Syndicat catholiques des employés du magasin inc v Paquet...

Labour Law Spring 2014 1

Labour Law – Spring 2014McGill Faculty of Law

Me. Alexandre Buswell & Me. Simon Laberge

Includes: Class notes & Group Summary (Contributors: Tina Hlimi, Silvia Neagu, Hannah Wizman-Cartier, Paul Holden, Daniel Wilband, Marion Sandilands, Jacqueline Rowniak, Kendra

Hefti-Rossier)

COURSE OUTLINE:

1. INTRODUCTION

2. CONSTITUTIONAL DIVISIONS

3. FREEDOM OF ASSOCIATION

4. RIGHT OF ASSOCIATION

5. UNFAIR LABOUR PRACTICES

6. COLLECTIVE BARGAINING

7. COLLECTIVE AGREEMENT AND THEIR ENFORCEMENT

8. STRIKES AND LOCKOUTS

9. UNIONS AND THEIR MEMBERS: DUTIES AND OBLIGATIONS

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Table of ContentsSyndicat catholiques des employés du magasin inc v Paquet ltée [1959]......................................................5Short note..............................................................................................................................................................................5

2. CONSTITUTIONAL DIVISIONS...................................................................................................... 6a. Constitutional basis.................................................................................................................................... 6b. Provincial and federal jurisdictions....................................................................................................7

Reference re: Bell Canada c Quebec (Commission de la santé et de la sécurité de travail) [1988]......9Short note : Health and safety provisions/Act would affect (and even impair) Parliament’s exclusive jurisdiction over management, labour relations and working conditions of FU. To allow application of the provincial provisions would strip the power over FUs of any meaningful content........................9c. Interjurisdictional Immunity...............................................................................................................................14

3. FREEDOM OF ASSOCIATION....................................................................................................... 20a. Sources......................................................................................................................................................... 20

s. 2(d) of the Canadian Charter...............................................................................................................................21iii. Compare with:.......................................................................................................................................................... 22

b. Applicability of the Charter................................................................................................................... 22c. What is the constitutionally protected Freedom of Association?.............................................23

PIPS v Commissionner of NWT [1990]..................................................................................................................28s. 2d does not extend to the certification process.................................................................................................28iii. Right to associate or not associate..................................................................................................................35

4. EXERCISE OF FREEDOM OF ASSOCIATION.............................................................................41a. The right of Association.......................................................................................................................... 41

i. s. 3 of Quebec Labour code....................................................................................................................................41ii. s. 8 of Canada Labour code...................................................................................................................................41

b. The certification process....................................................................................................................... 41i. The principle and effects of certification.........................................................................................................41ii. The applicable requirements..............................................................................................................................41iii. Authorization by resolution...............................................................................................................................42iv. Filing of Statutes and By-laws on request....................................................................................................43v. The vote and its role in the certification process........................................................................................45vi. When the petition may be filed (timeliness)...............................................................................................47

c. The bargaining unit.................................................................................................................................. 48i. Appropriate.................................................................................................................................................................. 48ii. Community of interests.........................................................................................................................................50iii. Special considerations..........................................................................................................................................50

d. Particular exclusions from the right of association......................................................................51i. Non-employees...........................................................................................................................................................51ii.The notion of «Independent contractors».....................................................................................................52Paquin c Services financiers Investors 2012 QCCA.......................................................................................52Short note..................................................................................................................................................................... 52iii. Dependent contractors.........................................................................................................................................58iv. Managerial and supervisor personnel...........................................................................................................58v. Confidential employees..........................................................................................................................................58

e. The parties to certification proceedings...........................................................................................58i. ss. 32 and 36 Quebec Labour code.....................................................................................................................59

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Toronto Newspaper Guild v. Globe Publishing, [1953] 2 S.C.R. 18.........................................................59Bibeault v McCaffrey 1984.......................................................................................................................................60Short note..................................................................................................................................................................... 60

f. Certification apparatus............................................................................................................................ 61i. Labour relations officer (s. 21 Quebec Labour code)..................................................................................61ii. Labour Relations Commission (Commission des relations du travail)............................................62iii. Canada Industrial Relations Board Labour Boards..................................................................................63

g. Affiliation and raiding............................................................................................................................. 63h. Successor rights (Under the Quebec Labour code)........................................................................63

i. Quebec Labour code.................................................................................................................................................63Syndicat des employées et employés des magasins Zellers d’Alma et de Chicoutimi (CSN) c. Zellers, 2009 QCCA 474...............................................................................................................................................................67Short note..................................................................................................................................................................... 67ii. Quebec Civil Code.....................................................................................................................................................69iii. Canada Labour code...............................................................................................................................................69iv. Transfer of jurisdiction from provincial to federal and vice versa....................................................69v. Successor union.........................................................................................................................................................69

5. UNFAIR LABOUR PRACTICES..................................................................................................... 69a. Undue interference with the formation or activities of a union...............................................69

i. s. 12 Quebec Labour code......................................................................................................................................69ii. s. 94 (1) Canada Labour code..............................................................................................................................70iii. Quebec: effects on certification.........................................................................................................................70iv. Canada: effects on certification.........................................................................................................................70

b. Intimidation and threats........................................................................................................................70i. As between union and employees......................................................................................................................70ii. As between employer and employees.............................................................................................................70c. Captive audiences and information blitz........................................................................................................77iii. Freedom of expression.........................................................................................................................................78Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038..........................................................................79Short note..................................................................................................................................................................... 79UFCW v KMart Canada [1999] 2 SCR 1083........................................................................................................85Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62...........................................................................................................................................................88Short note..................................................................................................................................................................... 88iv. Unfair dismissal, suspension or transfer......................................................................................................90Commercial photo v. Lafrance, [1980] 1 S.C.R. 536.........................................................................................91Short note..................................................................................................................................................................... 91Dismissal is not a change of work conditions (although door not closed)................94

6. COLLECTIVE BARGAINING.......................................................................................................... 96a. Bilateral Bargaining................................................................................................................................. 96

i. Time Factor...................................................................................................................................................................97ii. Duty to bargain diligently and in good faith.................................................................................................97iii. Scope............................................................................................................................................................................. 99Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311...................................................................................................................................................................................... 99Short note..................................................................................................................................................................... 99b. Sectorial bargaining..............................................................................................................................................102c. Alternatives to unaided bargaining................................................................................................................104

7. COLLECTIVE AGREEMENTS AND THEIR ENFORCEMENT...............................................106a. What is in a collective agreement?...................................................................................................106

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b. Enforcement of a collective agreement........................................................................................................108St. Anne Nackawic Pulp & Paper Co. c. Section locale 219 du Syndicat canadien des travailleurs de papier, [1986] 1 R.C.S. 704......................................................................................................................................108Short note...................................................................................................................................................................108Weber v. Ontario Hydro, [1995] 2 R.C.S. 929...................................................................................................109Short note...................................................................................................................................................................109New Brunswick v. O’Leary, [1995] 2 R.C.S. 967..............................................................................................111Short note...................................................................................................................................................................111Regina Police Assn. Inc. c. Régina (Ville de) Board of Police Commissionners, [2000] 1 R.C.S. 360............................................................................................................................................................................................ 112Short note...................................................................................................................................................................112

iii. Power of Arbitrators and Procedures...........................................................................................114Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., 2006 SCC 2......................................................................................................................114Short note...................................................................................................................................................................114Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42............................................................................................................................................................................................ 116Short note...................................................................................................................................................................116

8. STRIKES AND LOCKOUTS......................................................................................................... 117a. Lock-out..................................................................................................................................................... 118

i. Definition....................................................................................................................................................................118ii. Legality.......................................................................................................................................................................118iii. Employer’s obligations during a strike or lock-out...............................................................................119

b. Strike.......................................................................................................................................................... 122i. Characteristics of strike........................................................................................................................................122ii. Legality of the strike or lock-out.....................................................................................................................123iii. With respect to the behaviour of employees during the strike or lock-out................................123iv. Protection of the employment relationship during the strike or lock-out..................................126v. Fines and penalties................................................................................................................................................126

9. UNIONS AND THEIR MEMBERS: DUTIES AND OBLIGATIONS........................................127a. Conflicts of interests.............................................................................................................................. 127b. The duty of fair representation.........................................................................................................127c. Obligations of Certified Association.................................................................................................131d. Responsibilities of Certified Association.......................................................................................131

1. INTRODUCTION

a. Sources

i. The Charter

ii. In Quebec:

The Labour Code

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The Act respecting Labour Standards

The Act respecting Occupational Health and Safety

The Act respecting Industrial Accidents and Occupational Diseases

iv. At the federal level

The Canada Labour code

b. Definitions of terms and concepts

i. Certification

ii. Bargaining Unit

iii. Bargaining Agent

iv. Representative character

c. Historical references

i. The Rand Formula

ii. Syndicat catholique des employés de magasin inc. v. Paquet ltée., [1959] SCR 206

- important for s. 62 : content of a CA -

Syndicat catholiques des employés du magasin inc v Paquet ltée [1959]Short noteFacts Clause in bargaining agreement entitled employer to withhold union due from

wages of all employees, whether union members or not. Some employees had to signed a document stating they didn’t authorize the

company to withhold funds, so company began putting those funds in a special bank account

PL (union) sued DF (company) to recover wages of non-union employees which had been withheld.

Issue Is the compulsory check off clause in the collective agreement allowing union to withhold dues from non-union employees valid?

Ratio Appeal allowed, clause is condition de travail and not prohibited by law, PL union entitled to recover.

There are only 2 limiting factors on collective agreements – must be related to conditions of labour (which it is) and must not be prohibited by law

Broad def’n of condition of employment . Must be concerned with ER – EE relations.

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EE’s power to K individually with ER is abrogated Not same as a mandate- different bc it’s based on a statutory regime

Reasoning MAJORITY There are only 2 limiting factors on collective agreements – must be related

to conditions of labour and must not be prohibited by law Labour Relations act in 1944 changed the situation profoundly “the

collective representative with the necessary majority acquired the right of representation for all the employees, whether members or not, and the employer became obligated to negotiate in GF with that collective representative”

Problematic that there’s no definition of “conditions de travail’ in the Acts If parties agree to include this clause, no reason to think it is not valid. “the test must be be its real connection with the contract of labour and

assent or absence of assent of the individual members of the bargaining unit seem to me to be matters that have no relevancy”

reject idea that this clause is only in the interest of the union this is directly concerned with employer-employee relations. Employees chose to continue to work and deductions were actually made. Nothing unlawful about having the compulsory checkoff so long as employee

continues to work there Discusses law of mandate – which does not apply here, since union is not an

agent or mandatary, but as contracting party Appeal allowed, clause is condition de travail and not prohibited by law, PL

union entitled to recoverDISSENT

Discusses the concept of conditions de travail, can only include that which the law imagined would be included.

Believes it is indisputable that the legislature did not have intention to consider retaining salary of non-union employees as a condition de travail.

Would not allow the appeal, as the clause is not a condition de travail.Notes

2. CONSTITUTIONAL DIVISIONS

a. Constitutional basis

i. s. 91 and 92 of the Constitutional Act of 1867

91: whatever isn’t specifically designated to province

Exclusive Powers of Provincial LegislaturesMarginal note:Subjects of exclusive Provincial Legislation

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92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

13. Property and Civil Rights in the Province.

16. Generally all Matters of a merely local or private Nature in the Province.

- federal undertaking by nature: need to show just regular and constant activity in question - interjurisdictional immunity: federally regulated undertaking are immune from application of provincial statutes

b. Provincial and federal jurisdictions

i. Hours of Labour Reference, [1925] S.C.R. 505Hours of Labour Reference [1925]Short noteFacts The First Session of the International Labour Conference in 1919, adopted a draft convention limiting hours

of work in industrial undertakings to eight per day and 48 per week. The GG-in-Council submitted a reference question to the SCC under s 60 of its Act, asking what Canada's obligations were under the draft convention and whether the federal or provincial governments were competent to implement Canada's obligations.

Issue · What are Canada's obligations under the draft convention?· Which level of government is competent to implement Canada's obligations if it is not

exclusive jurisdiction, how far does the jurisdiction extend?Ratio Labour relations are a provincial competence, except (a) for employees of the Federal Government and (b)

employees of federally-regulated undertakings,.Reasons Canada's obligations: The wording of art 405 of the Treaty of Versailles says only “...bring the...draft

convention before the authority or authorities within whose competence the matter lies, for the enactment of legislation or other action.” The Court says it is “very clear” that there is no obligation on Canadaa to do anything other than exactly that: submit the convention to the appropriate legislative body for consideration (509-510).

Competent level of government: Labour relations are within provincial competence, either s 92(13) – property and civil rights or 92(16) – matters of a merely local or private nature (510). Since property & civil rights in the territories are within the competence of the Federal Government, then labour relations are federal jurisdiction for those territories (511).

Provinces have no authority to regulate the employees of the Federal Government itself (510). In addition, labour relations in federally-regulated undertakings are federal jurisdiction, because of s 91(29) – subjects expressly excluded from provincial jurisdiction under s 92 and s 92(10) – exceptions to provincial jurisdiction including railways, shipping, works for the general advantage of Canada, etc. (511)

If there is no federal regulation applying to a federally-regulated undertaking, then provincial regulation will apply (511). As an example, the Railway Act s 287 allows regulation of the hours of work of railway workers. However, since no order or regulation had been made under s 287, provincial legislation would continue to apply (511).

Notes

Constructions Montcalm v Minimum wage commission 1979 SCCFacts They had a K with the federal crown for runways at the airport. (federal lands).

Concern for minimum wage in Qc – didn’t want to pay minimum wage. Montcalm 7


tried to argue they should be federally regulated-

Issue Is the activity federally regulated?Ratio Doesn’t matter that it’s on federal lands. Construction is within provincial powers,

therefore subj to provincial laws.Reasoning - The issue must be resolved in the light of established principles the first of

which is that Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule: Toronto Electric Commissioners v. Snider[10]. By way of exception however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject: In re the validity of the Industrial Relations and Disputes Investigation Act[11]”

- 775 : concludes the company is a construction company and that construction in general remains under provincial powers

- another argument they tried – it was on federal lands: but SCC said NO. p 777: do not “constitute extraterritorial enclaves within the province …any more than indian reserves”

ii. Reference re: Three labour Acts, [1936] S.C.R. 461Reference re: Three Labour Acts [1936]Short noteFacts ILC’s Convention set minimum wage standards, and Parliament wants to introduce its terms through a

federal Minimum Wage Act. Parliament has exclusive authority to make and implement international treaties. But the Provinces say the Dominion has no authority to infringe their jurisdiction over labour matters (as per Hours of Labour Reference, 1925).

Issue Can Parliament implement obligations arising from int’l treaties by legislating on matters that fall under provincial jurisdiction and unilaterally alter provincial legislation, e.g. impose a federal Minimum Wage Act on the provinces binding them to minimum wage obligations?

Ratio Per Duff C.J. and Davis and Kerwin JJ.: the Act is intra vires of the Parliament of Canada;per Rinfret, Cannon and Crocket JJ., it’s ultra vires.*** It seems the judgment was 3-3, so I don’t know how binding it is. But clearly it’s considered ultra vires after this.

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http://scc-csc.lexum.com/decisia-scc-csc/scc-csc/scc-csc/en/item/2618/index.do#_ftn11

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Reasoning

Duff C.J. and Davis and Kerwin JJ:· Parliament is clearly one of the authorities before which such a convention must be brought. The

fact that Canada has ratified the treaty is sufficient to create a binding obligation on Canada to observe its conventions.

· Section 132 contemplates obligations arising from treaties formed by Parliament, and sometimes legislation may be necessary to meet such obligations. Parliament has all the necessary power to do so.

· The fact that a convention touches on provincial jurisdiction doesn’t render Parliament unable to enforce it by law. The Act is intra vires.

Rinfret J:· The matter falls within provincial jurisdiction so the AG must demonstrate that special

circumstances have caused the subject-matter to be transferred to the jurisdiction of Parliament. The powers in question here do not fall under POGG, criminal, or trade/commerce, etc.

· Key question is whether the treaty was competently ratified in the first place.· Power to create an int’l oblg ≠ power to enforce it.· The mere fact that Parliament entered into a foreign convention does not transfer a civil right

from provincial to federal jurisdiction.· The matter remains under provincial jurisdiction – because of this the Draft Conventions were

not competently ratified and the Act enforcing it is ultra vires of Parliament.

Cannon J:· Since the BNA Act reserved wages, etc, to the provinces as private matter of property/civil

rights, then the draft conventions should’ve been treated as recommendations only.· The conventions were not presented to the provinces and this is fatal to the validity of their

ratification. Foreign powers must recognize that Canada is “a federal, not a legislative union.”

Crocket J:Parliaments’ authority to make international agreements does not alter the distribution of powers in the Constitution. So the Act is ultra vires.

Notes

iii. Bell Canada c. Québec (Commission de la santé et de la sécurité du travail), [1988]1 S.C.R. 749

119 pages – Hannah

Reference re: Bell Canada c Quebec (Commission de la santé et de la sécurité de travail) [1988]Short note : Health and safety provisions/Act would affect (and even impair) Parliament’s exclusive jurisdiction

over management, labour relations and working conditions of FU. To allow application of the provincial provisions would strip the power over FUs of any meaningful content.

Abrev. FU: Federal undertaking, wrt: with regards toFacts One case in a trilogy (three appeals were treated jointly) addressing the question: is a provincial statute

regulating health and safety in the workplace, like the statutes at issue, constitutionally applicable to a federal undertaking? Case #1: “Alltrans” [1988] 1S.C.R. 897: FU is interprovincial and int’l trucking business. Challenge of an

order brought under regulations of Workers Compensation Act (BC) asking employer to ensure employees wear safety boots.

Case #2: “Canadian National Railway “[1988] 1 S.C.R. 868: Some employees died in train collision. Act respecting occupational health and safety, S.Q. empowers inspector to ensure compliance with Act.

Facts Case #3: Bell is telecomms undertakings. Lady worked for Bell. Bell and Union agreed that a pregnant

employee who was reluctant to work on a VDT unit had a choice of applying for unpaid leave or being assigned other duties within the bargaining unit. She refused an offer of another position and got

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unpaid leave for about a year. She also applied for protective re-assignment certificate (ss. 40 and 33 of the Act). Bell challenged it.

The application was accepted and C.S.S.T. paid her the compensation provided for in s. 36 of the Act. Bell challenges the order, arguing it shouldn’t have to pay an indemnity and sections don’t apply to it.

Issue Conflict between Quebec Act respecting occupational health and safety and Canada Labour Code1. Are ss. 33, 36, 37 and 40 to 45 of the Act constitutionally applicable to Bell Canada?2. and, if so, are these sections inoperative in respect of Bell Canada in that they are incompatible or

conflicting with federal legislation in the same area applicable to Bell Canada?Ratio 1. No

2. No need to address this.Reasoning

A. Review of applicable principles: Provinces have

o general jurisdiction over health under s 92(16) (with some limits: i.e. POGG and Parliament ancillary powers under s 91)

o exclusive jurisdiction over labour relations and working conditions under s 92(13) “Inter-jurisdictional Immunity” Exception to #2: Parliament has exclusive jurisdiction over labour

relations and working conditions when it’s an integral part of its primary and exclusive jurisdiction over another class of subjects, i.e. labour relations and working conditions in the federal undertakings covered by ss. 91(29) and 92(10)a., b. and c.

o So prov legislation dealing with labour relations and working conditions don’t apply because that would interfere with the management and operation of such undertakings.

Judicial Committee of the Privy Council had held that provincial workmen's compensation schemes were applicable to federal undertakings.

o Bell Canada 1966, Took different view (see para 23) “Double Aspect Theory”: Similar rules could be valid one in legislation within exclusive federal

jurisdiction, and the other in legislation within exclusive provincial jurisdiction, because they are enacted for different purposes and in different legislative context (Hodge)

o Warning about applying this theory: concern that distinction btw s 91 and 92 will fade and give way to paramountcy.

o Must create truly exclusive (and not concurrent) fields of jurisdiction.B. Characterization of the Act respecting occupational health and safety

1. Content of the Act: Chapter 1 includes loads of definition for words and terms like: union association, labour

commissioner, agreement, etc, some of which refer to the Canada Labour Code. Chapter 2 includes the object of the Act: s 2 “the elimination, at the source, of dangers to the health,

safety and physical well-being of workers. Chapter 3 is about rights and obligations of the worker, employer and supplier, including the

employee’s right of refusal, protective re-assignment, the re-assignment of a pregnant worker, etc.

o s 36 re a worker’s entitlement, for the first five working days of his work stoppage, to be remunerated at his regular wage rate. s 37 re Recourse for a worker who believes they cannot complete duties to which they have been reassigned. The Commission can review decision and their decision is final and executory. (at issue in this case)

o s 40-45 about re-assignment of a pregnant worker, rights and recourse available including wrt stopping work, benefits, temporary payments, etc (at issue in this case)

o s 51: lists all of employer’s obligations wrt to health and safety like provide safety equipment free of charge, provide information about risks and appropriate training

o s 62: employer duty to inform the regional chief inspector of major accidents within 24 hours + scene of an incident must remain unchanged until it has been investigated (relevant in CN)

o s 68-69: regarding the creation of health and safety committeeso s 177 to 193 regarding inspection: about appointment and remuneration of inspectors,

investigative powers in performance of duties to “enter at any reasonable hour of the day or night” and have “access to all the books, registers and records,” power to issue remedial order, power to order the suspension of work if considers worker's health, safety or physical well-being to be endangered, etc (relevant in CN)

Note that Canadian Parliament added provisions on occupational health and safety in FUs to the 10


Labour Code before QC passed its Act. Plus, the Act contains “striking analogies” with those provisions of the Labour Code (At 124 and 125)

2. Analysis and Characterization of the Act While the Act may be constitutional and the legislator may have power to enter field of work accident

prevention, using “means such as the right of refusal, protective re-assignment, detailed regulations” etc meant that the legislator “enter[ed] directly and massively into the field of working conditions and labour relations and…management and operation of undertakings” (At 128)

Working Conditions: “working conditions are conditions under which a worker or workers, individually or collectively, provide their services, in accordance with the rights and obligations included in the contract of employment by the consent of the parties or by operation of law, and under which the employer receives those services.” Undertakes analysis of the Act and concludes: “If the right to refuse to work, the continuation of

the right to wages and other benefits, availability, assignment to other duties and the right to return to the employment at the end of the assignment or cessation of work are not working conditions, I do not know what is. The fact that the purpose of these rights is to protect workers' health and safety does not change the nature of these conditions.” (At 142)

Labour Relations: “The right of refusal, protective re-assignment and the re-assignment of pregnant women and breast-feeding workers are specific rights of workers corresponding to correlative obligations of employers regarding remedial action, assignment, payment of wages and other benefits. I have tried to show that these rights and obligations are working conditions. However, because of this correlation, they also represent labour relations between workers and employers. The same observation is true of the general rights and obligations of workers under the Act.” (At 157)

Management of Undertaking: “The Act aims at and regulates the management and operations of an undertaking under its jurisdiction in two ways.

o 1. Act creates a system of partial co-mgmt of undertaking by the workers and the employer. See Chapters of the Act on health and safety committees + safety rep provisions: At

least half their members represent workers and are designated by them. They enjoy significant decision-making powers, etc…Safety rep chosen from among workers, has managerial functions (i.e. inspect workplaces, investigates accidents, etc)

“… preceding provisions only divest the employer of a part of the exclusive rights of management, though by no means a negligible part” (At 174)

o 2. “…while the health and safety of workers are the objectives of the Act, it is addressed primarily to the manager of an undertaking as such to attain these objectives, for the simple reason that it is the manager who has ownership and control of the undertaking, of "establishments", facilities, equipment, workplaces, etc” (At 167)

In view of all the express provisions, looks like legislator “intended to enact rules regulating the very management and operations of all undertakings” + seems Act was not intended to apply to federal undertakings (At 179-184)

C. Classification of the Act respecting occupational health and safety1. Application of Principles Developed by the Courts

As established above, the Act is not related to health. So does not fall under s 92(16). Plus s 91 states that what falls under that section can’t come under matters of local or private nature. So: a statute relating to occupational health and safety necessarily regulates mgmt of the undertaking

this is under exclusive federal jurisdiction under sec 91(29) and cannot fall under sec 92(16) Important: paras 189-190 highlighted in class!

o Proposition two: the Act deals with working conditions, labour relations and mgmt of undertaking intravires under sec 92(13) property and civil rights.

o Proposition three (exception): The Act cannot apply to federal undertakings covered under sec 91(29) and 92(10) a, b, and c, because it regulates essential parts of those undertakings.

o So, the Act cannot apply to Bell Canada and Canadian National. This proposition is based on a case the SCC takes a closer look at: Postal Service Case 1948

about a temporary employee of a postal office. The issue was around salary. The person operating the office was authorized to pay the worker from the revenue she collected. The question is whether the provincial Minimum Wage Act applied.

o Counsel for the Dominion does not question the competency of the province under the B.N.A. Act, s. 92(13) (Property and Civil Rights) to enact this Minimum Wage Act, but does contend

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that it is not applicable to, or that the Postal Service is not subject to, the provisions of this provincial legislation….This section 91(5) vests in the Parliament of Canada the exclusive power to legislate with respect to the Postal Service. (para 197)

o “If this exclusivity suffices to remove the postal service from the scope of an Act like the Saskatchewan minimum wage statute, it also suffices, and in the same way, to remove federal undertakings from the scope of a statute of the same type, as was held in Bell Canada 1966 and as the Court must now find.” (para 198)

The Stevedoring case is different from Postal Service Case 1948, Bell 1966 and this one.o Not about whether general provincial legislation applies to federal undertakingso About the constitutional validity of federal legislation, namely Part I of The Industrial

Relations and Disputes Investigation Act, S.C. 1948,o The legislation dealt with labour relation, neg’g collective agreements + working conditions,

legality of strikes and lockouts, etc AND sec 53 restricted its application to those working “upon or in connection with the operation of any work, undertaking or business that is within the legislative authority of the Parliament of Canada

o 9 judges found Part I valid. And 6 judges found legislation in exclusive jurisdiction of Parliament. Each of the judges wrote a separate opinion. They quote a bunch of these including this “classic statement” by Abbott J and 592 (At 211 of this decision); it is used in Bell 1966 at 772 too:

o “The right to strike and the right to bargain collectively are now generally recognized, and the determination of such matters as hours of work, rates of wages, working conditions and the like, is in my opinion a vital part of the management and operation of any commercial or industrial undertaking. This being so, the power to regulate such matters, in the case of undertakings which fall within the legislative authority of Parliament lies with Parliament…

These two cases provide an outline for the answer to this question: does Parliament's power to legislate on working conditions and labour relations in federal undertakings and on the management of those undertakings derive from its primary, elementary or unassailable jurisdiction over them?

The Answer was resolved in Bell 1966 (at 216) re the Minimum Wage Act: (see our summary)o Quotes sec 91(29) and 92(10) a, b and co Section 91. ... it is hereby declared that (notwithstanding anything in this Act) the exclusive

Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,--

... 29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

o The regulation of wages (under the Minimum Wage Act) paid to employees in undertakings within the excepted classes in s 92(10) is a “matter” within those classes of subject by virtue of s 91(29) and therefore under the exclusive authority of Parliament

o “In my opinion all matters which are a vital part of the operation of an interprovincial undertaking as a going concern are matters which are subject to the exclusive legislative control of the federal parliament within s. 91(29).”

Conclusion at 236: It’s not possible to distinguish this case from Bell Canada 1966. “The working conditions and labour relations as well as the management of federal undertakings such as Bell Canada, are matters falling within the classes of subject mentioned in s. 91(29) and consequently fall within the exclusive legislative jurisdiction of the Parliament…It is one facet of a more general rule against making works, things or persons under the special and exclusive jurisdiction of Parliament subject to provincial legislation, when such application would bear on the specifically federal nature of the jurisdiction to which such works, things or persons are subject”

Quotes Dick v. The Queen (at 242 of this decision): “a great many provincial labour laws which are couched in general terms and which, taken literally, would apply to federal works and undertakings. So to apply them however would make them regulate such works and undertaking [sic] under some essentially federal aspects. They are accordingly read down so as not to apply to federal works and undertakings…”

2. Criticisms of Bell 1966 Hogg sums up critique of interjurisdictional immunity (IJI) at 246-247

o In a nut shell: the IJI decisions render provincial legislation of general application

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inapplicable to federal undertakings + these are not cases of conflicting laws, so there was no need for the paramountcy doctrine.

o Hogg disagrees with the notion that “federal heads of power not only confer power on the federal Parliament, but also operate "defensively" to deny power to the provincial Legislatures. In my view, this theory is inconsistent with the basic pith and substance doctrine -- that a law "in relation to" a provincial matter may validly "affect" a federal matter.”

o In sum this is unnecessary because Parliament can just enact a law that conflicts and paramountcy doctrine will take effect. Plus it is a settled matter that employment is an area with a valid double aspect.

At 250: Martland in Bell 1966 points out that critics don’t address the content of the federal power over federal undertakings: “Martland J. considered that the management of these undertakings and their labour relations are matters which are part of this basic and unassailable minimum, as these matters are essential and vital elements of any undertaking. How is it possible to disagree with this? How can the exclusive power to regulate these undertakings not include at least the exclusive power to make laws relating to their management?” He also included working conditions and labour relations.

Continues to pick apart Hogg’s argument. See 250-260 for more about why Bell 1966 is good law. At 261: “Federalism requires most persons and institutions to serve two masters; however, in my

opinion an effort must be made to see that this dual control applies as far as possible in separate areas.”3. Double aspect theory

Can’t rely on double aspect doctrine to support application of provincial statute to fed undertakings Cannot argue that the compensatory part of the provincial statute is not severable from the preventative

part of the statute as the BCCA dido At 290: worker’s compensation scheme is ok/does not impinge on labour relations, working

conditions or management of the federal undertaking. On the other hand, prevention is not a fixed, stable concept. Furthermore, it necessarily operates through labour relations, working conditions and management

The two legislators have legislated for the same purpose and in the same aspect. Yet they do not have concurrent legislative jurisdiction in the case at bar, but mutually exclusive jurisdictions – again the Part IV of the Canada Labour Code is exclusive domain of Parliament because it deals with the labour relations and management of fed undertakings and to remove this would strip this power of any meaningful content (at 295)

4. Impairment of Federal Undertakings AG QC argues that Act does not impair operations and functioning of Bell Para 312-313:

o In order for the inapplicability of prov. legislation rule to be given effect, it is sufficient that the prov. statute which purports to apply to the FU affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it.

o If the application of a prov. statute to a federal undertaking has the effect of impairing or paralyzing it, that a fortiori is an almost certain sign that such application bears upon the specifically federal nature of the undertaking and constitutes an encroachment on the exclusive legislative authority of Parliament.

Example of impairment (or sterilization or destruction) at 316: In Attorney-General for Ontario v. Israel Winner, [1954] A.C. 541: a province can exercise control over its highways but not to the extent that it would impair, as by a local transportation licensing system, the operations of an international and interprovincial motor bus transport undertaking, though it authorizes the province to regulate the speed of vehicles or the side of the road on which they must operate.

This case: Various provisions of the Act are likely to impair the operations and functioning of federal undertakings, which is an additional reason for regarding it as inapplicable to those undertakings, regardless of any conflict between federal and provincial legislation.

For example: right of refusal may have minimal impact or devastating impact for example, in assembly line work, one or more workers exercise their right of refusal and interrupt the assembly line; hundreds of other workers, perhaps most of those in the undertaking, are deprived of work as a result.

5. Conflict with federal legislation If procedural conflict btw Act and Code is irreconcilable or if it leads to a deadlock, may be enough to

render prov. Act inoperative. Duplication in itself does not = inoperative This case: appears there is a practical and functional incompatibility between the two groups of

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provisions. But no need to decide this because Act does not apply to Bell.Notes

c. Interjurisdictional Immunityinterjurisdictional immunity: federally regulated undertaking are immune from application of provincial statutes

Canadian Western Bank: changed test for interjurisdictional immunity - Requires an impairment (adverse consequences placing the federal regulated

undertaking in jeopardy) (not just that a core competence is affected, as before)i. Peter W. Hogg, Constitutional Law of Canada, 5th edition,

Interjurisdictional Immunity: pp. 15-28 to 15-38.6-

Peter Hogg, Constitutional Law of Canada 5th edition, pp. 15-28 to 15-38.6

Definition A law that purports to apply to a matter outside the jurisdiction of the enacting legislative

body can be attacked in 3 ways:o Validity its pith and substance comes within class of subjects outside

jurisdiction of the enacting body. o Applicability the law should be interpreted so as not to apply to the matter

outside the jurisdiction of the enacting body (law itself isn’t invalid, but inapplicable to the extent it is outside the jurisdiction)

o Operability can argue it’s inoperative through doctrine of paramountcy, which states that where there are inconsistent federal and provincial laws, federal prevails and provincial law rendered inoperative to extent of inconsistency.

Interjurisdictional immunity figures into the rules around applicabilityFederally-incorporated companies

Idea finds its genesis in cases involving federally incorporated companies Otherwise valid provincial law cannot impair status of federally incorporated company

(read down to exempt the federal company) On the other hand, provincial laws with “less serious” impact on the companies have

been held applicable.Federally-regulated undertakings

Undertakings engaged in interprovincial or international transportation or communication (federal jurisdiction) immune from otherwise valid provincial laws.

Until 1966, provincial laws inapplicable to federally regulated undertakings were laws that sterilized the activity.

In the Bell 1996 case, SCC abandoned language of sterilization and instead ruled that Bell was immune from provincial minimum wage law on grounds that it “affects a vital part of the management and operation of the undertaking”

o Much broader test for immunityo Commentators argued this was undesirable in a federation where so many laws

for worker protection are at provincial level. Bell 1988, SCC reaffirms commitment to vital parts test.

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o Rejects view that there could be concurrent provincial jurisdiction over a vital part of a federal undertaking

o “basic, minimum and unassailable content” had to eb assigned to each head of federal legislative power, and since federal power is exclusive, provincial laws can’t affect that unassailable core.

In Irwin Toy, SCC held that although advertising was vital part of operation, vital parts test only applies to provincial laws that purported to apply directly to federal undertakings.

o If only indirect effect, law would only be inapplicable if it impaired/paralyzed the undertaking.

o As per Hogg, this makes little sense: “if that core is protected from direct invasion, why should it be exposed to indirect invasion?”

Suggests SCC is wavering in commitment to vital parts test.Other Federal Matters

Doctrine of IJI also applies outside fields of transportation/communication – postal workers, teachers on military base, etc

Rationale of IJI Theory is that since each head of federal power is exclusive, it also denies power to the

provincial legislature Difficult to distinguish when IJI applies from occasions where pith and substance

doctrine applies. Pith and substance stipulates that a law in relation to a provincial matter may validly

affect a federal matter. o This is applied much more frequently than IJI, which reads down a provincial law

to exclude the federal matter. Distinction seems to invoke judicial judgment as to severity of the impact of provincial

law on federal subject. o If it’d affect unassailable core, then IJI stipulates law must be read down. o If it does not intrude heavily on the federal subject, pith and substance stipulates

that provincial law may validly apply to federal subject. Provincial Entities

There is no case applying IJI to federal laws in order to protect provincially incorporated companies or undertakings.

Doctrine ought to be reciprocal.

ii. Commission du Salaire Minimum v. Bell Telephone Company of Canada, [1966] SCR 767

Commission du Salaire Minimum v Bell Telephone Company of Canada [1966]Short noteFacts Minimum wage commission sought to impose a wage levy upon D company (BELL) in 1959.

D said it was not subject to Act- trial judge maintained action. Judgment referred by CA. Appeal to SCC.

Issue Are Bell’s EEs subject to provincial legislation? no

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Ratio Provincial legislation that affects a vital part, without necessarily sterilizing or impairing operation of a federally regulated undertaking will result in the protection of the undertaking via interjurisdictional immunity.

Reasoning

This case comes from Quebec- and s. 13 of the Minimum Wage Act of Qc states that they can decide the rate of minimum wage page to any EE-- etc. Respondents claim not subject to levy because it is under federal legislation as per s. 92 (10) (a) (c) and it has been declared by Canada to be a work for the general advantage of Canada. There is no question about whether the Act generally applies provincially because it does.“in my opinion all matters which are a vital part of the operation of an interprovincial undertaking as a going concern are matters which are subject to the exclusive legislative control of the federal parliament within s. 91 (29).”-this case is about the legislation being an ancillary rather than exclusive power“With respect, I subscribe to this view. In my opinion, regulation of the field of employer and employee relation-ships in an undertaking such as that of the respondent's, as in the case of the regulation of the rates which they charge to their customers, is a "matter" coming within the class of subject defined in s. 92(10) (a) and, that being so, is within the exclusive legislative jurisdiction of the Parliament of Canada. Consequently, any provincial legislation in that field, while valid in respect of employers not within exclusive federal legislative jurisdiction, cannot apply to employers who are within that exclusive control”

Held Federal Jurisdiction- Minimum Wage Act being a statute --applying to the wages paid by an ER to EE does not apply to D company because D is an undertaking of the kind in s. 92 (10) (a) (c) (REMEMBER THESE ARE EXCEPTIONS!) So basically D= federal undertaking. Because “the determination of such matters as hours of work, rates of wages, working conditions etc is a vital part of the management and operating of any commercial or industrial undertaking.”

ii. Tessier Ltée v. Quebec (Commission de la santé et de la sécurité du travail), 2012 SCC 23

Derivative jurisdiction: business that while considered provincial, bc of ties to federally regulated undertakings, are considered federal! Vital parts test: an undertaking provincial by nature forms a vital part of a fed regulated undertaking. Comes from: Northern Telecom: a maintenance comp that did most of its work for Bell Cdn ; or a letter carrier that did most work for Cnd Post

Northern Telecom 1980 SCR Facts: Norton providing installation services to Bell Cnd (telecommunications – federal) The trade union, Communications Workers union, decided to file for certification that concerned the supervisors of Norton telecom. Filed under the Cnd Labour Code (allows for the unionization of supervisory personnel) . This is not the case in Qc – which excludes managerial positions - at the time, certifications already exsisted under Provincial legislation

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- was certified under the Cnd Labour Code. The employer did not challenge the jurisdiction. Only after certification filed that the employer decided to challenge the jurisdiction

Holding: absence of challenge at the time of certification led the scc to denying their challenge. Result: the Court refused to answer the questions.

- Norton was providing installation services to Bell Canada. Telecommunications = s. 92(10a) (interprovincial transportation) read in conjunction with 91(29)

- Issue : is the fact that Services, a provincially regulated undertaking – almost exclusively, are provided to a federally undertaking,

Ratio: must look at the main activities of the undertaking!

Reasoning - SCC looked at the evidence before the board and tried to find indications regarding

whether it was federally regulated undertaking. - Important paragraphs: p. 132 ref to Construction Montcalm. Applicable principles –

“In an elaboration of the foregoing, Mr. Justice Beetz in Construction Montcalm Inc. v. Minimum Wage Commission[4] set out certain principles which I venture to summarize:[Page 132](1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as these of "a going concern", without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.

On the basis of the foregoing broad principles of constitutional adjudication, it is clear that certain kinds of "constitutional facts", facts that focus upon the constitutional issues in question, are required. Put broadly, among these are:(1) the general nature of Telecom's operation as a going concern and, in particular, the role of the installation department within that operation;(2) the nature of the corporate relationship between Telecom and the companies that it serves, notably Bell Canada;(3) the importance of the work done by the installation department of Telecom for Bell Canada as compared with other customers;

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http://www.canlii.org/en/ca/scc/doc/1979/1979canlii3/1979canlii3.html#_ftn4


[look at r’ship between telecom and his other cx]. In tessier, a lot of emphasis placed on the fact that Tessier had many cx wh were unrelated to shipping ]

(4) the physical and operational connection between the installation department of Telecom and the core federal undertaking within the telephone system and, in particular, the extent of the involvement of the installation department in the operation and institution of the federal undertaking as an operating system.”

Northern Telecom 2 1983

Holding: The subsidiary undertaking was cosniderd a fed regulated undertaking in the same manner as the federally regulated undertaking.

Test: does the subsidairy form an integral part of the Fed regulated undertaking?!! YES

“We are not here concerned with micro-differences between the function of the installers and that of comparable Bell employees but rather with the macro-relationship between the work of the installers in the subsidiary operation and the functioning of the core undertaking. It is, with all respect to those who have down through the long years of this process otherwise concluded, my view on an examination of the record now before this Court, that an application of the ratio decidendi of the Stevedores' case, supra, and the tests for the determination of the appropriate constitutional classification prescribed in this Court in Telecom 1980, supra, lead inexorably to the assignment of the labour relations of these employees of Telecom to the federal jurisdiction. In the words of Beetz J. in Montcalm, supra, at p. 768:”

Note : Stevedoring isn’t federal, only by way of derivative jurisdiction (accessory to navigation and shipping)

- first time that the court assessed the constitutional competence when EEs do not form a discrete unit

Tessier Ltée v Quebec [2012]No derivative Fed jurisdiction when EEs aren’t separate + work is a minor partFacts Tessier was a company that rented heavy equipment, operating solely in Quebec. 14% of revenue and 20% of

its salaries came from stevedoring. The stevedoring services were not performed by a discrete unit of EEs. T didn’t want provincial Act respecting occupational health and safety to apply to it, so it argued that its stevedoring services are part of the federal government’s jurisdiction over shipping.Their argument basically:Federal undertaking = shippingDerivative jurisdiction = stevedoring bc it is integral to shippingTessier = 14 % of revenue was stevedoring

Judicial History: Sup Ct said it was federal, CA said it was provincial bc stevedoring was a minor part of its overall operations and they did not have a separate division.

Issue Is Tessier subject to federal regulation through derivative jurisdiction because 14% of its work is for federally regulated shipping companies? NO

Holding The essential operational nature of Tessier’s work is local and its stevedoring work is not a discrete unit and is a minor part of tis overall operations.

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Ratio Derivative jurisdiction will not apply if the EEs performing the work do not form a discrete unit, and if the work represents an insignificant part of the ongoing nature of the operation, even if the work is vital to the functioning of the federally regulated undertaking.

Reasoning The Court (Abella)Jurisdiction over labour relations

“presumptively” within the jurisdiction of the provinces under s. 93(13) – “property and civil rights” (Toronto Electric Commissioners v Snider 1925)

Federal jurisdiction applies either when 1) Direct federal jurisdiction: whether the work, undertaking, business’s essential operational

nature brings it within a federal head of power 2) derivative jurisdiction: whether the essential operational nature makes it integral the fed

undertaking (Stevedores Reference)o The case dealt with a company where the EEs were exclusively engaged in stevedoring

“Essential operational nature” does NOT include exceptional aspectso small amount of local service does not

Rejects Tessier’s argument that it qualifies under direct jurisdiction Tessier tried to argue that Stevedores Reference: established that stevedoring is essential to

navigation and shipping under s. 91(10) and therefore Tessier came under direct jurisdictiono However, the Reference has since been read as a case of derivative jurisdictiono Interpretation over time does not see the Reference as establishing that any stevedoring =

federal 91(10) did not confer absolute authority over shipping to the Feds, it needs to be read in light of

92(10) – which gives the provinces authority over transportation within their province

Tessier does not qualify under derivative jurisdiction Derivative jurisdiction applies when: the company is vital/essential/integral to the federal

undertaking (Northern Telecom 1)o this is assessed from both the perspective of the federal undertaking and the work wishing

to be considered as federalo won’t qualify if the services are not indispensible (Canada Labour Relations Board v Paul

L’Anglais Inc 1983: company who sold sponsored air time for a television broadcaster was not federally regulated

o in Northern Telecom 2: the complete integration of installers’ daily work with the task of establishing/operating a telecommunications network makes it an integral part

2 ways that derivative jurisdiction has been recognized in the past: 1) When services provided to the federal undertaking form the exclusive or principal part of

the company’s work activities(Stevedores Reference; Letter Carriers’ Union of Canada) 2) When the services provided to the federal undertaking are performed by employees who

form a functionally discrete union that can be constitutionally characterized separately from the rest of the related operation. (ex: Northern Telecom 2: installers were independent from the rest of Telecom)

This case is a different situation the EEs do not form a disrete unit and the work is a minor part of the overall operation

If Tessier was directly subject to federal jurisdiction – the percentage of work for the feds wouldn’t be relevant, “but since Tessier can only qualify derivatively as a federal undertaking, federal jurisdiction is only justified if the federal activity is a significant part of its operation” [51]

Application to the facts: EEs did stevedoring only occasionally, EEs were fully integrated Therefore, Tessier’s essential operational nature is local “Not to retain provincial hegemony over these employees would subject them to federal

regulation based on intermittent stevedoring, notwithstanding that the major part of Tessier’s work consists of provincially regulated activities” [59]

Notes

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3. FREEDOM OF ASSOCIATION

a. Sources

i. Peter Hogg, Peter Hogg, Constitutional Law of Canada, 5th edition, Assembly and Association, pp. 44-1 to 44-14

Hogg, Constitutional Law of Canada, 5ed, pp 44-1 to 44-14 (Assembly & Association)Distribution of PowersAuthority over assembly is divided between provincial and federal sovereignty:

Provincial: Regulate meetings, parades & gatherings as matters of a purely local nature (s 92(16))

Federal: Prohibit riots and breaches of the peace under the criminal law power (s 91(27))Authority over association is also divided:

Provincial: Regulate clubs, societies, partnerships, etc, as matters of property and civil rights (s 91(13)

Federal◦ Prohibit conspiracies under criminal law power (s 91(27))◦ Regulate mergers and monopolies (s 91(27))◦ Regulation of trade & commerce (s 91(2))

For both assembly and association, regulation in the labour context falls to the level of government which has authority to regulate the industry the workers are in. For the federal government, this includes banking, inter-provincial transportation and telecommunications.Freedom of AssemblyKey elements of s 2(c) are that everyone has the fundamental freedom of peaceful assembly. The word peaceful is used so that no doubt can be cast on the power to prevent riots and other disturbances of the peace. The SCC has held that picketing is an expressive activity, and has never considered whether it is protected by freedom of assembly, though it plausibly could, according to Hogg.Freedom of AssociationFormation of AssociationFreedom of association (s 2(d) includes establishing, belonging and maintaining associations. It does not require the legislature to enact comprehensive legislation for certification of unions, collective bargaining, etc. This was established in Deslisle, 1999. Delisle was a challenge by RCMP members to their exclusion from the Public Service Staff Relations Act. In that case, the Court found there is only a positive obligation on the legislature in the most exceptional circumstances. In Dunmore (2001), the Court held that there was a positive obligation for the legislature to enact legislation to enable agricultural workers to exercise their right to freedom of association.Two differences between these cases:

· It was not feasible for agricultural workers to exercise their rights without help from the legislature.

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· Agricultural workers are not employed by the government so do not enjoy the application of the Charter to their employment situation as RCMP officers do.

The situation for agricultural workers in Ontario was the same as if there was no Labour Relations Act at all. In dissent, Major J wrote that the difference for agricultural workers was not application of the Charter, but instead (a) the inherent character of farm work and (b) the resistance of employers, both of which made it difficult to organize. In Dunmore, the Court held that the legislation did not have to include rights to collective bargaining and to strike, but needed to include a statutory freedom to organize, with “protection essential to its meaningful exercise, such as freedom to assemble, to participate in the lawful activities of the association and to make representations.”Purposes of AssociationAssociation is an individual, not collective right. It is possessed by the individual, not the association. Associations, once formed are not guaranteed rights solely on the basis that a given activity is foundational or essential to the purpose of the association.

3. Professional Institute v Northwest Territories (1990): Legislation that establishes a public service union and disallows other associations from becoming the bargaining agent does not violate freedom of association.

4. Labour Trilogy (1987): Legislation denying the right to strike to public sector employees, imposing caps on wage increases, ordering dairy workers back to work, does not violate freedom of association.

In the above cases, the ability of the association to undertake effective action was seriously impaired but there was no breach of freedom of association. Individuals' right to form an association does not give it the power to carry out its essential objectives. If it did, then the association would have more rights than its members.Freedom not to AssociateThree scenarios:

3. Closed shop: must be a member of the union before being hired4. Union shop: must become a member of the union after being hired5. Agency shop: need not be a member, but must pay dues

Lavigne (1991) was an agency shop situation. L did not challenge the collection of dues, but claimed that spending the money on causes he did not agree with violated his right of free association. The Court unanimously upheld the agency shop. However there was substantial disagreement among the judges as to whether the right of association included the right not to associate, and also if the right was violated, whether it could be saved by s 1.Advance Cutting & Coring (2001) was a union shop situation. Quebec law requires construction workers to join one of a choice of five unions, and no others. Eight members of the Court agreed that the right to associate included a right not to associate. But they disagreed on whether the right had been violated. One idea proposed that if membership required ideological conformity, then it violated 2(d). Another idea was that forced association could be acceptable if it advanced the common good or “collective social welfare”. The future of union shop agreements is hard to predict.Regardless of Advance Cutting, most union security arrangements are in the collective agreements, so they are not subject to the Charter. Even when the Charter does apply, there is a strong argument to save forced membership requirements under s 1, because union security arrangements strengthen the bargaining position of the employees and prevent free-riding. Whether union security arrangements can be saved by s 1 has not yet been considered by the SCC.

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s. 2(d) of the Canadian Charter

2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press

and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

iii. Compare with:

a. s. 3 of the Labour code

= Every employee has the right to belong to the association of employees of his choice, and to participate in the formation, activities and management of such association.

b. s. 8 of the Canada Labour codeEmployee freedoms

8. (1) Every employee is free to join the trade union of their choice and to participate in its lawful activities.

Employer freedoms(2) Every employer is free to join the employers’ organization of their choice and to participate in its lawful activities.

b. Applicability of the Charter

Dolphin Delivery Ltd. v. R.W.D.S.U. [1986] 2 S.C.R. 460

Dolphin Delivery Ltd v RWDSU [1986]Short noteFacts RWDSU (union) is on strike. Employer is Purolator.

Dolphin Delivery is a business associated with the employer.Union tries to picket Dolphin; Dolphin gets injunction to stop the picketing.

Issue 5. Does the Charter apply to injunction?6. Does the injunction violate 2b freedom of expression?7. Is the violation justified?

Ratio Lawful picketing is protected expression under 2(b); BUT Charter does not apply to an injunction because a court order in a private dispute is not government action.

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Reasoning

McINTYRE6. Does the Charter apply to an injunction? – NO

1. Charter applies to the common law where the common law is used as a basis for government action. Here, it’s a court order in a private dispute no government action!

7. Does the injunction violate 2b freedom of expression? -- YES1. 2(b) protected expression includes picketing that causes economic

pressure and breach of contract. Excluded from 2(b) protection: violence, threats, unlawful acts

8. Is the violation justified under s1? – YES

(additional judgments by Beetz J and Wilson J)Notes (We read this case mainly for the state action issue)

c. What is the constitutionally protected Freedom of Association?

The Supreme Court trilogy of 1987

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d. Components of Freedom of Association

i. Right to strike and lock-out

Reference re public service employee relations act, [1987] 1 S.C.R. 313 (ALTA)

Reference re public service employee relations act [1987]Short noteFacts Public Service EE relations Act= public service EEs

Labour Relations Act= Firefighters and hospital EEs

Police Officers Collective Bargaining Act= Police Officers

Appeal is to determine whether the above legislation violates the guarantee of freedom of association as per s.2 (d) of Charter, and whether such violation can be justified under s. 1 of the Charter.

Issue Issues: (1) whether the provisions of 3 Acts: Public Service EE relations Act, Labour Relations Act and Police Officers Collective Bargaining Act of Alberta--which prohibit strikes and impose compulsory arbitration to resolve impasses in collective bargaining are consistent with Charter s. 2 (d); (2) Whether they are justified under s. 1;(3) Whether provisions regarding arbitration are inconsistent with Charter?

Judicial History

Judicial History: Alberta Court of Appeal found that the statutory restrictions on strike activity were not an infringement of s. 2 (d) of the Charter. Kerans JA said that a measure of restraint should be exercised; courts should not interpret s. 2 (d) as providing Charter protection to “all actions by all groups to carry out all group purpose.” Held that the prohibition of strikes did not limit freedom of association of public sector EEs. Further held that arbitration has not been proved to be detrimental to vitality of unions. Belzil JA also found the right to strike to fall outside ambit of the Charter. However, Belzil JA found that collective bargaining is within s. 2 (d) but striking is not

Ratio s. 2 (d) does not include the right to strike by an individual or group. Right to strike exists by way of statute.Freedom of Ass’n is limited: liberty of i individidual to contribute to the pursuit of a common goal.

Held: Acts not inconsistent with the Charter neither are provisions regarding conduct of arbitration since Charter does not guarantee a specific form of dispute resolution as a substitute for the right to strike. The constitutional guarantee of freedom of association in s. 2(d) of Charter does not include, in the case of a trade union, a right to bargain collectively and the right to strike. If this limit were not put in place, s. 2(d) would be sweeping and meaningless. “The rights for which constitutional protection is sought--the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer--are not fundamental rights or freedoms.” Further, freedom of association does not vest independent rights in the group. e.g. the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual (e.g. striking)

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Dissent: Dickson, J, Wilson J

Strike=cessation of work, refusal to continue to work by 2 + persons acting in combination. Each of the above acts prohibits striking and makes it an offense to strike/promote a strike. Each Act includes arbitration scheme for resolving disputes.

The dissenting judges put forth the question as (1) to what extent freedom of association, as guarantee by s. 2(d) of the Charter, protects the freedom of workers to act in concert, and to bargain and withdraw their services collectively. (2) are trade unions accorded any constitutional protection at all? (3) what is the approach taken to the nature of freedom of association?

At the time of this decision the jurisprudence in Canada was divided -on one hand BC CA and FCCA had endorsed constitutive definition of freedom of association, concluding that collective bargaining and strike activity were not protected by s. 2(d). Contrarily, Ontario Divisional Court and Sask CA, have adopted broader definitions--holding that freedom of association includes freedom to pursue common purposes and to engage in collective activities and not merely right to form joint associations.

The majority in Dolphin Delivery- concluded that the Charter’s guarantee of freedom of association does not affect laws which limit or control picketing. Federal Court of Appeal case= Public Alliance of Canada v. The Queen also denied Charter rights for collective bargaining. Marceau J agreed with Mahoney J and his reliance on Dolphin Delivery “I fail to see on the basis of which rule of construction, however liberal it may be, one can be able to give the words “freedom of association” a meaning broad enough to include the right to strike.”

Dissenting judges say that Charter cannot guarantee freedom of association without also guaranteeing the freedom to do that for which the association is intended. “The right to organize and bargain collectively is only an illusion if the right to strike does not go with it.”

In the United States, the right to collectively bargain has been deemed “fundamental” by the SC and is protected under the First Amendment. However, freedom to strike does not seem to be protected. These cases seem to balance freedom of association with the public interest at the point of definition of the freedom itself.

[there is an entire discussion on international law and freedom of association which is omitted from this summary]

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Reasoning

The judges remind us that based on Big M Drug Mart Ltd- the meaning of a provision of the Charter is not to be determined solely on the basis of pre-existing rights or freedoms. In this case: whether or not a right or freedom to strike existed prior to the Charter--it not determinative of the meaning of s. 2(d) of the Charter. Also remind us that the Constitution, including the Charter, is the supreme law and anything written in any of the disputed Acts must be consistent with the Constitution (Reference Re Manitoba Language Rights). Further, Hunter v. Southam points out that we must adopt a purpose approach to the Charter= to be understood in light of the interests it was meant to protect. Freedom of association should not be interpreted so restrictively.

Para 87: “Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer. Association has always been the means through which political, cultural and racial minorities, religious groups and workers have sought to attain their purposes and fulfil their aspirations; it has enabled those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.”

The judges point of s. 2 (d) is to recognize the social nature of human endeavours and to protect individuals from state-enforced isolation. Supposed to protect the freedom of individuals to interact with, support and be supported by, their fellow humans in collective activities. s. 2 (d) therefore includes the freedom to bargain collectively and to strike.

“The role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers, and the capacity to bargain collectively has long been recognized as one of the integral and primary functions of associations of working people”

Resultingly, s. 93 of the Public Service Employee Relations Act, s. 117.1(2) of the Labour Relations Act and s. 3(1) of the Police Officers Collective Bargaining Act, infringed the guarantee of freedom of assoiation in s. 2(d) of the Charter-- and not justifiable under s-

Majority Beetz, Le Dain, La Forest : The constitutional guarantee of s. 2 (d) does not include a guarantee of the right to bargain collectively and the right to strike. The main issue is not the importance of freedom of association, but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. Collective bargaining and striking are not fundamental rights/freedoms. They are the creation of legislation. A s. 1 application is not warranted because it allows for a review of legislative policy- which the court should not do.

McIntyre: views the question as whether the Charter gives constitutional protection to the right of a trade union to strike as an incident to collective bargaining. Issue is not whether strike action is an important activity, nor whether it should be protected at law. Each province has enacted legislation for this. The appellants do not submit that a strike is mentioned in the Charter but that it is incidental to the exercise by a trade union of the freedom of association guaranteed by s. 2(d)

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Makes the important distinction that “it must be recognized that while s. 2(d) advances many group interest and, of course, cannot be exercised alone, it is nonetheless a freedom belonging to the individual and not to the group formed through its exercise.” “People, by merely combining together, cannot create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. Freedom of association cannot therefore vest independent rights in the group.” If the charter right for collective bargaining is not found in the Charter for an individual it cannot be implied for the group, merely by association. Meaning- the rights of the individual members of the group cannot be enlarged merely by the fact of association.

Therefore, McIntyre interprets s. 2(d) of the Charter to mean that the Charter protection will attach to the exercise in association of such rights as have Charter protection when exercised by individual.- no individual right means no group rights.

Accordingly the right to strike cannly receive protection under s. 2(d) if it is an activity which is permitted by law to an individual.

Therefore s. 2(d) does not include right to strike.= no group rights. “In my view, it cannot be said that at this time it has achieved status as a fundamental right which should be implied in the absence of specific reference in the Charter.”

“In summary, my concerns about interpreting freedom of association in section 2(d) to "constitutionalize collective bargaining" go beyond the problems that this would present for industrial relations in Canada. I am concerned that if the courts interpret the Charter to include rights that are not expressly provided for and thus are even more difficult to define as to value and scope, they will be overloaded with litigation under section l and two opposite, but equally unhappy, scenarios may result. Some judges might interpret section 1 so aggressively as to initiate the process of remaking large chunks of Canadian law. This might cause the legislators to retaliate by invoking the override provisions in section 33 of the Charter. Alternatively, the courts might take the opposite tack by giving the legislatures too broad an ambit under section 1. In either case, the result might be the trivialization of the rights that were expressly intended to be protected in provisions such as section 2(d). Where the Charter is ambiguous as to the extent to which a certain right or freedom is protected, the better approach is for our courts to proceed very cautiously: first, by interpreting section 2 so as to give a limited application to the rights allegedly implicitly protected; then by providing a more searching scrutiny within section 1 of those rights that have expressly been protected in section 2.”

Notes Note: Dickson on rights vs. freedoms: "Rights" are said to impose a corresponding duty or obligation on another party to ensure the

protection of the right in question whereas "freedoms" are said to involve simply an absence of interference or constraint. This conceptual approach to the nature of "freedoms" may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms. Nonetheless, for the purposes of this appeal, we need not determine whether "freedom" may impose affirmative duties on the state, because we are faced with a situation where overt government action in the form of legislation is alleged to interfere with the exercise of freedom of association.

R.W.S.D.U. v. Saskatchewan, [1987] 1 S.C.R. 460 27


ii. Right to Collective Bargaining

P.S.A.C. v. Canada, [1987] 1 S.C.R. 424

P.I.P.S. v. Commissionner of N.W.T., [1990] 2 S.C.R. 367PIPS v Commissionner of NWT [1990]s. 2d does not extend to the certification processFacts 32 nurses in the Northwest Territories were employed by the federal gov’t and were represented by the

Professional Institute of the Public Service of Canada (Institute). Then, the terrirory – NTW- became the employer.

In order to continue to represent the nurses in NWT, the Institute was required to be incorporated. S. 42(1) of the NWT’s Public Service Act required that an employees’ association be incorporated “by an Act empowering it to bargain collectively”. However, the NWT gov’t did not incorporate the Institute - because it said there were already other employees’ associations incorporated who could do represent the nurses. The Institute sought a declaration that s. 42(1) was inconsistent w/ freedom of association.

Judicial History: Sup Ct said there was a violation, while CA disagreed.Issue Does s. 42(1), by requiring that a union be incorporated in order to bargain collectively, infringe on s.

2d of the Charter? NO (majority) ; Yes and not justified under s. 1 (dissent)Ratio Sopinka (Laforest): So long as the Institute exists and EEs can join it, there is no infringement of s. 2d. 2d

applies only to an individuals’ right to associate. Trilogy established that the frustrating the objective of an association does not violate s. 2d. Since collective bargaining isn’t protected, legislature’s choice as to who it bargains with isn’t protected eitherL’Heureux-Dubé (concurring) : S. 2d does not protect an association’s objectives, since there a wide range of ass’ns whose objectives might be undesirable - sexist/racist.Dickson CJ (concurring) : Right being claimed is a group right, s 2d protects individual rights. NWT has no duty to enact a scheme of collective bargaining; therefore it can place limits through statute

Dissent - Wilson, Gonthier, Cory JJ: Right of EEs to join association of their choice or to change their association are fundamental importances - s. 42(1)(b) infringes EE’s choices in this respect. Although govt has no duty to enact collective bargaining laws, once it does, they are subject to the Charter. The fact they are still able to meet without interference has no meaning if association isn’t recognized by the labour legislation. Not justified under s. 1 – effects are disproportionate to the objective.

Reasoning Dickson J: agrees with Sopinka- Conclusion can be drawn solely on the labour law trilogy (1987: Ref Re Public Service Employee

Relations Act (Alta); PSAC v Canada; RWDSU v Canada) established that s. 2(d) does not include right to bargain collectively.

o issue here is the first stage of collective bargaining (how agents are chosen) & the claim is about group rights –s. 2(d) only protects individuals rights

- Gov’t has no obligation to enact collective bargaining scheme, therefore the legislature cannot be prevented from placing limits through the statute

Dissent - Cory J (Wilson, Gonthier) :- Result of the legislation is that “the government is able to control every aspect of the collective

bargaining process” through the requirement that the association is incorporated & the fact that the Commissioner “may” enter into a collective agreement:

- By precluding all groups not incorporated from participating in the process, the legislation “To my mind, this strikes at the very heart of freedom of association.” (p 379)

Importance of right to associate to workers- wages and working conditions are important to employees – EE’s choice to a group that will

negotiate on his behalf is of “fundamental importance” (p 380); EE needs to have confidence in their representative – this is lost if they can’t chose their representative

Although NWT has no duty to enact legislation, once it do so it became subject to constitutional scrutiny

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- does not agree that if gov’t has no duty to bargain with anyone, it also can exercise absolute discretion (with no bars/guidelines): “such untrammeled government discretion must prima facie violate an individual’s freedom of association” (381)

- EEs should have the right to choose their association – this choice is denied by the Act- Sports analogy- it’s like saying EEs could form a team, but only teams approved by the gov’t are

allowed to play hockey or book ice time (382)- S. 2d is violated when the EEs right to select/form/change the ass’n is frustrated- Disagrees that s. 42(1)(b) does not effect the existence of the Institute

o A union can only exist if it can bargain collectivelyo The fact people can still meet “has no meaning if the association cannot be recognized

under the relevant labour legislation” (384)- Once a gov’t makes a statutory definition of a group, “then any individual should be able to

attempt to get his or her group recognized as such an entity” (384)Not saved by S. 1:

1. Importance of legislative objective? Certification is the foundation of collective bargaining (384)2. Restricting EE’s freedom of ass’n disproportionate to objective of having a structured bargaining

process- other jurisdictions use independent third party during certification- NTW does not have a process to determine the wishes of the employees- Not necessary to give the gov’t complete control over certification process

L’Heureux-Dubé: agrees with reasons and result of Sopinka, but adds that objects, purposes and activities of an ass’n are not protected, including attending/retaining status to bargain collectively (trilogy)- there would be serious consequences if s. 2d encompassed the objects of bc there is a wide range of associations with different objects (could include sexist/racist objects)Laforest: agrees, but does not think that objects of ass’n needed to be discussed

Majority - Sopinka J (Laforest, H-B, Dickson) :Need to follow the precedent set in the Trilogy

- Alberta Reference unanimous recognition that s. 2d protects:o (1) protects the freedom to establish, belong to, maintain associationo (2) does not cover the objects, purposes and activities of the ass’no (3) protects exercise in ass’n of individual constitutional rightso (4) does include the exercise in ass’n of individual lawful rights (ie, ppl joining together

to pursue objects they could lawfully pursue as individuals)- However, restricting collective bargaining does not affect the rights above – individuals are still

free to form and join unionso Bargaining for working conditions IS NOT an individual constitutional/legal right

- Precedent Alberta Reference indicates that collective bargaining is not covered by s. 2do Trilogy upheld: restrictions on right to strike, imposition of binding arbitration without

negotiation, imposition of terms of employment without negotiation- No s. d violation so long as the Act does not impair freedom to establish, belong to or maintain

an associations. 2d not violated by the lack of Certification Process

- Argument the lack of legislation with objective criteria violates s. 2d fails because Alberta Reference established: it is “no longer open to an association (union or otherwise) to argue that the legislative frustration of its object is a violation of s. 2(d) if the restriction is not aimed at and does not affect the establishment or existence of the association – unless the association’s activity is another Charter-protected right, or an activity that may lawfully be performed by an individual.” (p 405)

- Lack of process does not affect the existence of the Institute, ability to join the Institute- The legislation’s choice as to who it bargains with is not constitutionally protected, since collective

bargaining is protected eithero the provisions “amount to nothing more than a legislated form of labour relations regime

based upon voluntary recognition.” (p 406)o it is established that the gov’t has no common law obligation to bargain and a gov’t can

suspend a statutory obligation to bargain (PSAC)

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s. 2d not violated by the Incorporation requirement- the requirement does not prohibit the establishment/membership in unions- it is just the means by which the gov’t has chosen to recognize unions- to guarantee the s. 2d right of individuals, govt only needs to “permitting rival associations to exist and vie for recognition” (408)

Notes

Dunmore v Ontario (AG) 2001 SCCFacts Ontario law that prevented agricultural workers and others, from the general access

to the Labour BdIssue The SCC decided that the exclusion of a group of agricultural workers, prevented

them from association. First time we impose to the govt a positive obligation to favour the right of association of employees. Before this, all the decisions – did not recognize right of association under the Charter

Ratio SCC told Ontario to rewrite the law to give agricultural workers mofre freedom of ass’n.

Reasoning

Health Services Sector- Facilities Subsector Bargaining Association v. British Columbia, 2007 SCC 27

- no case after Health Services has defined what “bargaining in GF means”

Health Services Sector-Facilities Subsector Bargaining Ass’n v BC 2007 SCC 27Facts The BC legislature passed Health and Social Services Delivery Improvement Act, which

introduced changes to the conditions of employment of health workers in BC. The changes included:

transfer and multi-worksite assignment procedures & rights (ss 4, 5) contracting out (s 6) job security programs (ss 7, 8) layoff and bumping procedures & rights (s 9)

In addition, s 10 of the Act provided that provisions of collective agreements which contravened the Act were null (existing and future). Gov’t banned certain collective bargaining clauses. (paras 1, 10, 11) The Act had the effect of altering existing collective agreements and circumscribing the possibilities for future collective agreements.

The Act is reproduced in the dissent at para 172.Issue Does freedom of association protect collective bargaining rights?

Ratio Freedom of association protects the process of collective bargaining but not any specific outcome. Interference with matters highly important to collective bargaining are more likely to cause a violation of 2(d).Fundamental right to negotiate (imposed obligation on ER to negotiate) in GF and reciprocally.Change from status quo: 2d only gave ppl right to associate and act together in ass’n.

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Reasoning Majority: SS 6(2), 6(4) and 9 breach s 2(d) of the Charter. (para 2)

S 2(d) protects the capacity of trade unions, in association, to engage in collective bargaining on fundamental workplace issues, but dos not protect all aspects of collective bargaining. S 2(d) protects a process of collective bargaining. (para 19) This is consistent with the historical movement towards recognition of a procedural right and with the underlying values of the Charter. (paras 68, 80)

S 2(d) does not apply solely to individual action. It concerns workers' associational activities and their ability to act in common to reach shares workplace goals. It does not guarantee the particular objectives sought by workers. S 2(d) is a limited right. It protects the process of collective bargaining from substantial interference. (paras 89, 91) Substantial interference is that which undercuts the activity of workers joining together. Examples include, “union breaking”, unilateral nullification of terms without meaningful consultation. (para 92). There are two steps to determining if interference is substantial:

1. Determining how important the matter affected is to the collective bargaining process

2. Determining the manner in which the interference impacts the collective right to good faith negotiation and consultation

Interference with the right must satisfy both conditions in order for a violation of s 2(d) to be found. The more important the matter affected, the more likely a violation will be found. (paras 93-95) There could be substantial intereference with an important matter (step 1) but if the process of GF negotiation is respected, a s 2(d) violation might not be found. (para 94)

The duty to bargain in GF is procedural and does not guarantee the content of a particular agreement (para 99) “The principle of good faith in collective bargaining implies recognizing representative organizations, endeavouring to reach an agreement, engaging in genuine and constructive negotiations, avoiding unjustified delays in negotiation and mutually respecting the commitments entered into, taking into account the results of negotiations in good faith.” (para 98) Hard bargaining (taking a tough position in the hope of forcing the other side to agree) is not a violation of GF, but surface bargaining (pretending to seek an agreement but really hoping to destroy the collective bargaining process) is a violation of GF. (para 104) The right to collective bargaining cannot be reduced merely to the right to make representations. (para 114)

SS 4 & 5 interfere with collective bargaining because it renders it meaningless to bargain on these matters in future negotiations. However, these changes are relatively minor, so s 2(d) is not violated (see step 1). (paras 118, 119, 131)

SS 6(2) and 6(4) interfere with collective bargaining because provisions on contracting out are nullified (present and future). This is a matter central to freedom of association because retaining secure employment is one of the most essential protections unions can offer their members. (paras 121, 130)

SS 6(3), 6(5) and 6(6) seem harsh (make it harder for a certified union to transfer its certification on sub-contracting of health service) but this simply modifies the Code and

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therefore these sections do not interfere with collective bargaining (see step 1). (paras 122, 123)

S 9 restricted the procedure and rights for layoffs and bumping and prohibited alternative provisions in collective agreements. This renders collective bargaining on these matters meaningless. Like ss 6(2) and 6(4) these are matters central to freedom of association. (paras 126, 127, 130)

Having found significant interference for ss 6(2), 6(4) and 9, the Court then considered whether these sections preserved the process of collective bargaining. These measures constitute a virtual denial of the right to a process of GF bargaining, primarily because they preclude any consultation and void any provisions that are contrary. (paras 132, 135) The Court then concluded that these sections were not saved by s 1 of the Charter (para 141).

Dissent (Deschamps): Agreed with the majority's holding on scope of s 2(d) but disagreed with the majority's analysis. Would have held that ss 4, 5, 6(2), 6(4) and 9 violated 2(d), and with the exception of s 6(4) were saved by s 1. (paras 170, 171, 174)

Honestly, I don't understand the difference between the majority's 2 steps and Deschamps, except that hers is stated more clearly.

Ontario (P.G.) c. Fraser, [2011] 2 S.C.R. 3

While all the justices except Abella J, agreed that the AEPA was constitutional, the justices disagreed as to the reasons, resulting in three concurring reasons. The majority judgment, written by McLachlin CJ and Lebel J and supported by three other justices, found that, as a derivative of s. 2(d), employees had the right to a process wherein they could make representations to employers and which the employers considered in good faith.1 The majority reasoned that a duty to negotiate in good faith could be interpreted from the wording of the legislation, despite the absence of any express reference to such a duty. This reasoning was described by Monohan and Sekthi as “a triumph of imaginative statutory interpretation.”2 Given the existence of this implied requirement, the majority found that the AEPA did not violate s. 2(d). The majority disagreed with the Court of Appeal’s ruling, because it believed that s. 2(d) should not guarantee a particular process or a certain outcome.3 Furthermore, the majority pointed to the existence of a tribunal and stated that it was too early to determine that the tribunal did not protect workers’ rights. Finally, the formal distinction that the legislation created was not unconstitutional because it did not reinforce stereotypes, prejudice or disadvantage.

While agreeing that the AEPA was constitutional, Charron and Rothstein JJ’s argued that Health Services should be overturned. Rothstein J wrote that the case had “conferred constitutional status on collective bargaining,”4 while the s. 2(d) jurisprudence up until that point had held that this right was limited to employees coming together, organizing and trying to bargain on terms of employment. Importantly, previous interpretations of s. 2(d) did not impose obligations on the employer. Rothstein also disagreed with the majority’s interpretation that the duty could be read into the legislation and pointed to the fact that the legislation was enacted in

1 Ibid at para 2. 2 Patrick Monahan & Chanakya Sethi, supra note 3 at para 25. 3 Fraser, supra note 7 at para 45. 4 Fraser, supra note 7 at para 121.

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response to Dunmore, which did not impose an obligation on employers to engage in collective bargaining. Moreover, Rothstein pointed to the unworkability of the majority’s decision to protect only the duty to bargain in good faith, but not other aspects of the Wagner model. He described the good faith duty as an “illusory benefit”5 without a resolution mechanism.Deschamps J, also agreed in result, but disagreed that s. 2(d) included the duty to bargain in good faith. However, she found that the duty could be found interpreted from the legislation.

Finally, Abella J dissented and argued that the AEPA was unconstitutional because it did not meet the Health Services requirement that workers be able to meaningfully exercise their right to make collective representations. 6 Therefore, because agricultural workers could not meaningfully exercise their right to associate without an enforcement mechanism and a requirement of majoritarian exclusivity, the AEPA violated s. 2(d).7 Importantly, she arrived at this decision based on the recognition of the disadvantages faced by agricultural workers in the workplace. Furthermore, she disagreed with the majority that a good faith requirement could not be interpreted based on the legislations’ language.8 Next, Abella J found that the law could not be saved under s. 1 of the Charter because: “preventing all agricultural workers from access to a process of collective bargaining in order to protect family farms, no mater their size or character, is the antithesis of minimal impairment.”9

Ontario v Fraser [2011]S2(d) includes right to collective bargaining, and good faith negotiations, which this Act doesn’t infringe.Facts ON has always excluded farms and farm workers from application of Labour Relations

Act 2002 ON enacted Agricultural Employees Protection Act, which excluded farm

workers from the Labour Relations Act and created separate labour regime for farm workers.

Respondents worked at Rol-Land farms, represented by UFCW to bargain on their behalf. 70% of workers joined union, which RL refused to recognize or to respond to letters.

Similar situation at Platinum Produce, where meetings were 5 minutes long and then employer refused to respond to proposals.

Constitutional challenge brought forward that the AEPA infringed ss2d and 15 by failing to provide adequate protection for right to organize and bargain collectively, and excluding farm workers from protections other workers enjoy in other sectors.

Issue Does the AEPA infringe s2d or s15 of the Charter?Judicial History

Trial dismissed application ONCA allowed appeal, declared AEPA invalid.

Ratio Majority: Duty to bargain in GF can be implied. You cannot impose a specific model of labour relations. Requires that union has a reasonable opportunity to negotiate in GF with the ER. Does not need to be exercised in a particular way.

5 Ibid at para 268.6 Ibid at para 336. 7 Ibid at para 335. 8 Ibid at para 331. 9 Ibid at para 358.

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Majority Reasoning (McLachlin,Lebel, Binnie, Fish, Cromwell)

History of 2d Cases: Trilogy (Reference re: PSERA, PSAC v Canada, RWDSU v Sask) held that 2d did not

protect right to strike. In obiter, 3 judges mentioned that 2d doesn’t protect collective bargaining

In Delisle, confirmed that 2d doesn’t give right to belong to particular group In Dunmore, confirm need for purposive approach to 2d, and that 2d extends to

collective activities that only a group can carry out (group activities can be “qualitatively” different than those performed solely).

Dunmore propositions:1. 2d guarantees freedom of associational activity in pursuit of individual and common

goals2. common goals protected extend to some collective bargaining activities3. process must permit meaningful pursuit of these goals (incl. legislative framework)4. process that renders impossible the meaningful pursuit of collective goals interferes

w/2d and would need to be justified under s1.5. Remedy for breach of 2d is for state to rectify legislative scheme In Health Services, conclude that legislation that repeal existing collective agreements

and interfere w/possibility of meaningful collective bargaining limit s2d. Bargaining activities include good faith bargaining on impt workplace issues. Court stated:1. parties must meet and engage in meaningful dialogue, avoid delays2. 2d doesn’t impose particular process3. doesn’t require parties to conclude agreement or accept terms4. 2d only protects “the right…to a general process of collective bargaining”

Application to Case: s2d 2d’s right to associate requires that employee association be able to make

representations to employers, which employers must then discuss and consider. Good faith negotiations require parties to meet and engage in meaningful dialogue It is about protecting collective activity in furtherance of workplace goals. “seriousness of overturning recent precedents…cannot be overstated” no need to provide a particular form of collective bargaining rights. Laws or government action that interfere substantially with ability to achieve collective

goals limit freedom of association – as a result, 2d protects collective bargaining right. Requirement that employer consider employee representations in god faith is included

by implication since they are required to listen to/read representations. S5 of the AEPA does not violate Charter – it provides meaningful exercise of right of

association. No need to consider s1 as a result.

Application to Case: s15 S15 claim is premature – before it’s been tested, cannot know whether it

inappropriately disadvantages farm workers.

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Concurring Reasoning (Charron, Rothstein)

2d protects workers’ right to form bargaining positin, present common front to employers.

Doesn’t protect right to collective bargaining nor duty on employers to negotiate in good faith.

Health Services case should be overturned for constitutionalizing collective bargaining. 5 reasons why Health Services erred in finding that 2d protects collective

bargaining/good faith:1. reinterpretation of scope of 2d that departed from previous jurisprudence2. 2d protects freedoms, not rights.3. Court cannot privilege certain associations over others. extent of protection

shouldn’t change depending who’s exercising the right.4. 2d doesn’t afford constitutional protection to contracts, which Health Services did

by implication.5. 2d should afford deference to the legislative branch in labour relation, removed

too much power from Parliament. international law doesn’t support constitutionalizing collective bargaining rights. Problematic that there is no effective remedy for persistent breaches of duty to bargain

in GF. AEPA does not violate 2d. Legislature did not include duty to engage in collective

bargaining nor good faith Agricultural worker category does not rise to level of “immutable personal

characteristic” requiring protection under s15.Concurring Reasoning (Deschamps)

Effect of Health Services is that freedom of association includes freedom to engage in associational activities and act in common to reach shared goals.

AEPA therefore complies with 2d of the Charter. Economic equality is not an “equality right” as per s15.

Dissent (Abella)

AEPA does not protect collective bargaining rights and therefore it violates 2d. 2 components necessary for agricultural workers to engage in meaningful collective

bargaining:1. statutory enforcement mechanism w/mandate to resolve bargaining disputes.2. Employer must bargain only w/representative selected by majority of employees in

bargaining unit. Absence of these components can’t be justified by s1. Notes that all provinces except AB give agricultural workers same collective

bargaining rights as other employees.

iii. Right to associate or not associate- closed shop provision: as a condition of employment, Ees are required to sign card and

join union.- Agency shop: EEs don’t have to join the union to be hired - Rand formula/ compulsory check -off clauses: required to pay union dues regardless of

membership- s. 63: ER cannot be forced to dismiss EE bc the EE is not a part of the union UNLESS

EE was hired contrary to CA or EE acted against union on behalf of ER

R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209

R v Advance Cutting & Coring Ltd [2001]

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Short noteFacts Advance Cutting et al. (appellants) are contractors, real estate promoters and

construction workers, and were charged with hiring employees who did not have the required competency certificates to work on a construction project (in accordance with the Quebec Construction Act). The workers could not obtain the proper competency certificates without becoming members of one of the union groups listed in s. 28 of the Construction Act.

-Advance Cutting (contractors) ask to be acquitted of charges that they hired employees who did not have the required certificates of competency to work on a construction project – contrary to the provisions of the Construction Act (s.119.1) (QC). They asserted that workers could not obtain competency certificates without becoming members of one of the 5 unions listed in s.28 of the Construction Act and claimed that this requirement is unconstitutional, that it breaches the right not to associate which they feel is included under s. 2(d).

Issue 1) Is there a freedom not to associate under s. 2(d) of the Charter? Yes.2) Is the requirement that workers become members of one of listed union groups in order to obtain competency certificates unconstitutional? No.

Ratio s.2(d) includes a negative right not to associate, altho limited scope. Rand formula is not a violation of freedom not to associate.Lebel Gonthier and Arbour – includes freedom not to associate – but only to the extend that it involves ideological cohersion or ideological conformity on the individual

HB is the only one who says that s. 2d DOESN”T include freedom NOT to associate.

Reasoning L’Heureux-Dube (concurring with majority) says here that there is no freedom NOT to associate (à la Wilson)

o Adopts an approach that gives 2(d) as wholesome an interpretation as possible. She reads freedom to association to exclude freedom not to associate saying it is antithetical to the purpose and scope of the protected right of association.

o While no one should be forced to associate, s. 2(d) of the Charter does not offer such constitutional protection. If someone were forced to associate, freedom of expression and s.7 would kick in.

o The “common pursuit of individual goals” is not appropriate in the context of freedom of association analysis. A row of taxis does not a bus make. The mere addition of individual goals will not suffice. Society is more than the sum of its parts.”

o In this context, a negative right would mean an individual is given the constitutional right not to belong to an association. But, if the fundamental purpose of freedom of association is to permit the collective pursuit of common goals, then the very concept of a “negative freedom of association” becomes suspect. At issue is the definition of “common goals”.

At the other end of the spectrum, adopting the broadest approach to freedom of association, is Bastarache J (with Binnie, McLachlin and Major)

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(dissenting):o There is a right not to associate under 2(d) but the test for infringement

of this right, is not whether there is evidence of ideological coercion or conformity imposed by the forced association. (this test requires too high a threshold for the dissenters)

o For ideological conformity to exist, it is not necessary that there be evidence of an imposition of union values or opinions on the member, evidence of a limitation of the member’s free expression, or evidence that the union participates in causes and activities of which the member disapproves.

o The interpretation of ideological conformity must be broader and take place in context. In this case, this context would take into account the true nature of unions as participatory bodies holding political and economic roles in society which, in turn, translates into the existence of ideological positions. To mandate that an individual adhere to such a union is ideological conformity.

o Under the Construction Act, membership in one of the unions is obligatory. Membership has meaning and is about sharing values, joining to pursue goals in common, etc. Unions are a potent force in public debate because they have collective force.

o It is not necessary to have more independent evidence of the ideological views of the specific unions involved in this case. Adherence to a scheme advocating state-imposed compulsory membership which affects many other freedoms is itself is a form of ideological coercion, and this is so even where there is no evidence that the union is coercing its members to believe in what it promotes.

o Within this regime, democracy is further restricted by limited choice. There is no guarantee that a majority of voters will exercise their right. A default provision can determine the outcome of elections. Those voting for minority associations may be left out of future negotiations.

o Not saved under s. 1 . There is no rational connection between the legislation’s stated objectives of ensuring competency and structured collective bargaining. There all kinds of restrictions on admission to the industry, bargaining, mobility, etc. Furthermore, being a resident of Quebec in the previous year, having worked a set number of hours in that year, and being less than 50 years old have nothing to do with competency. The rights were not minimally impaired – limiting the freedom to associate or not to associate was not necessary to ensure competency.

Somewhere in the middle but closer to Bastarache is Iacobucci J (concurring with the majority in the result): He agrees there is a right not to associate however he wants a more holistic way of thinking about what a right not to associate might look like. An analysis that construes the negative freedom within s. 2(d) more broadly than the “ideological conformity” test should be adopted.

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o He doesn’t say you shouldn’t look at IC, but suggests that we look at other factors

o He says that where the state obliges an association of individuals whose affiliation is already compelled by the facts of life (such as in the workplace), and the association serves the common good or furthers the collective social welfare, s. 2(d) will not be violated unless the forced association imposes a danger to a specific liberty interest.

o The state-imposed association established by the Construction Act does not promote the common good or further the collective social welfare within the context of s. 2(d) of the Charter. The legislation fails to provide any justification for the compelled union association that it envisages for Quebec’s construction industry and interferes with members’ liberty interests.

o However, the legislation is saved under s.1. Given the unique and complex historical context of the Act, it served to promote distinct social and economic objectives that were, and remain, pressing and substantial. Also meets the proportionality test.

Lebel J (with Gonthier and Arbour) (majority) is also somewhere in the middle but closer to L’H-D:

o The act of engaging in legal activities, in conjunction with others, receives constitutional protection. The focus of the analysis remains on the individual, not on the group.

o Labour relations in the Quebec construction industry have gone through a long, complex and difficult history

o LeBel gives a robust defence of the choices available within this regime.o While the majority of the Court acknowledged in Lavigne that there was

a negative right not to associate, it also accepted a democratic rationale for putting internal limits on it. An approach that fails to read in some inner limits and restrictions on a right not to associate would deny the individual the benefits arising from an association.

o The acknowledgement of a negative right not to associate would not justify a finding of an infringement of the guarantee whenever a form of compelled association arises

o LeBel finds that in this case Advance Cutting has not made out a case that the challenged legislation establishes a form of ideological conformity that would trigger the application of s. 2(d) of the Charter.

o As it stands, the law does not impose on construction workers much more than the bare obligation to belong to a union. Their obligation boils down to the obligation to designate a collective bargaining representative, to belong to it for a given period of time, and to pay union dues. At the same time, the Act provides protection against past, present and potential abuses of union power. Unions are deprived of any direct control over employment in the industry. They may not set up or operate an office or union hall.

o No discrimination is allowed against the members of different unions. Provided they hold the required competency certificates, all workers are

38


entitled to work in the construction industry without regard to their particular union affiliation. Section 96 grants members clear rights of information and participation in union life. The law allows any construction worker to change his or her union affiliation, at the appropriate time.

o There is simply no evidence to support judicial notice of Quebec unions ideologically coercing their members. The legislation does not impose a form of ideological conformity or threaten a liberty interest protected by the Charter, which is necessary for it to infringe the right not to associate under s. 2(d).

o LeBel promotes the democratic model he says that the question at stake in this appeal should be left to the political process because the management of labour relations requires a delicate exercise in reconciling conflicting values and interests. Legislatures are entitled to a substantial degree of latitude and deference to settle social and economic policy issues.

Section 1Even if there were a violation, it would be saved under s.1

Lavigne v. O.P.S.E.U., [1991] 2 S.C.R. 211

Lavigne v. O.P.S.E.U., [1991]Facts - Lavigne, union member, upset that union is using dues he pays to support

political causes (ie: NDP)- Doesn't challenge requirement to pay dues, but the use to which the union is putting the dues- Claims s.2(b) and s.2(d) freedom of expression and association Charter rights are violated

Issue 1. Does the Charter apply? Yes.

2. Did the payments to the OPSEU infringed his freedom of association under section 2(b) of the Charter? No.

Did the payments to the OPSEU infringed his freedom of association under section 2(d) of the Charter? SCC divided in their reasons for decision. No (Wilson, L'Heureux-Dube, Cory*, McLachlin* diff reasons).Yes (La Forest, Sopinka & Gonthier) – but saved under s. 1 ** different reasons

4. Saved under s1? Yes.

Ratio Once certified, unions can use union dues to fund activities opposed by union members or further issues not immediately relevant to collective bargaining. Rand formula is not a violation of freedom to associate.

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Minority: Rand formula is not a violation of freedom to associate. But when combined with having to support associations – it is forced ass’n but, but saved by s 1.

Reasoning 1. Charter applies since obligation imposed on Lavigne to impose dues can be attributed to government. While it is a collective agreement and not legislation, the Council of Regents (of the College) is an emanation of goverment.

2. Appellant’s contribution can’t be said to convey meaning and his FOE per s. 2(b) Charter is therefore not infringed.

3. Rand formula violates s. 2(d) of Charter because it interferes with freedom from compelled association. Payment of dues which is the extent of the appellant’s association with Union is an associative act within meaning of s. 2(d). Dues are used to further the objects of the Union and are essential to Union’s right to “maintain” the association. FOA is therefore violated when one is compelled to pay dues that are used to support causes, ideological or otherwise, that do not directly relate to CB.

4. Limitation is justified by s. 1 because stated objectives in compelling payment of union dues which can be used to assist causes unrelated to CB are to enable unions to participate in broader political, economic and social debates in society and to contribute to democracy in the workplace. Minimal impairment test is also met because opting-out formula could seriously undermine unions’ financial base and spirit of solidarity, which are very important to the emotional and symbolic underpinnings of unionism.

Wilson and L’H-D JJ (NO FOA breach): Majority Appellant’s FOA is not violated because purpose of s. 2(d) is to protect

association for collective pursuit of common goals. It should not be expanded to protect right not to associate. Real harm produced by compelled association is not the fact of association but enforced support of views, opinions or actions one doesn’t share or approve.

Appellant’s FOE also hasn’t been infringed. Fact that he is denied right to boycott Union’s causes prevents him from conveying a meaning which he wants to convey and the activity which he wishes to engage therefore falls within sphere of 2(b) conduct. However government’s intention wasn’t to control conveyance of meaning but rather to promote industrial peace through encouragement of CB.

Rand formula also doesn’t deprive appellant of right to freely express himself. Compelled payment of dues doesn’t publicly identify him with Union’s activities and in any case will be saved by s. 1 since objective of legislation is to promote industrial peace. This is sufficiently pressing and substantial an objective and there is a rational connection between promoting CB and permitting unions to invest dues in ways in which will

40


best serve their constituents. Minimal impairment is also met because placing restrictions on how unions can spend dues will lead to problems and jeopardize important government objective at stake.

Notes

Delisle v. Canada (Attorney General), [1999] 2 S.C.R. 989

4. EXERCISE OF FREEDOM OF ASSOCIATION

a. The right of Association

i. s. 3 of Quebec Labour code

= Every employee has the right to belong to the association of employees of his choice, and to participate in the formation, activities and management of such association.

ii. s. 8 of Canada Labour code

Employee freedoms 8. (1) Every employee is free to join the trade union of their choice and to participate in

its lawful activities.Employer freedoms

(2) Every employer is free to join the employers’ organization of their choice and to participate in its lawful activities.

Question: are those essential provisions of the code or just simple sections?

b. The certification process

i. The principle and effects of certification

a. The description of the bargaining unit

b. The appropriate bargaining unit

ii. The applicable requirements

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a. s. 25 and 36.1 of Quebec Labour code

1. Petition in certification- content- 25: need to apply for a petition for certification with the Commission, send copy

to ER o para 2- petition should be authorized by resolution of the ass’n and signed

by representative (not the union)o need to designate the ERo ER must post

- 26: Commission may require sending constitution and its by laws to Commission

2. The representative character- 36.1: Conditions to be recognized as a member of ass’n

a) EE in the barg unit b) has signed application for membership in ass’nc) has personally paid union dues of at least 2 dolalrsd) above conditions met before demand for respresentative character made

a. absolute majority either in membership or support S. 21 Quebec Labour code

- need absolute majority or one after a vote takes place (50 plus 1) S. 28 Canada Labour code

- 28(c)

b. what is membership in a union? Signed cards Paid dues Compliance prior to petition S. 36.1 Quebec Labour code S. 28 Canada Labour code

iii. Authorization by resolution

s. 25 of the Quebec Labour code- application of certification by means of resolution -

Lagacé v. Union des Employés de commerce, Local 504 (TUAC FTQ), D.T.E. 88T-663

Legacé v Union des Employés de commerce, Local 504 (TUAC FTQ)Short note

Facts Labour Tribunal rejected union’s application for certification, saying the union didn’t exist because its statute and regulations were drafted only in English, contrary to s. 48 of the French Language Charter. Union appeal to Superior Court. Now a disgruntled employee appeals to QCCA.

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Issue Is the union itself nullified as an entity because it’s English, by operation of s. 48/49 of the French Language Charter?

Ratio No – Appeal rejected. Tribunal’s decision stays overturned.- Unions’ constitutive statutes can be in English or French (not “communications” under

French Language Charter).Deference is only owed to Tribunal if they’re interpreting their own enabling statute, not just any law.

Reasoning

Vallerand J:Must distinguish b/t an admin tribunal interpreting its constitutive statute, and one interpreting a general law that doesn’t apply to it in particular. In the latter situation, the Tribunal can err and no special deference is required.Here, the principle of deference doesn’t apply to a Labour Tribunal (designed to apply the Labour Code) when it is applying the French Language Charter to eliminate an otherwise valid union.So, the Court must look at the “justesse” of the decision, rather than its “reasonableness.”The Tribunal was divided on what effect unilingual English statutes would have, but its final interpretation was that, since its statutes and regs are “communications” under s. 49 of the Charter, they must be written in French on pain of nullity under s. 48.This interpretation cannot stand.The Superior Court’s more narrow reading of s. 49 is more “just” and should be retained: i.e. “Communications” under s. 49 of the Charter applies only to a union’s communications with its members, in the sense of correspondence, posters, notices, etc. French as the “language of business” in the Charter extends to oral or written communications in the exercise of functions and juridical acts. It’s not extended to every related thing like the existence of a workers’ association.

-

Notes

iv. Filing of Statutes and By-laws on request

s. 26 Quebec Labour code

Giroux v. Syndicat des travailleurs de la société Asbestos, D.T.E. 82T-146

Giroux v Syndicat des travailleurs de la société Asbestos , Tribunal de travail 1982Short note

Facts On Jan 21, 1980, the EEs have a meeting to form the Syndicat des travailleurs de la Soceite Asbestos Mtl (CSN): a resolution to petition for certification is passed, although only 3 people were present. The rules and Constitution of the union were adopted. The constitution said that: the General Assembly would include all the

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members except senior secretaries, senior sales people, senior analysts and professionals” This was filed at the Commission on Jan 25. The request covered 74 EEs and included 39 members.

However, on the 9 Oct, the union notified the Commission that their application for certification changed who would be included in the union so that it 82 EEs were involved, 41 of which were part of the EE association. Mme. Giroux told the union that many EEs didn’t know anything about setting about the bargaining unit bc the application was from Jan and that there was no meeting since then. M. Thiverge, union representative, said he would have a meeting before the hearing. But it was delayed and never happened.

At the hearing on Feb 10 1981, the ER and union agreed to a different description of the bargaining unit – 58 members, 34 of which were members (but at the time, this was really 58 EEs of which 28 were members)

Giroux contests the making of amendments without a new meeting. Giroux is appealing the Commissioner’s decision because: 1) The Commissioner refused to communicate to G the union’s statutes and rules based on the fact the certification agent was satisfied by them 2) He refused to see the list of members of the union to determine the representative character of the union 3) He refused to order a vote to determine the EE’s willingness bc he lacked a reason to do so

Issue Did the Commissioner err in preventing G from 1) accessing information about the union, 2) not giving her access to the list of union members and 3) not ordering a vote? Yes, No, No

Ratio A new resolution is not required when the description of the bargaining unit changes, so long as the nature of the original application does not substantially change. G had a right to information about the union bc transparency is essential to union democracy, and bc art 32 makes her an interested party regarding the representativeness of the unit. However, EEs do not have the right to see the list of union members, as expressed by art 35 and 36. Also, a valid reason is needed for the Commissioner to exercise the discretion to order a vote.

Reasoning

A new resolution was not required with each change of the description of the bargaining unit

- The bargaining unit was always the same - administrative EEs from the headquarters, just the exceptions/exclusions differed – variations are normal and do not change the character of the original application for certification

Regarding Giroux’s three demands:- The Commissioner erred in refusing to give G the rules + constitution of the union - G’s request was rejected without justification and based only on the fact that the

certification agent had found the union’s rules and constitution to her satisfactiono The documents are NOT confidential – orders G to have access!

- Just like we can critique that there are gaps in our socio-economic system of managing companies in which industrial democracy is just in its infancy, it should also be recognized that union democracy is not perfect

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- A degree of transparency is required, including the duty to make information accessible to all interested parties

- Progress Brand Clothes Inc 1978: right to information was recognized as an essential element of union democracy

- Art 32: says that each EE is an interested party wrt to the representativeness of the association - therefore and has the right to know the rules and statutes

2) The Commissioner did not err in refusing to give G a list of union members after an amendment to the petition for certification- although art 25 requires that a petition for certification is authorized by a resolution of the ass’n and signed by its authorized representatives, modifications DON’T require a new resolution unless the modification changes the nature of the petition for certification to the point that it constitutes a new petition.- It within the Thiverge’s mandate (union rep) to make the decision without going

through the general assembly. Also, the petition for certification gave him the power to modify documents

- Therefore, there is no need to determine if the resolution for amendment was properly adopted

- The Commissioner had the right and the obligation to refuse access to the list. 35 states that the record of the Commission will not include the identity of the EE’s in the ass’n and 36 states that an EE’s belonging to an association will not be revealed to anyone during the certification process

3) the Commissioner did not err in stating he needed a reason to order a vote- the Commissioner’s exercise of discretion in not ordering a vote was judicious: need a reason to scrutinize the vote, such as the EE’s confusion when they chose the association- since no motive for scrutinizing the vote was advanced

Notes

v. The vote and its role in the certification process

s. 28 (b) Quebec Labour code- vote if between 35-50%

s. 32 (2) Quebec Labour code


Syndicat des travailleurs de l’entretien du Soleil (C.S.N.), D.T.E. 87T-750

Syndicat des travailleurs de l’entretien du Soleil (CSN)Facts Syndicat Soleil (CSN) wants the Tribunal to declare null the decision of the

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commissaire du travail (henceforth “commissaire”). The latter accredited another syndicat (SCG) to represent a group of employees from the paper Le Soleil, following a representation vote (FR: scrutin de representation) which SCG won.

CSN is accredited to represent all the Le Soleil employees doing maintenance and surveillance.

CSN’s collective agreement expires Dec 31, 1986 On Nov 3,1986, SCG submits an application for union certification within the

proper delays to represent the same group that has, up until then, been represented by CSN. This gives SCG a majority. The same day, CSN holds a meeting. Several people who resigned don’t show up but members of CSN track them down and convince them to revoke the membership (FR: adhesion) to the rival union and rejoin theirs. This means CSN has the majority.

The commissaire’s decision states those who resigned were not intimidated and made a free choice.

Some more facts that were not brought up by the commissaire:o Nov. 27 1986: CSN meets and makes a unanimous decision to have a

representation vote to resolve the inter-union issue.o Feb 18 1987: 2 days before the hearing with the commissaire, 14

employees including 2 of 3 resignees, sign an application asking Minister to proceed with the representation vote.

Law Art 32, al 3 of the Code du Travail (this probably changed a bit since the case but I think it’s likely similar):

The Commission shall also decide as to the representative nature of the petitioning association after investigating this question in any manner it thinks advisable, more particularly by calculating the membership of the petitioning association or holding a vote by secret ballot.

Positions Commissaire’s decision/motives: While the 3 resignees were not intimidated, there was still a back and forth (FR: chassé-croisé) with regards to union membership. The will of certain employees was changing. The unions each had held majority by succession. All this in one day. Under the circumstances, it is appropriate to verify the will of the employees by a vote by secret ballot (FR: “scrutin secret”) This is justified under Art 32 of the Code du Travail (henceforth “Code”)CSN argues: Art 32 does not grant the power to call this secret vote. Plus should also consider art 36.1.

Issue Did the commissaire make an error of fact or an error of law in ordering the vote by secret ballot?

Ratio The Commissaire has an exceptional power to order a vote by secret ballot to clarify who has majoritarian representation. In the case like this, of EEs going back and forth, there needs to be more back-and-forth-ing.

Reasoning

Art 25, al 1 (which became Art 37) has been interpreted to mean that a vote by secret ballot is not the usual means to verify the representative nature of the petitioning association. On the contrary, it is considered an exceptional means of investigation, which can be used where the commissaire judges it suitable.

A vote is not necessarily the ideal solution. Cites a case:o The American way: calling a vote

employers intervene in all sorts of ways to influence employees before the vote.

o The Canadian way: granting accreditation when on a given date an 46


association of employees make up an absolute majority of the members Is no worse, if not better way of ensuring freedom of association Experience in labour relations show that resignations are often

less free than subscriptions. Since 1983, Art 32 gives the commissaire the power to decide the representative

nature of the union by all means of investigation she judges appropriate, notably by “calculating the membership of the petitioning association or holding a vote by secret ballot”

Compared to the law before, we have witnessed an increase in the commissaire’s freedom to determine the appropriateness given the situation.

The vote by secret ballot remains an exceptional means of investigation, which the commissaire can still use should she deem this appropriate. The decision to resort to this means should be based on juridical motives, and not arbitrary ones.

BUT the commissaire is still best placed to assess this situation of fact and enjoys wide discretion to order a vote by secret ballot or not. The Tribunal would need very particular motives to substitute the commissaire’s decision.

The Commissaire does not mention the two facts listed above so hard to tell whether he considered them. But the Tribunal finds that these other two facts did not confirm or discredit the validity of the three employees’ actions. Simply put, in an inter-union dispute, the opinion of employees can vary at anytime. This is why there is a habit of submitting a petition to replace a rival union at the end of the periode de maraudage.

The Tribunal does not agree that there was a true back and forth involved. The 3 employees simply went to SCG and then back to CSN. We would really be talking of a back and forth had the employees gone to SCG, back to CSN and to SCG again the same night a back and worth worthy of the Commissaire invoking the power to call a vote by secret ballot.

This was not much a “va et vient”, as much as a “va” The Tribunal has always counted the memberships gained up until midnight on

the day of application for accreditation. So While SCG might have had majority earlier the same day, CSN had it by the end of the day, and thus did not fulfill the requirement of being majoritarian on the day applications were due.

So Tribunal concludes, Commissaire should not have ordered a vote by secret ballot thereby giving SCG a second kick at the can.

CSN is reinstated as representative union.Notes

vi. When the petition may be filed (timeliness)

ss. 22, 27.1 and s. 40 Quebec Labour code

s. 24 Canada Labour code

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c. The bargaining unit

i. Appropriate- possible for ER and union to agree as to bargaining unit and composition - if agreement, needs to be approved by LR agent - 32. ER can’t ask about specific Ees

- Why would the board promote large bargaining units? What are the advantages? more consistency across the board, fewer conflicts but when they do happen it causes HUGE economic issues, since they are large. And since some of these are national they have a national effect.

-- in Quebec this is less relevant, because under Qc labour code-- the parties can agree

regarding composition of bargaining unit.

s. 21 Quebec Labour code- « right to be certified » - if ER and union agree as to bargaining unit – will be certified!- Criteria: see Coca-Cola


- difference: the board determines the unit (although the ER and union can tell the board that they have agreed to something)

Size of bargaining unit - the smaller = less change to have an effect- issue with bigger units - conflict of interest: - - ex: in Cnd post corporation, one bargaining unit includes 50 000 EEs (EEs across the

country)- why? Pros: simplifies negotiation, fewer conflicts – but when they do happen – big

consequences!

Leading case for determing composition of the Bargaining Unit- Coca-Cola Ltd v Matthews SCC 1944

In this case the union filed petition for certification seeking to represent all of the EE of coca cola at its plant with 8 exceptions.

Decision: came to conclusion that the bargaining unit proposed was not appropriate and he identified a list of criteria to be used to determine the appropriate bargaining unit.He stated that the bargaining unit must have a certain identity which makes it capable of being distinguished from other EEs, or groups of EEs under ER. So there must be an “identity” attached to the group.Judge Gold: suggested criteria to look at

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- 1) EEs who share interest with respect to their working condition. (e.g. duties, responsibilities, wages (annual/hourly, Skills (might be best to separate skill sets), interdependence and interchangeability (it is possible for EEs to move from one position to another; if called to interchange then they should be in the same bargaining unit e.g. ESPECIALLY WITH PROMOTIONS! Most important aspect

2) Desire of EEs- considered to be expressed by the petition for certification- there is an assumption that the EEs supporting the petititon show their desire- petition for cert is filed w membership cards- desire of EEs is not predominant factor considered

3) Extent and scope of unionization in the planto So are there other bargaining unit? Or it may an analysis of the

situation in other analogous situations. What would be the case for a particular ER operating in the same industry

4) The relationship btwn the Union or the bargaining unit with the organization, management, operation of ERs business.

o How the organization of the trade union (bargaining unit) and its composition are likely to impact the operation of the ER. e.g. maintenance and production EEs--does it make sense to have latter included in bargaining unit and not include the former, if they do maintenance?

5)Prior decisions of the board where a policy has been declared—o At the federal level w/ Canada industrial labour Board- they promotes

single large bargaining units for federally regulated undertakings. e.g. Canada Post Corporation. One bargaining unit at the union has 50,000 EEs. In some cases there are also national bargaining unit, so EEs from different provinces included in a bargaining unit.

- Justice Gold says that the above criteria must be flexible.

Inter City Gas Corp. v. Caron, J.E. 82-204

Inter City Gas Corp v CaronShort note

Facts a. This is a judicial review of a Commissioner’s decision to proceed with union certification.

b. Union (CSN) applied for certification to Commissioner Caron. Union did not specify a single employer on the application; rather, union specified multiple employers and asked Commissioner to investigate to determine which employer should be ‘The Employer’.

c. One of the employers (ICG, the applicant in this judicial review) never received service of the union’s application.

d. Commissioner was ready to proceed with the application. ICG applied for JR of

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commissioner’s decision.

Issue Can union specify more than one employer on the certification application?(Held: NO)

Ratio Union’s certification application must specify only one employer; must be served to the employe under s. 21 does not allow filing against multipe Ers .If you picke the wrong ER – then they will defend themselves, and likely provide info about who the REAL ER is.

Reasoning

a. The QLC is designed to protect employees, but QLC only contemplates certification of unions for groups of employees of one employer. (For example, s 21 says a union can be formed from ee’s of “an employer”)

b. The rule requiring service to the employer of the union’s certification application (QLC s. 25) satisfies the principle of audi alteram partem.

c. The Commissioner’s decisions are reviewable if the Commissioner exceeded his jurisdiction. Here, the Commissioner exceeded jurisdiction by proceeding with multiple employers.

Notes [The remedy is that the court authorizes “l’émission du bref d’evocation”… I am not sure what this means…]

ii. Community of interests

Autostock Inc. (division Monsieur Muffler) c. Métallurgistes unis d’Amérique, section locale 8990, D.T.E. 99T-76

Facts Qc code decided to seek certification of Mr. Muffler in 13/15 branches – Autostock

o ER said it should include all 15! Bc they knew the union wouldn’t get representative character!

o This is gamble – at the end of the day, the union might actually have support in the other places to!

iii. Special considerations

Professional employees: s. 27(3) Canada Labour code- included in own unit!

Multi-location units- Technically possible, look at representative character to see if appropriate bargaining unt - Reality : hard to organize across the country though- Less bargaining power when just 1 branch though!

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Constables s. 27(6) Canada Labour code

Supervisory employees s. 27(5) Canada Labour code

d. Particular exclusions from the right of association

i. Non-employees

a. Definition of employees


s. 3 (1) Canada Labour code

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ii.The notion of «Independent contractors»

Paquin c. Services financiers Investors, 2012 QCCA 32o See also : Paquin c. Services financiers Investors,

D.T.E. 2011T-71Hannah – 5 pages

Paquin c Services financiers Investors 2012 QCCAShort note

Facts & judicial history

P worked for SFGI as a financial advisor and division manager. His responsibility as the latter was taken from him. He went to the CNT (then to Superior Court on judicial review). He claimed he held the status of employee (“salarie”) and contested the termination of his employment under art 124 of Act Respecting Labour Standards (“the Act”)At the Commission des normes du travail (CNT):- The commissioner decides he doesn’t fit the definition of employee, under art 1, para 10.

Article 1 (10) “employee” means a person who works for an employer and who is entitled to a wage; this word also includes a worker who is a party to a contract, under which he or she(i) undertakes to perform specified work for a person within the scope and in accordance with the methods and means determined by that person;(ii) undertakes to furnish, for the carrying out of the contract, the material, equipment, raw materials or merchandise chosen by that person and to use them in the manner indicated by him or her; and(iii) keeps, as remuneration, the amount remaining to him or her from the sum he has received in conformity with the contract, after deducting the expenses entailed in the performance of that contract;

- The commissioner decides that for the Act to apply to the situation of employer and contractor (“entrepreneur salarie”), the latter must demonstrate there is a relationship of subordination, specifically featuring control and supervision on the part of the employer. The commissioner refers to 7 characteristics to identify this type of relationship

- Control of attendance- Control over performance of work- Obligation of productivity (or output, depending on how you translate “rendement”)- Ownership of the work tools- Possibility of disciplinary measures- Existence of the element of loss or profit AND- Obligation of personal performance

- The commissioner also cited the case: Dicom Express inc. c. Paiement, 2009 QCCA 611[17] La notion de subordination juridique contient l'idée d'une dépendance hiérarchique, ce qui inclut le pouvoir de donner des ordres et des directives, de contrôler l'exécution du travail et de sanctionner les manquements.

- Conclusion: Commissioner considers 14 elements of proof and concludes P does not qualify as an employee under the Act.

At Superior Court : P argued the commissioner did not consider each of the elements of proof and should not have used the Dicom case. The Trial Judge did not decide in favour of P. P appeals.

Issue - Should the commissioner have addresses each of the 14 elements of proof? No- Did the commissioner err by referring to the Dicom case? No

Ratio A commissioner (or first line decision-maker) need not consider all the proof and arguments put before them in order to render a reasonable decision. (Considering this is under the section called “independent contractor” this is probably not the take away…)

Reasoning

- Standard of review: Parties agree the standard of review is reasonableness. This means the reviewing court must show deference towards a decision-maker with expertise or particular

52


experience. Even where other rational solutions were available to the decision-maker, the reviewing court should not intervene where the decision was reasonable

- P argues now that the trial judge was mistaken in their interpretation of the legislation and the jurisprudence with regards to the definition of employee under the Act.

o P does not state the issue properly. Appellate review of a judicial decision relies on different criteria than appellate review of an administrative decision. P’s complaint on appeal is the primary responsibility of the commissioner.

o Trial judge applied the right standard and concluded the decision at issue was reasonable and explained why. There is not need to press the issue further.

- Issue 1: The Trial judge took into consideration each of the 14 elements of proof before concluding the decision was a possible acceptable outcome.

o Also, the Trial Judge was right to reject P’s argument about the commissioner failing to consider each of the 14 elements of proof The commissioner only had to consider what seemed essential to her. She was under no obligation to address all of the arguments put forth by the parties.

- Issue 2: The fact that the commissioner used the Dicom case (which is based on Art 2085 CCQ and not the ARLS) has no bearing on the reasonableness of the decision

o The commissioner pointed out the distinctions of the case and she decided she could not ignore the passage above.

o The Trial Judge drew attention to this part of the commissioner’s decision and emphasized that it was justified, transparent and intelligible.

- The Commissioner looket at 7 characteristics to establish subordinatio- - The control of the presence;- - Control over the execution of the work;- - The obligation of performance;- - Ownership of work tools (ownership of the tools) (greater ownership means IC)- - The possibility of disciplinary actions (the possibility of facing disciplinary

measures)- - The existence of the element of profit and loss, and (risk of profit or loss, this is

more complicated to find for Assessment and in MOST cases)- The personal performance obligation (eg you're right to find a replacement for

yourself)

Cites Dicom: “The concept of legal subordination contains the idea of a hierarchical dependence, which includes the power to give orders and instructions to control the execution of the work and to punish breaches. Subordination is not the same and do not exercise in the same way as the hierarchical level of the employee, the extent of its competence, complexity and magnitude of the tasks entrusted to it, the nature of product or service, the context in which the function is performed. The examination of each individual situation remains and analysis must be done in a global perspective.” [5]

Notes

Contrat de travail ou contrat de service : où se situe l’«autonomie» du travailleur autonome? Développements récents en droit du travail (2012) vol. 348, Luc Deshaies et Josée Gervais

Silvia – p. 23 Contrat de travail ou contrat de service: où se situe l’ “autonomie” du travailleur autonome ?

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Développements récents en droit de travail (2012) vol 348, Luc Deshaies et Josée Gervais

Overview of how EE status is determined by diff statutes

Thesis: The article discusses how different laws determine employee status through a review of jurisprudence wrt CCQ, Act respecting Labour Standards, Labour Code, Act Respecting Collective Agreement Decrees, Act Respecting Industrial Accidents and Occupational Diseases, Act Respecting Occupational Health and Safety and fiscal laws.

Each legislation has its own definition of EE, hence some people may be EE under some statutes but not others. A global and factual analysis will be used, rather than following the parties’ terms. The most important factor in Qc is a relationship of subordination. Despite different definitions, the laws will use similar criteria. While civil tribunals are unlikely to find a person who has incorporated a company to be an EE, labour law statutes are more likely to recognize EE status due to their protective power.

Introduction Self-employed worker covers a wide range of people: those who offer services intuitu personae

(can’t be replaced by another person) and who have only 1 client VS those who have own business, hire and manage their own EEs and offer services to different clients

Pros of self-employed status for EE: freedom, financial advantages re: taxes; for ER: don’t need to follow employment and labour laws

Pros of EE status: notice or indemnity in lieu, reinstatement, workers’ comp, health and safety The judge will look at the reality of work relationships, not the K or the terms used by the parties

1. Different laws, different definitions, similar criteria no singular definition of EE across all laws, however tribunals will use similar criteria in

analysis Central to EE status is subordination :

o =the existence, exercise of ER’s authority to direct work and to establish work conditionso characterized by a fundamental inequality, flowing from the economic inequality

Asbestos c Couture 1988 SCC : A person injured by in a mine tried to argue he was n EE. SCC found there was a lack of subordination using the ER control on work test: in this case, the worker had established own work conditions and methods, hired own EEs.

Test for EE : when an individual needs to personally render work in a regular fashion to the satisfaction of another during a specified time, cannot be replaced (Gaston Breton),

Three elements of EE status : salary, prestation of work, subordinationo Tribunals verify existence of elements by looking at criteria, through a global and factual

analysiso Criteria:o Salary: Who assumes the risks of loss and benefits of profits? Economic dependence?

Renumeration method? is the client billed? are deductions made? Does he tax the client?o Prestation of work: does he personally have to do the work or can he be replace? Does

the individual have own EEs?o Lien de subordination: does he own his instruments, is he incorporated, is schedule

determined by client, is presence at work controlled? Is there one client or several? Is the work integrated in the business of the client? Do policies of the employer apply to him? Is

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productivity and discipline controlled by the client?Civil Law definition K of work defined under art. 2085, 3 principal components are: 1. Renumeration, 2. Execution of

work, 3. Lien de subordination K of service defined under art. 2098, components: 1) realization of work or service and 2) price The main difference is the existence of subordination

o Subordination is a question of facts and will depend on whether the ER determines/controls the work

o Generally, someone is an independent Ker if his work is not integrated, but an accessory Impact of status: ER owes EE notice/indemnity if work K is resiliated without a serious reason

(2091)o An K of service can be resiliated unilaterally without notice (2125)

Dicom Express c Paiement, CA, (2009): found there was a K of service based on: the individual owed his own tools, absorbs costs of delivering service, had latitude, can hire own workers, is registered independently with CSST, Ministries of Revenue

o Underlined distinction bween economic dependence & legal subordination: economic dependence alone not establish subordination; however, legal subordination includes economic dependence.

o A self-employed person can be economically dependent, without being subordinateo Ex: fact that there was 1 client who imposed rules, fixed the price, imposed advertising

rules was found not to necessarily indicate legal subordination (Papaeconomour Cour de Quebec)

Corporations cannot be EEs. In HMI Industries, CA said that if corporate form has been chosen freely, tribunals are unlikely to find EE status, unless it was done so that the ER could get rid of obligations

o EE is necessarily a physical person Circumstances where EE status found, despite corporate status:

o Bc the ER had asked the EE to incorporate and due to the personal nature of the EE’s work (Burrier Pincombe c Immunotec inc. 2001 CS)

Labour Laws in Quebec- more likely to recognize someone as an EE due to the protective character of these laws.- Unlike other provinces/Cnd Labour Code, Qc does not have a category for dependent

contractor = self-employed workers who are economically dependent, but are allowed access to minimal work norms

- In Qc, their status depends on a factual analysis

Act Respecting Labour Standards- “employee” defined by salary, prestation of work, subordinate status (1, para 10)- s. 1(10) leads to many dependant Kers being recognized as EEs, bc def’n is expanded

o s. 1(10) states it includes people who: i) undertake to perform work for a person within methods determined by the employer; ii) undertakes to furnish the equipment for carrying out of the K and iii) keeps the amount he received in conformity

- ARLS recognizes that economic dependency creates subordination. (as opposed to CCQ)- The CRT (Comm des relations de travail) will not find that there is control, if the control comes

from legislation, rather than ER.o Ex: Real estate agent was not found to be an EE bc the source of her subordination was

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regulation, not her EE. The fact she chose her hours, trips, how she found clients, booked own meeting, determined commission rate, took vacation without authority, said she was self-employed to financial authorities

o Paquin et services financiers investors, CRT: financial counselor who had worked for Investors for 10 yrs , Ct concluded there was an absence of control/supervision of Investors. Said control was bc of regulation for financial counselors, CRT pointed to his freedom to have own schedule, chose own tasks, made own sales goals, used own tools, had hired own assistant and determined her working conditions

o Court of Appeal said that the commissioner was not wrong to apply Dicom, despite the fact that was based on CCQ.

- CRT can apply criteria under CCQ to ARLS decisions even though they have different definitions!

- The CRT under the ARLS is less likely to refuse EE status bc of incorporation than under the CCQ. EVEN if the EE chose to incorporate for fiscal advantages.

The Labour Code - definition in art. 1l doesn’t refer to subordination. However, tribunals use concept of

subordination, economic dependence to see whether there is a EE status- Economic dependency alone is insufficient, the dependent contractor needs to be subordinate

to someone who exercises control so that his lack of autonomy is similar to an EE- EE status comes up when accreditation is sought or s. 39- Commissioners are very prudent before denying EEs access to collective bargaining: right to

unionize is fundamental, and in cases of doubt, it should be promotedo Review of subordination criteria by Tribunal de travail in Centre de la petite enfance La

Rose des vents c. Alliance des intervenantes en milieu familialo Found that Home Support Workers were EEs because:o 1) they had to personally do the work, 2) no possibility of profit (cant charge extra rates);

3) did not control work hours, 4) their work was integrated to the Child Care centre 5) economic subordination to the Child Care Centre bc they don’t determine own rate); 6) they were supervised beyond the regulatory legislation by the Child Care Centre

Act Respecting Collective Agreement Decrees- very different definition than other laws : art 1 (j): “employee” means any apprentice, unskilled

labourer or workman, skilled workman, journeyman, artisan, clerk or employee, working individually or in a crew or in partnership;

- EE status depends on being on the above list of occupations- this regime provides better work conditions than the ARLS and seeks to reduce disparities in the

sectors enumerated- As soon as someone does a job targeted by the Act, they are an EE under the Act.

o Even if they wouldn’t be EE’s under the Labour Codeo the Superior Court found that independent contractors were EEs under the Act even

though they declared business revenus with Revenu Quebec, were free to accept work, used own tools, had own schedule

o Otherwise, ERs could make EEs independent Kers to get around the collective agreement

- Subordination analysis not required to see if someone is subject to the Act, but rather to determine who has to meet the obligations under the Act (ie professional ERs or their sub-

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contractors)- Law applies to “professional employers” and sub-contractors

o Professional employers are employers who employ EEs covered by this acto If a professional ER, have to prepare pay equity reportso Law also applies to sub-contractors

- Tribunals will determine if someone is a sub-contractor (subject to the Act) or an artisan (not subj to Act) by looking at who accepts the risks, control, ownership of tools, liberty to chose schedule, work methods, form of payment … etc

Act Respecting Occupational Health and Safety, Act Respecting Industrial Accidents and Occupational Diseases,- both laws administed by the Commission de la santé et securite du travail (CSST), have different

definitions of ER.1. Act Respecting Occupational Health and Safety - “worker”= a person, […], who, under a contract of employment or a contract of apprenticeship,

even without remuneration, carries out work for an employer, except [representatives of ER and management of a corp]

- unlike ARLS and Labour Code, have a specific regime for self-employed people – art. 7o held to same standard as other EEs but also as ERs in some circumstances (ie, when

bring own equipment to a work site)2. Act Respecting Industrial Accidents and Occupational Diseases - public order legislation, what the parties call themselves is irrelevant- applies to both EEs and independent Kers, but under different conditions- Differentiation between worker & independent operator:- Worker = means a natural person who does work for an employer for remuneration under a

contract of employment or of apprenticeship, except …- Independent operator: “independent operator” means a natural person who carries on work for

his own account, alone or in partnership, and does not employ any worker;o “Independent operator” excludes those who employ other workers and those freely

choose to incorporate because they are considered employers who must pay the CSSTo to benefit from law, need to personally register with CSSTo although subject to obligations of an EE under the Act, won’t have access to worker

rights under this Act (indemnification, right to refuse dangerous work, right to be reinstated)

- Some “independent operators” are considered workers under legislation (s. 9)o An independent Ker who does work similar/connected with those carried out in the

establishment is considered an EE. (art 9)o This section still applies if the person works for multiple peopleo If s. 9 applies, their revenue is subject to assessment by the Commission

- To determine if someone is a worker, will look at criteria from already-mentioned laws and will look for a relationship of subordination (recruitment, latitude re: schedule, ability to be replaced … etc)

- CLP (commission des lesions professionnelle) may apply CCQ criteria- Jurisprudence underlines the broad interpretation of the definition of worker- Even if there is incorporation, will still recognize EE status if it was used to get around

legislation

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Financial legislation- For EE, if he is considered an independent contractor, will to benefit from business tax deductions- ER obligations

o Federal: employer has to make federal tax deductions and EIo QC: employer makes provincial tax deductions, Qc pension plan deductions and Qc

parental insurance plan; nd the ER needs to contribute to these regimes, and to financing the Commission des normes du travail

- Cnd Revenu Agency and Qc Revenue Agency have developed criteria to see if someone is an independent contractor

o CML criteria established in Weibe Door: the relationship needs to be examined using four factors (1) control, 2) ownership of tools; 3) possibility of profit; 4) risks of loss)

o However, Fed Ct said that 2085 jurisprudence should apply in Qc rather than Weibe door test

o CA affirmed that Weibe Door principles are valid in Qc, underlining that subordination is still key in Qc applicable in QC (Combined Insurance Co of America)

- Cnd Revenue Agency in Qc will follow Qc principles and will look at 4 criteria:1) parties’ intention; 2) execution of work; 3) renumeration; 4) relationship of subordination

- Qc Revenue Agency will look at 6 criteria: 1) effective subordination at work [most important] 2) economic criteria 3) ownership of tools 4) integration in the work done by the ER; 4) result of work; 5) parties’ attitude wrt to their business relationship

Conclusion:- issue that tribunals and courts will likely continue to deal with, given diversification of work- a K of services could be interpreted differently by different tribunals

iii. Dependent contractors


s. 1 (1) and 6 (4) Ontario Labour Relations Act

iv. Managerial and supervisor personnel

s. 1 (1) of the Quebec Labour code


v. Confidential employees

s. 3(1) Canada Labour code

e. The parties to certification proceedings

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i. ss. 32 and 36 Quebec Labour code

- note : resignations do not affect representative character, the date of filling matters!o Avoids putting constant pressure on EEs

Toronto Newspaper Guild v. Globe Publishing, [1953] 2 S.C.R. 18

Toronto Newspaper Guild v Globe PublishingShort note

Facts Union applied to OLRB to represent unit at ER, alleging a majority were members in good standing. At the hearing, ER wanted to cross-examine union secretary to show that since filing a number of EEs had resigned union membership.Board said it was irrelevant and refused permission. Did not question witness or investigate otherwise, and granted certification.

Issue Did the Board decline their jurisdiction, and should its decision therefore be quashed?

Ratio YES (Rand & Cartwright dissenting)** This case is meant to show the evolution of the law. Would not happen in QC today.Today, only Employer and Union are the interested parties for purposes of determining the persons to be included in the bargaining unit.Both are entitled to make representations, call witnesses, etc., but employees don’t have that right in this context.

Reasoning

Kerwin J:• Statute authorizes the Board to determine the appropriate unit, and to summon anyone to be a witness and compel them to give evidence.• Board’s decision is supposed to be final.• BUT, based on a reading of the statute: “…since the Board refused to order a vote as requested by the respondent, this means that the Board’s jurisdiction to certify depended upon its being satisfied that the majority of the employees in the Circulation Department were members in good standing of the appellant Union. But the Board said that it was irrelevant whether certain individuals had resigned from the Union and it therefore declined to investigate that all important question. In proceeding to certify, it exceeded its jurisdiction and excess of jurisdiction has invariably been held to be a ground upon which a Superior Court could quash an order of an inferior tribunal.”• Cites precedents to show that declining jurisdiction is grounds to quash a board’s decision.

Rand J (dissent): (Cartwright dissented on same grounds)“There are, undoubtedly, matters affecting interests on which information privately obtained may be more accessible and quite as dependable as any disclosed at a hearing; and seeing that the Board is entitled to the presumption that it acts in good faith and according to the oath of each member, in the simple matter of finding facts, it

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must be little short of an act of bad faith that can justify a court’s interference.”Here there was no departure from the jurisdiction given by the statute. The legislature can change it if it wants.

Notes The law is much more developed on this today.

iii. Bibeault v. McCaffrey [1984] 1 S.C.R. 176

Tina – p 16

Bibeault v McCaffrey 1984Short note

Facts Facts: Concerns three appeals from the QCCA. After an application for certification was made by an association, a commissioner started to examine each case. During this time, one + EEs wanted to make oral representations at the investigation, call witnesses and to cross-examine other parties’ witnesses regarding the definition of the bargaining unit. Commissioner said no to request. In the cases, the commissioner relied on s. 32 of the Labour Code

How it came to SCC

Case 1: EE of NDG meat market appealed decision to Labour Court (s. 118). Judge of Labour Court affirmed decision of commissioner and interpreted s 32 the same. Judge refused to view the EE as an “interested party” as per s. 32. Said that it was done in order to prevent the proliferation of interventions and unnecessary complications in the commissioner’s administrative function. Other individual part of this case took case to SC =writ of evocation. He alleged that commissioner infringed audi alter am parted rule, and therefore exceeded his jurisdiction. Said Labour Court and judge had lost jurisdiction for refusing to exercise it (within the 15 days) and not setting aside decision of commisiosner. Superior Court said that EE should be allowed to go to the hearing, QCCA upheld the decision. “Taken in the literal sense, this provision [s. 32] contemplates a hearing in which the ER and one or more EE associations will be represented. Court stated that it was consistent with other provisions of labour code (e.g. s. 28 (a) (d), s. 39). The provisions limit participation of EEs in discussion of bargaining unity. At the end QCCA said that EEs are not necessarily included.

Issue Whether s. 32 of the Quebec Labor Code recognizes that EE including in the bargaining unit for which a union is seeking certification have status of interested parties at an investigation by the labour commissioner into the definition of bargaining unit.

Ratio EEs cannot participate in the debate with respect to the scope of the bargaining unit, as per s. 32 of the Quebec Labour Code.

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Reasoning

The Commissioner and Labour Court are protected by privative clause. It was unnecessary to decide whether they exceed their jurisdiction. SC, QCCA did not have jurisdiction to answer this matter.

Legislative history shows that s. 32 is meant to exclude the ERs from the first part of the investigation and the EE from the second part.

The Code was silent until 1969 regarding “interested parties” or the obligation to conduct the investigation in anyones presence.

Judge finds that based on history the right of the EE to be present is not provided for because they are not an “interested party”

“In short, instead of saying that the employee is an interested party who has been refused the important right of being present, I would say that the refusal of this important right, in light of the general purport of the Code and the other rights of which he has been deprived, reflects the intent of the legislator to divest him of that status.”

-If EEs were interested parties, the legislator would not need to specify in whose presence the investigation should be held

-it is basically strange to use “interested party” as opposed to EE, when can just include EE. Further Code says there is no right to appeal for interested parties, which could be problematic if EEs were included in the definition of interested parteis. The only equitable reading of s. 32 is to exclude EEs from interested parties.

-The fact that EEs are not interested parties in the bargaining unit does not deprive them of the status in respect of the representative nature of an association e.g. requirement of notice

Judge asked that Gonthier J’s decision be restored: “Gonthier J. of the Superior Court, [1981] C.S. 80, dismissed their motion. Without ruling expressly on the question of whether an employee is, regarding the definition of a bargaining unit, an “interested party” within the meaning of s. 32 L.C., Gonthier J. stated that in his opinion, in any case, only “associations concerned” and “the employer”, and no others, be they interested parties or not, had a right to be present at this stage and participate in this aspect of the hearing before the labour commissioner.”

Notes

f. Certification apparatus

i. Labour relations officer (s. 21 Quebec Labour code)

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As part of the Labour Relations Commission

Functions: Administrative duties and responsibilitieso Investigate alleged contraventions : s. 12o Verify representative character : s. 28o Verify whether there is an agreement on the bargaining unit : s. 28o Certify or order a vote under certain conditions: s. 28

Ie no involvement of a Commissioner Can also order a vote

o Power to refuse to certify: s. 29o Power to report to the Commission: s. 30o Power to inquire: s. 33

ii. Labour Relations Commission (Commission des relations du travail)

Commissioners are considered administrative judges! ss. 112 to 137. 10 Quebec Labour code

o object and jurisdiction: ss. 112-116o 114: resp for ensuring diligent and efficient application of the

provisions of the Code ….o Exclusive jursidction over duties/powers under the ACT! o Duties and powers: ss. 117-120

117 : Need to hear parties unless they consent not to be heard!

118 : provisional orders 119 : CAN INTERVENE IN STRIKE or LOCKOUT

(before had to go to Sup Ct) Pedneault c. Compagnie Wal-Mart du Canada, 2006

QCCA 666o Pre-decision conciliation: ss. 121-123o Decision: ss. 124-129o Can contest it under 127- criteria (usually for substantial or

procedural defect)

Pedneault c Wal-Mart 2006 QCCAFacts EEs of the Jonquiere store of wal mart – sought class action against store when it

was closed following the unionization. Class action claim included allegations of the Qc labour code; alleged there had been violations of the Qc labour code

- ER tried to argue that the Commission had exclusive jurisdiction- Called upon to characterize jurisdiction under s 118 and 119 as exclusive-

Ratio - Para 32 of the CA : exclusive jurisdiction- Para 38: it is “souhaitable” bc specialized tribunal- Jurisdiction rationae materiae – jurisdiction was with the tribunal

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Examples of the jurisdiction of the Labour Relations Commissionso Determine any changes with respect to the status of employee: s.

20.0.1 o Determine the representative character: s.21o Determine the bargaining unit and the employees to be included in

it: s. 32o Determine the application of successor rights : ss 45-46o Hear and decide unfair labour practices complaints: ss 12 and 15-

20o Certify or revoke certification in certain circumstances: s. 41o Suspend negociations: s. 42

iii. Canada Industrial Relations Board Labour Boards

Powers:o ss. 16 (a) to 16 (p), 16.1, 17, 21 Canada Labour code

Voteo ss. 29, 30, 31 Canada Labour code

g. Affiliation and raiding

i. Modalities of affiliation, disaffiliation, decertification

ss. 41, 42, 73 Quebec Labour code

Syndicat canadien des travailleurs du papier v. Syndicat national des travailleurs de la pulpe et du papier, [1980] T.T. 406

h. Successor rights (Under the Quebec Labour code)

i. Quebec Labour code


U.E.S., Local 298 v. Bibeault [1988] 2 R.C.S. 1048

Invanhoe inc. v. TUAC, section locale 500, 2001 SCC 47

Sept-îles (Ville de) v. Quebec (Trubunal du Travail), 2001 CSC 48

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Sept iles : In Qc, you cannot recognize an EE without accreditation

UES, Local 298 v Bibeault [1988]Short note

Facts a) A school board had been contracting its janitorial services to 2 companies (MPD and Netco). At one point the school board put out a call for tenders, and Menagers—a different company—won the tenders and became the contractor.

b) Union (under the old contractors) applied for successorship rights under s. 45 QLC. Labour commissioner Bibeault granted the application.

c) Bibeault’s finding was held up at the Labour Court, but overturned on JR at the Superior Court and QCCA.

Issue Was the union entitled to successorship rights under s. 45 QLC? (NO)

Ratio a) Alienation = the essential/fundamental components of the 3-way framework (er, undertaking, ee’s) must continue to exist.

b) Undertaking = self-sustaining organization of resources through which specific activites can be wholly or partly carried on.

Reasoning

a) (Cutting through the out-dated judicial review analysis): the court will apply a correctness standard of review here, since the determination of what constitutes alienation / successorship is not part of the statutory powers of the Commissioner.

b) Here, there was no alienation. There was no legal relationship between the old contractors and the new contractors. The undertaking was not continuous: the new contractors took over with a new undertaking. There was no transfer of the fundamental components of the old undertaking.

Notes

Ivanhoe inc v TUAC, section locale 500, 2001 SCCShort note

Facts - Ivanhoe (I) is a property management company. UFCW was certified to represent janitorial staff at Ivanhoe’s shopping centres across QC

- I decided to contract out the janitorial services in 1989 to Moderne Services (M), so all janitorial employees were transferred to M

- UFCW applied to the Commission des relations de travail for recognition of the transfer of the certification and collective agreement to M (pursuant to s.45 QCLC), which Commissioner granted

- UFCW then negotiated a collective agreement with M- 1991, when K with M was about to expire, I calls for bids for a new K. M does not

bid, but it signed a new collective agreement with its janitorial employees.- I established contracts with 4 new contractors employing their own staff and

equipment.- 2 days before K with Ivanhoe expires, M signed a new collective agreement with

UFCW64


- On day K with I expired, M dismissed the entire janitorial staff responsible for I’s buildings.

- Although no legal relationship existed between M and the new contractors since the contactors employed their own staff and used own equipment; UFCW, despite its bargaining unit having zero members, applies under s.45 QCLC to have certification and CA transferred to the 4 contractors. I and 3 of the 4 companies challenge this application and Ivanhoe also files its own s.41 application to have certification cancelled with respect to itself.

- The Labour Court affirmed that commissioners’ decisions that operation of part of an undertaking had been transferred, as required by s. 45(1), and that s. 45 applied since the tests in Bibeault had been met.

Issue - Does s.45 apply to the certification or collective agreement such that it can be transferred from M to the 4 companies?

- Can I make a s.41 application and does it succeed?

Ratio - Applies to the certification, but not the CA.- I can make the application, but here it fails.

Reasoning

Arbour J :- Before Bibeault 1988 (with similar facts) there was disagreement about how to define

an undertaking: i.e. functional approach (defined undertaking in terms of the work being done) or organic approach (defined as a set of various components: physical, human, intellectual, legal). The Labour Court was deadlocked. (definition of undertaking is key to s.45)

- In Bibeault the SCC adopted the organic approach. SCC said collective bargaining has to be seen in tripartite framework: employer, union, and undertaking. Where the essential elements of this framework survive a consensual transfer from one employer to another, s.45 applies.

- A part of an undertaking is a portion of a business capable of being defined as a functioning entity that is viable in itself or sufficiently distinguishable to be severable from the whole.

The present case

Section 45 applies to certification- s.45 issue: court employs theory of “retrocession” that deals with context of

temporary sub-contracting when the subcontract expires, the certification that was transferred to the subcontractor automatically "retrocedes" back to original employer. (might not apply to certification that originated with subcontractor)

- in present case, s.45 applies to certification. When K between I and M lapsed, certification retroceded to I for a notional instant and then is retransferred to the 4 companies. This is the twisted way that s.45 is interpreted to make certification get transferred from M to the 4. (Bibeault is distinguished: as cert was not transferred, because unlike I, school board had never run janitorial service in-house before contracting out.)

- Concept of "potential employer" is the legal fiction that makes it possible to transfer stuff from one subcontractor to another without the primary operator of the

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undertaking (e.g. I) actually taking back the operation before retransferring it. For the notional instant between retrocession and transferral to the 4 companies, Ivanhoe is the "potential employer."

Section 45 does not apply to the collective agreement- Cert and CA are normally transferred together, but here s.45 does not apply to the CA.

Since the undertaking transferred from I to the 4 companies was I’s, the CA between M and the union lapsed when the K between I and M expired. So no CA left to be transferred from M to the 4.

- This decision to let the CA lapse has the unfortunate result that the workers are all laid off...

- This is the Labour Court's decision; it's not patently unreasonable.

Ivanhoe's s.41 application fails- I has the right to make the application because I's name is on the cert document.- Application fails because I may not cancel certification during the temporary period

when the cert was subcontracted to M.a) s.41 says cert can be cancelled when the union no longer represents a majority of

workers, but there are no workers, so this can't be ascertained.b) the representativeness of the association is best gauged wrt to the operator of the

undertaking (Ivanhoe) rather than wrt to the subK'or (M). Otherwise, Ivanhoe would be able to rid itself of the certification permanently by transferring the undertaking temporarily.

Bastarache dissenting in part:- s.45 doesn't apply because there's a lack of connection between M and 4 companies- Majority broke with Bibeault by using a functional definition of undertaking.

Undertaking doesn't just mean "work." Something more, a going concern, must be transferred for there to be transferral of an undertaking.

- Majority is using a functional approach and calling it organic - says all there is to be transferred has been, but no, there's other stuff, like company name, office, staff, relations with suppliers, ways of doing things. (these are indicia of a going concern.)

- Potential employer and retrocession doctrines not supported by s.45- No one here thinks that the CA should be transferred- proves that this isn't a real

successorship situation.- The compromise of transferring certification but not CA is useless, because the

workers are jobless anyway.- Incongruous because I is treated as present employer in that it's allowed to make the

s.41 application, but then the application is denied on the basis that I's only a previous employer.

- Labour Court's commitment to an artificial interpretation of s.45 leads to problems with s.41. This is all too complicated.

Notes

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Sept-îles (Ville de) v. Quebec (Trubunal du Travail), 2001 CSC 48Short note

Facts City contracted out garbage collection, and no EEs were laid off or lost pay/benefits from new K with subcontractors. Subcontractors had all their own equipment, staff, mgmt., but City still gave instructions had ultimate responsibility for many aspects of garbage service. Labour Court allowed partial transfer of cert and CA. Overturned by Sup Crt and restored by Court of Appeal.

Issue Should the cert & CA transfer to the subcontractors, even if they have their own equipment & staff?

Ratio YES – The ‘essential elements’ test should be applied flexibly. Need to consider the nature of the undertaking and the relative importance of its various components.

Reasoning

Arbour J: Following Bibeault, s. 45 can apply where a transferee performs functions similar to

the transferor who was already certified, and receives a right to operate part of the transferor’s undertaking.

It’s up to the specialized decision-maker to weigh the criteria to determine whether a transfer of the operation of an undertaking has occurred.

This is NOT a return to a ‘functional’ understanding of undertakings. Consistent with Bibeault, the Commissioner sought to identify the essential elements of the part of an undertaking of which the operation had been transferred, by considering the nature of the undertaking and the relative importance of its various components.

Transferee must have sufficient autonomy to find that a transfer has occurred. Doesn't require total control of everything – can still take precise directions from the transferor. In this case, the subordination of the EEs to the contractors was enough to give them autonomy.

S. 45 is public order and can’t be waived in a CA.

Bastarache J (dissent):Bibeault held that the subcontractor must assume “total control” if s. 45 is to apply. It also ruled against the “functional” approach. Second, the autonomy requirement is not met: what is being transferred must be a viable economic entity, and the transfer must be final. Transferring work only, and retaining responsibility over the subcontractor, is not a transfer under s. 45.

Notes

Syndicat des employées et employés des magasins Zellers d’Alma et de Chicoutimi (CSN) c. Zellers, 2009 QCCA 474Short note

Facts Union represents employees working in the Galeries mall. Collective agreement was in place June 8, 1992 until Dec 31, 1994.

July 1994 Zellers announced opening of new branch close by in Alma, says it wants both stores to remain active.

Dec 1994 while renegotiating collective agreement announces it wants to change

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the Galeries store into a liquidation center, then announces closure of the store in march.

May 1995, union expresses desire to accept proposition of $175k for the severance pay. Zellers then sends letter to employees w/termination notice

Union then ends up rejecting the proposition. Union begins 2 claims, one under articles 45-46 and another under article 39 of

Code du Travail Union wants to transfer the Collective Agreement to the new location. Employees strike in July, Zellers closes early. Zellers claims the strike is illegal and tries to claim for losses. Strike is declared

lawful by the courts. Court rejects the claims under articles 45-46, no new employer. Court of Commissioner Jasmin accepts the claim under article 39, on the

certification changes the address to that of the Alma branch. States that having 2 stores open was merely done to conceal what was really a move.

Zellers rejects decision of the court

Issue About the standards of review used for revision of lower court decision, and whether this was a case of a business closure or change of venue.

Ratio Finds in favour of Union, this constituted a change of address.

Reasoning

Really, Union is contesting the correctness of the reasoning that the employees should lose their status because of filing the grievance.

Norm of correctness is not quite what the Superior Court used. Norm of correctness therefore replaces manifest error. Commissioner Jasmin had concluded the lack of real difficulties of regulating

under article 39. Employer always has right to stop the exploitation of his enterprise. For countering

the closure, the collective agreement can’t help. Union was accredited to represent the employees of Zellers of this location. By

July 17, 1995, the establishment was clearly closed. Only recourse for the employees was to demonstrate that the closure was merely a

façade, and business was simply continuing in another branch. Commissioner Jasmin decided that the closure was a façade, and there was

therefore no reason to terminate employment. As a result, there was no justification for job loss by Zeller and their claims were rejected.

Notes

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Bibeault IvanhoeThere needs to be a « lien de droit » between the former EE and the new one

- certification wasn’t with the school board, it was always with the sub-Ker

-

- there was an original K with the main compnay

o Binnie : puts a lot of emphasis on this distinction

-

ii. Quebec Civil Code

Art. 2097 C.c.Q.

iii. Canada Labour code

Canada Post v. C.U.P.W. (Sheldon Manly Drugs), (1989) 1 C.L.R.B.R. (2d) 218

iv. Transfer of jurisdiction from provincial to federal and vice versa

S. 45.3 Quebec Labour code

S. 44 (3) Canada Labour code

v. Successor union

S. 43 Canada Labour code

The Quebec Labour Code is silent on this issue

5. UNFAIR LABOUR PRACTICES

a. Undue interference with the formation or activities of a union

i. s. 12 Quebec Labour code ER cannot dictate its views to the trade union: cant participate in union activities, no

financing , no interference Remedies : s. 118 & 119

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o Before these were just penal before 2003 Note: Unfair labour practices are just as essential as grievance arb and check off clauses –

bc of recognition that there isn’t an equal practiceNot on syllabusWoolworth 1978 RL 439Manifestations . CNTU was certified to represent the EEs of the store, the ER told the EEs it was going to close the store. They told the EEs the only way they could re open was to have the EEs forego their union status

- Penal complaints filed under s 12 of the labour code- Fines ended up being imposed on the ER

- Unfair labour practice in s 12 was found to apply in the context of a unionization campaign and in the context of a dispute between the union and ER

ii. s. 94 (1) Canada Labour code Similar to Qc’s laws

iii. Quebec: effects on certification

ss 29, 31, 118 (8) and 149 Quebec Labour code

iv. Canada: effects on certification

s. 25 (1) Canada Labour code

b. Intimidation and threats

i. As between union and employees



ii. As between employer and employees

a. Termination of operations: actual or threatened

City Buick Pontiac v. Roy , (1981) 3 C.L.R.B.R. 281: Commission does not have authority for force a business to re-open

City Buick Pontiac v. Roy , (1981) 3 CLRBR 281Short note

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Facts A legal lockout was underway. Rather than conceding to the union’s demands, the employer announced publicly on TV that he’d rather close the garage than give in. The employees were all dismissed. Only 15 staff members remained on for the next few weeks, the business was shut down, and the building sold.

Issue Should the dismissals upon closure of the business be presumed an unfair labour practice under s. 17 of the Code?

Ratio NO - Companies have a right to go out of business. Closing a business for business reasons, no matter how reprehensible socially, is not an unfair labour practice under s. 17 QLC. Closure just needs to be true and genuine – then s. 15 won’t apply

Reasoning

Dismissals arising from a true and genuine business closure are not a violation of the Code. It does not invoke the presumption of an unfair labour practice under s. 17 QLC.

“In our free enterprise system, there is no legislation to oblige an employer to remain in business and to regulate his subjective reasons in this respect . . . . If an employer, for whatever reason, decides as a result to actually close up shop, the dismissals which follow are the result of ceasing operations, which is a valid economic reason not to hire personnel, even if the cessation is based on socially reprehensible considerations. What is prohibited is to dismiss employees engaged in union activities, not to definitively close a business because one does not want to deal with a union or because a union cannot be broken, even if the secondary effect of this is employee dismissal.”

Notes This is followed in later cases (Place des Arts, Plourde)This case was considered extensively in Wal Mart - Gonthier just really respected Justice Lesage

Plourde v. Wal-Mart Canada Corp., 2009 SCC 54 Note: Union had tried under s. 12-14 S. 15-17: Remedies: compensation for lost wages, remedy for specific EEs who are

terminated (not general remedies). After WM, can no longer say that a closure of business, motivated by anti-union reasons is

necessarily consistent with the QC labour code o The door is certainly open to a challenge for a trade union under s 12

Plourde v. Wal-Mart Canada Corp., 2009 SCC 54Ss. 15-17 does not apply to a closed business

Facts UFCWU was certified to represent the Wal-Mart in Jonquiere by the Commission des Relations du Travail (CRT) in Aug 2004 It was the first WM to unionize in N. Am! After failed bargaining attempts, the Minister of Labour appointed an arbitrator to allow the parties to establish their first collective agreement on Feb 9 2005.The same day, WM announced it would close! In April, P’s employment was terminated. WM EEs initiated many proceedings as a result.This is one of them - P filed an application under ss. 15-17 seeking remedies including reinstatement and compensation bc the closure was due to EE exercising their labour rights. WM argued that the dismissal was because of the closure,

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not the unionization.Note: S. 17 includes a statutory presumption whereby if an EE shows he/she was exercising a right, it is presumed the dismissal/sanction was because of them exercising this right UNLESS the ER shows there was a “good and sufficient reason” for the dismissal/sanction

Judicial History: CRT said that P could benefit from the s. 17 presumption, but said that the closure was genuine and therefore a “good and sufficient reason” or his termination -- > JR : SC stated that a closure was a “good and sufficient reason” for dismissal. QCA: leave was not granted bc no issues were raised

Issue Can s 15- 17 QLC apply to a business that has already been closed? NO

Ratio Majority 6/9 (Binnie J): City Buick, supported in Place des Arts, must be followed, which established that s. 17 cannot apply to a business that has already closed because. In these cases, the reason for the dismissal is the closure. No Quebec law can require a business to stay open even if the closure was done for a “socially reprehensible considerations.” However, this does not prevent EEs from seeking recourse for unfair labour practices under ss. 12-14 and general remedies under ss. 118-119. Remedies under ss. 118-119 are not available in a s. 15 application.

Dissent 3/9 (Abella J): The issue isn’t whether an employer can be forced to reopen a business, but whether there is a remedy under ss. 15-19 when the closure is for anti-union reasons. City Buick was a departure from the purpose and text of the Code and prior QC and SCC jurisprudence stating employers’ motives should be assessed in every context. The decision created a blanket immunity for businesses closures and should be dissolved. Places des Arts’ discussion of City Buick was peripheral and not a central issue in that case. It would be inconsistent with the purpose of ss.15-19, meant to even the evidentiary playing field, that the most severe forms of reprisal wouldn’t be assessed. It is also inconsistent that employees cannot access any of the s. 15 remedies just because reinstatement isn’t possible. A broad interpretation is required wrt to remedial statutes.

Reasoning

The issue is NOT whether a business can close for anti-union reasons, it is whether an EE can benefit from a statutory presumption from ss. 15-17 when the business has closed

- The EE and union have remedies in case of a closure for anti-union motives under ss. 12-14 (see below)

If the EE wishes to have inquiry into the reason for the closure, the EE can pursue remedies under s. 12 and obtain civil remedies (compensation)

- Ss. 12 prohibits an ER from hindering activities of an EE associationo Caselaw shows that this section was successfully used wrt to threats of closures

[27]- A claim under this section is logical because P is claiming that all the EEs were

targeted, not just him, but claims under these sections were unfortunately discontinued (Boutin v WM (under s. 12)

- Admits EE/union is at disadvantage since there is no presumption – the onus is on the EE/union to establish on a balance of probs there was an unfair labour practice, although showing that decision was “tainted” by anti-union animus is a low threshold

o City Buick shows that it is hard for ERs to prove that closures aren’t tainted by

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anti-union animus when there’s “mixed-motives”- Ss 12-14 look at different issues than ss.15-19: ss. 15-17 look at reasons for the

dismissal VS ss. 12-14: is broader, looks at reason for closure and applies to all EEs- A finding under ss. 12 to 14 also allows exercise of broad remedial powers under

ss. 118-119

Ss. 15 -17 do not apply to a closed business- s. 15 says “reinstate such employee in his employment” which “signals quite

unambiguously the legislative contemplation of an ongoing place of employment as the foundation of a successful s. 15 application” [35]

o s. 15 also states an indemnity is due for the period between the dismissal/suspension/transfer and the reinstatement order (ie, this isn’t possible if business is closed)

- “The CRT has continuously treated the indemnification provisions as limited to the situation of an ongoing business rather than a free-standing power to award damages against employers for anti-union conduct associated with a closed business” [36]

- Abella’s position that s.15 applies to a closed business would “erode the distinct roles assigned by the legislation to the ss. 12 to 14 group of provisions and the ss. 15 to 19 group.” [38]

- [54] What, then, is the effect of Place des Arts? In my view, in affirming that “there is no legislation [in Quebec] to oblige an employer to remain in business” and that the “dismissals which follow are the result of ceasing operations”, the effect of Place des Arts is to exclude in a workplace closure situation the application of s. 17. This is because our Court adopted the proposition that the remedial order presupposed an ongoing business. In this situation, a workplace closure is a complete answer. However, Place des Arts does not stand for the more sweeping proposition that closure wipes the employer’s record clean and immunizes it from any financial consequences for associated unfair labour practices. Nor does it preclude a finding that the closure itself constitutes an unfair labour practice aimed at hindering the union or the employees from exercising rights under the Code . The appropriate remedies for employees as well as the union simply exist elsewhere under the Code, and in particular under ss. 12 to 14 relating to unfair labour practices.

Ss. 118&119 are not available on a ss. 15-17 application- S. 15 is a summary remedy [39] : the legislature has specified in s. 15 what remedies

are available- Otherwise -- “adding the generality of ss. 118 and 119 remedies to a s. 15 violation

would give the s. 17 presumption an expanded (and comprehensive) effect beyond the reinstatement and associated relief contemplated in ss. 15 to 17 group of provisions for an illegal dismissal. Employees in search of general remedies would never have to establish anti-union misconduct. Its existence would always be presumed in favour as soon as they established they had exercise ‘a right arising from this Code.’ This, in my view, would significantly alter the balance between employers and employees intended by the Quebec legislature.”[39]

Affirmation in Place des Arts that s. 15-17 does not apply closure of the business - In Place des Arts (2004), the SCC adopted Judge Lesage’s reasoning in City Buick

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http://www.canlii.org/en/qc/laws/stat/cqlr-c-c-27/latest/cqlr-c-c-27.html#sec14_smooth


http://www.canlii.org/en/qc/laws/stat/cqlr-c-c-27/latest/cqlr-c-c-27.html




(1981) thato “in our free enterprise system, there is no legislation to oblige an employer to

remain in business and to regulate his subjective reasons in this respect … if an employer, for whatever reason, decides as a result to actually close up shop, the dismissals which follow are the result of ceasing operations, which is a valid economic reason not to hire personnel, even if the cessation is based on socially reprehensible considerations.”

- Rationale: the closure IS the reason for the loss of employment: “The Quebec view is that the immediate reason the employees were dismissed is that their jobs no longer existed because of the closure” [46]

- Lesage’s view has been followed consistently in workplace closure cases- Need to preserve consistency

Policy reasons for s. 17 not applying in workplace closure- ss. 15-17 presmption arises whenever an EE shows involvement in union activities and

is difficult to rebut because any taint of anti-union animus will be fatal to the ER’s defense even when “mixed motives” [48]

o Need to keep the balance between the EEs bargaining through union and ERs who bargain individually [57]

- Quebec legislature did not modify the Code to overrule City Buick [50]- The majority also dismisses arguments that after Health Services applies because P

hasn’t made any arguments as to unconstitutionality and the entire code embodies freedom of association when read “as a whole”

o “It cannot be correct that the Constitution requires that every provision (including s. 17) must be interpreted to favour the union and the employees.”

- Regarding arguments about other provinces: QC does not have to follow these other schemes

Dissent (Abella J)- Immunity under City Buick should be dissolved- Abella’s version of the facts underlines that P was asking for compensation under s 17

not for the store to be reopened- No one argued an ER can’t decide to close a business, but that the issue is “whether a

remedy should exist under ss. 15 to 19 when the motive for the closing is antiunion” [78]

The City Buick ruling contradicts history and purpose of the law, text of the Code, and case law

- Following the City Buick decision has resulted in “a blanket immunization from scrutiny for business closings” [66]

- Addition of ss 15-19 in 1959 was “one of the most significant reforms in modern labour law” [68] since before there was no civil remedies (reinstatement/compensation) for EEs, (ss. 12-14 were penal until 2001)

o meant to 1. Provide access to remedies for anti-union conduct & 2. Level the evidentiary playing field

- Bc of the evidentiary difficulties for EEs “two complementary remedial routes” were available: a penal provisions (ss 12-14) and ss. 15-19 (civil remedy)

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Pre-City Buick QC case law- The Tribunal was required to consider whether there was a “real and determining”

reason for dismissal (Maserq 1963) and that the decision is free of anti-union animus (Nadeau 1978)

- SCC: Also that ER’s motives must always be assessed (Lafrance SCC 1980)- City Buick ignored consistent QC jurisprudence that a “real and serious reason”

assessment needed to be done in every context [109]- Result of City Buick is that if an EE is dismissed, there is a recourse under s. 15, but if

all the EEs are dismissed (ie closing ), the ER’s motives won’t be scrutinizedo “closing a business can in fact be the most severe form of reprisal for union

activity” [107]- In Place des Arts, City Buick was peripheral to the SCC’s analysis and no party

specifically challenged City Buick: “it can therefore hardly be said that the Court addressed its mind to its ongoing relevance in such a way that ought to constrain our central invitation in this case to consider its continued legitimacy” [117]

Inconsistent with Labour Code: to analyze motives for all reprisals under s. 15 EXCEPT a closure

- Admits that jurisprudence from other provinces has no effect on QC, but says that the current rule came from City Buick (ie, jurisprudence), NOT the QC legislature

o Only one passage was cited in relation to an unrelated issue- Majority’s only argument for denying EEs of their historic protection is a “lopsided

advantage” but this is the procedural core of QC’s schemeo There is lots of caselaw showing ERs overcoming the presumption

- “the presumption under s. 17 is one of the most vaunted equity tools in modern labour law and is, arguably as conceptually and analytically significant for employees seeking protection of innocence in criminal law.” [124]

- EVEN when reinstatement isn’t possible, there are other remedies in s. 15 that could be used

- Remedies for antiunion conduct shouldn’t be restricted to only circumstances where reinstatement is possible!

o “if the legislature intended to restrict access to remedies for anti-union conduct to circumstances where only reinstatement was the appropriate remedy, it would hardly have provided such an expansive menu of unlawful conduct.” [130]

- Majority’s reasoning for the entire scheme is based on four words in s. 15 (“reinstate…in his employment), this interpretation is very restrictive - Jurisprudence confirms that remedial statutes require a broad interpretation [130]

The majority’s argument that EEs of a closed business can use ss. 12-14- the jurisprudence and academic writing is unclear as to whether EEs (not unions) can

use these sections- Ss. 118-119 applies to s. 17 : the language in ss. 118-119 does not suggest that it

doesn’t’ apply to s. 17

Notes Justice Binnie refereed to s. 118 and s. 119== saying that we have to wait and see if the Labour Relations Commission in Qc will be as aggressive in creating remedies. (e.g. something like automatic certification?!)

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b. Promises Once there is a unionization campaign, the ER cannot make promises! any promises or campaign should be BEFORE the petition is filed!

In context of unfair labour practice complaints—-the intentions of the ER- no matter how noble, will not constitute a valid defence.

You will not have to prove that there were ill intentions on parts of ER. If you can prove it, EE will probably have worse remedies.

Usually for unfair labour context= there is no need to prove bad faith on part of ER!! Promises, represetnation that things will change, and specific perks for EE= IS NOT PART

OF ER’S FREEDOM OF EXPRESSION/SPEECH. There are provision at prov and federal level that prevent ER from making unilateral

changes to EE’s working condition. o S. 50 CLC= Duty to bargiain and not change terms

If promises are being made, are there also making threats? Therefore, ER should not be expressing any opinion about whether or not a union should be certified or not. This is because the ER has so much authority. Also applies to management.

Retail Union, local 580 v. Western Wholesale Drugs Ltd., [1969] C.L.L.C. 14166

Retail Union, local 580 v. Western Wholesale Drugs Ltd., [1969]Short note

Facts Trade union filed a petition for certification. During this time the ER started making a bunch of promises to the EE. ***remember that injunction today would be filed with labour board. The Defendant announced a pension revision which had been contemplated for some time, he also announced that there would be a wage increase, took steps to establish a grievance procedure, gave address for which Union could send mail, discussed benefits that EEs would get now and in the future. ER also organized meetings with EE to provide information, in order for EEs to make the right decision. The ER also expressed its opinion that there is no need for a union to be present, the EE does not need to be represented by a trade union.Therefore this case shows us what an ER cannot do in the context of a unionization campaign.

Issue Could the ER make these changes / promises after the certification process had starte?

Ratio Despite the “good will’ of the ER= the court’s intervention was nevertheless necessary.

Reasoning

This constituted unilateral changes to working conditions There are provision at prov and federal level that prevent ER from making

unilateral changes to EE’s working condition. Because otherwise the ER would be free to make promises but could conversely sanction EE’s if they sign up with a union, and they are not happy about it.

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The court found that there was no ill intention on part of the ER—- ER thought he was acting in good faith and providing good info to EEs.

Despite the “good will’ of the ER= the court’s intervention was nevertheless necessary.

Notes

c. Captive audiences and information blitz

In consdieration of the ER’s authority of the EE, subordinate relationship. ER prohibited from using authoirty to provide messages to EE

Look at whether EEs have right to not go to the meeting etc. Often, would have to attend bc of subordination relationship – so this would satisfy captive audience If there is an ER who is keen on imposing authority over EEs (during lunch/after

work)- the EEs can nevertheless feel compelled to attend meetings. So even tho its not during working hours, its still captive audience

Unfair labour practices now includes this rule, so as not to allow the ER to force a message

Is there automatic certification in Qc? Walmart— Justice Binnie refereed to s. 118 and s. 119== saying that we have to wait

and see if the Labour Relations Commission in Qc will be as aggressive in creating remedies. (e.g. something like automatic certification?!)

Amalgamated Clothing v. Dylex Ltd., [1977] O.L.R.B. 357 Shows what the ER cannot do in the context of a

petition for certification

Amalgamated Clothing v. Dylex Ltd., [1977]Facts Application for certification filed. The ontario labour relations board ordered a

representation vote among EE’s involved in bargaining unit. ERs posted posters saying: keep the union out, and he also posted under things

saying that the union fee could instead buy this xxx. (e.g. food). They also sent letters to EE saying that at present, we do not charge a union due/fee, union would charge you. Then a series of letters were sent to the EEs= letter date Jan 14= contains a list of questions.

in Qc= if there is a strike— the EE’s job is protected. This is not true in Ont. It is an unfair labour practice for the ER to impose messages on the EE,

due to his/her superior postion

Automatic certification happened in this case. (not the case YET ? in Qc) violation of captive audience rule: because the message has been sent by ER

and it is constantly in their face: the displays, the poster, the letters= they do not have a choice about stopping the messages of the ER regarding unionization

captive audience= did not take the form of a meeting, where the EE were called to participate or attend, (which would also count) it was instead, in the form of

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posters, displays and letters IMPOSED upon EEs.

iii. Freedom of expression

a. Communications by employer Limited. Not an even playing field, bc of ER’s tremendous power over EE

National Bank of Canada v. Retail Clerks International Union, [1984] 1 S.C.R. 269

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Slaight Communications v. Davidson, D.T.E. 89T-555

Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038Short note

Facts a) Unfair dismissal complaint; employee wins at adjudication.b) Remedy = Labour adjudicator ordered employer to

(1) provide letter attesting to ee (basically a letter of reference)(2) not answer any further inquiries about employee from a future ER

c) JR at Federal Court of Appeal dismissed

Issue a) Does the Charter apply to the adjudicator’s orders? [YES]b) [IF SO] Do the orders violate 2b; [IF SO] justified s.1? [VIOLATES 2b; JUSTIFIED]

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National Bank of Canada v. Retail Clerks International Union, [1984] 1 S.C.R. 269Short note

Facts - two banks merge to form National Bank- Part of reorganization, NB closes unionized branch of one bank and incorporates it into a non-unionized branch of other bank.Holding of Labour Relations Board: integration of 2 branches constitutes a sale of business within s.144 of CLCRemedies- the workers that were moved to the non-unionized branch were automatically certified- the union is given facilitation in entering that branch- bank ordered to open bank account with $144,000 trust fund to be administered jointly to pursue the objectives of the code- employer had to write an apology letter (that they had violated the code and that employees had a right to organize under the code

Issue Did last two remedies (1. order that the bank create a trust fund to promote the objectives of the Code, 2. letter to Ees adivisng the creation of the fund) exceed the Labour Board’s jurisdiction? Yes.

Ratio a) remedy must be directly connected to the alleged employer violation and its consequencesb) Labour Boards cannot impose a punitive remedy

Reasoning

Note, the decision is based upon administrative law principlesa) Labour Board remedies must be rationally connected to the breach and its consequences- Here, fact that a large measure of the Bank's other employees are not unionized is not a consequences of closure of the old branch- the: decision was excessive! the trsut fund is set aside,

b) Labour Board remedies should not be punitive- Trust fund is not compensatory or rectifying, instead it is meant to punish the banks

Notes Today this makes no sense, because if you take a group of unionized EE and put them into a group of unionized EEs- most likely that the larger group will become unionized.


[Holding: adjudicator order upheld]

Ratio Charter applies to adjudicator order (when adjudicator is creature of statute). Adjudicator order may violate 2(b) freedom of expression, but may be justifiable

(under s1).

Reasoning

DICKSONa) Charter Apply to order? YES – bc adjudicator’s powers are created by statuteb) Violate 2b? YES (it constrains employer’s expression)c) Justified s1? YES (Oakes analysis)d) Admin law? [old school patent unreasonableness]

BEETZ (dissent)a) Letter was unreasonable and vexacious – decision was excessive!b) Both orders violate 2b; not justified (draconian, like Galileo and the Catholic

Church)LAMER

a) 1st order violates 2b but justifiedb) 2nd order exceeds jurdn [old school jurisdiction analysis]

Notes (we read this case mainly for the Charter application issue)

b. Picketing Definiton: aimed at communicating a message. It is a mode of expression used by EEs in

order to communicate a message, and to convince the population that the cause is legitimate. Purpose of picketing should not be to prohibit people from crossing the line.

Entails freedom of expression, Charter o not absolute o it is an accessory to the lawful strike or lock-out (they don’t have the right if strike is

unlawful) generally lawful, unless accompanied by unlawful acts (obstruction, threats, intimidation,

dissemination of false/defamatory information/false/defematory statements, beer bottles being thrown, spitting, damaging cars, throwing eggs)o Court will intervene to limit the number of picketers, can continue to picket

THIS is when courts will intervene to limit the right to picket lines o Picketers can’t obstruct - ER has a fundamental right to access to premises, and EEs

who aren’t part of the collective agreement have right to access premises to earn a livingo EEs and the union have the right to continue to convey their message

Secondary picketing: instead of putting pressure on the ER, put pressure on the parties related to the ER (ex: subcontractor, supplier, client, management’s house)

Py : said it was okay to picket.; Pepsi: secondary picketing Primary vs Secondary picketing

Primary: in front of EE’s premsies ER has a fundamental right to access to premises, and EEs who aren’t part of the

collective agreement have right to access premises to earn a living Courts will intervene freedom of expression used to be only wrt to primary picketing

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Secondary picketing: put pressure on parties related to the ER (ex: subcontractor, supplier, client, management’s house)

o Secondary picketing used to be consdiered unlawful in Qc, court will intervene:

o other jurisdictions it’s LRB (Charter will apply) Courts will usually limit the number of picketers

- Federally regulated undertaking: o Not subject to a statute (Bd only declares whether strike is lawful or not) o Have to go to Superior Court anyways

R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8

- SCC dancing around the issue of Charter’s applicaton to the CML. Even tho Charter doesn’t to it, CML values must evolve based on the Charter.

- After this case, no more difference wrt to secondary picketing

R.W.D.S.U., Local 558 v. PepsiCola Canada Beverages (West) Ltd., 2002 SCC 8 Short Note: secondary picketing is permitted unless it amounts to a tort or other wrongful conduct

Facts • The union engaged in a variety of protest and picketing activities during a lawful strike and lockout at one of Pepsi’s plants. These activities eventually spread to “secondary” locations, where delivery of the appellant’s products to retail outlets was prevented and the store staff was dissuaded from accepting delivery. They carried placards in front of a hotel where members of the substitute labour force were staying; and engaged in intimidating conduct outside the homes of appellant’s management personnel.

• An interlocutory injunction was granted by the Court of Queen’s Bench, which effectively prohibited the union from engaging in picketing activities at secondary locations, including residences of Pepsi employees.

• The Court of Appeal upheld the order against congregating at the residences of the appellant’s employees, as these activities constituted tortious conduct. However, the section restraining the union from picketing at any location other than the appellant’s premises was quashed, thus allowing the union to engage in peaceful picketing at secondary locations.

Issue When, if ever, is secondary picketing legal? (Secondary picketing typically defined as picketing in support of a union which occurs at a location other than the premises of that union’s employer.)

Ratio Wrongful action approach: secondary picketing is legal, within the bounds of tort law, crim law, and possibility future constitutional legislation. Mere location of picketing is not a criterion. Charter doesn’t apply to CML, but it should help it evolve

Law • Section 2(b) of the Charter• Section 2(d) of the Charter• Section 27 of the Trade Union Act of Saskatchewan which makes restraint of trade

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legal.

Reasoning

McLachlin CJ and LeBel J for the court:

Courts changing the CML• “The status of secondary picketing at CML remains unsettled and inconsistent across

jurisdictions. The Court in this case is not required to overturn a well-established rule at common law, but rather to clarify the CML given two strands of conflicting authority.” (16)

• Furthermore, the development of the CML must reflect the values in the Charter. “The CML does not grow in isolation from the Charter, but rather with it” (19)

• In Hill, the Court held that “Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.”

Picketing and Free Expression• In the post WWII era of labour law, “it has come to be accepted that, within limits,

unions and employers may legitimately exert economic pressure on each other to the end of resolving their disputes” (24)• We accept that economic harm and pressure is part of the deal

• “The act of picketing involves an element of physical presence, which in turn incorporates an expressive component.• Its purposes are usually twofold: first, to convey information about a labour dispute

in order to gain support for its cause from other workers, clients of the struck employer, or the general public,

• and second, to put social and economic pressure on the employer and, often by extension, on its suppliers and clients” (27)

• However it is very difficult to define picketing. “Picketing represents a continuum of expressive activity. In the labour context it runs the gamut from workers walking peacefully back and forth on a sidewalk carrying placards and handing out leaflets to passers-by, to rowdy crowds shaking fists, shouting slogans, and blocking the entrances of buildings. Beyond the traditional labour context, picketing extends to consumer boycotts and political demonstrations” (30)

• “Picketing, however defined, always involves expressive action. As such, it engages one of the highestconstitutional values: freedom of expression, enshrined in s. 2(b) of the Charter.” (32) à FoExpression is super because of self-fulfilment, exchange of ideas, etc YAY FoE!

• It is particularly important in the labour context. There is a power imbalance between employer and employee; issues at stake in labour disputes are deeply personal. “Free expression in the labour context thus plays a significant role in redressing or alleviating this imbalance.” (34)

• But FoE is not absolute…” When the harm of expression outweighs its benefit, the• expression may legitimately be curtailed.” (36)

Protection of Innocent Third Parties• “On the other side of the balance lies the interests of the employer and third parties in

protection from excessive economic and other harm as a result of picketing and other

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labour action.” (38)• “The appellant emphasizes that secondary picketing expands the labour dispute

beyond its core… contends that the interests of these third parties, as well as public order generally, compel restraints on the scope of picketing activity.” (39)

o Relies on Dolphin Delivery, where Charter found not to apply and injunction upheld based on CML tort of inducing breach of K

o SCC distinguishes on basis that it was clear in Dolphin Delivery that the purpose of the picketing was to induce breach of K à so a case of tortious secondary picketing

o SCC also clarifies that McIntyre’s comments in Dolphin Delivery “should not be read as suggesting that third parties should be completely insulated from economic harm arising from labour conflict” à primary picketing often has profound effects of third parties “Yet this impact on third parties and the public has never rendered primary picketing illegal per se at common law to protect the interests of third parties.” (44)

• Bottom line: “Some economic harm to third parties is anticipated” But where to draw the line?

The SCC considers three potential solutions:

✖ #1: The “Illegal per se doctrine”: An absolute bar on secondary picketing• This would make it a tort on its own. Just based on location.• Based on Hersees (ONCA case) that ruled that non-tortious secondary picketing is ilL• SCC says the decision was based on “weak precedential foundation” and “reflects a

deep distrust of unions and collective action in labour disputes”

✖ #2: The Primary Employer and Ally Doctribes (modified “Hersees” rule)• Courts applying modified versions of Hersee like• Permitting picketing at a places owned by same employer (though not the primary

workplace)• Refusing to enjoin picketing at the parent company or place with shared corporate

ownership• These types of modifications “have made the common law difficult to implement in a

consistent, clear manner” (60)

✔#3: Wrongful action approach: secondary picketing is permitted unless it involved a tort or crime• Secondary picketing is generally lawful unless it involves tortious or criminal

conduct (overturning the CML rule against secondary picketing).• Conforming with Charter: “The preferred methodology is to begin with the proposition

that secondary picketing is prima facie legal, and then impose such limitations as may be justified in the interests of protecting third parties.” (67)

• To “start from the proposition that secondary picketing is per se unlawful regardless of its character or impact…runs counter to the values of the Charter” (68)

• Protecting free expression: “a blanket prohibition is too blunt a tool with which to handle such a vital freedom.” (70)

• Avoidance of Excessive Emphasis on Protection from Economic Harm: “Protection

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from economic harm is an important value capable of justifying limitations on freedom of expression. Yet to accord this value absolute or pre-eminent importance over all other values, including free expression, is to err.” (72)

• Adequate Flexibility: Hersee rule is too rigid. Wrongful action approach best balances the interests in a way that conforms to the values in the Charter, and allows for balance with traditional CML rights.

• “Courts may intervene and preserve the interests of third parties or the struck employer where picketing activity crosses the line and becomes tortious or criminal in nature. It is in this sense that third parties will be protected from “undue” harm in a labour dispute. Torts such as trespass, intimidation, nuisance and inducing breach of contract will protect property interests and ensure free access to private premises. Rights arising out of contracts or business relationships will also receive basic protection. Torts, themselves the creatures of common law, may grow and be adapted to current needs.”

•• Clearer and more rational: “focuses on the character and effects of expression rather

than its location” (76)• This approach avoids the difficult and potentially arbitrary distinction between

primary and secondary picketing. (78)• In addition, labour and non-labour expression is treated in a consistent manner.• Had SK had comprehensive legislation in place to deal with labour disputes it may be

argued that allowing secondary picketing would disrupt a “carefully crafted balance of power” BUT the absence of such legislations means the court must look to the CML.

• A wrongful action rule offers sufficient protection for neutral third parties → “Picketing which breaches the criminal law or one of the specific torts like

trespass, nuisance, intimidation, defamation or misrepresentation will be impermissible, regardless of where it occurs.

→ Specific torts known to the law will catch most of the situations which are liable to take place in a labour dispute. In particular, the breadth of the torts of nuisance and defamation should permit control of most coercive picketing. Known torts will also protect property interests. They will not allow for intimidation, they will protect free access to private premises and thereby protect the right to use one's property.

→ Finally, rights arising out of contracts or business relationships also receive basic protection through the tort of inducing breach of contract.” (103)

→ Moreover, the courts and legislatures may supplement the wrongful action approach. While legislatures must respect the Charter value of free expression and be prepared to justify limiting it… “they remain free to develop their own policies governing secondary picketing and to substitute a different balance than the one struck in this case.” (107)

Conclusion: The Union’s conduct was by and large lawful peaceful informational picketing. Agree with CA that demonstrating outside the homes of Pepsi personnel was tortious à it was intimidation and a private nuisance.

Notes

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U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083

- subject to the Charter bc there’s a specific statute dealing with pickting. - Note: after Dolphin, before Pepsi

UFCW v KMart Canada [1999] 2 SCR 1083

Facts BC's Labour Relations Code regulated all picketing in the context of labour disputes. The definition of picketing included “...attending at or near a place of business....for the purpose of persuading anyone...” not to enter the place of business or do business with that person. Picketing by unions was by default illegal, only allowed at the place of employment and in accordance with the Code. (1095, 1096)- note: here there was specific legislation

Two Kmart locations were unionized. During a lawful strike, union members travelled to non-unionized locations of Kmart and leafleted, encouraging members of the public not to do business with Kmart. The pamphlets contained information about the labour dispute. Union members did not prevent anyone from entering these Kmart locations and did not intimidate. (1090-1092)

Kmart applied to the LRB to restrain the leafleting and the request was granted. The LRB found that the union's activities constituted picketing according to the Code and were therefore illegal. (1092)

Issue Whether restrictions on activity which would otherwise be protected by the guarantee of freedom of expression, can be justified under s 1. (1090)

Ratio 'Secondary' picketing which is not otherwise tortious or criminal, is legal.Freedom of expression was violated by LRB decision to restrain leafleting.

Reasoning The guarantee of freedom of expression must be considered in the context of the case. This affects the balancing that takes place in s 1. Freedom of expression is an essential element of labour relations. (1100, 1101) Leafleting is especially important to vulnerable groups as it is an economical means of expression. (1103) The definition of picketing provided in the Code is extremely broad and includes leafleting. (1107)

Since picketing can be disruptive, its regulation is a pressing and substantial concern. Conventional picketing includes a 'signal' effect which may cause people not to enter a place of business, without rational discourse. The difference between conventional picketing and leafleting, which lacks the signal effect, is key to the s 1 analysis. (1110) It is because of the signal effect that picketing must be regulated. Leafleting persuades through informed & rational discourse, so it lacks picketing's coercive component. (1112, 1113) Leafleting is not illegal at common law. Protection from economic harm resulting from “peaceful persuasion” is not accepted at common law. (1113) Motivation for the expressive activity is not relevant, the focus must be on the effects of the expression. Likewise, motivation for bringing economic pressure on a business is not relevant. Leafleting is more like a consumer boycott than picketing. (1115, 1116)

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Conditions under which leafleting is permissible:

• message conveyed is accurate, not defamatory and does not encourage illegal or tortious acts

• the leaflets clearly state the dispute is with the primary employer• leafleting is not coercive, intimidating or otherwise criminal/tortious• leafleting does not involve too many people so as to create an atmosphere of

intimidation• leafleting does not unduly impede access to the premises• leafleting does not prevent employees of neutral sites from going to work

The union's acitivities, which were prohibited by the Code meet these requirements (1122, 1123)

The legislation is overbroad and cannot be justified at the minimal impairment step of Oakes. It is not carefully tailored to the objective of minimizing the effects on third parties of labour disputes. The legislation catches more activities than is justified by its objective. (1131)

Notes The non-unionized locations of Kmart are considered “third parties” by the Code.

The theme in this case and the other picketing cases seems to be the impact of labour disputes on third parties, and what level of protection is afforded by the common law for those third parties. There seems to be a trend moving from very strong protection for third parties in Dolphin Delivery, to something less strict. The idea that the common law does not “insulate” third parties is raised here and comes up again in Pepsi-Cola and Alberta Information & Privacy Commissioner.

Villa Verdun CA 2000Facts Picketing in front of mayor’s house, concillors and managementIssue

Picketers cant trespass, although right to be present in front (with restrictions listed above)

Reasoning [10] De nouveau, s'affrontent la liberté d'expression et le droit à la vie privée. Cette fois, le litige survient dans le cadre d'un conflit de travail concernant les cols bleus de la Ville de Verdun: les grévistes, au nom de la liberté d'expression, prétendent avoir le droit de piqueter devant les résidences du maire, des conseillers municipaux et des cadres supérieurs de la ville, alors que ces derniers invoquent leur droit à la vie privée pour empêcher le piquetage et les manifestations qui l'accompagnent.

[50] Je suis également conscient que les tribunaux semblent avoir été fort réticents dans le passé à permettre cette forme de piquetage[7].[51] Malgré tout, j'estime qu'on doit tenter de pondérer les deux droits en présence: liberté d'expression et vie privée.[52] À cet effet, je suis d'avis que si le nombre de piqueteurs était

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limité (2), que s'ils devaient se tenir à une distance raisonnable des terrains où sont situées les résidences des membres du conseil municipal et des cadres (10 mètres) et que si le piquetage se déroulait uniquement durant des heures déterminées (9h00 à 17h00), on ne pourrait prétendre à une atteinte sérieuse à la vie privée des intimés.

Dolphin Delivery Ltd. v. R.W.D.S.U., [1986] 2 S.C.R. 460- Charter DID NOT apply in this case bc gov’t wasn’t a party - Difference from Slaight: order from Admin tribunals are subjecto to the Charter, but ther

order here wasn’t subject to a statute

Dolphin Delivery Ltd. v. R.W.D.S.U., [1986] 2 S.C.R. 460Short note

Facts RWDSU (union) is on strike. Employer is Purolator. Injunction issued against picketing in frond of purloator.Dolphin Delivery is a business associated with the employer. Union tries to set up secondary picketing at Dolphin; Dolphin gets Court injunction to stop the secondary picketing.

Issue - Does the Charter apply to injunction (issued under CML)? (NO)- Does the injunction on secondary picketing violate 2b freedom of expression? (YES)

1. Is the violation justified? (YES)

Ratio Lawful secondary picketing is protected expression under 2(b); BUT Charter does not apply to an injunction because a court order in a private dispute is not government action.

Reasoning

McINTYREb. Does the Charter apply to an injunction? – NO

a. Charter applies to the common law where the common law is used as a basis for government action. Here, it’s a court order in a private dispute à no government action!

“We have a rule of the common law which renders secondary picketing tortious and subject to injunctive restraint, on the basis that it induces a breach of contract. While, as we have found, the Charter applies to the common law, we do not have in this litigation between purely private parties any exercise of or reliance upon governmental action which would invoke the Charter. It follows then that the appeal must fail. The appeal is dismissed.”c. Does the injunction violate 2b freedom of expression? -- YES

a. 2(b) protected expression includes picketing that causes economic pressure and breach of contract (includes secondary picketing). What is excluded from 2(b) protection: violence, threats, unlawful acts

“The question now arises: Is freedom of expression involved in this case? In seeking an answer to this question, it must be observed at once that in any form of picketing there

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is involved at least some element of expression. The picketers would be conveying a message which at a very minimum would be classed as persuasion, aimed at deterring customers and prospective customers from doing business with the respondent.”“[20] … it is evident that the purpose of the picketing in this case was to induce a breach of contract between the respondent and Supercourier and thus to exert economic pressure to force it to cease doing business with Supercourier. It is equally evident that, if successful, the picketing would have done serious injury to the respondent. There is nothing remarkable about this, however, because all picketing is designed to bring economic pressure on the person picketed and to cause economic loss for so long as the object of the picketing remains unfulfilled. There is, as I have earlier said, always some element of expression in picketing. The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. We need not, however, be concerned with such matters here because the picketing would have been peaceful. I am therefore of the view that the picketing sought to be restrained would have involved the exercise of the right of freedom of expression.”

d. Is the violation justified under s1? – YES

BEETZa. Does the Charter apply? NOb. Does the injunction violate 2b? NO

• This picketing was not protected expression

(additional judgment by Wilson J – mostly about s1 analysis of a common law tort)

Notes

Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62

Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62Short note

Facts In this decision, there was a lawful strike for a period of 305 days by the Union known as United Food and Commercial Workers, Local 401. The Union consisted of employees working at the Palace Casino in West Edmonton Mall in Alberta. On one of the days, the Union videotaped and photographed individuals crossing their picketline. There were clear indications on the premises that images of individuals crossing the picketline may be put on a website, newsletter and strike leaflets by the Union. Despite the warning, several individuals whose images were captured filed complaints with the Alberta Information and Privacy Commissioner. They invoked Alberta’s Personal Information Protection Act (PIPA) which restricts the collection, use and disclosure of personal information by a number of organizations. This led to the appointment of an adjudicator to settle the dispute by determining whether the Union had violated PIPA. The adjudicator held that the Union had in fact contravened the legislation through its collection, use and disclosure of personal information. Nevertheless, she found that the Union ’ s collection, use and disclosure of private information was for

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expressive grounds; she stated “one of the primary purposes of the Union’s information collection was to dissuade people from crossing the picket line.” Despite this belief, she could not bring herself to side with the Union, as she was unaware of any provision of PIPA that would authorize the collection, use and disclosure of personal information for the purpose of picketing. She found that the collection was not saved by the “journalistic purposes” exemption in the Act, but permitted for a possible investigation or legal proceedings. Regrettably, the adjudicator could not consider the constitutionality of PIPA or the application of PIPA to the union’s activities, due to rules prohibiting adjudicators from deciding such matters in the Administrative Procedures and Jurisdiction Act.

Issue Whether PIPA violates s. 2(b) freedom of expression of the union? yes it does, whole act is struck down. Alberta govt has 1 year to create new legislation.

Ratio Unions in Alberta have the right to use collect and disclose personal information of individuals to further their picketing (in particular circumstances e.g. in public, convey a message to public). the Justices agreed that the Union’s collection, use and disclosure of personal information during picketing and lawful strikes had an inherently expressive purpose

Reasoning The Union applied for judicial review by the Chambers judge, who found that PIPA violated the Union’s

freedom of expression (s. 2(b)) Charter right. The judge found that the adjudicator had interpreted PIPA as limiting the Union’s s. 2(b) rights by prohibiting the Union from collecting, using and disclosing personal information of individuals in the public domain. The Chamber Judge found that the breach of s. 2(b) was not justified using the Oakes test. This decision was appealed.

The Court of Appeal distinguished the issue as whether it was warranted to restrain expression in support of labour relations and collective bargaining. The Court found that PIPA was overbroad and that the concerns of the individuals regarding privacy interests were of lesser significance, since they were in the public when photos and images were collected. Further they were crossing the public picketline and there were signs that images were being collected. It was further concluded that union workers have every right to engage in collective bargaining and the right to communicate inform the public of their position. The Court of Appeal thereby adopted the view of the Chamber Judge that there was indeed a breach of s. 2(b) and that it could not be saved under the Oakes test. To resolve the issue, the Court of Appeal accorded the Union a constitutional exemption from PIPA. This led to another appeal by the Alberta Information and Privacy Commissioner.

ii. MAIN LEGAL ISSUES BEFORE THE SUPREME COURT OF CANADAThe main legal issues before the SCC was whether PIPA unreasonably limited a union’s s. 2 (b) rights, since the Act prohibits the Union’s capability to collect, use or disclose personal information during a lawful strike and if this is found to be affirmative, then whether the infringement was a reasonable limit prescribed by law, which can be justified under s. 1 of the Charter. The Court answered affirmatively to the first and negatively to the second, thereby concurring with the Chamber Judge and Court of Appeal decisions.

iii. SUPREME COURT JUDGMENT AND REASONINGIn a unanimous decision, all nine Supreme Court justices held that the Union’s s. 2 (b) right was disproportionate when compared to PIPA’s intention of affording individuals authority over their personal information when crossing a picketline. Further, the SCC found that the infringement was justifiable under the Oakes test. As requested by the Alberta government, the Supreme Court declared the entire Act as invalid, due to its comprehensive and integrated structure. It was therefore suspended for a period of one year in order to provide the legislature ample time to revise the legislation and make it constitutionally compliant.In their examination of the judicial review and the Court of Appeal decision, the Justices agreed that the Union’s collection, use and disclosure of personal information during picketing and lawful strikes had an inherently expressive purpose. The purpose was to convince individuals to support the Union. They also found that the use of images and recordings had an expressive purpose, namely: to deter individuals from crossing the picketline and informing the general public about the strike.

Further, the Justices found that PIPA’s objectives in s. 3 of the Act, were overbroad and much broader than the federal privacy legislation (PIPEDA), which prohibits the use of personal information for activities that have a commercial nature. The over breadth of the legislation stems from section 7 (1) which provides that organizations cannot collect, use or disclose personal information without the consent of those involved and that it applies under s. 4 (1) to “every organization and in respect of all personal information.” The Act defines personal information as “information about an identifiable individual” which includes information gathered in public places. The fact that the only exemptions include investigations or legal proceedings, or if the information is publicly available (e.g. in a telephone book, business directory or other registry) is not balanced or proportional and thus restricts freedom of expression.

When applying the Oakes analysis, the SCC found that although PIPA has a pressing and substantial objective, it nevertheless imposes broad limitations on freedom of expression, which are not demonstrably justified as “its limitations on expression are disproportionate to the benefits the legislation seeks to promote.” Moreover, they found that PIPA is rationally connected to an important objective, specifically, the

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promotion of individual rights through broad restrictions on the collection, use and disclosure of personal information. Again, the SCC found that the restrictions were unreasonable as they were disproportionate to the benefits which the legislation aspired to promote; the Court asserted: “the Charter infringement is too high a price to pay for the benefit of the law.” The Court found that the main issues is that the Act does not in any way accommodate the expressive rights of Unions who engage in lawful strikes. The Justices provided that PIPA “deems virtually all personal information to be protected regardless of context.” Thus, there seems to be no way to balance the union’s expressive interest and the interests of individuals protected under the legislation. Instead, PIPA appears to be one-sided, as it imposes a widespread prohibition on a Union’s use of personal information.

The court subsequently concluded that the information collected, used or disclosed by the Union was in the public domain and not personal (e.g. lifestyle/personal choices), thus anyone who crossed the picketline could have expected that their image would be captured and potentially disseminated, especially with the reasonable notice in the area.

As a result, the SCC held that the deleterious effects of the legislation outweighed any benefits and that the Union had a valid s. 2 (b) right in collecting, using or disclosing personal information related to labour relations, specifically: trying to convince the public not to engage in business with the employer, garnering debate on labour conditions, and ensuring the safety of its union workers. The Court therefore held that “this infringement of the right to freedom of expression is disproportionate to the government’s objective of providing individuals with control over personal information that they expose by crossing a picketline.”

Quotes:

[35] Within the labour context, picketing represents a particularly crucial form of expression with strong historical roots. Strikes and picketlines have been used by Canadian unions to exert economic pressure and bargain with employers for over a century[…]

This conclusion does not require that we condone all of the Union’s activities. The breadth of PIPA’s restrictions makes it unnecessary to examine the precise expressive activity at issue in this case. It is enough to note that, like privacy, freedom of expression is not an absolute value and both the nature of the privacy interests implicated and the nature of the expression must be considered in striking an appropriate balance. To the extent that PIPArestricted the Union’s collection, use and disclosure of personal information for legitimate labour relations purposes, the Act violates s. 2(b) of the Charter and cannot be justified under s. 1.

Notes

iv. Unfair dismissal, suspension or transfer

s. 14, 15, 16, 130 Quebec Labour code

4 conditions to make an application under s. 15-17 - 1) Need to be an EE under the code (not a representative of ER, or supervisor) - 2) Exercise a right under the Code :

o Attend a union meetingo sign a cardo soliciting EEs outside of normal working hours for the purpose of securing their

membership in the trade union. Union activity may constitute a right for the purposes of the Code.

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o ER’s defence: Is it NOT a valid defence for ER to say that he didn’t know that the EE exercised his right, and thereby punished him for an exercise of a right that he wasn’t aware of. In Quebec, this is not a valid defence. EE JUST has to show that he exercised his right: member in trade union, attended meeting

- 3) Sanction : e.g. dismissal, sanctiono It could be the assignment of a task to EE that nobody else wants to do, formal

disciplinary measure, or something used by ER to sanction behaviour of EE (and his union activity)

- 4) Temporal connection: necessity to demonstrate the existence of a connection in time btwn the exercise of the right and the sanctions that the EE is complaining about.

- THEN BURDEN SHIFTS TO EMPLOYER - Must demonstrate good and sufficient cause for the dismissal or sanction - Genuine & NOT A PRETECT reason not related to union activity

Commercial photo v. Lafrance, [1980] 1 S.C.R. 536- Lafrance: language originally included was for “another good and sufficnet reason” - Established that role Commissioner is NOT to put himself/herself in shoes of ER and say

what was right. - Excessiveness is not valid ground for interference (opposite of role of arbitrator in a

grievance) o Usually board would have discretion to look at severity 100.12(f)

- Hence, role of commission is limited in a s. 15-17 case- S. 15-17 could apply to collective agreement. But from the strategic standpoint, bc of the

burden (grievance arbitrartors actions are limited under s. 17) ??

Commercial photo v. Lafrance, [1980] 1 S.C.R. 536Short note

Facts Five appellants dismissed for participating in an unlawful strike. They were members of the union trying to negotiate a first CA. They complained under s. 15 of QLC, saying they suffered reprisals for exercising a right under the Code.Commissioner found that Employer did not rebut the presumption under s. 16, because participation in an unlawful strike could not constitute “another good and sufficient reason”, and ordered appellants to be reinstated in their employment. Labour Court upheld the outcome for different reasons, saying that a mass dismissal was “premature and excessive.” Employer’s appeal allowed by QCCA.

Issue Can participation in an unlawful strike constitute ‘another good and sufficient reason’ for dismissal?

Ratio YES -> In QC an Employer can fire someone for participating in an unlawful strike (at least in 1980). The Commissioner cannot decide as to the severity of the action taken by the ER.• It has always been held that the other reason relied on by the employer is (1) of a substantial

nature and (2) not a pretext, and (3) that it constitutes the true reason for the dismissal (Must be causa causant).

Reasoning

Chouinard J:• Need to determine the meaning of “another good and sufficient reason” in s. 16, and scope of

Commissioner’s jurisdiction.

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• It has always been held that the other reason relied on by the employer is (1) of a substantial nature and (2) not a pretext, and (3) that it constitutes the true reason for the dismissal.

• This is the only question the Commissioner and Labour Court should be asking. He shouldn’t be deciding on whether the severity of the punishment was warranted, or substituting his judgment for that of the employer.

The Labour Court thus exceeded its jurisdiction by ruling the dismissals were “premature and excessive.”

Notes NOTE: This is an old case (pre-Charter) and I’m not sure if this interpretation of the Code is still applicable.

**remember that participation in an unlawful strike is cause for discipline! vs. discharge!!!! BECAUSE IF there is an unlawful strike while a collective agreement is in place, the dismissal of the EEs will likely have to be determined under the Collective Agreement vs. s. 15-17 of Labour Code.

1983 1 scr 683 Daniel adam v Roy lteeFacts carrying on same business. As negotiations were taking place, ER sold business.

EE was fired. Filed complaint uder s. 15 to s. 17 Commissioner ordered she be reinstated with new ER. Issued against the

respondent, not the original ER.Issue whether the combined application of s. 45 and s. 15-17 could justify the issuance of

a reinstatement orderRatio Considering the language of s. 45 and references to collective agreement and

certification, the order could be directed against the new ER.

Reasoning “The unlawful dismissal of a union representative during the negotiations leading up to the conclusion of an initial collective agreement isipso facto an act presumed to be intended to interfere with the progress of negotiations and the speedy conclusion of an agreement.[Page 684]The complaint of unlawful dismissal and the order of reinstatement are intended to redress the balance and to encourage continued negotiations and the conclusion of a collective agreement. This complaint, resulting from an act by the employer, and the order are proceedings for the securing of a collective agreement, or at least relating thereto. Sections 14 to 16 of the Labour Code are intended to apply to just this. Section 36 of the Code therefore applies to the case at bar.

“The new employer […] shall be bound by the certification or collective agreement as if he were named therein.” The new employer is a party to any proceeding relating to the certification or the collective agreement “in the place and stead of the former employer”. During the stage preceding the conclusion of a collective agreement,ss. 14 to 16 ensure that the union rights of employees may be freely exercised and that their employment will be secure. It is simply a matter of determining whether the proceedings taken under these sections are included in the proceedings contemplated by s. 36 and are binding on the new purchaser, which I feel has been sufficiently demonstrated.”

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Plourde v. Wal-Mart Canada Corp., 2009 SCC 54

Desbiens v. Wal-Mart Canada Corp., 2009 SCC 55

v. Unilateral change in working conditions

ss. 59, 60 Quebec Labour code- broadly interpreted since Pacquet- Point: prevents ER from punishing Ees, or rewarding anti-union activities- Includes: salaries, contributisons to pension, breaks, hours, policies (progressive

discipline) - Applies during collective bargaining, not during strike, lock out! - S. 59 & 60 Quebec: can’t change conditions from petition of certification to a

strike/lockout/arbitration decision is acquiredo Can have bridging clause in therir collective agreement - 59 (para 3) o Under the QLC very hard to change working conditions bween agreements

- Issue: is a collective agreement in effect during a lock out? o Unclear if s. 59(3) (plus a briding clause) applies during a strike. o Dominant view is NO unless there’s specific language in the CLC

- S. 50 CLC: “right or privilege” (privilege = parking spot) o Freeze stops when the right to strike is acquired (not just exercised)

- Exceptions: Business as usual rule: a decision that the ER would make in the normal course of running a business.

o Ex: for stealing, layoffs for reduction in supply - Exception: changes announced before the accreditation covered, but are implemented

after are ok. BUT you cannot do this wrt to a CA that is planning to expire- S. 59 DOES NOT APPLY TO JOBS. A JOB IS NOT A WORKING CONDITION

o UNLESS the EE shows that ER went beyond business as usual o to decide if actions are reasonable – will look at other ER’s actions

- read in light of 110: no person shall cease to be an EE for the sole reason of being on a stirke of lock out.

Procedure- s. 112(f): arbitrator can change the ER’s decision - s. 112(g): arb can render any decision

s. 59 vs s. 15-17: both, union files s. 59, EE files s. 15-17- Syndicat des employés de Daily Freight (CSN) c. Imbeau, 2003 CanLII 39813 (QC CA)Facts the collective agreement had a briding clasue that the commission thought went

under s. 59(3). Lock out declared. CA included severence payIssue Did the Coll Agreement continued to exist not withstanding the lock out?Ratio Labour conflict caused collective agreement to stop to apply! Difficult to

imagine what work conditions would still be in effect during a strike or lockout.Might apply after a lockout/strike where no CA has been negotiated yet!Pendant la période de négociation pour son renouvellement, les deux parties

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conviennent que les conditions de travail et de salaire prévues à cette convention seront maintenues en vigueur.

- for s. 59(3) to make sense, it means that it applies when there’s no lock out

- the parties could have negotiated smth different (prof – that would never happen) OR the legislator could have included that language

- what conditions can be required to continue while there’s a lock out or strike? Hard to imagine…

[31] En effet, comme le souligne la mise en cause, il est, d'une part, difficile de concevoir et d'imaginer quelles peuvent être les conditions de travail susceptibles de demeurer en vigueur pendant la durée d'un «lock-out», alors qu'on peut facilement concevoir et imaginer une foule de cas où, après l'exercice du droit de grève ou du droit au «lock-out», il est mis fin à cette grève ou à ce «lock-out» pour une reprise plus positive des négociations. Dans un tel cas, une clause comme l'article 33.02 aurait tout son sens, même dans le contexte des amendements de 1994, puisqu'elle aurait pour effet de rétablir les conditions de travail antérieures, dès la fin de la grève ou du «lock-out», et pour toute la durée subséquente des négociations jusqu'à la signature d'une nouvelle convention.

Note -

Question: what is a working condition?

Compagnie Wal-Mart du Canada c. Ménard, 2012 QCCA 903 (appeal pending before the Supreme Court of Canada

- Reason why the fact there are other WMs doesn’t matter: No legal link with other workplaces. Accreditation (union’s link to workplace) is just for one establishment.

o Arbitrator doesn’t have the jurisdiction to apply decisions to other workplaces-

Compagnie Wal-Mart du Canada c. Ménard, 2012 QCCA 903Dismissal is not a change of work conditions (although door not closed)

Facts Same Jonquiere Wal-Mart that was at issue in Plourde. The union made a complaint alleging the dismissals were illegal under s. 59, because WM had modified the employees’ work conditions. The union’s argument: that the EEs had the right to associate, participate in association etc. Said these conditions were modified when the ER stated it would close the location. WM argued that the arbitrator didn’t have jurisdiction since there wasn’t a change in work conditions.

Judicial history:Menard (arbitrator)’s decision #1: He did not have jurisdiction since the claim really dealt with rights protected by s. 12, 13, 14, ie the CRT’s jurisdiction. The alleged modification does not correspond to the conditions generally recognized under s. 59 of the Code.Superior Court decision: Arbitrator’s decision to decline jurisdiction was premature. Ordered the arbitrator to have a hearing about the grievance as per s. 59Menard’s decision #2: Said WM had the burden of justifying the decision to close with within the

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http://www.canlii.org/fr/qc/legis/lois/rlrq-c-c-27/derniere/rlrq-c-c-27.html#art33.02_smooth


“business as usual” Bc WM did not give reasons why it close, arbitrator said the decisions were illegal.Superior Court decision (Moulin): WM had burden of proving that decision was within the normal course of business. Said the arbitrator’s decision that the dismissal = change of work conditions was not unreasonable. Once a change was shown, burden was reversed and WM had to show justification. Although an ER has the right to close business, he cannot do it within the period under s. 59 without a justification

WM tried to argue that the arbitrator didn’t have jurisdiction bc the claim was about reprisals under s. 15-17, should go to CRT.

Issue Did the arbitrator have the power to rule on the s. 59 complaint? Was the decision reasonable?

Holding Leger, Vezina, Gagnon :Appeal is granted, Superior Ct judgment is overturned, the Arbitrator’s decision was unreasonable. The arb did have jurisdiction though.Union has no recourse to keep a business open!

Ratio Leger (concurring): The arbitrator had jurisdiction to hear this case. In cases where there’s both violations of the Code de travail (CRT’s jurisdiction) and s. 59, case does not necessarily have to go to CRT. It is up to the arbitrator to decide if he/she has jurisdiction, if another court decided if there was a change in work conditions, this would usurp his/her powers.However, his decision was unreasonable because it is illogical to recognize both that EEs’ dismissal is justified by the closure of a business, and that closure is a change in work conditions. Wrong for arbitrator to look at reasons for the closure However, there may be cases where a closure = modification of work conditions (door is open!).

Vezina, Gagnon: The case was within the CRT’s jurisdiction since the main issue was anti-union activities (covered by s. 12-14). A closure is not a modification of work conditions, it is a suppression of work.

Reasoning LegerThe arbitrator had jurisdiction to hear the case- s. 59 is meant to establish equality during the period of negotiations, starting with the application for

certification up until a strike or lock out or an arbitrator’s decision- the issue is that the union formulated their complaint so that they alleged facts that were violations of

rights normally leading to a s. 114 complaintArbitrators can have jurisdiction despite art. 114 (states CRT has exclusive jurisdiction in case of contravention of the Code ) - Art 114 does not have the same effect on an arbitrator as it does on a court

o “toutefois, avec le recours dont l’arbitre est saisi en espèce, il me semble que face à la CRT il n’est pas dans la même position que la Cour supérieure l’était par rapport à celle-ci” [para 69]

- We can imagine situations which can be the basis for recourses under the CRT for a contravention of the Code and modifications of work conditions

o Ex. An ER, who after the certification of a union, makes changes to working conditions = would contravene art 59 and s. 12, 13, 14

- Does not accept WM’s view that the issue must go to the CRT: This would have the effect of depriving the arbitrator the competences recognized under s. 59 and 100.10 Code de travail.

- If the facts support both a recourse under the CRT and an arbitrator, we shouldn’t deny the competene of the arbitrator: “Toute modification des conditions de travail au sens de 59 C.tr. constituant une contravention au Code, il faut comprendre que la compétence de l'arbitre sous cet article peut coexister avec celle de la CRT sous l'article 114 C.tr.” [72]

o In Canbec, both recourses were usedIt is up to arbitrator to decide if they have jurisdiction (ie, if there’s been a change in work conditions)- If the court would intervene at the stage of deciding whether there’s been a change in work

conditions, it would usurp the jurisdiction of the arbitrator

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- The arbitrator must decide whether there has been a change to work conditions

Did the arbitrator make a reasonable decision wrt to the modification of work conditions?- No Qc law allows an ER to remain open (Plourde, Place des Arts)- The arbitrator’s logic was flawed: he recognized that a business can close and that dismissals are

justified in that case, but he also said that the closure was a modification of the work conditions- The arbitrator’s decision would mean that the EEs have job security, something that they didn’t have

before the certification- Therefore the arbitrator’s decision is unreasonable- However, there can be cases where the closure of the business = modification

to work conditions [103]o For example: if the ER had committed to remaining open for a certain number of years,

such a guarantee would have been part of the working conditionso “Devant ce constat, non dépourvu de logique, mais sans me prononcer, je serais

réticent à conclure qu'en toutes circonstances, des modifications des conditions de travail ne puissent découler de la fermeture complète et définitive d'une entreprise.” [103]

o in such a situation, although the SCC concluded in Plourde and Place des Arts that a closed business cannot be required to reopen, the arbitrator could exercise other powers, since the powers of an arbitrator re: a claim under s. 58 aren’t different than those under s. 100.12 Code de travail

Vezina & Gagnon: agree in result- Claim is within the CRT’s jurisdiction: agrees with arbitrator’s first judgment, which said that

the claim is really about anti-union activities, which are covered by arts. 12-14 of the Code, and within the CRT’s jurisdiction [116]

- the closure of the store is NOT a modification of work conditions, but rather a “suppression du travail” [para 117]

o although “conditions de travail” has been given a large interpretation it does not go so far

- “On ne peut pas plus remédier à un problème d’exploitation de l’entreprise lorsqu’elle est définitivement disparue.” [para 119]

- s. 59 requires going back to the previous conditions, if the closure were found illegal, then the business would be forced to reopen- this cannot be done since a business cannot be forced to stay open!

Notes SCC hearing if you want to watch it (French) : http://scc-csc-gc.insinc.com/en/clip.php?url=c/486/1940/201312060500wv150en,001Content-Type:%20text/html;%20charset=ISO-8859-1English: http://scc-csc-gc.insinc.com/en/clip.php?url=c/486/1938/201312060500wv150en,001Content-Type:%20text/html;%20charset=ISO-8859-1

vi. Penalties and procedure

ss. 141-149 Quebec Labour code- penal remedies

ss. 256-261 Canada Labour code

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6. COLLECTIVE BARGAINING

a. Bilateral Bargaining

i. Time Factor

ss. 52, 52.1 and 53 Quebec Labour code- 52: notice period – 8 days , within 90 days before expriation of collective agreement/arb

decision- 52.1: mode that message is sent - important for right to strike (58): acquired 90 days after reception of notice to bargain for

collective agreement - 53: negotiations must be begun and carried on diligently and in GF

o obligation of means, not resulto fault: avoiding agreement, refusing out right, not making time (it’s ok to be

aggressive if parties bargained aggressively and their positions were in GF) o

ss. 48-50 Canada Labour code

ii. Duty to bargain diligently and in good faith

Royal Oak Mines Inc. v. Canada, [1996] 1. S.C.R. 369- Commission has the power to order a vote (under general powers 115, 118, 119)Facts - Unionized workers of ROM voted to reject tentative agreement

- 18mth bitter strike occurred, various attempts to settle. Entire community damaged.

- The ER would only come back to the negotiating table under high conditions, unreasonable requests = negotiations blocked

- CLRB found that appellant employer failed to bargain in GF as per s50 of CLC

- CLRB directed appellant to tender tentative agreement they had submitted before, excluding 4 issues the appellant had changed its position on. (using its general powers under s. 114,118,119)

- Board added back to work protocol.- Board gave the parties 30 days to bargain, following which there would be

final mediation.- Union ratified the Collective Agreement.

Ratio The ER acted in BF when they negotiated directly with EE.

Board found lack of GF because the employer refused to bargain with the bargaining agent pending outcome to certification (wanted to circumvent

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bargaining agent); demanded probationary clause for all returning employees even though they had engaged in lawful strike; and refused to agree to a provision for arbitration or any consideration of question arising from discharge of 49 employees. Concludes this wasn’t “hard bargaining” but rather surface bargaining that was unlawful and contrary to GF.

Majority Reasoning (Cory, Gonthier, HD)

Standard of Review on Finding of Bad Faith Bargaining- Clearly the question of whether they bargained in GF falls within Board’s

jurisdiction:- Presence of privative clause, provisions of CLC, this is a finding of fact,

Board’s expertise and experience, courts have shown high degree of deference to decisions of labour relations boards.

Is Board’s finding of lack of GF patently unreasonable?- Board found lack of GF because the employer refused to bargain with the

bargaining agent pending outcome to certification (wanted to circumvent bargaining agent); demanded probationary clause for all returning employees even though they had engaged in lawful strike; and refused to agree to a provision for arbitration or any consideration of question arising from discharge of 49 employees.

- 50a requires parties to make every reasonable effort to enter into agreement.- Concludes this wasn’t “hard bargaining” but rather surface bargaining

that was unlawful and contrary to GF.Board’s Jurisdiction to make Remedial Orders- Admin tribunals replace courts in areas of specific expertise.- Parliament has given CLRB wide remedial role, as per s99(2) can order

anything equitable.- Remedy must be rationally connected to the breach and consequences.Remedial Order in this Case- Remedy wasn’t patently unreasonable.- Dispute was very severe, needed this extreme remedy.Appellant’s Objections to the Order- Prime objection is that Board imposed collective agreement on parties and

exceeded remedy- No – Board imposed last offer on terms appellant obviously willing to

accept.- Remedial order will be unreasonable where remedy is punitive, infringes

Charter, contradicts purpose of Code, no rational collection with the breach.- Appellant argued this failed rational connection and policy consistency test,

disagrees.- Reasoning focuses on the public fallout from the dispute.- Board shouldn’t readily intervene in free collective bargaining process – but

sometimes situation arises where more extreme measures must be taken (but be cautious)

Concurring Reasoning (Lamer)

- Agrees with majority that Board’s finding of bad faith fell within specialized jurisdiction of Board under s50(a) of CLC

- Also agrees that the order to direct the employer to table an offer with terms

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fashioned by the Board fell within competence of labour tribunal.- Writes opinion to stress that extraordinary order should only exist in

exceptional, compelling circumstances such as this.

Dissent Reasoning (Major, McL, Sopinka)

Decision of CLRB- Board based its decision on single instance of bad faith when there were

actually multiple examples- Union also failed to bargain in GF- Board’s remedial powers very broadAnalysis- agrees with majority that Board’s decision was not patently unreasonable- 3 considerations to determine that it was not unreasonable: it was a non-

monetary issue, appellant insisting on position to point of impasse, bad faith found in context of Board’s finding that appellant was in bad faith by making resolution of the issue precondition to further bargaining

Board’s Remedial Jurisdiction- Board’s decision to grant one remedy in preference to another must be

reviewed on standard of patent unreasonablenessDid Remedy lie within Jurisdiction of Board?- This is essentially the imposition of a collective agreement upon the

employer- Not just tabling an offer, but sets out many of the specific terms it needs to

include.- Majority relies on fact that union can ratify or reject it – but the order forces

the employer to accept it as such.- 2 limits of s99(2): rational connection between breach and remedy and

remedy must ensure fulfillment of objective of the Code.- Fundamental purpose of Code is constructive settlement of labour disputes

through free collective bargaining- Many of the terms imposed by the Board in the agreement bore no relation to

the bad faith- No jurisdiction for Board to impose binding arbitration when parties have

opted to resolve dispute through free collective bargaining (antithetical to purpose of Code).

- Code only allows 1 instance where Board can impose collective agreement – only first one, as in 80(1)

Nunez v. Lloyds Electronics Ltée, [1978] T.T.376

Caisse Desjardins Thérèse-de-Blainville, D.T.E. 2009T-107

iii. Scope

Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311

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Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311Short note

Facts The collective agreement expired on December 31, 1978. The following September the union went on strike. The school board engaged in a “charade of appearing to engage in proper bargaining when it had no intention of concluding any agreement”. The school board did a number of things leading the LRB to conclude that it was trying to destroy the security of the union and had no intention of ever concluding an agreement (329, 330). The LRB issued an interim order (“Schedule A”) requiring the parties to exchange proposals for an agreement, subject to certain requirements including: membership check-off (“union security”); salary increase schedule; tying wages to area (315, 316). The LRB then requested an opinion (“stated case”) from the NSCA as to whether it had the competence to make the interim order permanent, according to ss 33, 34 of the Trade Union Act. The request to the NSCA also asked for an opinion on whether the LRB has the power to order compensation for a [general] breach of the Act (318, 319).

Sections 33, 34 reproduced at 319, 320.S 33(a): Parties must “...make every reasonable effort to conclude and sign a collective agreement”. Ie, bargain in good faith (327, 338).S 33 (b): Employer may not alter any conditions of employment unless certain conditions are met.S 34(2): The LRB “...may make an order requiring any party to the collective bargaining to do the things that in the opinion of the Board are necessary to secure compliance with section 33.” The LRB may also order an employer to pay compensation for a failure to comply with s 33(b).

Issue What is the extent of the LRB's power to issue orders under s 34(2) to ensure compliance with the obligation to negotiate in GF (s 33(a))?

Ratio A breach of the obligation to bargain in GF does not give the LRB the power to impose specific conditions for the collective agreement.

Reasoning Majority: A breach of the obligation to bargain in GF does not give the LRB the power to impose specific conditions for the collective agreement, though an order may have the indirect effect of imposing terms of the collective agreement (325). Order (2) to the employer, regarding union security, was a direction to renew the previous agreement, so it was in excess of the LRB's power. Order (3) to the employer, regarding salary requirements, was also held to be invalid (325, 326). Orders 1, 4, 5 to the employer and orders 1-3 to the union were all acceptable to the Court.

This case was distinguished from Tandy in which the Ontario LRB had ordered the employer not to insist on check-off requirements, because it found the employer was using that bargaining position to destroy the union (324-325).

Finally, the Court held that the power to order compensation could only be used to undo the effects of a violation of s 33(b), and could not be used to ensure compliance with s 33(a). (327)

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Dissent: Since this is a stated case, there is no need to observe the usual deference to the LRB (335). The phrase “in the opinion of the Board” gives the LRB wide discretion to decide what is necessary to ensure compliance with s 33(a). (337)

The duty imposed by s 33(a) is to bargain in GF. The duty to bargain in GF imposes an obligation to intend to reach an agreement and make every effort to get there, but no obligation to actually reach an agreement (338, 340). Nor does is there an obligation to reach a fair agreement (344).

Early cases understood GF to be related to the mechanisms of bargaining and focused on freedom of K, leaving it to the parties to make their own agreement (338). Since then, LRBs have endorsed the “doctrine of illegality” which was affirmed in Tandy. The doctrine holds that a specific bargaining proposal may be a violation of the duty to bargain in GF. If a proposal is otherwise legal, but is being used to avoid reaching an agreement or to destroy the collective bargaining relationship, the duty of GF is breached. The same reasoning is applied to a last-minute withdrawal or introduction of proposals (339, 340). If the employer is trying to get rid of the union, it is in breach of the GF duty (341). The LRB found that the school board was trying to destroy the union (341, 342). It's on this basis that the dissent approaches the question of which orders are within the power of the LRB.

The LRB cannot impose a collective agreement but it can make orders specifically related to the content of the proposals (344). Since specific proposals can be violations of the duty of GF, then the remedy can make reference to the content of proposals in order to ‘secure compliance’ with s 33(a)” (344).

Schedule A orders 1 and 5 are not in dispute (342, 343). The dissent agrees with the majority that order (4) (no contracting out of bus services and no strikes during the life of the collective agreement) is within the LRB's power, but for different reasons (346-348). The dissent also agrees with the majority on order (3) (wage increase schedule) (350-351).

Order (2) (as it relates to union security/check-off) is valid, because, like in Tandy, the employer was using its proposal for check-off, in order to destroy the union (345, 349, 350). However, order (2) as it related to renewing the previous collective agreement, ws not valid (351, 352). In this respect the dissent agrees with the majority.

Regarding orders made by the LRB to the school board, the dissent agrees with everything the majority said, except part of the holding on order (2).

The first order made to the union (complete a response to school board proposals by a certain date) is the corollary to orders (1) & (5) to the school board and is therefore acceptable (352). The LRB can make orders against the union, even though it did not breach the duty of GF, because bargaining includes the two parties, and the LRB is empowered to make orders to “any party”, not only the one in breach (352).

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The other two orders to the union (2) (not to include proposals tying wages to area) and (3) (not seeking to exclude replacement bus drivers) are outside the LRB's power because they related to the specific terms of the collective agreement and the union did not violate its GF obligation, so the LRB has no power to make orders related to specific terms the union may propose (352, 353).

The LRB does not have the authority to order compensation for breaches of s 33(a) (in agreement with the majority) (357).

Summary of the holdings: the majority and dissent agree on everything except, order (2) to the school board and orders (2) and (3) to the union.

Notes The difference between the majority and dissent depends on the dissent's willingness to separate order (2) to the employer into two parts. The dissent also focuses more on specific proposals by the employer designed to destroy the union, whereas the majority seems to ignore this parallel with Tandy. The specific proposals that the school board must comply with are worded differently from specific proposals the union must comply with, perhaps leading the majority to consider one but not the other to be “specific proposals imposed by the LRB”. Is there a difference between imposing a specific condition for the agreement, and imposing bargaining limitations on a party?

Both the majority and dissent talk about the school board's decision to contract out bus driving, including employing union members if they agree to give up their union membership and posting an advertisement to sell the buses to any party willing to provide bussing service using those buses. Apart from the evidence these provide as to the objectives of the school board, this is largely a red herring in the reasons.

iv. s. 58.2 of the Quebec Labour Code : secret ballot vote with respect to the past offers made by the employer

b. Sectorial bargaining

i. Quebec: the construction industry

AN ACT RESPECTING LABOUR RELATIONS, VOCATIONAL TRAINING AND WORKFORCE MANAGEMENT IN THE CONSTRUCTION INDUSTRY, R-20

II. BARGAINING IN THE PUBLIC & PARAPUBLIC SECTORS

ESSENTIAL SERVICES: SS. 111.1-111.15 QUEBEC LABOUR CODE

PUBLIC HEALTH AND SAFETY : SS. 137.1-137.16 QUEBEC LABOUR CODE

SYNDICAT DES EMPLOYÉS DU TRANSPORT DE MONTRÉAL V. PROCUREUR GÉNÉRAL DU QUÉBEC, [1970] S.C.R. 713

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Syndicat des employés du transport de Montréal v. Procureur Général du Québec, [1970] S.C.R. 713Short note

Facts Montreal Transportation Commission (MTC) owns and manages public transit system to benefit people of Montreal. On September 21, 1967, the employees of MTC go on strike. Public transit constitutes a “public service” under the Labour Code and the right to strike of people working in this sector is governed by section 99:- Strikes are prohibited to the employees of a public service unless the association of

employees concerned has acquired the right to strike under Section 46 and has given at least eight days' prior written notice to the Minister of the time when it intends to have recourse to a strike.

- Whenever in the opinion of the Lieutenant-Governor in Council a threatened or actual strike in a public service endangers the public health or safety, he may appoint a board of inquiry which shall have the powers of a council of arbitration to inquire into and report upon the dispute, save that it shall not pronounce any decision or make recommendations, but must confine itself to ascertaining the facts in compliance with Sections 69 to 78.

- Upon the petition of the Attorney General after the appointment of a board of inquiry, a judge of the Superior Court, if he finds that the strike imperils the public health of safety, may grant such injunction as he deems appropriate to prevent or terminate such strike.

- An injunction granted under this section must cease not later than twenty days after the expiry of the delay of sixty days within which the board of inquiry must file its report, and such delay cannot be extended.

- This section shall apply to a threatened or actual strike which interferes with the education of a group of students as well as to a strike which endangers or imperils the public health or safety.

The strike was still going on October 10, when the Lieutenant-Governor in Council appointed a board of inquiry – because he was of the opinion that the strike endangered public health and safety. On October 11, the AG, who was of the same opinion, presented a petition to Superior Court for an order forcing the employees to return to work immediately, and put an end to the strike for 80 days following appointment of the board.Superior Court granted the injunction pursuant to s 99, seeing as strike was paralyzing public transit and endangered public health and safety. Court of Appeal upheld the injunction. Dismissed two procedural grounds raised by appellants (1. The strikers and union were not given notice 2. AG should have petitioned Superior Court in Montreal, not Quebec).

Issue Is the injunction valid? Yes.

Ratio The purpose of protecting the public calls for swiftly granted temporary order. The delays created by requiring notice would undermine the purpose.

Reasoning

Majority:• “the purpose and sole purpose of the special provisions of s. 99 of the Labour Code is

to prevent public health and safety from being imperiled by a strike of employees of a public service.”

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• “…in issuing the order provided for by these special provisions to temporarily prevent an apprehended strike or put an end to a strike already in progress, the Superior Court Judge is only giving effect to the right which is sanctioned by these provisions… the right to be protected against the endangering of public health and safety.”

• “This temporary order constitutes an emergency measure.”• In order to be efficient, and to give effect to the Legislature’s purpose, the “order must

be brought about with celerity, either to prevent an apprehended strike or to put an end to a strike already in progress.”

• “The Legislature did not prescribe service of the petition of the Attorney General…the exercise of the power conferred to the Judge is not subject to the delays incidental to the service of the petition and other delays pertaining to an eventual contestation.”

Dissent:• Issue à whether the appellants should have been given notice• Cites QC labour law case: “the rule audi alteram partem was implicit in a provision

of the very act that the Labour Code has replaced.”• “the question specifically considered was whether, from the fact that a notice was

expressly required in certain cases, it should be inferred that no notice was necessary in all others.” Court held on the contrary: “a fundamental rule of natural justice is not abrogated in such way.”

• Distinguishes a case the majority relies on. Asks whether the purpose is truly undermined if the injunction can only be granted after notice:

• Considering that s. 99 requires 8 days notice to the Minister before striking à intended to give gov’t chance to implement the other parts of the section before the strike begins. In this case the gov’t waited almost three weeks before taking advantage of s. 99

• “If the government could wait almost three weeks before deciding to act, how can it be reasonably contended that it could not wait a few hours more so as to respect the most fundamental principle of natural justice?”

• “The notice may be very short. The first hearing may be very brief. An interim injunction may then be granted to allow somewhat more elaborate proceedings to take place, but no injunction is ever issued without notice. That the observance of the rule audi alteram partem might defeat the purpose sought cannot, therefore, be contended.”

• Finds that the CCP provisions bring us to the same conclusion as the Labour Code.

Notes

c. Alternatives to unaided bargaining

i. Conciliation- use a third party to help the parties to help proceed in their negotiation. Will meet the sides separate and often and pass messages. -don’t have binding powers, just make recommendations

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-Allows parties to negotiate without parties dealing directly with each toehr - will try to get parties to change their perspective

- Difference between Qc Labour Code vs Cnd Labour Code- Voluntary: ss. 55, 56, 57 and 57.1 Quebec Labour code

o QC: voluntary & no implications 54: parties can request for Minister to designate a concilation officer 55: Minister may designate one , ex officio, (but rare) 56: parties bound to attend a meeting – only binding power the concilator

has- Compulsory: ss. 71-78 Canada Labour code

o CLC: Compulsory bc tied to acquisition to right to strike 71: must send notice of dispute to minister when bargaining hasn’t

commenced within the time fixed OR parties unable to reach an agreement 72: decision of the minister options include appointing concilation officer/

commissioner/board OR not anyone ((d)). --- after which 21 days and then can go to striek or lockout! s. 89(1): right to strike :

a) ER been given notice of collective bargaing b) failure to bargain c) notice given to minister d) 21 days elapsed since: failure to appoint conciliator or report

received e) applications re: maintenance of activities during strike have been

made f) and 72 hrs notice given to ER, vote made within 60 days

result: you acquire the right to strike or LO once you go through concilation OR the minister doesn’t appoint one

87.2: 72 hours notice of strike - parties may not want to send notice of dispute if they don’t want to trigger this process. They

might seek mediator outside of regime

ii. Arbitration of disputes- Dispute arbitration - Defintion: third party establishes the terms and conditions of the

agreement instead of the parties themselves - Arbitrator will dictate a decision! - Choice: normally both parties agree, will make an agreement wrt to scope of issues in arb - Parties usually don’t like that you can’t chose, but can decide to use this wrt to smaller issues

General: ss. 74-93 Quebec Labour code- Voluntary, except if first collective agreement – 93.1-.9 (Wal-Mart)

o One party can request it goes to arbitration o Why: bc trade union seen as not having expereince of negotiating previous CA

(imbalance between trade union and the ER) o Way to get an agreement as soon as possible

- 74: BOTH parties must apply in writing to minister - 75: if agree as to choice of arbitrator. Otherwise, appointed ex officio

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- 79: arb’s decisions are made according to equity and good conscienceo a very broad legal threshold

- Policement and firemen: s. 105 Quebec Labour code

- arb mandatory bc don’t have the right to strike. Have special regime – s. 94+

iii. First collective agreement arbitration

- note while arbitration is automatic in Qc if requested – in CLC it’s discretionary

ss. 93.1- 93.9 Quebec Labour code- Voluntary, except if first collective agreement – 93.1-.9 (Wal-Mart)- 93.1 : One party can request it goes to arbitration AFTER conciliation unsuccessful - Why: bc trade union seen as not having expereince of negotiating previous CA (imbalance

between trade union and the ER). Allows negotiation of CA ASAP

s. 80 Canada Labour code- 2 requirements:

o s. 80: (1) Minister may, if he/she deems it advisable –direct Bd to inquire into dispute. o 1) Minister must agree to refer the matter to the board o 2) the Board can decide that it’s not appropriate for the board to establish the term of

the 1st collective agreement o – then Minister can direct the settle the terms AND 2) requirements under s. 89(a-d)

have been met o (2) board can also settle

7. COLLECTIVE AGREEMENTS AND THEIR ENFORCEMENT

a. What is in a collective agreement?

i. Nature- a K governing terms and conditions of employment

s. 1 (d) Quebec Labour code- defintion: “an agreement in writing respecting conditions of employment made between one

or more certified associations and one or more employers or employers’ assocaition - “certified ass’n” = …ass’n recognized by a decision of the Commission as the representative

of all or some of the Ees of an ER.

s. 3 (1) Canada Labour code- definition: means an agreement in writing entered into between an employer and a

bargaining agent containing the provisions respecting terms and conditions of employment and related matters

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Question: must it all be in one document?

ii. Content S. 62 Quebec Labour code

- can contain any provision regarding conditions of Employment that isn’t contrary to POo leave of absence for family obligations, leave of absence without pay, RRSP

contributions, working conditions (hours, overtime, vacation) etc.- Pacquet: compulsory check off clauses = terms and conditions of employment.

o Said terms and conditions of employment includes a variety of subjects related to “some aspect of the relationship” between the ER and EE (relationship between union and ees /er too)

-- Does NOT all have to be in the same document: can incorporate by reference (ie pension

plan)

iii. Duration

S. 65 Quebec Labour code- 1st CA can be no more than 3 years: doesn’t want ER to take advantage of union’s lower

bargaining power and inexperience - 64: cannot be for less than 1 yr - 66: if not specified also 1 yr

S. 67 Canada Labour code- deemed to be one yr’s length - 72:

iv. Filing

S. 72 Quebec Labour code- 60 days within siging the agreement - fundamental importance! Otherwise, no force and effect

o includes letters modifying the CA - can be filed later with retroactive effect (72)- if CA or modifications are not filed, arbitrator won’t have jurisdiction!

v. Other statutory clauses

Minimum standards : s. 93 Labour standards Act

- can’t have provisons in a CA that are less than the standard of the LSA = nullity

Employees Bound: s. 67 Quebec Labour code, s. 56 Canada Labour code

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- 67 QC: CA applies to all Ees in barg unit even if not part of the union!- 56 CLC: same thing!

Reference to arbitration: ss. 100-102 Quebec Labour code; ss 57-59 Canada Labour code

- 100-102 QC: ?- 57-9 CLC: mandatory to have it in there

Strikes forbidden: ss. 105-106 Quebec Labour code- strike forbidden during the life of a CA

b. Enforcement of a collective agreement- exclusive jurisdiction for problems flowing from a collective agreement

i. Distinction between arbitration of rights and arbitration of interests

S. 100-102 Quebec Labour code

ii. Arbitrability and limit of the arbitrator’s jurisdiction

Distinction between jurisdiction over subj matter and over parties- Parties: ER (can include managers), union, Ees in barg unit

o Ex if it’s psychological harassment, will have jurisdiction over it, being done by 1 person

- Subject matter: 2 fold approach: o 1. Determine the essence of the dispute o 2. Determine whether it’s related expressly/implicitly to the application of the CAo Weber, O’Leary: emphasis on the fact that essence has to be expressly or implicitly

related to the CA o

Role of the arbitrator

o Weber v. Ontario Hydro, [1995] 2 R.C.S. 929

St. Anne Nackawic Pulp & Paper Co. c. Section locale 219 du Syndicat canadien des travailleurs de papier, [1986] 1 R.C.S. 704Short note

Facts Employer claimed damages when mill employees illegally walked out in sympathy with legally striking office employees. Violated mill employees’ collective agreement AND the statute. Trial court decided it did not have jurisdiction, since Industrial Relations Act said all differences b/t parties to a valid collective agreement must be submitted to arbitration. Upheld on appeal.

Issue Do the ordinary courts have jurisdiction over disputes arising from the enforcement of a collective

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agreement?

Ratio No –Disputes and actions for damages in the enforcement of a CA’s terms must go to arbitration, as the collective agreement provides. Courts can give injunctions for illegal strikes, etc., but if a remedy can be sought in arbitration it must go there.

Reasoning Estey J:• Labour relations statutes generally provide for exclusive recourses for parties enforcing a CA. Must

follow those grievance arbitration procedures. This is true even if the issues arise from CML (if CA covers the matters), and even if meaning of CA is disputed.

• To preserve the regime’s integrity, deference is required toward both Boards and private arbitrators.

• BUT, Courts can enjoin illegal strike activity where statutory mechanisms cannot remedy the circumstances. This is not enforcing the CA, but enforcing the statute prohibiting strikes during a CA. If an injunction happens to also enforce the CA’s terms, that incidental.

• Civil damages are not part of the mechanism of enforcing injunctions, and are not appropriate here.• “. I therefore conclude that the courts do have a limited residual presence in the labour

relations scheme as it has evolved in the legislative program where the conduct amounts to illegal strike or lock-out, and that the general jurisdiction to issue injunctions under the Judicature Act is unimpaired in this context”

• Damages should be sought within the arbitration process provided for. To do otherwise would be hostile to purpose and philosophy of the regime.

• “The common law as it applies to individual employment contracts is no longer relevant to employer-employee relations governed by a collective agreement which, as the one involved here, deals with discharge, termination of employment, severance pay and a host of other matters that have been negotiated between union and company as the principal parties thereto.”

• “The above-quoted passages illuminate the profound impediments to reaching the conclusion that rights which at common law would flow from a master-servant relationship would survive under a collective bargaining regime and continue to qualify for enforcement in the traditional courts. The problem raised by attempts to escape the contract tribunal so as to seek enforcement in the courts of rights arising under a collective agreement negotiated within the framework of a collective bargaining regime, solely on the grounds that the agreement does not explicitly address the jurisdictional question, is an equally profound difficulty.”

Notes This decision is relied upon heavily in Weber.

Weber v. Ontario Hydro, [1995] 2 R.C.S. 929Short note

Facts A was employed by OH. Due to back problems he took extended leave. OH paid him sick benefits by collective agreement. Soon after OH began to suspect that A was fooling them. OH hired private investigator- who went on to A’s private property (pretending to be someone else) and gained entry to his home. Due to information received, OH suspended sick leave benefits. A took matter to union which filed grievances against OH, which were eventually settled.Meanwhile, A started action based on tort and breach of his rights under ss. 7 and 8 of Charter-claiming damages for surveillance. OH applied for order to strike out action. Section 45 (1) of Ontario Labour Relations Act states that every collective agreement “shall provide for the final and binding settlement by arbitration…of all differences btwn the parties arising from the

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http://www.canlii.org/en/nb/laws/stat/rsnb-1973-c-j-2/latest/rsnb-1973-c-j-2.html


interpretation, application, administration or alleged violation of the agreement”CA was silent on exclsuive jurisdiction for arbitration.

Issue Is the arbitration clause final? yes

Ratio Ontario uses the exclusive jurisdiction model regarding the finality of arbitration decisions for labour matters.Two elements must be looked at : 1. Essence of the dispute 2.Whether it is related expressly or implicitly to the CA.Arb meant to provide for speedy resolution of disputes between parties. Relieves courts of burden

Reasoning Tort Claim:Three types of views on final and binding arbitration

1. Concurrent jurisdiction.St. Anne Nackawick case supports the proposition that mandatory arbitration clauses in labour statutes deprive the courts of concurrent jurisdiction. The analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute btwn the parties, not on the basis of the legal issues which may be framed.

2. Overlapping jurisdictions a court action may be brought if it raises issues which go beyond the traditional subject matter of labour law, notwithstanding that the facts of the dispute arise out of the collective agreement, also fails to meet the test of the statute, jurisprudence and policy

3. Exclusive jurisdiction model= this is what should be adopted.If there difference btw parties from collective agreement, must proceed to arbitration and courts cannot get involved in dispute. Question is whether the dispute arises front eh interpretation,application, administration or violation of the collective agreement.This model gives full credit to s. 45 (1) of QLC= and aligns with court’s approach in St. Anne Nackawic. Idea: dispute resolution process which the various labour statutes have established should not be duplicated and undermined by concurrent actions and should conform to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the right of parties to proceed with parallel or overlapping litigation in court.

A’s tort action cannot stand. Art. 2.2 = extends grievance procedure to any allegation that an EE has been subjected to unfair treatment or any dispute arising lout of the content of the agreement. It uses broad language providing that benefits of the sick leave plan are to be considered as part of the agreement. This cover A’s claim against OH.

Charter Claim: (HD)The power of arbitrators to apply the law extends to the Charter- as an essential part of law in Canada. Statutory tribunals created by Parliemtn or the legislatures may be courts of comptentnt jurisdiction to grant Charter remedies, provided that they have jurisdiction over the parties and the subject matter of the dispute and are empowered to make the orders sought. The arbitrator here has jurisdiction over the parties and the disputes and is further empowered by Labour Rleations Act to award the Charter remedies claimed (s. 24 (1))=damages and declaration.

La Forest, Sophinka, Iacobucci (dissenting)Arbitrators do not have power under s. 24 (1) to remedy Charter violations. An arbitrator cannot award a remedy for a Charter breach because they are not courts of competent jurisdictions. s. 24 (1) uses word “COURT” and this was deliberate = does not apply to arbitrator. "If a magistrate sitting in a preliminary inquiry does not possess the characteristics of a "court", as found in Mills, it is difficult to accept that a tribunal, which is not even presided by a judge in a traditional courtroom, can be so considered” Arbitrators are not properly trained in determining appropriate remedies for a constitutional violations— and often have no formal legal training. Tribuanls also do not have same impartiality/independence as a court. Even if an arbitrator is a “court” it is not a court of “competntet jurisdiction.” Although arbitrator can decide Charter issues, they cannot grant charter remedies. **Labour arbitrator can only grant labour relations remedies and this empowerment does not extend to include constitutional empowerment for Charter remedies.

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Dissent’s ratio: "although a labour arbitrator is empowered to grant remedies authorized by the Labour Relations Act, that does not, of itself, confer a jurisdiction to grant Charter remedies."

Notes

o New Brunswick v. O’Leary, [1995] 2 R.C.S. 967o Ste. Anne Nackawic Pulp & Paper Co. c. Section locale 219 du

Syndicat canadien des travailleurs de papier, [1986] 1 R.C.S. 704o Regina Police Assn. Inc. c. Régina (Ville de) Board of Police

Commissionners, [2000] 1 R.C.S. 360

New Brunswick v. O’Leary, [1995] 2 R.C.S. 967Short note

Facts As required for his job, O drove a work vehicle around the province. Employer says he drove its leased vehicle with a flat tire, causing damage, and employer brought an action against him for the repairs- accused of negligence.. O said the ordinary courts lacked jurisdiction because the issue arose out of the collective agreement and must therefore go to binding arbitration under s. 92(1) PSLRA.Trial court and NBCA dismissed his motion to strike out the claim because it did not fall under the collective and was not a grievance.

Issue Can the employer go to the ordinary courts in an action for damages against O concerning repair costs for company vehicle?

Ratio NO – Any claim or discipline action arising from a wrong that is (implicitly or explicitly) covered by the collective agreement must use the arbitration process contemplated in that agreement and in relevant legislation. Here it was IMPLICITLY covered !

Reasoning McLachlin J:• As set out in Weber, courts lack jurisdiction to hear disputes arising out of collective agreements

(except for residual discretionary jurisdiction to grant an injunction).• Whether or not a matter arises out of the collective agreement is to be determined having regard

to the essential character of the dispute and the provisions of the agreement.• The Court of Appeal erred when is stated that “[n]egligence can be the subject of an action

independent of the collective agreement.” In fact, negligence can be the subject of an action only if the dispute does not arise from the collective agreement.

• Here, the dispute arises from the collective agreement.

• Employer says it’s about damages arising from an employee’s negligence. Even though the collective doesn’t expressly refer to employee negligence, this is implied. The agreement acknowledges the employee's obligations to ensure the safety and dependability of the employer's property and equipment, and by inference confers correlative rights on the employer to claim for breaches of these obligations.

• “The essence of the dispute concerns the preservation of the employer's property and equipment. Framing the dispute in terms of negligence does nothing to remove it from the contemplation of [the collective agreement].”

• Employer also says this is a form of discipline, and the agreement doesn’t deal with discipline.

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However, “the wrong which the employer alleges is a wrong arising from the collective agreement; it follows that the discipline it engenders also arises from the agreement.”

→ Employer must use the exclusive avenue of recourse provided in the collective agreement – i.e. the comprehensive arbitration scheme.

→ This collective agreement refers only to employee grievances, but the language in s. 92(1) PSLRA is broader and covers both parties.

Notes This decision was released concurrently with Weber.

Regina Police Assn. Inc. c. Régina (Ville de) Board of Police Commissionners, [2000] 1 R.C.S. 360Short note

Facts Police office resigned rather than face disciplinary action. Later, he withdrew his resignation, but Police Chief refused to accept the withdrawal. Officer’s union filed a grievance and after numerous steps and appeals, eventually sought arbitration.Arbitrator therefore ruled she didn’t have jurisdiction because matters of police discipline and dismissal are governed by a separate regime under the Saskatchewan Police Act, and fall within the jurisdiction of the adjudicative bodies created under that legislation.The Court of Queen’s Bench dismissed the union’s application to quash that decision, but a majority of the Court of Appeal reversed it on appeal.

Issue Does the arbitrator have jurisdiction to hear the Union’s grievance concerning the officer’s withdrawn resignation and the disciplinary action (covered by a special regime)?

Ratio NO à Must use the special mechanism for discipline and dismissal established under the Police Act instead.

Reasoning Bastarache J:- The Weber test (which adopted the exclusive jurisdiction model) determines this issue, and applies

equally when deciding which of two competing statutory regimes should govern a dispute.- In Weber, the Court noted that “Only those disputes which expressly or inferentially arise out of the

collective agreement are foreclosed to the courts.”- Must inquire into (1) the essential character of the dispute and (2) the ambit of the

collective agreement. If it falls, either implicitly or explicitly, within the administrative or application of the CA, then the dispute is solely within arbitrator’s jurisdiction.

- When looking at the nature of the dispute, one must determine its essential character, which is based upon the factual context in which it arose, not its legal characterization . The key question is whether, in its factual context, the essential character of the dispute arises either expressly or inferentially from a statutory scheme.

- KEY Question in this case: Did the legislature intend this dispute to be governed by the collective agreement or the statute? (Note that his case isn’t about courts but competing statutory regimes.)

2. Here the arbitrator had no jurisdiction because the legislature intended all matters of police discipline to be governed by the special Board established in the Police Act, and this dispute clearly centred on discipline.

3. The fact that the parties tried to resolve the disciplinary issue informally through a resignation does not change its essential character.

4. Considering the ambit of the collective agreement, this dispute did not arise from its interpretation or implementation.

5. For public policy reasons involving maintenance of an efficient police force, the legislature intended to create in the Police Act a complete code for the resolution of disciplinary

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matters involving members of the police force.6. No discretion exists to select another mechanism.7. The collective agreement cannot be interpreted so as to offend the legislative scheme. The

legislation must be read broadly and liberally, and so even if the Act and Regulations pursuant thereto do not expressly provide for the disciplinary action taken in this case, the Saskatchewan Police Commission would have jurisdiction to hear the dispute.

8. Jurisdictional issues must be decided in a manner consistent with the statutory schemes governing the parties.

Notes Key points re. legislation and collective agreement: “Article 8 of the collective agreement, which governs grievances, states that the grievance provisions in the agreement are not intended to be used in any circumstances where the provisions of The Police Act and Regulations apply. Turning to the provisions of The Police Act, she noted that Part IV, along with the Regulations, provide a procedural scheme for both disciplinary action and dismissal for breach of discipline, unsuitability for police service or incompetence. In contrast, she noted, the collective agreement has no provisions limiting the grounds for dismissal of an employee, and no provision was directly engaged by the grievance.”

Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39 (CanLII), [2004]Facts Younger teachers did not enjoy same working conditions as older teachers in the

bargaining unit. Complaint of discrimination was filed.Issue Can the complaint w Commission continue or mut it be referred to arbitration ?Ratio Not a dispute over the CA, the issue is about how the CA was negotiated !

Allegations regarding the legality of the CA do not fall within arb’s jurisdictionReasoning - “The essence of the dispute is the process of the negotiation and the inclusion of

this term in the collective agreement.”- dispute NOT about CA, but about the conclusion of the CA : 24“Viewed in its factual matrix, this is not a dispute over which the arbitrator has exclusive jurisdiction. It does not arise out of the operation of the collective agreement, so much as out of the pre-contractual negotiation of that agreement. This Court has recognized that disputes that arise out of prior contracts or the formation of the collective agreement itself may raise issues that do not fall within the scope of arbitration[…[ Everyone agrees on how the agreement, if valid, should be interpreted and applied. The only question is whether the process leading to the adoption of the alleged discriminatory clause and the inclusion of that clause in the agreement violates the Quebec Charter , rendering it unenforceable.”

« It is argued that the Tribunal should not have taken jurisdiction because the complainants could have asked their unions to “grieve” the alleged violation under the collective agreement. I cannot accept this argument. First, the nature of the question does not lend itself to characterization as a grievanceunder the collective agreement, since the claim is not that the agreement has been violated, but that it is itself discriminatory. Without suggesting that the arbitrator could not have considered these matters incidentally to a different dispute under the collective agreement, the complainant cannot be faulted for taking this particular dispute to the Human Rights Commission, which then filed a claim before the Human Rights Tribunal. »

Notes

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iii. Power of Arbitrators and Procedures

Ss. 101 to 101.9 Quebec Labour code

Ss. 60, 61 Canada Labour code

Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., 2006 SCC 2

Remedial authorityo 100.12 Quebec Labour code

- although in Perry Sound: all PO statutes should be incorporated in CA, this not the case for CCQ (although CCQ is of public order).

Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de garage du Québec inc., 2006 SCC 2Short note

Facts

- In both cases, the companies had decided to close their business, resulting in a collective dismissal of their employees.- Statutory notice requirements for collective dismissals prescribed by the Act Respecting Labour Standards (“A.R.L.S.”) were respected by both employers.- However, unions representing the affected employees claimed that the notice given was not reasonable within the meaning of 2091 of the CCQ and filed grievances seeking additional compensation for their members.

- In Fillion, the CA did not contain any provisions concerning notice of termination.- In Isidore, the CA provided that, in the event of a layoff exceeding 6 months, notice in accordance with the A.R.L.S. would be provided- Both employers argued that the grievance arbitrator did not have a jurisdiction under CA to determine whether the notice given was "reasonable" within the meaning of the CCQ- Both arbitrators were influenced by the fact that CCQ 2091 is of public order and should be considered implicitly incorporated into ever CA

-Quebec Court of Appeal concluded that the arbitrators had jurisdiction to hear the grievances because public order status of CCQ 2091 is implicitly incorporated into every CA. So, arbitrators could determine whether the notice given was reasonable and, if not, could order the employers to pay additional notice of termination, even though there was no such requirement in the CA.

Issue Does 2091 CCQ requiring employers to give reasonable notice of termination apply where there is a CA in place? No.

Ratio CCQ provisions that require employers to give reasonable notice of termination do not apply where there is a collective agreement in place. Only individual rights compatible with collective bargaining are implicitly incorporated into CasArbitrator does not have jurisdiction over CCQ. Notice period should be determined under CCQ.

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Difference: 1. The conditions of employment of unionised employees are bargained collectively in advance by the union and the employer, while the notice provided for in the CCQ, is agreed on as an individual matter when the employment is terminated 2. the right of employees to claim reasonable notice of termination is the counterpart of the employer's right to terminate the employment relationship by providing pay in lieu of notice, without having to show good and sufficient cause. 3. Legislative history

Reasoning

Deschamps J (+ Bastarache, Binnie, and Charron JJ):

Court recognises two distinct line of labour law jurisprudence.1. In the first line, labour law is an autonomous legal regime that overrides the general law. given its unique orientation toward collective rights, labour law stands in marked contrast to the spirit of individualism that characterises the general law. Individual rights must be sidelined in the event of a conflict with collective rights

2. In the second line, certain individual rights set out in the human rights charters and legislation are sufficiently fundamental as to be implicitly incorporated into every CA. Certain labour relations statutes contain public order provisions that are recognised as having a similar fundamental character. Advantage of implicitly incorporating such rights into every CA is that it avoids the possibility of the arbitration process being undermined by concurrent actions in other jurisdictions, and affords unionised employees an efficient means of enforcing their rights.

SCC sought a means of reconciling these two lines. the key is determining ine ach case whether a given individual right is compatible or not with the collective labour relations scheme. SCC concludes that 2091 is incompatible with the collective scheme (and therefore should not be incorporated) for three reasons:1. The conditions of employment of unionised employees are bargained collectively in

advance by the union and the employer, while the notice provided for in the CCQ, is agreed on as an individual matter when the employment is terminated.

2. Under the general law, the right of employees to claim reasonable notice of termination is the counterpart of the employer's right to terminate the employment relationship by providing pay in lieu of notice, without having to show good and sufficient cause. Since the employer's right to dismiss is limited in the collective labour relations context, and reinstatement is the most common remedy, it follows that the employee's right under 2091 to reasonable notice is inapplicable.

3. 2091's legislative history suggests that the legislature did not intend to incorporate the notice provided for in the article into the collective scheme.

LeBel (+ McLachlin and Fish) (dissenting): An individual contract continues to exist even after a union is certified, so CCQ rules on

individual contracts continue to apply. Labour legislation doesn't cover everything; CCQ fills gaps. The rights of the individual

and collective schemes can be harmonised consistently with the hierarchy of legal rules. In principle, the CA contains all the conditions of employment expressly included by the

parties during the collective bargaining process, but the parties’ ability to freely negotiate

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the substantive standards that will govern them is limited by the obligation to respect, or incorporate into the agreement, the rights and values protected by the charters and statutes, including certain general principles of law, particularly those that are of public order

The ARLS is of public order (minimum standards) and an employee likewise cannot renounce his rights under 2091 and 2092 because they're of public order too. Section 62 of the Labour Code says a CA can't contravene public order.

Here the arbitrators have jurisdiction to hear the cases. 2091 and 2092 are not incompatible, they supplement the collective labour law scheme and provide a remedy to employees who lose their jobs without being adequately compensated by their employer. There is no reason why unionised employees shouldn't be entitled to notice.

In the case of Isidore, the CA makes provision for notice; here the arbitrator must decide whether that provision is in agreement with the CCQ.

In the case of Fillion, the CA has no provision; here the arbitrator must determine whether, having regard to 2091, the minimum standard in the ALS is sufficient in the circumstances.

Notes

iv. Effect of awards

S. 101 Quebec Labour code101: decision is final and binding = protected by privative clause: high threshold to ask for judicial review Reasonableness standard

S. 66 Canada Labour code-58: decisions by arbitrators are final and shall not be questioned or reviewed by Court(2) privateive caluse (3): labour arbitrator not a federal bd. Need to go Sup Ct. - 66: can file decision of arbitrator

v. Application of the Charter to Collective agreements

Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42

Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42Short note

Facts O was probationary EE of ER and member of union. Her terms of employment were governed by collective agreement which states that “a probationary EE may be discharged at the sole discretion of and for any reason satisfactory to the ER and such action by the ER is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties.” Before the end of her probationary term, she went on maternity leave. When she returned to work, ER fired her. O filed grievance.

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ER tried to argue arb didn’t haev jurisdiction bc collective agreement allowed ER to fire for any reason.

Majority of the Board of Arbitration found that s. 48 (12 (j) of Ontario Labour Relations Act empowers a board of arbitration to interpret a collective agreement in a manner that is constituent with Human Rights code== basically read in HR code into collective agreement, over which an arbitrator has jurisdiction.

Despite having this power, since the grievance was not a difference arising out of the collective agreement, the Board did NOT have the jurisdiction to resolve the dispute.

Issue Whether HR provisions are implicit in collective agreements ie Could the arbitrator apply the Ont HR Code? yes

Ratio Arbitrators have power+responsibility to implement and enforce HR code into collective agreement. It’s a given that Charter and ARLS apply to all r’shions between unions and workers. Cannot K out of HR Code.

Reasoning McLachlin, Gonthier, Iacobucci, Bastarache, Binnie, Arbour, Deschamps: Substantive rights and obligations of HR code are incorporated into each collective agreement over which arbitrator has jurisdiction. Cannot K out of HR Code. s. 48 (12) (j) Labour Relations Act (Ontario)= provides that an arbitrator has the power “to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement.” This means that arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of HR and other employment related statutes as if they were part of the collective agreement.

Major and LeBel (dissenting):

The Human Rights Code is not the subject of the agreement btwn ER and Union and is therefore not arbitrable. "Unless the legislature passes legislation incorporating the substance of its statutes into collective agreements, it is to be assumed that unions and employers may define which employees and disputes are covered by a collective agreement and therefore have access to binding arbitration, as long as the agreement does not conflict with statute or public policy.”— HR Code not implicitly incorporated into all collective agreements. If the legislate wishes to expand the power of arbitrators it would have signalled its intent more clearly. O’s dismissal is not arbitrage because her union and ER decided not to cover dismissal of probationary EE in collective agreement.

Notes Parry Sound marked an important development in labour law, and went beyond the Supreme Court’s teachings in Weber and O’Leary. These two decisions confirmed the principle that not only do explicit provisions of collective agreements constitute the basis on which adjudicator’s jurisdiction is founded, the implicit content will also be weighed and used as though connected to the collective agreement. In Parry Sound, the court went one step further by adding human rights laws and labour legislation to the list of implicit content of collective agreements.

8. STRIKES AND LOCKOUTS

- can be cause for firing if illegal

a. Lock-out

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i. Definition- diff from strike: has a precise goal: presure EE to accept new agreement - 110.1: right to return to work

S. 1 (h) Quebec Labour code- “the refusal by an employer to give work to a group of his employees in order to compel them, or the employees of another employer, to accept certain conditions of employment”

S. 3 (1) Canada Labour code= “includes the closing of a place of employment, a suspension of work by an employer or a refusal by an mployer to continue to employ a number of their employees, done to compel their employees, or to aid another employer to compel that other employer’s employees, to agree to terms or conditions of employment”

ii. Legality

Cité de Hull, [1979] 1 R.C.S. 476

Cité de Hull v. Syndicat Des Employés Municipaux de la Cité de Hull, [1979] 1 R.C.S. 476Law: 97. Any lock-out is prohibited except in the case where an association of employees has

acquired the right to strike (currently section 109) 99. Strikes are prohibited to the employees of a public service unless the association of

employees concerned haso acquired the right to strike under section 46o and has given at least eight days' prior written notice to the Minister of time when it

intends to have recourse to a strike.Facts: The City is a public service according to Labour Code. Collective agreement with union expired and could not conclude a new one. City gave Minister a notice of disagreement. Conciliation was also fruitless. 60 days after notice was given, City declared a lock-out. Union argues that ER did not have right to lock-out EEs because the right to strike had not yet been acquired – specifically, the Union had not fulfilled the second part of s 99, that is, given the Minister notice.Issue: Was the lock-out legal? YESRatio: “a lock-out ceases to be prohibited under s. 97 when the association of employees has acquired the right tostrike under s. 46, even if this association has not yet given the eight days' written notice provided for in the last part ofthe first paragraph of s. 99.”Reasoning: The legislator made a distinction btw the acquisition of the right to strike and the conditions

relating to its exercise.o For public EEs, the legislator clarified that it is not enough just to have the right to

strike. They must also give the Minister 8 days notice of when they intend to strike. There are no equivalent special rules regulating lock-outs in public services. The Legislature

made no distinction between the right to lock-out and its exercise.

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It is argued that the right to lock-out in the public service should be subjected to the same conditions as the right to strike, to maintain a balance. This may be laudable but it goes against the legislature’s intention.

Agree with Court of Appeal: “It can be argued that it would have been more compatible with the spirit of labour legislation ingeneral if the legislator had provided that in public services no strike can be declared and no lock-out can be declared unless both a sixty days' notice and the eight days' notice have been given. Employers and employees would then be on an equal footing…However this does not, in my opinion, justify the distortion of clear and unambiguous provisions…”

Notes:

iii. Employer’s obligations during a strike or lock-out

s. 109.1 Quebec Labour code

REPLACEMENT WORKERS: Difference between Labour and Canada Code!- can hire ppl to avoid destructions of property, requires conservation - ex: to use your materials before they go bad - can use managers, Ees not unionized, ees in bargaining units not on strike

- 109: wider protection- Cnd: 94.1 (2.1)- much weaker! High burden of proof:

o “for the demonstrated purpose of undermining a trade unon’s representational capacity rather than the pursuit of legitimate bargaining objectives”

o so would need to show intention o never applied so far

Syndicat des travailleurs de l'information du Journal de Montréal (CSN) c. Journal de Montréal, 2010 QCCA 1714

Journal de Montreal (CSN) v Journal de Montreal, 2010 QCCAFacts The CA expired betweeb JdM and the Union. JdM declared a lock-out and a few

days later the Union voted to strike. Meawhile, JdM continues to publish its paper. The Union brought the case before the CRT reproaching the JdM ««d'utiliser les services ou le produit du travail» de personnes à l'emploi d'un autre employeur, à savoir de journalistes et photographes d'autres médias de la famille Quebecor Media inc., pour remplir les fonctions des salariés de la défenderesse en lock-out depuis le 24 janvier 2009» (see section 109.1 of QLC). They sought an interlocutory order.Proof includes a sampling of thirty odd published articles originating from other Quebecor media companies, then published in JdM in the following day(s). Most texts indicate they come from QMI agency. JdM argues that they did not order or give directions to QMI in order to obtain material.

Judicial History : Tribunal renders two decisions in which the judge concludes: There is a substantial difference between utilizing “le produit du travail”

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carried out by another, under the direction and for the benefit of their employer AND “utilizing …the services of a person employed by another employer” (see s. 109.1(b)).

It is impossible to conclude on the evidence that JdM or Quebecor’s action were anything other a contingency plan in the face of a prolonged labour conflict.

Issues Was JdM permitted to use articles from QMI pursuant to article 109.1(b)? YESRatio There is a distinction to be made between utilizing “le produit du travail” carried

out by another, under the direction and for the benefit of their employer AND “utilizing …the services of a person employed by another employer” (in the sense of s. 109.1(b)).

Reasoning QCCA says the interpretation and application of 109.1 to the facts is a matter at the heart of the expertise of the Tribunal. The QCCA will not interfere – the decision was reasonable.

o See also : Syndicat des travailleurs de l'information du Journal de

Montréal (CSN) c. Journal de Montréal, 2009 QCCRT 0188

Syndicat des travailleurs de l'information du Journal de Montréal (CSN) c. Journal de Montréal, 2010 QCCS 4636

I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2

Place des Arts 2004Facts Respondent = union representing all SPA salaried stage technicians

5 tenants (orchestra, ballet, jazz festival, etc) are permanent tenants bound by a lease setting out t&cs for renting the halls and equipment, and provides that they will only use union technicians.

CollA between SPA and union provides that SPA would only employ technicians provided by the union.

CollA expired Feb 28, 1999. Negotiations failed, union went on strike June 22, 1999.

Nov 8, 1999 – SPA approved resolution declaring intent to quit providing stage technician services to tenants, amend tenants’ leases accordingly.

Union brought proceedings against SPA. March 22, 2000 SPA found guilty of contravening s109.1(b) of the Code SPA paid fine, didn’t amend conduct. Union then sought injunction, which they won at SC and upheld at Court

of Appeal.Issues 1) Was there a hriing of replacement workers of replacement workers?

2) Can the ER close the workplace?Ratio The wording of s. 109.1 (« utiliser/utilizing ») requires a positive acts (here it is

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indirect, passive) . SPA and its tenants are distinct legal entities, SPA had right to go partially out

of business, which it did. Therefore, not in violation of s109.1(b)

Reasoning Alleged Abuse of Process and Standard of Review Union claims that defending itself against the allegation SPA sought to

relitigate a matter already decided by Labour Tribunal (abuse of process) At Superior Court for injunction case, this was trial of first instance. Injunction is extraordinary remedy only available at SC Therefore wrong for union to suggest that SC ought to have deferred to

decision of Labour Tribunal and SPA ought not to have defended itself against Union’s application.

SPA’s Technical Services Business Union submits that the court should characterize the state of affiars in a

holistic manner (based on Bibeault where it was held that an undertaking must be understood as a whole)

This is wrong – SPA and tenants are distinct legal persons, and Bibeault was about interpreting s45 which is not being invoked here.

Counsel for union admitted that according to its analysis, SPA would never be able to shut down the technical service portion of business without going out of business completely. SPA has right to terminate part of its business.

Meaning of Utilizing in s109.1(b) Union submits the SPA is “utilizing the services of persons employed by

another employer contrary to s109.1(b)

109.1(b): 109.1. For the duration of a strike declared in accordance with this Code or a lock-out, every employer is prohibited from ..

(b) utilizing, in the establishment where the strike or lock-out has been declared, the services of a person employed by another employer or the services of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out;

Union submits that “utilizing” here can mean the SPA benefiting indirectly from the services of stage techs employed by the tenants.

Decides utilizing must involve a positive act by the user – here it is indirect and passive.

Enterprises have right to go out of business, in whole or in part and enjoyed by unionized or non-unionized enterprises.

Union argues SPA didn’t genuinely go out of business during the disputed period

Motives for going out of business are not subject to review, as per case law.

Decides SPA did genuinely abandon the technical services part of its business evidence for this is the resolution declaring intent to quit providing the services to the tenants and amending their lease, and their actual practices during that time.

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b. Strike

i. Characteristics of strike

S. 1 Quebec Labour code

= concerted cessation of work by a group of employees2 requirements for right to strike 106: forbidden to strike UNLESS 1) ass’n has not been certified and 2) right to strike not acquired under s. 58 - can’t strike if you’re not in a union - 107: can’t strike during period of CA (St Anne)- 108: NO work slow down, including work to rule

o can’t refuse to do smth covered by CA (uniform, refuse to work OT) or that is usually done whether voluntary or not under CA (no one wants to do OT)

o ie if union wants to strike, needs to be clear! - can be a general strike or a rotating strike

S. 3(1) Canada Labour codeo Concertedo Work-stoppage

- Canada: o 71: notice of dispute is sent!o 72: must send notice of dispute to minister o 88.1: prohibited during strike or Lock out o 89: acquisition of right to strike tied to notice of dispute being sent and minister’s

decision to appoint a concilator ▪ note (d): 21 day cooling off period ▪ 87.3vote to strike is taken by all Ees, not just union memebrs

= includes a cessation of work or a refusal to work or to continue to work by employees, in combintion, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in a relation to their work that is designed to restrict or limit output” - “includes” = can be smth beyond this defintion

Strasser v. Roberge, [1979] 2 S.C.R. 953

ii. Legality of the strike or lock-out

With respect to time factor: s. 58 Quebec Labour code

- failure to abide by s. 58 DOES NOT make strike illegal! Only fine!- 58.1: need to tell minister only AFTER

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With respect to procedural prerequisites: 20.2, 20.4 and 58.1 Quebec Labour code

- 20.2 no strike can be declared unless authorized by secret ballot! o Only members in the union!o 1) there needs to be a secret ballot voteo 2) have to give prior notice to the members! (not ees in barg unit)o 3) majority vote: majority of the members who exercise the right to vote! No

quorum! Depends on members who show up to vote!

iii. With respect to the behaviour of employees during the strike or lock-out

- no longer distinction between primary/secondary picketing!- Non-striking Ees have to cross picket line (or else seen as illegal strike) - ER has right to continue to operate its business, sub-Kers, visitors can continue to cross the

picket line and have access to the premises! -

Ss. 422, 423 and 430 of the Criminal Code

Picketing

Injunctions: provisional or interim. To get an injunction and replacement workers – just need affidavit - provisional orders will last for 10 days

o Dolphin Delivery Ltd. v. R.W.D.S.U., [1986] 2 S.C.R. 460o Re BCGEU v. AG of BC, [1988] 2 S.C.R. 214o AG Newfoundland v. N.A.P.E., [1988] 2 S.C.R. 204

Re BCGEU v. AG of BC [1988]Facts: The BC Government Employee Union (“the Union”) picketed courts in the province while they were in session. The Union sought to restrict court activities to urgent matters – the Union considered people to have respected the line if they crossed it after obtaining a “picket pass” from the Union. The Chief Justice of the Superior Court felt he had a constitutional duty to keep the courts open so he issued an injunction of this own motion and ex parte restraining picketing and impeding access to court. Union to moved to have it set aside and this was dismissed by the Superior Court and Court of Appeal.Issue:

1. whether a provincial superior court judge could constitutionally enjoin picketing of court-houses by a Union representing court employees engaged in a lawful strike: YES

2. whether the order restraining picketing and other activities within the precincts of all court-houses in British Columbia infringed or denied the rights and freedoms guaranteed by ss. 2(b), 7, 11(a) and (d) of the Canadian Charter of Rights and Freedoms: ONLY an infringement of section 2(b) and justified under Section 1

Ratio: SC judges has jurisdiction to enjoin picketing, when there are civil and criminal matters at stake. AND Unions can’t use the Charter right to free expression justify impeding access to courts

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with a picket line.Reasoning:

I. The Canadian Charter of Rights and Freedoms (Re Issues 2 & 3)a. Preamble to the Charter confirms the rule of law is the foundation of the Charterb. “Earlier sections of the Charter assure, in clear and specific terms, certain

fundamental freedoms, democratic rights, mobility rights, legal rights and equality rights of utmost importance to each and every Canadiam”

c. “Of what value are the rights and freedoms guaranteed by the Charter if a person is denied or delayed access to a court of competent jurisdiction in order to vindicate them? How can the courts independently maintain the rule of law and effectively discharge the duties imposed by the Charter if court access is hindered, impeded or denied?” (para 24)

II. Picketing and Its Effects (Re Issue 1)a. Picketing is crucial, to publicize dispute, show solidarity, etc.b. Author quoted to demonstrate the purpose and effect of the picket line. Weiler says

the response is automatic and almost Pavlovian due to a number of factors including: solidarity of membes of the union movement, “an appreciation that it is in the self-interest of each to honour the other fellow's picket line because in their own dispute they will want the same reaction from other workers”, concern for ostracism, concern you might be disciplined by your own union for crossing the picket line, etc. (para 30)

c. Picketing a court house is not the same thing as picketing a commercial enterprise. It is a barrier “in intention and in effect”. In this case, the Union “set up a barricade which impeded access to the courts by litigants, lawyers, witnesses, and the public at large” (para 31)

d. This both denies justice or at least causes delays in the administration of justice.e. “Picketing a court-house to urge the public not to enter except by permission of the

picketers could only lead to a massive interference with the legal and constitutional rights of the citizens of British Columbia.” (para 31)

III. Contempt of Court (Re Issue 1)a. Discussion of whether picketing the court houses could be considered criminal

contempt of court …and the SCC concludes that it is. (para 41).b. On the question of whether the judge had jurisdiction to enjoin picketing of his

motion and ex parte:c. “The action taken by the Chief Justice was admittedly unusual, but so was the

situation which confronted him. The case law does hold that the court may in certain instances act ex mero motu.” (para 42)

d. English Courts’ discussion of summary power to deal with contempt of court.e. Though Chief Justice acted ex parte, he took account of procedural rights i.e. gave

the Union the right to move to have order set aside. No one was convicted of contempt of court and no penalty imposed à The order was really to put the Union on notice. (para 46)

f. “As Chief Justice, he had the legal constitutional right and duty to ensure that the courts of the province would continue to function. His action went no further than that which was necessary to ensure respect for that most important principle.” (para 46)

IV. Labour Legislation (Re Issue 1)a. Union says Labour Code gives Labour Relations Board exclusive jurisdiction to

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enjoin picketing re labour disputes….BUT the courts still have authority to deal with violations of civil and criminal law. PLUS the courts have “jurisdiction to defend their own authority” (para 47-49)

b. Quoting author: “For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused.”

c. Agrees with AG: 1. The order was issued in relation to criminal contempt, which is a federal power under 91(27) 2. Courts have inherent/CML jurisdiction to punish for contempt, also in Criminal Code.

d. Although the strike was lawful for labour relations purposes, “picketing which restricts access to the courts is not relieved of being classified as criminal under the law of contempt.” (para 54)

V. Charter Claims of the Union (Re Issues 2 & 3)a. Section 2(b): Picketing in a labour context contains an element of expression à

Dolphin Delivery: “The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct.” (from Dolphin Delivery)

b. Section 7: The order did not violate fundamental justice.c. Section 11(a) and (d): No one was charged with an offence, no penal sanctions

imposed, so not relevant.d. Section 1:

i. “without the public right to have absolute, free and unrestricted access to the courts the individual and private right to freedom of expression would be lost” (para 67)

ii. ✔ “assuring unimpeded access to the courts” is a pressing and substantial objective

iii. ✔ Rational connection btw injunction and the objectiveiv. ✔Minimally impairing bc Union members were free to express themselves

elsewherev. ✔There is proportionaly btw the effects of the injunction and the

objective…question of conflicting rights. Essentially you can express yourself but we might restrain this right if you are exercising it in a way that infringes others’ rights.

Notes:

AG Newfoundland v. N.A.P.E., [1988] 2 S.C.R. 204Facts C was an employee at the Newfoundland Supreme Court and a member of

NAPE. In the course of a lawful strike, NAPE picketed the NLSC. C crossed the picket line and the union took steps to discipline him. On the date of his hearing, C and the AG applied for an injunction preventing the disciplinary proceedings from going ahead. The injunction was granted and subsequently made permanent. NAPE appealed to the NLCA and SCC.

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Issue Does picketing a court house constitute contempt of court?Ratio Picketing a court house is illegal because it obstructs the administration of

justice. A union cannot discipline its members for crossing a picket line at a court.

Reasoning The question is the same as in BCGEU v BC (Attorney General). Even if the strike is legal, it does not make picketing which interferes with the administration of justice legal.

NAPE's picket line at the court was intended as a barrier to access. (210, 211) The picketing was illegal and constituted contempt of court. Since the picketing was illegal, the union cannot discipline C for crossing. (211)

Notes

Dan 45 pages

-- See above materials for complete summary – covered by Jacqueline under Collective Bargaining

Royal Oak Mines Inc. v. Canada, [1996]Facts See above under Collective BargainingIssueRatio I think the key point for this section is that an employer’s attempt to

penalize returning strikers can be found to constitute bad faith. Labour Court’s finding on this upheld by SCC.

Reasoning See above

iv. Protection of the employment relationship during the strike or lock-out

110 and 110.1 Quebec Labour code

Royal Oak Mines Inc. v. Canada, [1996] 1. S.C.R. 369

v. Fines and penalties

S. 142-142.1 Quebec Labour code

Civil liabilities for illegal lock-outs and strikeso Santana, [1978] C.A. 114

9. UNIONS AND THEIR MEMBERS: DUTIES AND OBLIGATIONS

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a. Conflicts of interests

The Union’s disciplinary powers

The Union’s failure or incapacity to represent a membero Guilde de la marine marchande du Canada c. Gagnon, [1984] 1 R.C.S.

509o Gendron c. Syndicat des approvisionnements et services de l’Alliance de

la Fonction publique du Canada, section locale 50057, [1990] 1 R.C.S. 1298

b. The duty of fair representation- has to represent every member of the unit, not just who is part of the union - debate about whether these are inhernet rights (based on cml) or statutory - needs to at lest show it investigated! US Steel v Louisville National Railway Company 1944

Railway Labour Act: gave the union exclusivity. The union didn’t want to admit black workers in union, signed an agreement to limit job propsects ffor black workers

US SC found that the union was failing in its duty of fair representation: bf, arbitrary, discriminatory

Vecke v Sypes 1967 First decision where the Ct looks at breach of duty: when the union’s conduct is arb, in

bf or discriminatory The same language finds its way into our statutes

Fisher v Pemberton 1969 BC supreme Court Correlation made between exclusive bargaining agent role and the duty not to

discriminate, etc

Canadian Merchant Service Guild v Gagnon et al 1984 SCC.No absolute right to grievance arbitrationFacts G was a pilot boat captain but his job was changed to a maintenance worker (big demotion). The union

took the grievance to three levels, as per the collective agreement. The Union did not go to arbitration because their lawyer interpreted the Collective Agreement as only allowing arbitration in the event of a dismissal. G was eventually fired, but he maintained that his original transfer constituted a disguised dismissal, ie so he would either resign or he would make a mistake leading to a dismissal. He alleged the union failed in its duty of representation by not seeing the transfer as a dismissal and going to arbitration.

Judicial History: Superior Court and Court of Appeal found Union failed in its duty of representation bc it did not conduct a thorough investigation (which would have shown the transfer was a disguised dismissal) and awarded damages to G.

Issue Did the union failed in its duty of fair representation by refusing to take the grievance to arbitration?

Holding NO. The union was within its’ discretion. It had all the facts and had discussed it wth their lawyer.

Ratio There is no absolute right to grievance arbitration, and the union had considerable discretion in deciding to proceed to arbitration.. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case including the significance of the grievance for the EE and the union’s interests “The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

Recognition of the duty and its existence. The representation by the union must be fair, genuine and not

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merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.”

Reasoning There is no need to decide whether the transfer = a dismissal bc the main issue in this action is the Union’s duty of representation. Even if it was found that the transfer=dismissal and therefore arbitral, the union did not necessarily breach its duty of fair representation.

Review of the Duty of Fair Representation Principles re: the duty of fair representation wrt to a grievances emerge from case law and

jurisprudence “1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining

unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.”

“4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful. 5. The representation by the union must be fair, genuine and not merely apparent, undertaken

with integrity and competence, without serious or major negligence, and without hostility towards the employee.”

Application to the case at bar Disagrees with Superior Ct and CA that failure to make a thorough investigation DOES NOT

constitute bad faith It was not shown that the union acted in a arbitrary, discriminatory, negligent or hostile way The union can’t be blamed for relying on opinion of legal counsel

Notes

ss. 47.2 to 47.5 Quebec Labour code

- 47.2: certified ass’n CANNOT act in BF, arbitrary or discriminatory manner OR show serious neglignece wrt to Ees in bargaining unit!

- 47.3: 6 mo to file a complaint with the Commission! o 114: Commission’s exclusive jurisdiction wrt to Code!

Remedies for duty of fair representation: - order to ensure that what would have happened happens: can order that grievance goes to

arbitration and union pays lawyer- monetary damages

- SCC says that right of fair representation orginally in cml, but now in statute Gendron c. Syndicat des approvisionnements et services de l’Alliance de la Fonction publique du Canada, section locale 50057, [1990]Facts a) Job competition: Gendron is the winner.

b) Competition losers file grievance, supported by union; 1 of the losers gets awarded the job; Gendron is therefore displaced.

c) Gendron wants to grieve; but union refuses to take grievance forward.d) Gendron starts action in MCQB (even thought there’s a duty of fair

representation in the labour relations statute which should go to the labour board)

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Issue Did union breach duty of fair representation toward Gendron?Ratio Union entitled to pursue one set of employee interests to the detriment of

another so long as not actuated by improper motive & union takes into account all relevant considerations.

Reasoning a) Procedure / Forum : Should pursue DFR under the statute, where a statute is in place. Here, should go under the statute because the statute applies.

b) Substance of DFR : a union must sometimes choose b/t competing interests. Here, the union chose the losers’ interests because of the problems in the original selection process. This was a principled, considered position, designed to uphold the CA. No improper motive. Even though it hurt Gendron’s interests, union did not breach DFR.

Notes (There is a long discussion about the CML vs statutory duty of fair representation, but I don’t think it’s important for our purposes. This case can be used as another example of the union’s DFR in a context of conflicting employee interests)

Centre hospitalier Régina Ltée c. Tribunal du travail, [1990] 1 R.C.S. 1330

Centre hospitalier Régina Ltée c. Tribunal du travail, [1990] 1 SCR 1330Facts M was dismissed from her job on the grounds that she abused the sick leave

benefits. The union grieved her dismissal. Before the arbitrator reached a decision, the union entered into negotiations with the employer for a new collective agreement. As part of the new collective agreement, the parties discontinued all grievances under the previous collective agreement, including M's. The union did not realize her grievance pertained to dismissal and M did not find out until several months later. M made a complaint that the union had failed in its duty of representation.

Issue Did the union breach its duty of representation by “swapping” M's grievance as part of the negotiation for a new collective agreement?

Ratio The union's discretion in balancing an individual employee's interests with those of the bargaining unit is limited when the grievance pertains to dismissal. The Duty of fair represented is nuanced wrt to severity of the consequences for the EE.

Usually, you need to show you got smth beneficial for the unit, consulted group,

Reasoning The duty of representation existed in the common law and comes from American jurisprudence, Steele v Lousville & Nashville Railroad. It was eventually codified in ss 47.2 to 47.6 of the Code. (1344-1346) The special procedure for an individual to seek an arbitration of her dismissal, in the case where the union fails in its duty, is restricted to cases where the grievance is about dismissal (1346, 1347, s 47.3)

The union's duty does not stop once the matter has gone to arbitration and may even continue after the arbitrator makes a decision (eg, the union may

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have a duty to seek evocation of an erronous decision). The union's duty is the corollary of exclusive representation. (1347)

The duty is divided into two distinct stages:

1. Carefully consider the grievances to decide if they should be taken to arbitration

2. If the union decides the grievance has merit, it must represent the employee without serious negligence, discrimination or bad faith.

At the second stage, it is possible the individual employee's interests may come into conflict with the interests of the bargaining unit. The union has discretion, which is not unlimited, to weigh diverging interests of an individual employee and the bargaining unit. (1349)

The exercise of discretion depends on the nature of rights which the employee is seeking to enforce. If the consequences for the employee are sufficiently significant, eg, in the case of a grievance for dismissal, the union's discretion in balancing that employee's interests against those of the bargaining unit, will be substantially restrained. (1351) The union must recognize the importance of an employee's individual interest when considering whether to “swap” a grievance for some collective benefit. (1352)

The union disposed of M's grievance, which was about dismissal without informing her and without her consent. (1355) The legislature has made a decision, in ss 47.2 to 47.6, that the right of an employee to retain her employment should be given preference, over the interests of the employer to have certainty in its agreements with the union, and this does not threaten the collective bargaining process. (1360-1362) The employee's rights cannot be sacrificed with impunity without both the union and employer bearing the consequences. (1364)

Notes This case was brought by the employer, challenging the arbitrator's jurisdiction to consider the complaint by M, given that the grievance had already been settled by the union and the employer. However, that's not what we're interested in here.

c. Obligations of Certified Association

Union election by secret ballot if they are to be held: s. 20.1 Quebec Labour code

Secret ballot for strike votes : ss. 20.2 and 20.3 Quebec Labour code

Validity of «exigences supérieures»: s. 20.5 Quebec Labour code

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Financial statements : s. 47.1 Quebec Labour code

d. Responsibilities of Certified Association

Union dueso Lavigne v. O.P.S.E.U., [1991] 2 S.C.R. 211

Lavigne v. O.P.S.E.U., [1991]Facts - Lavigne, union member, upset that union is using dues he pays to support

political causes (ie: NDP)- Doesn't challenge requirement to pay dues, but the use to which the union is putting the dues- Claims s.2(b) and s.2(d) freedom of expression and association Charter rights are violated

Issue 1. Does the Charter apply? Yes.

2. Did the payments to the OPSEU infringed his freedom of association under section 2(b) of the Charter? No.

3. Did the payments to the OPSEU infringed his freedom of association under section 2(d) of the Charter? SCC divided in their reasons for decision. No (Wilson, L'Heureux-Dube, Cory, McLachlin). Yes (La Forest, Sopinka & Gonthier). ** different reasons

4. Saved under s1? Yes.

Ratio Once certified, unions can use union dues to fund activities opposed by union members or further issues not immediately relevant to collective bargaining

Reasoning 1. Charter applies since obligation imposed on Lavigne to impose dues can be attributed to government. While it is a collective agreement and not legislation, the Council of Regents (of the College) is an emanation of goverment.

2. Appellant’s contribution can’t be said to convey meaning and his FOE per s. 2(b) Charter is therefore not infringed.

3. Rand formula violates s. 2(d) of Charter because it interferes with freedom from compelled association. Payment of dues which is the extent of the appellant’s association with Union is an associative act within meaning of s. 2(d). Dues are used to further the objects of the Union and are essential to Union’s right to “maintain” the association. FOA is therefore violated when

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one is compelled to pay dues that are used to support causes, ideological or otherwise, that do not directly relate to CB.

4. Limitation is justified by s. 1 because stated objectives in compelling payment of union dues which can be used to assist causes unrelated to CB are to enable unions to participate in broader political, economic and social debates in society and to contribute to democracy in the workplace. Minimal impairment test is also met because opting-out formula could seriously undermine unions’ financial base and spirit of solidarity, which are very important to the emotional and symbolic underpinnings of unionism.

Wilson and L’H-D JJ (NO FOA breach): Appellant’s FOA is not violated because purpose of s. 2(d) is to protect

association for collective pursuit of common goals. It should not be expanded to protect right not to associate. Real harm produced by compelled association is not the fact of association but enforced support of views, opinions or actions one doesn’t share or approve.

Appellant’s FOE also hasn’t been infringed. Fact that he is denied right to boycott Union’s causes prevents him from conveying a meaning which he wants to convey and the activity which he wishes to engage therefore falls within sphere of 2(b) conduct. However government’s intention wasn’t to control conveyance of meaning but rather to promote industrial peace through encouragement of CB.

Rand formula also doesn’t deprive appellant of right to freely express himself. Compelled payment of dues doesn’t publicly identify him with Union’s activities and in any case will be saved by s. 1 since objective of legislation is to promote industrial peace. This is sufficiently pressing and substantial an objective and there is a rational connection between promoting CB and permitting unions to invest dues in ways in which will best serve their constituents. Minimal impairment is also met because placing restrictions on how unions can spend dues will lead to problems and jeopardize important government objective at stake.

Notes

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