Collective Bargaining — Ontario Employment Law
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About Collective Bargaining
In Ontario, collective bargaining is the formal legal process where a certified trade union and an employer negotiate to establish the terms and conditions of employment. Unlike individual employment relationships governed by standard common law principles and individual contracts, this process is strictly regulated by the Ontario Labour Relations Act, 1995 (LRA). When a workplace becomes unionized, individual bargaining power is consolidated into a single collective voice. Supreme Court of Canada jurisprudence has firmly established that once a collective bargaining regime is in place, it generally displaces common law rights; unionized employees can no longer pursue claims like wrongful or constructive dismissal through standard civil courts, but must instead rely on the negotiated collective agreement and labour tribunals.
A foundational pillar of this regime is the statutory duty to bargain in good faith. Under the LRA, both the employer and the union are legally obligated to meet within specified timeframes, engage in meaningful dialogue, and make every reasonable effort to reach a collective agreement. This does not mean an employer must capitulate to union demands, but it does prohibit tactics like "surface bargaining"—where a party merely goes through the motions of negotiating without any genuine intent to finalize a contract. It also requires the employer to disclose certain critical information, such as financial details if they claim an inability to pay proposed wage increases.
While the LRA dictates the provincial mechanics of this process, the right to a meaningful collective bargaining process is also protected under Section 2(d) of the Canadian Charter of Rights and Freedoms, which guarantees freedom of association. Because navigating the transition from individual employment law to a collective regime involves complex statutory rules, strict filing deadlines with the Ontario Labour Relations Board (OLRB), and unique jurisdictional hurdles, both employers and employee groups should secure specialized legal guidance from a practitioner focused on labour relations rather than general civil litigation.
Frequently Asked Questions
What does it mean to bargain in good faith under Ontario law?
Under the Labour Relations Act, bargaining in good faith means both parties must meet regularly, engage in honest discussions, and make a genuine effort to reach a collective agreement. It prohibits deceptive practices, withholding vital information necessary for negotiations, or refusing to recognize the union's authority.
Can I sue my employer for wrongful dismissal if they close my unionized workplace?
Generally, no. Canadian courts have repeatedly ruled that labour legislation grants exclusive jurisdiction to labour arbitrators and tribunals. Standard civil court claims for wrongful or constructive dismissal are displaced by the collective bargaining framework.
What is 'surface bargaining'?
Surface bargaining occurs when a party attends negotiation meetings and goes through the motions of collective bargaining but has no actual intention of concluding an agreement. This is a violation of the Ontario Labour Relations Act and can trigger a complaint to the Labour Board.
Does an employer have to agree to whatever the union demands to avoid a bad faith claim?
No. The duty to make every reasonable effort to reach an agreement does not require an employer to agree to specific terms or concede to the union's financial demands. Hard bargaining is legally permissible; bad faith bargaining is not.
Are seniority rights protected under the Charter of Rights and Freedoms?
While Section 2(d) of the Charter protects the fundamental process of collective bargaining, courts have found that specific outcomes, such as seniority rights based on the date of hire, are not inherently protected constitutional rights.
When should an employer consult a lawyer during negotiations?
Employers should involve labour counsel early in the preparation phase before exchanging proposals, or immediately if talks hit an impasse, a strike mandate is voted on, or the union files an unfair labour practice complaint regarding bargaining conduct.
Common Scenarios
- A newly certified union struggles to negotiate its first collective agreement because the manufacturing employer refuses to disclose basic wage grids, prompting the union to file a bad-faith bargaining complaint with the OLRB.
- During tense negotiations, an employer attempts to spin off part of its warehousing operations into a supposedly separate business entity to bypass union demands, leading to a 'common employer' application under Section 1(4) of the Labour Relations Act.
- A long-tenured unionized worker whose department is shut down attempts to hire a standard employment lawyer to file a civil lawsuit for severance, only to have the civil claim dismissed because the matter falls under the exclusive jurisdiction of the collective agreement.
What You Should Know
- Always maintain detailed, date-stamped minutes of every negotiation meeting, as these documents are critical evidence if the Ontario Labour Relations Board needs to assess a complaint of surface bargaining.
- Be aware of the statutory 'freeze' period under the Labour Relations Act; once notice to bargain is given, employers cannot change wages or working conditions without the union's consent until specific legal steps are exhausted.
- Ensure any legal professional you hire specifically practices 'labour law' rather than just 'employment law', as the rules of the LRA and the procedures of the OLRB are entirely distinct from the civil court system.
- If an employer claims an absolute financial inability to meet a union's monetary proposals, they should be prepared to open their books, as the LRA's good faith requirement often mandates the disclosure of financial data to substantiate that claim.
Featured Cases
Cherrier v. Attorney General of Canada
2017 ONSC 7336 (CanLII) · 2017-12-07Seniority Rights and Charter of Rights in Employment
A constitutional challenge regarding seniority rights in employment was heard, where the court ruled that seniority based on date of hire is not a protected right under the Charter. The court also addressed jurisdiction and limitations issues but found no Charter violation.
Baker and Lucier v. Navistar
2013 ONSC 2778 (CanLII) · 2013-05-09Unionized Employees' Claims of Wrongful Dismissal: Supreme Court of Canada
A Supreme Court of Canada case where unionized employees sought to bring wrongful dismissal and constructive dismissal claims in court after the closure of their workplace, challenging the jurisdiction of the Labour Relations Act and the Ontario Labour Relations Board. The court confirmed the exclusive jurisdiction of labour tribunals and the displacement of common law remedies by collective agreements.
Mounted Police Association of Ontario v. Canada (Attorney General)
2009 CanLII 15149 (ON SC) · 2009-04-06RCMP Staff Relations Program Challenged for Infringing Collective Bargaining Rights
A labour and employment case involving RCMP members challenging the Staff Relations Representative Program (SRRP) under section 96 of the Royal Canadian Mounted Police Regulations, 1988, for infringing their freedom to engage in collective bargaining under section 2(d) of the Charter. The court found the SRRP to infringe the Charter but determined the infringement was not justified under section 1.
Heald v. Toronto District School Board
2004 CanLII 27405 (ON SC) · 2004-02-24Employment Claims Against Toronto District School Board: Defamation, Harassment, and Negligence
A case involving multiple tort and employment law claims against the Toronto District School Board, including allegations of defamation, harassment, misfeasance in public office, and negligence. The court addressed issues of jurisdiction, limitation periods, and whether the defendants' actions constituted legal liability. The claims were largely dismissed due to lack of evidence or statute-barred.
The International Union of Painters and Allied Trades, Local 200 v. S & S Glass and Aluminum (1993) Ltd.
2003 CanLII 10562 (ON SC) · 2003-09-22Labour Relations: Enforceability of OLRB Common Employer Declarations
A labour relations case involving the enforcement of a declaration of common employer under s. 1(4) of the Labour Relations Act, 1995, and whether such declarations are enforceable in garnishment proceedings. The case addresses the interpretation of statutory provisions and the obligations of successor business entities in relation to collective bargaining rights.
Yashin v. National Hockey League
2000 CanLII 22620 (ON SC) · 2000-09-05Professional Hockey Player Challenges Arbitrator's CBA Decision
A professional hockey player challenged an arbitrator's decision regarding the interpretation of 'contract expiration' and the application of the 'tolling policy' under the CBA. The court examined whether the arbitrator's interpretation was reasonable and whether the player had standing to bring the application for judicial review. The arbitrator's decision was found to be within jurisdiction and not patently unreasonable.
Caressant Care Nursing & Retirement Homes Ltd. v. Priest
1999 CanLII 15053 (ON SC) · 1999-12-14Defamation During Collective Bargaining: Jurisdiction Dispute
A merits decision involving a defamation claim by a union representative during collective bargaining. The court examined whether the Ontario Labour Relations Board has exclusive jurisdiction over the dispute and whether the claim falls under the Labour Relations Act, 1995. The Weber principle was applied to determine jurisdiction.
O.T.F. v. Ontario (Attorney General)
1998 CanLII 14738 (ON SC) · 1998-03-17Collective Bargaining Rights: Exclusion of Principals from Teachers' Bargaining Units
A case addressing whether the exclusion of principals and vice-principals from teachers' bargaining units violates constitutional rights under the Canadian Charter of Rights and Freedoms, including freedom of association, expression, and equality rights. The court examined whether the exclusion was discriminatory or punitive and concluded that no violation of these rights occurred.
Dunmore v. Ontario (Attorney General)
1997 CanLII 16229 (ON SC) · 1997-12-09Agricultural Workers' Charter Rights: Exclusion from Collective Bargaining
A constitutional challenge to the exclusion of agricultural workers from the statutory labour relations regime, questioning whether this exclusion violates their Charter rights to freedom of association and equality. The case examines whether the exclusion infringes on these rights and whether such infringement is justified under section 1 of the Charter.
Arlington Crane Service Ltd. v. Ontario (Minister of Labour) (H.C.J.)
1988 CanLII 4802 (ON SC) · 1988-12-22Charter Challenge to Province-Wide Collective Bargaining in Construction Industry
A legal challenge to the province-wide collective bargaining scheme in the construction industry, specifically the I.C.I. sector, and whether it violates the Canadian Charter of Rights and Freedoms, including issues related to freedom of association, closed-shop provisions, and equality rights.
Hutton v. Ontario (Attorney-General) (H.C.J.)
1987 CanLII 4367 (ON SC) · 1987-11-16Constitutional Challenge to OPP Collective Bargaining Prohibition
A constitutional challenge to the prohibition on collective bargaining for senior officers of the Ontario Provincial Police (OPP), alleging it infringes on freedom of association under section 2(d) of the Charter. The court found the prohibition to be an unconstitutional infringement and also ruled that the distinction in bargaining rights between OPP and municipal police officers violates section 15 of the Charter.
Re Ontario Secondary School Teachers' Federation, District 14 and Board of Education of Borough of York and two other applications
1987 CanLII 4083 (ON SC) · 1987-01-27Teacher Jurisdiction Case: Collective Bargaining and Labour Board Authority
A case involving the jurisdiction of the Ontario Labour Relations Board and whether teachers employed in residential care facilities and continuing education programs are covered by the School Boards and Teachers Collective Negotiations Act or the Labour Relations Act. The case also examines statutory interpretation of the Education Act and the Charter of Rights regarding freedom of association.
Re The Queen in right of Ontario and Ontario Public Service Employees Union et al.
1986 CanLII 2476 (ON SC) · 1986-12-18Grievance Arbitration: Authority of Board to Award Interest and Higher Pay
A merits decision involving grievance arbitration under the Crown Employees Collective Bargaining Act, addressing whether the Grievance Settlement Board has authority to award interest on lost wages, order higher pay for substantial equivalence, and interpret 'remuneration' under the Unemployment Insurance Act.
Re Ontario Public Service Employees Union and the Queen in right of Ontario et al.
1986 CanLII 2661 (ON SC) · 1986-10-16Judicial Review of Grievance Arbitration under Collective Bargaining Act
A judicial review case concerning grievance arbitration under the Crown Employees Collective Bargaining Act, involving the Ontario Public Service Employees Union and the Queen in right of Ontario.
Re Ontario Public Service Employees Union and the Crown in right of Ontario et al.
1983 CanLII 1958 (ON SC) · 1983-11-16Crown Employee Classification Under Collective Bargaining Act
A labour relations case involving the classification of Crown employees under the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108, s. 18(2).
Re Ontario Liquor Board Employees' Union et al. and The Queen in right of Ontario et al.
1983 CanLII 1896 (ON SC) · 1983-03-30Labour Relations Arbitration and Judicial Review Case
A labour relations case involving arbitration and judicial review under the Crown Employees Collective Bargaining Act, concerning the Ontario Liquor Board Employees' Union and the Crown.
Regina v. Ontario Public Service Employees' Union et al.
1982 CanLII 1792 (ON SC) · 1982-03-16Grievance Board Jurisdiction: Promotion Award Without Competition Upheld
A merits decision involving a dispute over the jurisdiction of the Grievance Settlement Board to award a promotion directly to a grievor without re-running a competition. The Board upheld its decision, finding it consistent with section 18(1) of the Crown Employees Collective Bargaining Act, 1972, and that it did not infringe on management rights under section 17(1).
Shaw v. McLeod
1982 CanLII 3105 (ON SC) · 1982-03-10Union Representation and Duty of Fair Representation in Employment Dispute
A merits decision involving a dispute over union officers' alleged discriminatory and arbitrary conduct during collective bargaining. The plaintiffs claimed the union officers negotiated a pay scale favoring regular firefighters over dispatchers, raising questions about the duty of fair representation and the liability of union officers in tort. The case also involves statutory interpretation of the Ontario Labour Relations Act and the applicability of common law duties to excluded workers.
Re Liquor Control Board of Ontario et al. and Ontario Liquor Board Employees' Union et al.
1980 CanLII 1857 (ON SC) · 1980-09-19Collective Bargaining: Retiree Life Insurance as Employment Terms
A labour and employment case addressing whether life insurance benefits for retired employees constitute 'terms and conditions of employment' under the Crown Employees Collective Bargaining Act, 1972 (Ont.), and whether a union can negotiate such benefits for retirees who are not current employees or members of the bargaining unit.
Re Borough of Scarborough and Scarborough Fire-fighters' Association, Local 626, International Association of Fire-fighters et al.
1979 CanLII 1832 (ON SC) · 1979-10-03Firefighters' Job Descriptions and Working Conditions Under Fire Departments Act
A labour and employment case involving the interpretation of 'working conditions' under the Fire Departments Act. The board of arbitration determined that job descriptions are part of working conditions and excluded certain maintenance tasks from firefighters' duties, with the majority upholding the board's jurisdiction.