The Ontario Labour Relations Board (“the Board”) recently released its decision in Wijeratne v. UFCW Local 1006A and Hilton Garden Inn Toronto/Oakville (Board File No. 2840-24-R), concerning an application to terminate bargaining rights at a Hilton Garden Inn hotel in Oakville. While the broader dispute includes related unfair labour practice allegations by both the Union and the Employer, this particular ruling addresses a narrower but critical issue: whether the sealed ballot box from the decertification vote should be opened and the ballots counted. This case was argued successfully by our own Jawdat Saleh.
Ultimately, the Board directed that the ballots be unsealed and counted, rejecting the Union’s allegations of voting improprieties. The decision highlights the Board’s approach to electronic voting challenges, the evidentiary standard required to block a ballot count, and some important reminders for employers navigating the fraught context of union certification and decertification proceedings.
Background
The Applicant filed a termination application on February 24, 2025, seeking to decertify the United Food and Commercial Workers Canada, Local 1006A (“the Union”), which represented employees at Hilton Garden Inn Toronto/Oakville (“the Employer”).
The Union resisted the Application from the outset and opposed the Applicant’s request for an in-person vote, successfully convincing the Board that the vote should instead be conducted electronically. As is standard, the Board distributed personal identification numbers (“PINs”) to employees’ email addresses and voting commenced on March 3, 2025.
Out of 19 eligible voters, 16 cast ballots. Four of these ballots were disputed.
Subsequently, the Union raised concerns about the integrity of the electronic voting process, claiming that the Applicant improperly obtained PINs belonging to other employees and cast multiple ballots. The Union requested that the ballot box remain sealed until these concerns were investigated.
The Union’s Allegations
The Union’s submissions centred exclusively on electronic voting data provided by the Board, which included information such as IP addresses and timestamps. According to the Union:
- The Applicant and two other employees voted within four minutes of each other, consecutively.
- Four other employees voted within two minutes of each other, consecutively.
- Three other employees voted within five minutes of each other, consecutively.
- An employee accessed her ballot using an IP address that had been used earlier by another employee.
The Union argued that these timing and IP characteristics “strongly suggest” that the Applicant obtained other employees’ PINs and compromised the secrecy of the vote. It also indicated that its investigation was ongoing and reserved the right to provide further particulars.
The Employer’s Response
The Employer firmly rejected the Union’s assertions, emphasizing that it had not supported or initiated the Termination Application.
It highlighted several flaws in the Union’s theory:
- Timing: 14 of the 16 ballots were cast within the first hour of voting. According to the Employer, this pattern is not unusual and certainly not indicative of misconduct.
- IP addresses: All ballots were cast from different IP addresses, suggesting that each voter used a unique device/location.
- Geolocation: Using an IP location tool, the Employer argued that voters’ IP addresses were associated with different municipalities, further undermining the Union’s claim.
- Repeated access: The single instance of an employee re-accessing her ballot from a previously used IP address did not involve a double-vote; rather, the employee later completed her vote on a different device with a different IP address.
The Employer also relied on the Board’s decision in Furfari Paving Co. (1998), where it was held that ballots should be opened and counted where the outcome reflects the true wishes of the employees.
The Board’s Analysis
The Board began by reiterating that its June 20, 2025, direction required the parties to file submissions regarding the unsealing of the ballot box. The Board would determine the issue based strictly on those submissions.
The Union’s argument was hampered by two key deficiencies:
- Lack of particulars: Despite more than four months passing since the vote, the Union had provided no evidence identifying any specific employee whose PIN was allegedly obtained. Instead, it relied solely on speculative inferences from voting patterns.
- Weak evidentiary basis: The Board found that the timing of ballots cast did not, by itself, suggest wrongdoing. Indeed, clustering of votes within a short timeframe—particularly during the first hour of an electronic vote—was unsurprising.
The Board also dismissed the Union’s reliance on the IP overlap. It accepted the Employer’s explanation that the voter in question did not actually cast a ballot during the earlier access and later voted legitimately on a different device.
On this basis, the Board concluded that the Union had failed to plead facts capable of supporting a finding that the Applicant obtained other employees’ PINs or otherwise compromised the secrecy of the vote.
While the Employer had also provided geolocation analysis of IP addresses, the Board noted that such evidence was of limited weight because the tool used was not identified or independently verified. Fortunately for the Employer, this deficiency was immaterial given the Board’s conclusion that the Union’s case was speculative from the outset.
The Result
The Board ordered that the ballot box be unsealed and the ballots counted, directing its Manager of Field Services to carry out the process promptly.
Key Takeaways for Employers
1. Speculative allegations will not suffice to block a ballot count.
The Board is reluctant to interfere with employees’ democratic choice absent clear, compelling evidence of misconduct. Timing coincidences or speculative concerns about PIN access will not prevent ballots from being counted.
2. Employers should tread carefully in decertification contexts.
Although the Employer prevailed on this issue, it is noteworthy that it emphasized its neutrality, stating it had not initiated or supported the decertification. Employers must avoid any conduct that could be construed as interfering in employee choice, as even inadvertent involvement can fuel unfair labour practice allegations.
3. Data-driven evidence is persuasive—but only if credible.
The Employer attempted to strengthen its case with IP geolocation analysis, but the Board discounted it due to lack of reliability. Employers relying on technical evidence should ensure the tools and methodologies used are transparent and verifiable.
4. Parallel unfair labour practice claims can complicate matters.
Here, both the Union and the Employer have filed ULP complaints, which the Board declared would be heard later. Employers should be prepared for multi-front litigation in decertification battles, with the potential for procedural delays and strategic maneuvering by the Union.
Conclusion
The decision reinforces the Board’s preference to let employees’ voices be heard by unsealing ballot boxes and counting votes unless there is compelling evidence of misconduct. For employers, the key is maintaining neutrality during decertification efforts while ensuring that any challenges to voting integrity are met with credible, fact-based submissions.
As always, employers facing unionization or decertification scenarios should seek timely legal advice from the team at CCPartners to navigate the procedural complexities and ensure compliance with the Labour Relations Act, 1995.
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