The creation of modern labour unions came with one noble purpose in mind: the protection of workers rights. Think working men labouring in the dark depths of coal mines at the whim of collapsing rock, lungs charred with pneumoconiosis. Think garment factory workers, labouring through 14-hour shifts without the ability to take sick leave for fear of getting penalized or dismissed from their job. Think industrialization in late 19^th and early 20^th century and the commensurate rise of mass production technology, exposing countless workers to the hazards of machinery malfunction and serious bodily injury or death with little to no consequence to the employer. The organization of labour has resulted in tremendous gains in working conditions – that is undeniable. However, the premise underlying the organized labour project from its inception was clear and purpose driven – unions were formed to represent workers in the workplace. Full stop.    

Fast-forward to Ontario, circa 2025. Although most unions hold true to the original mandate, some unions have become actively partisan on issues that do not concern the workplace per se or at all. These issues are often politically charged and irrelevant to Canada’s industrial relations. For instance, the Israeli Palestinian conflict has become the cause celebre for some unions notwithstanding the fact that it has no bearing on employment rights in the workplace. Indeed, some unions’ focus on this topic has resulted in the alienation of many of its Jewish and Israeli members. To add, unionized workers are obligated to pay monthly dues to their union.

As a labour and employment lawyer, I hear regularly from unionized workers who feel that their voices are not sufficiently heard or represented in the event of a workplace issue or dispute. Coupled with today’s political climate, some employees find it difficult to work in a unionized work environment. The purpose of this blog is to illuminate the available options for self-advocacy to unionized workers in Ontario.

Union Constitution and Bylaws

Each union has internal governing mechanisms consisting of a union constitution, bylaws and codes of conduct. The constitution sets out the formation of the union (both at the local and national levels) and its guiding foundational principles, whereas bylaws and codes of conduct deal with issues pertaining to member conduct as well as procedural operations including meetings, elections, ratification procedures, etc. Members who are not satisfied with the way a union is being managed, may choose to run for a position within the union in accordance with the internal procedures of the union. Members are also free to address and table union related concerns, including concerns relating to the union’s leadership and manner of governance. Importantly, members are free to lay “charges” against members whom they regard to be in violation of the principles and rules of engagement laid out in the constitution and bylaws. Members who have been treated unfairly by their union should consider looking into the aforementeiond internal union mechanisms.   

Duty of Fair Representation

Canadian unions have a duty to represent their members fairly before the employer. What this means was explored in the seminal decision of the Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon. Among other things, the Supreme Court clarified that the union owes those falling under its protection the following considerations:

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
2. When the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration, and the union enjoys considerable discretion.
3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.
4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.¹

The Supreme Court has made it clear that a union’s purpose is to preserve and advocate for workers rights in a bargaining unit in a manner that cannot be arbitrary, capricious, discriminatory or wrongful. However, a union also has the right to decide whether it chooses to arbitrate a worker’s grievance in the first place. This means that the union alone holds the power over the worker’s ability to fight for their rights in the workplace so long as the union does so in good faith. If a union fails to comply with the aforementioned principles, a worker may initiate a proceeding with a labour board falling within the relevant jurisdiction. This proceeding is commonly referred to as a “duty of fair representation application” or a “DFR application”.

Speaking anecdotally, a DFR application is hard to win: a typical case will involve a worker who has a workplace dispute (or worse, termination), which the union agrees to grieve but not arbitrate. A grievance normally involves a union representative completing a perfunctory form and submitting it with the employer’s human resources department. The employer will often refuse to reinstate the worker to their former job (if termination is at issue). The union will then proceed to “challenge” the decision by escalating it to the second and, if available, third stage of the grievance process with the same human resources department only to be denied the worker’s grievance. It is at that point that the union will have to decide whether arbitration is warranted.

Arbitration, unlike a grievance, involves the hiring of a third-party “labour judge” (formally known as the arbitrator) by both the union and employer. The arbitrator will be tasked with resolving the workplace dispute first by offering to mediate it with the employer and the union’s consent. If the mediation fails, the matter will proceed to a hearing on the merits. In a case involving a dismissal for cause, the arbitrator’s decision may result in, among other things, a reinstatement order of the worker to their former job with full backpay. Alternatively, the arbitrator may find that the employee’s dismissal for cause was justified.

Most cases, even when an arbitrator is hired, are not arbitrated but resolved through an alternative dispute resolution process called mediation. The union owes a duty of fair representation throughout the entirety of the process up to and including the conduct of the hearing. If lucky, the worker will be assigned a lawyer to represent him or her at the arbitration hearing; however, the client of the lawyer is the union – not the worker. A worker is typically not allowed to retain a lawyer of their choosing or sue the employer for damages in a court of law. Most disputes must be resolved within the four corners of the collective agreement – the contract negotiated by the employer and the union and ratified by the union’s membership following the conclusion of a successful collective bargaining process.

Human Rights

Although arbitrators have the jurisdiction to decide human rights-related issues that arise in the workplace, in Ontario an application in the Human Rights Tribunal of Ontario (“HRTO”) arguably grants the most independence to the worker. In the absence of a competing grievance initiated within the parameters of the collective agreement, a worker is free to bring an application with the HRTO assuming that the dispute falls within the HRTO’s jurisdiction. Noteworthy is the fact that unlike in the case of a DFR application where the worker is seeking to challenge the union’s representation of the worker’s rights vis-à-vis the employer, in a human rights proceeding the worker is entitled to seek redress from both the employer and the union.

Workplace Injuries

In Ontario, employees who sustain a work-related injury cannot sue their employer in court (this is true for most unionized and non-unionized workplaces). Instead, the employer is legally obligated to report their injury to the Workplace Safety and Insurance Board (“WSIB”). Once reported, the WSIB will determine the extent of the compensation, if any, the employee will be entitled to receive for the injury sustained. Should the employee disagree with the WSIB’s front-line decision maker, he or she will be free to appeal the decision. The WSIB presents another legal avenue that the worker can pursue on his or her own without the (necessary) involvement of the worker’s union.

Workplace Health and Safety

Employees in Ontario are entitled to work in a safe work environment. This obligation extends to an employer’s common law requirements and to the unionized workplace. In the unionized context, issues involving safety concerns are typically grieved and, if necessary, arbitrated. Moreover, workers who voice concerns relating to their health and safety in the workplace are entitled to do so without fear of reprisal from the employer pursuant to Ontario’s Occupational Health and Safety Act, 1990 (“OHSA”). An employer’s reprisal can manifest in many ways, but it typically occurs when the employer decides to discipline or terminate the employee as a result of the employee exercising a right under the OHSA. In the event of a reprisal, the worker may bring an application with the Ontario Labour Relations Board (“OLRB”) to seek redress which may include compensation in the form of back wages and even an order for reinstatement to their former or similar role if the reprisal took the form of the employee’s dismissal. The worker may do so without involving his or her union.

Group Coverage

Employees in unionized workplaces are often the beneficiaries of group insurance plans involving private insurance companies. It is not uncommon for employees to be in need of coverage for various medical issues including short- and long-term disability benefits. It is also quite common for coverage-related disputes to arise with insurance providers who refuse to pay said benefits. The question arises whether a unionized employee can sue the insurance company for its failure to pay benefits. Disability related concerns (including group coverage) typically fall within the four corners of the collective agreement. This means that the standard course of action for the employe is to grieve and arbitrate the matter. However, in some instances, an employee may have the option of resolving and litigating the dispute directly with the insurance company, but only if the collective agreement does not prevent the worker from doing so.

Injunctions

Canadian courts have the power to order a party to act or to refrain from acting in a certain way – this is known as “injunctive relief.” Injunctive relief is considered an extraordinary remedy and will only be made following a careful determination of the facts and legal stakes. Although exceptional, injunctive relief may be available to individual members (or employers) as a result of a union’s conduct. For instance, employers often bring motions for injunctive relief when dealing with illegal picketing. When it comes to individual members or employees, injunctive relief may be available when a union’s conduct could result in irreparable harm that cannot be remedied in damages and where the union’s internal dispute resolution mechanisms are merely pro forma. For instance, where it is obvious that a worker will lack procedural fairness through the union’s internal procedures, and where there is a substantive risk of imminent violation of natural justice a court may choose to intervene. An injunction is a powerful tool which, if used intelligently, may assist members who experience serious breaches by a union.

Freedom from Intimidation and Coercion

Ontario unions are not allowed to intimidate, coerce or compel any person to become or refrain from becoming, or continue to be or cease to be, a member of a union. Although unions are allowed to solicit members and entice members to join unions in a lawful manner such as making the case for better working conditions, better wages, job security, etc. unions that expressly or impliedly intimidate, coerce or compel any person to join it may be subject to sanctions by the labour board in the relevant jurisdiction. In Ontario, the OLRB has jurisdiction over labour affairs within the province with respect to the unionization (certification) and de-unionization (decertification) of workplaces and the conduct of unions and employers. The OLRB may issue various remedies to address violations committed by employers and unions alike.

Certification and Decertification

At its core each union is comprised of its membership and functions on the basis of a majoritarian system. Unions can be formed at the “grassroots” level by employees within a particular workplace. Alternatively (and as is more common) workers are often asked to join an existing union.

In Ontario those employees seeking to create a grassroots union of their own will typically need to file with the OLRB proof of membership, as well as copies of bylaws and a union constitution. Once a union is established, members can bring an application to “certify” a union with the labour board in its particular jurisdiction provided certain procedures are followed. Neither the employer nor the union is allowed to intimidate, coerce or compel employees to refrain from joining a particular union or to have a new union certified with the labour board. Likewise, unions can also be recognized voluntarily by an employer and form a binding agreement. Unions who obtain certification by fraud or coercion may be subject to sanctions by the labour board including having their certificate revoked.

Just as employees have the power to form and certify a union in the workplace, they also have the right to de-certify a union and to form a union-free workplace. In order to decertify or to replace a union with another union, workers must follow various rules including the timing for the union’s replacement or decertification during the life of the collective agreement. Employees who are not satisfied with their union, who wish to form their own union or to decertify the workplace altogether have the right to do so as long as they comply with the relevant legal requirements in the process.

Religious Objections

Unionized employees are required to pay regular union dues to their union. The purpose of union dues is to allow the union to sustain its existence and to advocate on behalf of its membership in the workplace. Union dues are payable regardless of whether the worker wishes to pay union dues. However, the law does provide workers with the option of redirecting the payment of its union dues on religious grounds because of the employee’s religious conviction if the employee objects to joining the trade union or to the paying of dues or other assessments to a trade union. If the employee and the union fail to so agree then a registered charitable organization may be designated by the labour board. In Ontario, employees are not allowed to object to the payment of dues on social or political grounds. An employee must object to all trade unions and not one particular union. An employee does not have to base his or her sincere religious belief on a specific tenet of a particular religion or church, but the employee’s beliefs must relate to the divine or perceived relationship to the divine. Failure to be allowed the exemption must result in a deep conflict that, if denied, the employee would no longer be able to continue his or her employment.  

An employee challenging payment of dues on the aforementioned basis may bring an application before the labour board and, if successful, the labour board will order remittance of union dues to a charitable organization mutually agreed upon by the employee and the trade union. The exemption applies at a time when a collective agreement is first entered into and throughout the life of the collective agreement. If an employee’s employment was commenced after the collective agreement was entered into, then the employee will not be able to invoke the exemption. The legislation does not set out limits for the religious exemption.

Conclusion

The objective of labour relations is to establish industrial peace by reconciling the competing interests of unions and employers. The organized labour system is also majoritarian and collectivist: internally to the union, individual worker rights may often be sacrificed by broader considerations. These considerations should be informed by the amelioration of working conditions in the workplace, not irrelevant political and ideological side causes.  Whereas employers typically seek to maximize financial gain, the objective of unions ought to be solely focused on workplace advocacy. Although unionized employees are usually limited to deal with workplace issues through the union as their exclusive representative, options for self-advocacy are available in certain circumstances.

¹Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509 (S.C.C.) at page 527.