Duty of Fair Representation — Ontario Employment Law

In unionized workplaces in Ontario, employees generally lose the right to sue their employers directly in civil court for most employment-related disputes. Instead, the union acts as the exclusive bargaining agent and handles disputes through the grievance and arbitration process. Because the union holds this immense power over a worker's livelihood, section 74 of Ontario's Labour Relations Act, 1995 (LRA) imposes a mandatory statutory obligation known as the "duty of fair representation" (DFR).

Under this duty, a union must not act in a manner that is arbitrary, discriminatory, or in bad faith when representing any of the employees in its bargaining unit.

"Arbitrary" conduct typically involves a union acting with reckless disregard for an employee's interests, conducting a superficial investigation, or simply tossing a grievance aside without looking into it. "Discriminatory" conduct means treating a member differently based on personal characteristics (such as those protected by the Ontario Human Rights Code) or union politics. Finally, "bad faith" involves deceit, malice, or personal hostility directed at the worker.

A frequent misconception among unionized workers is that the duty of fair representation requires the union to take every single grievance to arbitration. In reality, unions have "carriage" of grievances, meaning they possess the legal right to settle, compromise, or even withdraw a grievance. As long as the union undertakes a meaningful investigation, considers the relevant facts, and makes a reasoned decision that the grievance lacks merit or is too costly relative to the benefit, it is unlikely to have breached its duty.

Crucially, as established by extensive case law, disputes regarding union representation and alleged breaches of the DFR fall under the exclusive jurisdiction of the Ontario Labour Relations Board (OLRB) for provincially regulated employees, or the Canada Industrial Relations Board (CIRB) for federal workers. When dissatisfied workers try to bypass the labour boards by suing their union representatives or union lawyers in Ontario Superior Court for negligence or breach of contract, judges almost universally dismiss these lawsuits for lack of jurisdiction.

Navigating a dispute with your own bargaining agent presents unique challenges. Because evaluating a union's investigatory standard relies on highly specific factual contexts, retaining independent legal counsel to review the union's actions is often a vital step for employees feeling abandoned by their representatives.