‘Illogical’ approach raises good faith concerns during merger in Ontario
An Ontario arbitrator has dismissed an employer's attempt to delay collective bargaining during a corporate amalgamation, criticizing the company for processing individual employee grievances while refusing to negotiate wages for the entire bargaining unit.
In a Jan. 16, 2026 decision, Arbitrator Michael Bendel rejected Highrise Window Technologies's request to postpone arbitration until the Ontario Labour Relations Board ruled on disputes over the company's merger.
Bendel called the employer's selective approach to grievance handling during the transition “illogical” and questioned its good faith.
The amalgamation and the wage reopener
Highrise Window and Quest Window Systems Inc. amalgamated on Aug. 1, 2024, becoming 16016774 Canada Inc. The collective agreement with the United Brotherhood of Retail, Food, Industrial and Service Trades International Union required the parties to meet in August and September 2025 to negotiate new rates. Article 23.02 stated: “The parties agree to meet during the months of August and September 2025 to determine the hourly rates and benefit premiums to be paid during the period of October 1, 2025 to September 30, 2026.”
The employer refused to meet, claiming uncertainty about which corporate entity was the actual employer following the amalgamation. Three applications were pending before the OLRB, including a displacement certification application and a section 69 sale of business declaration. Employees from both former companies were working alongside each other at the Vaughan facility under different collective agreements.
When the union filed a grievance on Nov. 6, 2025, the employer moved to adjourn the arbitration indefinitely pending the OLRB's decision. It was common ground that despite the union's request to meet pursuant to Article 23.02, the employer refused to do so.
The cherry-picking problem
The arbitrator noted that Highrise Window had continued processing other recent grievances normally. In reply submissions, employer counsel acknowledged the company had been handling grievances “only those relating to individual employees.” Bendel observed the “illogical nature of the distinction drawn by the employer between grievances relating to individual employees (which it had continued to process, despite its position that Highrise Window was not the employer) and grievances relating to the bargaining unit as a whole.”
The arbitrator wrote that “the only reason advanced by the employer for refusing to process the present grievance was one of form, i.e. that the union had put the wrong name of the employer on the grievance form, and not one of substance, a reason that, in my view, displays an eccentric and outmoded preference for form over substance.” He concluded this inconsistency “leads me to wonder about the employer's good faith in this matter.”
Bendel found that since Highrise Window was prepared to respond to individual grievances despite believing they were addressed to the wrong corporation, it had concluded the naming issue “was either not a defect, or not an irreparable one, or not one that invalidated the grievances, or not one that had any downside for it.”
Real prejudice during union competition
Bendel found “the prejudice to the union that would likely result from the delay in negotiating new rates of pay and benefit premiums could be real and substantial.” Employees would wait longer for anticipated wage increases, and critically, “any further delay in the reopener negotiations could become an issue in the event of a run-off certification vote between itself and the Steelworkers.”
The arbitrator determined the union's identification of the employer “has confused nobody and has no potential to prejudice anybody,” while delay would cause genuine harm to both employees and the union's position during the certification dispute. He noted that accepting the Amalgamation as “not arms' length” meant “it would almost certainly make little or no difference to 160 or Highrise Window (or even Quest Window) which of them is named as the employer in the present arbitration.”
The arbitrator's analysis turned on the absence of any prejudice to the employer from proceeding versus the real and substantial prejudice to the union from delay, particularly given that there was “no suggestion of any prejudice to the employer” advanced by counsel throughout the proceedings.
