The Ontario Superior Court of Justice has dismissed SkipTheDishes Restaurant Services’ application for judicial review of an Ontario Labour Relations Board (OLRB) decision, finding the company’s challenge was premature.
The case stems from a unionization effort by food couriers in Hamilton, who sought representation by the Canadian Union of Postal Workers (CUPW).
Skip argued it had missed the statutory deadline to object to the certification process due to issues with service of documents but sought to challenge the process retroactively. The OLRB denied Skip’s objection, prompting the company to seek judicial review.
Certification application and employer objection
CUPW filed its certification application on April 3, 2024, under the Labour Relations Act, 1995, seeking to represent food couriers working for Skip. Under the Act, an employer has two business days to dispute the union’s estimate of the number of employees in the proposed bargaining unit.
Skip failed to file its objection within this timeframe, arguing it had not been properly served. The company’s legal representatives at LaBarge Weinstein LLP in Kanata, Ontario, received the documents, but a subsequent email informing Skip’s internal contact bounced back. Skip asserted it only became aware of the application on April 9, 2024, four days past the deadline.
On April 11, 2024, Skip attempted to file its response and challenge the bargaining unit’s size under section 8.1 of the Act. CUPW objected, and the OLRB ultimately refused to accept the late filing.
Board’s decision and judicial review
The OLRB ruled that CUPW had properly served the certification application by delivering it to Skip’s registered corporate address. The Board held that the company bore the responsibility of maintaining up-to-date contact information and ensuring service could be received appropriately. Vice-Chair Danna Morrison found that Skip’s delay was significant and that the company had not acted diligently upon becoming aware of the application.
Skip sought judicial review of the decision, arguing the Board’s refusal to consider its objection was unreasonable. The company contended that the certification process would be complex and costly, and that allowing it to proceed without a determination on the proper size of the bargaining unit would create unnecessary hardship.
Court’s analysis on prematurity
The Divisional Court dismissed the judicial review application, ruling that the challenge was premature because the certification process remained ongoing before the OLRB.
“When it comes to the judicial review of an interlocutory decision of an administrative tribunal, the law is clear: absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed,” the court stated.
The court emphasized that Skip could still raise concerns about voter eligibility and the proper composition of the bargaining unit during the certification process. It found that granting judicial review at this stage would lead to fragmentation and delay of the administrative process.
Additionally, the court rejected Skip’s argument that allowing the process to continue would give CUPW’s application unwarranted legitimacy, calling this claim speculative and unsupported by evidence.
Potential next steps
The court noted that Skip retains the right to challenge the final certification decision, including raising the same issues it sought to litigate in this judicial review. If the Board ultimately determines that the couriers are independent contractors rather than employees or dependent contractors, the certification application may be dismissed entirely.
For now, the unionization effort will continue as scheduled before the OLRB, with hearing dates already set to determine the employment status of the couriers.
The Divisional Court dismissed Skip’s judicial review application, ordering the company to pay CUPW $6,000 in costs.
For more information, see SkipTheDishes Restaurant Services Inc. v. Canadian Union of Postal Workers, 2025 ONSC 1399 (CanLII).
