships were common employers, the holding company would not be a part of that integrated group.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

How to Get Rid of a Union in Ontario

I recently involved myself in a debate on Professor David Doorey's blog about 'democracy' in labour relations.  I've followed his blog for some time, and I respect (though I often disagree with) his views, which are typically 'pro-union'.  My own view on unions is quite nuanced:  Unlike many lawyers who represent management, I don't oppose unions on principle.  I've seen employers who remind me of the reason why unions exist.  But I have had many occasions to question the activities of specific unions in specific contexts.

I believe that there are major problems with the current structure of our labour relations regime in Ontario, mainly because I believe that "labour" itself has become an entity with its own interests, and a powerful one at that.  Rather than, as I believe should be the case, an advocacy mechanism for workers.  The end result is that there are times when a union puts its own interests above those of individuals it represents, or even above entire bargaining units under its care.

So we frequently see cases in the jurisprudence involving employees trying to sidestep the union to deal with their employer (almost always unsuccessful, except in the Human Rights arena, where it *can* work), or taking on the union directly in a Duty of Fair Representation application (almost always unsuccessful, because there's a high threshold for it), and I have had plenty of employees call me directly because they aren't happy with the way that their unions are representing their interests.  (Think about how big a deal that is:  You've already paid union dues.  You're not getting them back.  Included in union dues is representation as against your employer.  How dissatisfied would you have to be before you would hire your own lawyer at your own expense, paying hundreds of dollars per hour, to do something you've already paid somebody else to do?)  The trouble is that there is seldom much to be done; under the statute, the union has the exclusive mandate to represent them, and they can't opt out of this.

Professor Doorey sees it thus:  The bargaining unit, if displeased with the union, can get rid of the union.  This is true.  But it seldom happens, because bargaining unit members usually don't have the sophistication or resources to successfully decertify a union, and any employer involvement or assistance will usually be fatal to the effort.  The rules governing decertification are actually fairly complicated.

So, for those employees who want to decertify a union, here's a general guide as to how.  Remember that every case is unique in its own way, and the best way to move forward, if you can afford to, is to hire a qualified lawyer to assist you.  The below is not legal advice, and does not cover every scenario.  Especially note that the process is different for construction industry matters.

Step 1:  Determine if you can bring the Application

The general rule is that you have to be a member of the bargaining unit in order to apply for termination of bargaining rights, and that any member of the bargaining unit can do so.  However, the application can't be tainted by management influence, and there have been cases in which unions have argued that the person making the application was too closely connected to the managerial team.

Step 2:  Find the Window

The Labour Relations Act sets out a variety of different circumstances in which you cannot make an application to terminate your union's bargaining rights.

The Application can be made under the following circumstances:

1. If more than a year has passed since the union was certified, and no collective agreement has been reached;
2. If a collective agreement exists and has a term of three years or less, then after the start of the last three months of its operation (and before a new collective agreement commences or a renewal of the agreement is effective);
3. If a collective agreement exists and has a term of more than three years, then between the start of the 34th month and the start of the 37th month of its operation, then for the last three months of each year of its operation thereafter (and for the last three months of its operation before it expires).

It really looks more complex than it is.  Let's use a few examples.

Let's say that my union and employer commenced a collective agreement with a 24-month term, starting May 1st 2011 and ending April 30th 2013.  If I want to decertify the union, the window opens on February 1st, 2013 (three months before the end), and closes when a new collective agreement becomes effective.  So if the employer and union are able to negotiate a new agreement to start for May 1st, 2013, I need to have my application in before then.

Or suppose my union and employer negotiate a long-term collective agreement, going from September 1st 2011 to August 31st 2016 (five years).  I would then have three month windows at the end of the third, fourth, and fifth years of operation.  (Window from June 1st to August 31st of 2014 and 2015, and then a window opening June 1st 2016 that ends when a new collective agreement becomes effective.)

One of many important things to remember is that, if the bargaining unit ratifies a new collective agreement, you're probably s.o.l. for a long time if you want to get the union out.  When most employees treat a new collective agreement as being inevitable, and a question of how long it will take and what actions (i.e. strikes) may be required to get a better deal, that's a problem; people are likely to vote in favour of a tentative agreement so long as it is tolerable, and this is especially true of those who would rather be without a union in any event.

But there are also bars to initiating an application, even within those windows.  There's a conciliation process available to the parties:  The union or the employer can ask the Minister to appoint a conciliation officer or mediator, which triggers a bar for a period which essentially allows that process to run its course.  In practice, this ends up being a way for the union to extend its protection.  So it has one year to get a first collective agreement, and if it fails to do so, it asks the Minister to appoint a conciliation officer or mediator.  Then, once that process runs its course, the bar is extended for a certain period of time beyond.  Similar principles apply when subsequently renegotiating expiring collective agreements - conciliation bars an application after the expiration of the existing collective agreement.

If a strike or lock-out begins, that also creates a bar - essentially, if the bargaining unit gives the union the go-ahead for a strike, they have to give the union at least 6 months to try to accomplish its objectives.

One of the major practical challenges for an employee trying to decertify a union surrounds the whole 'conciliation' concept.  How do you find out if the union has sought conciliation without asking questions that would tip off the union to your impending application?  Ultimately, the best bet for decertifying unions is by making sure the application gets started within those three-month windows, and not waiting for existing collective agreements to expire.

Step 3:  Get your "Evidence" together

In order to make an application to terminate bargaining rights, there are going to be two substantive requirements.  First, you're going to have to show 'evidence' that at least 40% of the bargaining unit no longer wants to be represented by a union, and then later when a vote occurs at least 50% plus one of the bargaining unit has to vote on your side.

But first things first, so let's look at the evidence.  It's best to think of it like a petition.  Every page has to show what they're signing, and each name should have the printed name, signature, and date of signature.  You also need to provide the OLRB with an alphabetical list of employees corresponding with the evidence filed, and a declaration verifying the evidence (OLRB Form A-80).

Step 4:  Serve the Union and Employer and File the Application

Well, first you need to complete all the below documents.  That's a given.  After you find them all on the OLRB website.  Which isn't quite as simple as it should be, but I've tried to simplify it with links to the PDF versions of everything.  There are Word versions available, too.

You need to serve a termination package on the union, including the following:

1. OLRB Form C-3, completed with the union's name and the date in the appropriate fields (the full name of the form is Notice to Union of Application for Termination of Bargaining Rights Under Section 63 of the Act...don't you love pithy names?);
2. A completed copy of Form A-6 (Application for Termination of Bargaining Rights Under Section 63 of the  Act);
3. A blank copy of Form A-7 (Response to Application for Termination of Bargaining Rights Under Section 63 of the Act);
4. A copy of Information Bulletin 2 (which is where this list is found, incidentally);
5. A copy of Information Bulletin 3;
6. A copy of Information Bulletin 5; and
7. A copy of Part III of the Board's Rules of Procedure.

And, on the employer, the following:

1. Form C-4;
2. The same Form A-6 as above;
3. A blank Form A-8;
4. A blank Schedule C (List of Employees)
5. A copy of Information Bulletin 2 (which is where this list is found, incidentally);
6. A copy of Information Bulletin 3;
7. A copy of Information Bulletin 5; and
8. A copy of Part III of the Board's Rules of Procedure.

Then, within two days, you need to file (by any means except email, fax, or registered mail) with the OLRB the following:

1. A signed original and a completed copy of Form A-6;
2. The evidence that the employees don't wish to be represented by a union;
3. The above-noted list of employees corresponding with the evidence;
4. Form A-80

See?  Couldn't be simpler.

Step 5:  Win the Vote

There are limits to what you are allowed to do in campaigning.  Threatening, intimidation, etc., these tactics aren't kosher.  But as a member of the bargaining unit, your speech isn't nearly as restricted as the employer's speech in terms of trying to persuade your fellow workers that the union isn't in their best interests.  Remember that this is your campaign; the employer is barely more than a bystander, and can't do much to help you.  And if they offer assistance, you should say no, or risk compromising the application.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.