THE ARBITRARY DISCRIMINATORY AND BAD FAITH TESTS UNDER THE DUTY OF FAIR REPRESENTATION IN ONTARIO
AbstractSection 68 of the Ontario Labour Relations Act imposes on unions a duty of fair representation and stipulates that a breach occurs where a union acts in an arbitrary, discriminatory or bad faith manner. This article reviews Ontario Labour Relations Board decisions interpreting this provision in the decade following enactment, focusing on 1) unions’ general duties and obligations to their members through the grievance process, 2) the standard applied to union officials’ conduct and 3) the substantive analysis of the terms “arbitrary,” “discriminatory” and “bad faith”. The author generally applauds the Board’s approach and the effect of section 68, but makes several recommendations for greater recognition and protection of individual rights.
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