The Ontario Labour Relations Board has dismissed a duty of fair representation application filed more than 20 years after a worker’s termination, finding the case constituted an abuse of process and was brought with undue delay.
The worker, who was terminated by Ford Motor Company of Canada in June 2003, filed an application in November 2024 asking the board to direct Unifor Local 200 to assist him in seeking reinstatement and to be made whole for the termination. The worker argued that a 2019 decision from the Workplace Safety and Insurance Appeals Tribunal, which found his employment termination resulted from post-traumatic stress disorder, created a renewed obligation for the union to grieve his dismissal.
The board found the application was an improper attempt to relitigate issues already determined in a 2006 board decision that dismissed an earlier duty of fair representation application the worker had filed in 2005.
Background of the case
The worker began employment with the company in 1994 and was represented by the union. In 2002, the company terminated his employment for missing five days without a satisfactory reason. The union grieved the termination, and in October 2002, the parties entered into a last chance agreement that reinstated the worker on probationary terms.
Under the agreement, the worker’s employment was probationary for a two-year period, later reduced to one year. During this time, he could not access the collective agreement’s grievance procedure to challenge the reasonableness of any penalty, including discharge. Any challenge would be limited to whether the worker was guilty of misconduct.
When the company terminated the worker’s employment in June 2003 for leaving the workplace early, the union advised it would not grieve on his behalf due to the terms of the last chance agreement.
The worker filed a duty of fair representation application in June 2005. The board dismissed that application in May 2006 due to delay.
WSIAT decision and renewed application
In June 2006, the worker filed a claim with the Workplace Safety and Insurance Board for traumatic stress resulting from a firefighting accident he attended in June 2002. He challenged the denial of loss of earnings benefits for periods covering his terminations.
In February 2019, the Workplace Safety and Insurance Appeals Tribunal awarded the worker loss of earnings benefits, finding his employment termination resulted from PTSD. The tribunal noted the worker had received a PTSD diagnosis as early as 2002.
The worker forwarded the decision to the union in March 2019 seeking assistance. A union representative advised the union would not assist him. The worker also filed an application with the Human Rights Tribunal of Ontario in March 2020, which was dismissed due to delay in November 2023.
Board’s ruling on preliminary issues
The board found pursuing the application constituted an abuse of process, noting the worker sought to relitigate the same issue previously dismissed in 2006. “The WSIAT Decision indicated that [the worker] was first diagnosed with PTSD in 2002,” the tribunal noted. “Further, he raised his PTSD diagnosis in 2006 as the basis for receiving LOE benefits.”
The board rejected the worker’s argument that the 2019 WSIAT decision enabled him to resurrect issues surrounding his employment termination, finding “his attempt to rely upon it now, simply because WSIAT accepted that argument in 2019, violates the principles of judicial economy, consistency, finality, and the integrity of the administration of justice.”
The board also dismissed the application for delay. The tribunal rejected the worker’s claim that his November 2024 attempt to engage with the union reset the clock, noting “the Union was not required to assist [the worker] at that point in time since, as far as it was aware, [the worker] had ceased to be a bargaining unit member for more than two decades.”
The board found the delay—whether measured from 2003, February 2019, or March 2019—constituted undue delay that was presumptively prejudicial. The tribunal noted concerns about fading recollection, unavailability of witnesses, deterioration of evidence, and disposal of records that would hamper a fair hearing.
The board also cited the potential for retrospective financial liability covering a 20-year period as extremely prejudicial to the company. The worker had not provided a reasonable explanation for failing to pursue his rights within a reasonable time after March 2019, the tribunal found.
The union and company had argued the application raised the same issues as the 2006 decision and should be dismissed based on res judicata, issue estoppel, and abuse of process. Both parties also cited actual prejudice, noting turnover of staff and representatives who were employed at the time of the 2003 termination.
For more information, see (Plaintiff) v Unifor Local 200, 2025 CanLII 135660 (ON LRB).
