Remedial certification by the Ontario Labour Relations Board (the “Board”) allows a union to be certified as the bargaining agent for a group of employees where, despite failing to demonstrate that a majority of employees favour unionization, the Board determines that an employer’s misconduct during the certification process may have prevented the “true wishes” of employees from being expressed with regards to unionization.

Changes to remedial certification were introduced by Ontario’s previous provincial government through the Fair Workplaces, Better Jobs Act, 2017 (“Bill 148”). Bill 148 made it mandatory for the Board to order remedial certification where an employer’s contravention of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A (“LRA”) resulted in a situation where “the true wishes of the employees in the bargaining unit were not likely reflected in a representation vote” or where such contravention resulted in the union failing to obtain signed union cards from at least 40% of employees.

The Making Ontario Open for Business Act, 2018 (“Bill 47”), introduced by the current provincial government, reversed many of the changes from Bill 148 and effectively returned remedial certification to its prior status as a “remedy of last resort” in cases of employer misconduct. While the Board retains the ability to order an initial or additional representation vote and to do anything to ensure that a representation vote represents the true wishes of employees in the bargaining unit, remedial certification may now only be ordered “if no other remedy would be sufficient” to address the employer’s misconduct.

Despite these changes, employers operating both in and outside of the construction industry must remain wary of the ways in which their conduct may trigger the remedial certification provisions of the LRA and should seek assistance from legal counsel in order to effectively navigate union organizing campaigns and certification applications.