SEIU v. Michael Garron Hospital (OLRB) 

SEIU sought to certify IT Help Desk workers at Michael Garron Hospital — but the hospital argued all 18 proposed unit members handle confidential labour relations information and must be excluded. The OLRB wasn’t ready to shut the question down.

Background

The Service Employees International Union Local 1 Canada filed an application for certification on March 17, 2025, seeking to represent employees at the Help Desk in the Information Technology Services at Michael Garron Hospital (Toronto East Health Network) in Toronto. The proposed bargaining unit sought to include all employees at the Help Desk, save and except supervisors, persons above the rank of supervisor, and Clinical Application Services.

The hospital responded by asserting that the proposed bargaining unit was not appropriate because all 18 individuals falling within the unit are employed in a confidential capacity in matters relating to labour relations and therefore must be excluded pursuant to section 1(3)(b) of the Labour Relations Act, 1995. Section 1(3)(b) excludes from the definition of “employee” those persons who, in the opinion of the Board, are employed in a confidential capacity in matters relating to labour relations. This exclusion guards against the potential for divided loyalties and ensures it is always clear “who is on which side.”

Positions of the Parties

The union requested that the Board dismiss the hospital’s section 1(3)(b) challenges for failing to disclose a prima facie case. The union submitted that the hospital failed to plead that the challenged individuals not only access confidential labour relations information as part of their primary job function but that they also use it, as is required for this type of challenge to succeed.

The union characterised the hospital’s pleadings as amounting to no more than hypothetical scenarios about the challenged individuals seeing confidential information and a presumption that they would improperly disclose it. The union argued that even if the Board accepted as true that the disputed individuals could be exposed to confidential labour relations information, the Board’s case law confirmed it would not exclude them on that basis alone. The union emphasised that mere access to confidential labour relations information is not sufficient to warrant exclusion—challenged individuals must be required to absorb or use the confidential information as opposed to simply being in a position to read it.

The hospital submitted that the union failed to meet its onus to have the section 1(3)(b) challenges dismissed on a preliminary basis. The hospital argued that the union conflated the sufficiency of the particulars provided with the evidence that would be called at the hearing to support the challenges. The hospital maintained it had pleaded facts capable of supporting the conclusion that the disputed individuals handle confidential labour relations information on a routine basis as part of their primary job function.

Legal Requirements for Section 1(3)(b) Exclusion

In order to establish that an individual ought to be excluded pursuant to section 1(3)(b) of the Act, the party raising the challenge must demonstrate that:

• The challenged individual is employed in a confidential capacity
• The material with which that individual works is confidential
• The material is related to labour relations

The Board’s case law has established that:

• The confidential information must relate to labour relations matters and go beyond information that would be known to the employee to whom it relates, or which would be required to be disclosed in bargaining or the grievance procedure
• Mere access to confidential labour relations information is not sufficient to warrant exclusion; challenged individuals must be required to absorb or use the confidential information as opposed to simply being in a position to read it
• The use of confidential labour relations information must be a regular, material, and core part of the job in question

The Challenged Individuals

According to the pleadings, the challenged individuals hold the job classifications of Technical Analyst, Technical Associate FT SNO, Junior Technical Associate FT SNO, Senior Technical Associate FT SNO, Move Coordinator, Move Technical Associate, and M365 Technical Associate. The hospital’s pleadings included general statements that the challenged individuals are employed in a confidential capacity and that the material with which they work is confidential labour relations information.

The hospital’s pleadings stated that the challenged individuals may assist on workplace investigations and other sensitive labour relations matters. In addition, they may take control of computers used by those in labour relations to create, view, open and edit files, and to review and send correspondence. The pleadings stated that the handling of confidential labour relations information is part of their primary job function.

Vice-Chair McCrory’s Decision

Vice-Chair McCrory dismissed the union’s request to dismiss the hospital’s section 1(3)(b) challenges on a preliminary basis. The Vice-Chair found that while the hospital’s pleadings were replete with references to the access given to the challenged individuals (at least 13 references to that access in just over two pages of submissions), they nevertheless set out some instances where the challenged individuals are said to use confidential information.

The Vice-Chair acknowledged that the union’s criticism of the pleadings had some merit—the hospital’s submissions could be read as providing hypotheticals rather than concrete examples. However, the Vice-Chair noted they could also be read in a way that would support the conclusion that the individuals have in fact performed such work. The Board was not prepared to parse the language used in the manner required by the union’s submissions at this preliminary stage.

The Vice-Chair found that the hospital’s pleadings were not of the boilerplate variety typically frowned upon by the Board. They set out in some detail the material facts upon which the hospital relied in support of its challenges. While the pleadings were perhaps minimal in certain respects, they were not of the type that would cause the Board to prevent the hospital from attempting to make its case through an evidentiary hearing.

The Vice-Chair emphasised that while the Board must not be timid in exercising its discretion under Rule 39.1 (which allows the Board to dismiss applications that do not make out a prima facie case) and must be mindful that certification applications must be processed in a timely manner, the Board can only grant the union’s request if satisfied that the challenges have no reasonable chance of success. The Board was not prepared to draw that conclusion based on the pleadings.

Directions for Further Proceedings

The Vice-Chair reminded the hospital that at the hearing to follow, it will be held to its pleadings. The evidence to be tendered concerning the work of the challenged individuals must relate to, and not go beyond, what the hospital has pleaded through its status submissions.

The Vice-Chair noted that while the hospital’s submissions referred to seven classifications in the proposed unit, the submissions did not include any particulars about the functions specifically performed by each classification—they were all treated as one and referred to as “voters.” Accordingly, the hospital was directed to provide full and better particulars about the job functions performed by each classification by February 27, 2026.

The Registrar was directed to schedule a Case Management Hearing after the provision of the directed particulars. The panel remains seized.

This decision underscores the importance of providing sufficient particulars in status submissions when challenging individuals under section 1(3)(b) of the Labour Relations Act. While the pleadings must demonstrate more than mere access to confidential information—they must show use of such information as a regular and material part of the job—they need not include detailed evidence at the preliminary stage. The decision also highlights that IT staff who may handle confidential labour relations information as part of their technical support functions present complex questions about the confidential capacity exclusion.

 

Citation: McCrory, V-C · OLRB