Labour Law Spring 2014 1
Labour Law – Spring 2014
McGill 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 Contents
Syndicat catholiques des employés du magasin inc v Paquet ltée [1959] .................................................... 5
Short note .......................................................................................................................................................................... 5
2. CONSTITUTIONAL DIVISIONS ....................................................................................................... 6
a. Constitutional basis ..................................................................................................................................... 6
b. Provincial and federal jurisdictions ..................................................................................................... 7
Reference re: Bell Canada c Quebec (Commission de la santé et de la sécurité de travail) [1988] ..... 9
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....................... 9
c. Interjurisdictional Immunity ............................................................................................................................. 14
3. FREEDOM OF ASSOCIATION ........................................................................................................ 20
a. Sources .......................................................................................................................................................... 20
s. 2(d) of the Canadian Charter ............................................................................................................................. 21
iii. Compare with: ........................................................................................................................................................ 22
b. Applicability of the Charter ................................................................................................................... 22
c. What is the constitutionally protected Freedom of Association? ............................................ 23
PIPS v Commissionner of NWT [1990] ................................................................................................................ 28
s. 2d does not extend to the certification process................................................................................................ 28
iii. Right to associate or not associate................................................................................................................. 35
4. EXERCISE OF FREEDOM OF ASSOCIATION ............................................................................. 41
a. The right of Association .......................................................................................................................... 41
i. s. 3 of Quebec Labour code .................................................................................................................................. 41
ii. s. 8 of Canada Labour code ................................................................................................................................. 41
b. The certification process ........................................................................................................................ 41
i. The principle and effects of certification ....................................................................................................... 41
ii. The applicable requirements ............................................................................................................................ 41
iii. Authorization by resolution ............................................................................................................................. 42
iv. Filing of Statutes and By-laws on request................................................................................................... 43
v. The vote and its role in the certification process ...................................................................................... 45
vi. When the petition may be filed (timeliness) ............................................................................................. 47
c. The bargaining unit................................................................................................................................... 48
i. Appropriate ................................................................................................................................................................ 48
ii. Community of interests ....................................................................................................................................... 50
iii. Special considerations ........................................................................................................................................ 50
d. Particular exclusions from the right of association...................................................................... 51
i. Non-employees ......................................................................................................................................................... 51
ii.The notion of «Independent contractors» ................................................................................................... 52
Paquin c Services financiers Investors 2012 QCCA ........................................................................................ 52
Short note ....................................................................................................................................................................... 52
iii. Dependent contractors ....................................................................................................................................... 58
iv. Managerial and supervisor personnel .......................................................................................................... 58
v. Confidential employees........................................................................................................................................ 58
e. The parties to certification proceedings ........................................................................................... 58
i. ss. 32 and 36 Quebec Labour code ................................................................................................................... 59
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Toronto Newspaper Guild v. Globe Publishing, [1953] 2 S.C.R. 18 ........................................................ 59
Bibeault v McCaffrey 1984 ........................................................................................................................................ 60
Short note ....................................................................................................................................................................... 60
f. Certification apparatus ............................................................................................................................ 61
i. Labour relations officer (s. 21 Quebec Labour code)................................................................................. 61
ii. Labour Relations Commission (Commission des relations du travail) ........................................... 62
iii. Canada Industrial Relations Board Labour Boards ................................................................................ 63
g. Affiliation and raiding.............................................................................................................................. 63
h. Successor rights (Under the Quebec Labour code) ........................................................................ 63
i. Quebec Labour code ............................................................................................................................................... 63
Syndicat des employées et employés des magasins Zellers d’Alma et de Chicoutimi (CSN) c. Zellers,
2009 QCCA 474 ............................................................................................................................................................ 67
Short note ....................................................................................................................................................................... 67
ii. Quebec Civil Code ................................................................................................................................................... 69
iii. Canada Labour code............................................................................................................................................. 69
iv. Transfer of jurisdiction from provincial to federal and vice versa ................................................... 69
v. Successor union....................................................................................................................................................... 69
5. UNFAIR LABOUR PRACTICES ...................................................................................................... 69
a. Undue interference with the formation or activities of a union .............................................. 69
i. s. 12 Quebec Labour code ................................................................................................................................... 69
ii. s. 94 (1) Canada Labour code ............................................................................................................................ 70
iii. Quebec: effects on certification ....................................................................................................................... 70
iv. Canada: effects on certification ....................................................................................................................... 70
b. Intimidation and threats ........................................................................................................................ 70
i. As between union and employees .................................................................................................................... 70
ii. As between employer and employees ........................................................................................................... 70
c. Captive audiences and information blitz ...................................................................................................... 77
iii. Freedom of expression ....................................................................................................................................... 78
Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 ......................................................................... 79
Short note ....................................................................................................................................................................... 79
UFCW v KMart Canada [1999] 2 SCR 1083 ...................................................................................................... 85
Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local
401, 2013 SCC 62 ......................................................................................................................................................... 88
Short note ....................................................................................................................................................................... 88
iv. Unfair dismissal, suspension or transfer ..................................................................................................... 90
Commercial photo v. Lafrance, [1980] 1 S.C.R. 536 ........................................................................................ 91
Short note ....................................................................................................................................................................... 91
Dismissal is not a change of work conditions (although door not closed) .......................................... 94
6. COLLECTIVE BARGAINING ........................................................................................................... 97
a. Bilateral Bargaining ................................................................................................................................. 97
i. Time Factor ................................................................................................................................................................ 97
ii. Duty to bargain diligently and in good faith................................................................................................ 97
iii. Scope .......................................................................................................................................................................... 99
Canadian Union of Public Employees v. Labour Relations Board (N.S.) et al., [1983] 2 S.C.R. 311
......................................................................................................................................................................................... 100
Short note .................................................................................................................................................................... 100
b. Sectorial bargaining ........................................................................................................................................... 102
c. Alternatives to unaided bargaining .............................................................................................................. 105
7. COLLECTIVE AGREEMENTS AND THEIR ENFORCEMENT ............................................... 106
a. What is in a collective agreement? .................................................................................................... 106
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b. Enforcement of a collective agreement ...................................................................................................... 108
St. Anne Nackawic Pulp & Paper Co. c. Section locale 219 du Syndicat canadien des travailleurs de
papier, [1986] 1 R.C.S. 704.................................................................................................................................... 109
Short note .................................................................................................................................................................... 109
Weber v. Ontario Hydro, [1995] 2 R.C.S. 929 ................................................................................................. 109
Short note .................................................................................................................................................................... 109
New Brunswick v. O’Leary, [1995] 2 R.C.S. 967 ............................................................................................ 111
Short note .................................................................................................................................................................... 111
Regina Police Assn. Inc. c. Régina (Ville de) Board of Police Commissionners, [2000] 1 R.C.S. 360
......................................................................................................................................................................................... 112
Short note .................................................................................................................................................................... 112
iii. Power of Arbitrators and Procedures ............................................................................................ 114
Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. v. Syndicat national des employés de
garage du Québec inc., 2006 SCC 2 ................................................................................................................... 114
Short note .................................................................................................................................................................... 114
Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42
......................................................................................................................................................................................... 117
Short note .................................................................................................................................................................... 117
8. STRIKES AND LOCKOUTS .......................................................................................................... 118
a. Lock-out ...................................................................................................................................................... 118
i. Definition ................................................................................................................................................................. 118
ii. Legality .................................................................................................................................................................... 118
iii. Employer’s obligations during a strike or lock-out ............................................................................. 119
b. Strike............................................................................................................................................................ 122
i. Characteristics of strike ..................................................................................................................................... 122
ii. Legality of the strike or lock-out ................................................................................................................... 123
iii. With respect to the behaviour of employees during the strike or lock-out .............................. 123
iv. Protection of the employment relationship during the strike or lock-out ................................. 127
v. Fines and penalties ............................................................................................................................................. 127
9. UNIONS AND THEIR MEMBERS: DUTIES AND OBLIGATIONS ....................................... 127
a. Conflicts of interests ............................................................................................................................... 127
b. The duty of fair representation .......................................................................................................... 127
c. Obligations of Certified Association.................................................................................................. 131
d. 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 note
Facts
 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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

Reasoning
EE’s power to K individually with ER is abrogated
Not same as a mandate- different bc it’s based on a statutory regime
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 recover
DISSENT
 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 Legislatures
Marginal 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. 505
Hours of Labour Reference [1925]
Short note
Facts
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 SCC
Facts
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
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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. 461
Reference re: Three Labour Acts [1936]
Short note
ILC’s Convention set minimum wage standards, and Parliament wants to introduce its terms through a
Facts
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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Reasoni
ng
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 to
One case in a trilogy (three appeals were treated jointly) addressing the question: is a provincial statute
Facts
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
unpaid leave for about a year.
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
Issue
Ratio
Reaso
ning
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.
Conflict between Quebec Act respecting occupational health and safety and Canada Labour Code
1. 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?
1. No
2. No need to address this.
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

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

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 committees
o 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 wellbeing to be endangered, etc (relevant in CN)
Note that Canadian Parliament added provisions on occupational health and safety in FUs to the
Labour Code before QC passed its Act. Plus, the Act contains “striking analogies” with those
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provisions of the Labour Code (At 124 and 125)
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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 safety
1. 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
that it is not applicable to, or that the Postal Service is not subject to, the provisions of this
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




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 undertakings
o 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 c
o 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
inapplicable to federal undertakings + these are not cases of conflicting laws, so there was no
need for the paramountcy doctrine.
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Labour Law Spring 2014 13
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.”
o



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 did
o 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
provisions. But no need to decide this because Act does not apply to Bell.
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Notes
c. Interjurisdictional Immunity
interjurisdictional 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 applicability
Federally-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 immunity
o 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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Labour Law Spring 2014 15
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 note
Facts
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.
Reasoni
ng
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
- 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.
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-
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;
[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
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Labour Law Spring 2014 18
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 part
Tessier was a company that rented heavy equipment, operating solely in Quebec. 14% of revenue and 20%
Facts
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 = shipping
Derivative jurisdiction = stevedoring bc it is integral to shipping
Tessier = 14 % of revenue was stevedoring
Issue
Holding
Ratio
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.
Is Tessier subject to federal regulation through derivative jurisdiction because 14% of its work is for federally
regulated shipping companies? NO
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.
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.
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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 aspects
o 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 jurisdiction
o However, the Reference has since been read as a case of derivative jurisdiction
o 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 federal
o 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 Powers
Authority 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 Assembly
Key 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 Association
Formation of Association
Freedom 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.
·
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
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Labour Law Spring 2014 21
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 Association
Association 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 Associate
Three scenarios:
3. Closed shop: must be a member of the union before being hired
4. Union shop: must become a member of the union after being hired
5. 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.
s. 2(d) of the Canadian Charter
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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 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.
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 note
Facts
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
Ratio
5. Does the Charter apply to injunction?
6. Does the injunction violate 2b freedom of expression?
7. Is the violation justified?
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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Reason
ing
Notes
McINTYRE
6. Does the Charter apply to an injunction? – NO
7. 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
government action!
8. Does the injunction violate 2b freedom of expression? -- YES
9. 2(b) protected expression includes picketing that causes economic
pressure and breach of contract. Excluded from 2(b) protection:
violence, threats, unlawful acts
10. Is the violation justified under s1? – YES
(additional judgments by Beetz J and Wilson J)
(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 note
Public Service EE relations Act= public service EEs
Facts
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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Labour Law Spring 2014 25
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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Reasoni
ng
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 sMajority 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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Labour Law Spring 2014 27
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
ii. Right to Collective Bargaining
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Labour Law Spring 2014 28

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. 367
PIPS v Commissionner of NWT [1990]
s. 2d does not extend to the certification process
32 nurses in the Northwest Territories were employed by the federal gov’t and were represented by the
Facts
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.
Issue
Ratio
Reasoning
Judicial History: Sup Ct said there was a violation, while CA disagreed.
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)
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 either
L’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.
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
- 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
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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 collectively
o 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 association
o (2) does not cover the objects, purposes and activities of the ass’n
o (3) protects exercise in ass’n of individual constitutional rights
o (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 unions
o Bargaining for working conditions IS NOT an individual constitutional/legal right
- Precedent Alberta Reference indicates that collective bargaining is not covered by s. 2d
o 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 association
s. 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 either
o 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)
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)
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Notes
Dunmore v Ontario (AG) 2001 SCC
Facts
Ontario law that prevented agricultural workers and others, from the general access
to the Labour Bd
Issue
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 27
The BC legislature passed Health and Social Services Delivery Improvement Act, which
Facts
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.
Issue
Ratio
Reasoning
The Act is reproduced in the dissent at para 172.
Does freedom of association protect collective bargaining rights?
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.
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
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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.
2.
Determining how important the matter affected is to the collective bargaining
process
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
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)
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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
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
1
Ibid at para 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.
5
Ibid at para 268.
6
Ibid at para 336.
7
Ibid at para 335.
2
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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
Ratio
8
9
 Trial  dismissed application
 ONCA  allowed appeal, declared AEPA invalid.
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.
Ibid at para 331.
Ibid at para 358.
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Labour Law Spring 2014 34
Majorit
y
Reasoni
ng
(McLac
hlin,Leb
el,
Binnie,
Fish,
Cromwe
ll)
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
goals
2. common goals protected extend to some collective bargaining activities
3. 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 delays
2. 2d doesn’t impose particular process
3. doesn’t require parties to conclude agreement or accept terms
4. 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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Labour Law Spring 2014 35
Concurr
ing
Reasoni
ng
(Charro
n,
Rothstei
n)








Concurr
ing
Reasoni
ng
(Descha
mps)
Dissent
(Abella)





1.
2.


-
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 jurisprudence
2. 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.
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.
AEPA does not protect collective bargaining rights and therefore it violates 2d.
2 components necessary for agricultural workers to engage in meaningful collective
bargaining:
statutory enforcement mechanism w/mandate to resolve bargaining disputes.
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
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Labour Law Spring 2014 36
R v Advance Cutting & Coring Ltd [2001]
Short note
Facts
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.
Issue
Ratio
-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).
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.
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
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Labour Law Spring 2014 37
association, is Bastarache J (with Binnie, McLachlin and Major)
(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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Labour Law Spring 2014 38
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
entitled to work in the construction industry without regard to their
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Labour Law Spring 2014 39
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 1
Even 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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Labour Law Spring 2014 40
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
best serve their constituents. Minimal impairment is also met because
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Labour Law Spring 2014 41
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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Labour Law Spring 2014 42
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 ER
o 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’n
c) has personally paid union dues of at least 2 dolalrs
d) 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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Labour Law Spring 2014 43
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.
Reasonin Vallerand J:
g
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 1982
Short 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
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Labour Law Spring 2014 44
adopted. The constitution said that: the General Assembly would include all the
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.
Reasonin A new resolution was not required with each change of the description of the
g
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 satisfaction
o 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
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Labour Law Spring 2014 45
-
also be recognized that union democracy is not perfect
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

s. 32 (2) Quebec Labour code

s. 37 Quebec Labour code

Syndicat des travailleurs de l’entretien du Soleil (C.S.N.),
D.T.E. 87T-750
- vote if between 35-50%
Syndicat des travailleurs de l’entretien du Soleil (CSN)
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Labour Law Spring 2014 46
Syndicat Soleil (CSN) wants the Tribunal to declare null the decision of the
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.
Art 32, al 3 of the Code du Travail (this probably changed a bit since the case but I think
Law
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.
Commissaire’s decision/motives: While the 3 resignees were not intimidated, there
Positions
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.
Did the commissaire make an error of fact or an error of law in ordering the vote by
Issue
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
Facts
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









before the vote.
o The Canadian way: granting accreditation when on a given date an
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
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Labour Law Spring 2014 48

s. 24 Canada Labour code
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

-
s. 27 Canada Labour code
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.
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Labour Law Spring 2014 49
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
- 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 plant
o 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 Caron
Short 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’.
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Labour Law Spring 2014 50
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
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.
Reasonin
g
Notes
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.
[The remedy is that the court authorizes “l’émission du bref d’evocation”… I am not sure
what this means…]
ii. Community of interests

Facts

Autostock Inc. (division Monsieur Muffler) c. Métallurgistes
unis d’Amérique, section locale 8990, D.T.E. 99T-76
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

Multi-location units
- included in own unit!
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Labour Law Spring 2014 51
-
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!

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. 1 Quebec Labour code

s. 3 (1) Canada Labour code
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Labour Law Spring 2014 52
ii.The notion of «Independent contractors»

Paquin c. Services financiers Investors, 2012 QCCA 32
o See also : Paquin c. Services financiers Investors,
D.T.E. 2011T-71
Hannah – 5 pages
Paquin c Services financiers Investors 2012 QCCA
Short note
Facts &
judicial
history
Issue
Ratio
Reasoning
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.
-
Should the commissioner have addresses each of the 14 elements of proof? No
Did the commissioner err by referring to the Dicom case? No
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…)
-
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
experience. Even where other rational solutions were available to the decision-maker, the
reviewing court should not intervene where the decision was reasonable
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-
-
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 ?
Développements récents en droit de travail (2012) vol 348, Luc Deshaies et Josée Gervais
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Labour Law Spring 2014 54
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 conditions
o 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, subordination
o Tribunals verify existence of elements by looking at criteria, through a global and factual
analysis
o 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
productivity and discipline controlled by the client?
Civil Law definition
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Labour Law Spring 2014 55







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 subordinate
o 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
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
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Labour Law Spring 2014 56
-
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 promoted
o Review of subordination criteria by Tribunal de travail in Centre de la petite enfance La
Rose des vents c. Alliance des intervenantes en milieu familial
o 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 Code
o 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 subcontractors)
- Law applies to “professional employers” and sub-contractors
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Labour Law Spring 2014 57
-
o Professional employers are employers who employ EEs covered by this act
o If a professional ER, have to prepare pay equity reports
o 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. 7
o 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 CSST
o to benefit from law, need to personally register with CSST
o 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 people
o 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
Financial legislation
- For EE, if he is considered an independent contractor, will to benefit from business tax deductions
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Labour Law Spring 2014 58
-
ER obligations
o Federal: employer has to make federal tax deductions and EI
o 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. 3 Canada Labour code

s. 1 (1) and 6 (4) Ontario Labour Relations Act
iv. Managerial and supervisor personnel

s. 1 (1) of the Quebec Labour code

s. 3 Canada Labour code
v. Confidential employees

s. 3(1) Canada Labour code
e. The parties to certification proceedings
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Labour Law Spring 2014 59
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 Publishing
Short 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.
Reasonin Kerwin J:
g
• 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 1984
Short 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 responsibilities
o Investigate alleged contraventions : s. 12
o Verify representative character : s. 28
o Verify whether there is an agreement on the bargaining unit : s. 28
o 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. 29
o Power to report to the Commission: s. 30
o 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. 112-116
o 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 666
o Pre-decision conciliation: ss. 121-123
o Decision: ss. 124-129
o Can contest it under 127- criteria (usually for substantial or
procedural defect)
Pedneault c Wal-Mart 2006 QCCA
Facts
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 Commissions
o Determine any changes with respect to the status of employee: s.
20.0.1
o Determine the representative character: s.21
o Determine the bargaining unit and the employees to be included in
it: s. 32
o Determine the application of successor rights : ss 45-46
o Hear and decide unfair labour practices complaints: ss 12 and 1520
o Certify or revoke certification in certain circumstances: s. 41
o 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

Vote
o 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

s. 45 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
Sept iles : In Qc, you cannot recognize an EE without accreditation
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UES, Local 298 v Bibeault [1988]
Short note
Facts
Issue
Ratio
Reasonin
g
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.
Was the union entitled to successorship rights under s. 45 QLC? (NO)
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.
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 SCC
Short 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
UFCW
- On day K with I expired, M dismissed the entire janitorial staff responsible for I’s
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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.
Reasonin Arbour J :
g
- 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
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
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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
Sept-îles (Ville de) v. Quebec (Trubunal du Travail), 2001 CSC 48
Short note
Facts
City contracted out garbage collection, and no EEs were laid off or lost pay/benefits from
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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.
Reasonin Arbour J:
g
 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 474
Short 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
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
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







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
Ivanhoe
There needs to be a « lien de droit » between the former EE and the new one
certification wasn’t with the school
- there was an original K with the main
board, it was always with the sub-Ker
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
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
Remedies : s. 118 & 119
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 practice
Not on syllabus
Woolworth 1978 RL 439
Manifestations . 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

s. 13 Quebec Labour code

s. 96 Canada Labour code
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
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City Buick Pontiac v. Roy , (1981) 3 CLRBR 281
Short note
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
Reasonin Dismissals arising from a true and genuine business closure are not a violation of the
g
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 54
Ss. 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
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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,
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.
Reasoni
ng
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 association
o 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
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Labour Law Spring 2014 73
-
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
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
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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
(1981) that
o “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)
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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)
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 scrutinized
o “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 scheme
o 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
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Labour Relations Commission in Qc will be as aggressive in creating remedies. (e.g.
something like automatic certification?!)
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.
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Reasonin
g




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.
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
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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
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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National Bank of Canada v. Retail Clerks International Union, [1984] 1 S.C.R. 269
Short 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 CLC
Remedies
- the workers that were moved to the non-unionized branch were automatically certifiedthe 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
consequences
b) Labour Boards cannot impose a punitive remedy
Reasonin Note, the decision is based upon administrative law principles
g
a) 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.

Slaight Communications v. Davidson, D.T.E. 89T-555
Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038
Short 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]
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b) [IF SO] Do the orders violate 2b; [IF SO] justified s.1? [VIOLATES 2b; JUSTIFIED]
[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
DICKSON
a) Charter Apply to order? YES – bc adjudicator’s powers are created by statute
b) 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 justified
b) 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 living
o 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
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
freedom of expression used to be only wrt to primary picketing

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
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•
Section 27 of the Trade Union Act of Saskatchewan which makes restraint of trade
legal.
Reasonin McLachlin CJ and LeBel J for the court:
g
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
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•
•
protection from excessive economic and other harm as a result of picketing and other
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)
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•
•
•
Avoidance of Excessive Emphasis on Protection from Economic Harm: “Protection
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 2000
Facts
Picketing in front of mayor’s house, concillors and management
Issue
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].
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[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
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. 460
Short 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
-
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.
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)
Reasonin McINTYRE
g
b. 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)
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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
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
BEETZ
a. Does the Charter apply? NO
b. 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 62
Short 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
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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 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 CANADA
The 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 REASONING
In 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 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
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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 meeting
o sign a card
o 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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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, sanction
o 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
o
-
-
-
 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. 536
Short 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.
• It has always been held that the other reason relied on by the employer is (1) of a substantial
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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 ltee
Facts
 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 order
Ratio
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.”

Plourde v. Wal-Mart Canada Corp., 2009 SCC 54
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
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 acquired
o 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 pay
Issue
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
conviennent que les conditions de travail et de salaire prévues à cette
convention seront maintenues en vigueur.
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-
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 «lockout», 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 903
Dismissal 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. 59
Menard’s decision #2: Said WM had the burden of justifying the decision to close with within the
“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
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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
Leger
The 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 complaint
Arbitrators 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 used
It 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
- 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?
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-
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 conditions
o “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-cscgc.insinc.com/en/clip.php?url=c/486/1940/201312060500wv150en,001ContentType:%20text/html;%20charset=ISO-8859-1
English: http://scc-csc-gc.insinc.com/en/clip.php?url=c/486/1938/201312060500wv150en,001ContentType:%20text/html;%20charset=ISO-8859-1
vi. Penalties and procedure
-

ss. 141-149 Quebec Labour code

ss. 256-261 Canada Labour code
penal remedies
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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 result
o 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
-
Ratio
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.
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
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
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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
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.
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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 broad
Analysis
- agrees with majority that Board’s decision was not patently unreasonable
- 3 considerations to determine that it was not unreasonable: it was a nonmonetary 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 unreasonableness
Did 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. 311
Short 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).
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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)
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) (350351).
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
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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).
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
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
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
Syndicat des employés du transport de Montréal v. Procureur Général du Québec, [1970]
S.C.R. 713
Short 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
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created by requiring notice would undermine the purpose.
Reasonin Majority:
g
• “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.”
• “…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
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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
-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
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-
-
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
79: arb’s decisions are made according to equity and good conscience
o 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
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-
-
“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

-
-
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 PO
o 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
1 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:
-
st
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!
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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
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 CA
o 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
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Labour Law Spring 2014 109
St. Anne Nackawic Pulp & Paper Co. c. Section locale 219 du Syndicat canadien des travailleurs de papier,
[1986] 1 R.C.S. 704
Short 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
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. 929
Short 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
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Labour Law Spring 2014 110
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
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.
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.
2.
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.
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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.
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. 967
o Ste. Anne Nackawic Pulp & Paper Co. c. Section locale 219 du
Syndicat canadien des travailleurs de papier, [1986] 1 R.C.S. 704
o 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. 967
Short 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 repairsaccused 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.
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•
•
•
•
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.
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. 360
Short 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
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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.
3.
4.
5.
6.
7.
8.
Notes
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.
The fact that the parties tried to resolve the disciplinary issue informally through a resignation does
not change its essential character.
Considering the ambit of the collective agreement, this dispute did not arise from its interpretation
or implementation.
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 matters
involving members of the police force.
No discretion exists to select another mechanism.
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.
Jurisdictional issues must be decided in a manner consistent with the statutory schemes
governing the parties.
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 jurisdiction
Reasoning - “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
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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
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 authority
o 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 2
Short 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
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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 Cas
Arbitrator does not have jurisdiction over CCQ. Notice period should be determined under
CCQ.
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
Reaso
ning
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.
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
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
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 code
101: decision is final and binding = protected by privative clause: high threshold to ask for
judicial review
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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 42
Short 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.
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
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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
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. 476
Law:
 97. Any lock-out is prohibited except in the case where an association of employees has
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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 has
o acquired the right to strike under section 46
o 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? YES
Ratio: “a lock-out ceases to be prohibited under s. 97 when the association of employees has
acquired the right to
strike under s. 46, even if this association has not yet given the eight days' written notice provided
for in the last part of
the 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.
 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
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-
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 QCCA
Facts
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”
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
Ratio
Was JdM permitted to use articles from QMI pursuant to article 109.1(b)? YES
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
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

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 2004
Facts
 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
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.
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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.
b. Strike
i. Characteristics of strike

S. 1 Quebec Labour code
= concerted cessation of work by a group of employees
2 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 code
o Concerted
o Work-stoppage
Canada:
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o
o
o
o
71: notice of dispute is sent!
72: must send notice of dispute to minister
88.1: prohibited during strike or Lock out
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

-
failure to abide by s. 58 DOES NOT make strike illegal! Only fine!
58.1: need to tell minister only AFTER

-
With respect to time factor: s. 58 Quebec Labour code
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 vote
o 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.
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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. 460
o Re BCGEU v. AG of BC, [1988] 2 S.C.R. 214
o 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 courthouses 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
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 Charter
b. “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
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III.
IV.
V.
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)
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)
Labour Legislation (Re Issue 1)
a. Union says Labour Code gives Labour Relations Board exclusive jurisdiction to
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)
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)
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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 objective
iv. Minimally impairing bc Union members were free to express themselves
elsewhere
v. 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. 204
Facts
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.
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 Bargaining
Issue
Ratio
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
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Court’s finding on this upheld by SCC.
See above
Reasoning
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 strikes
o Santana, [1978] C.A. 114
9. UNIONS AND THEIR MEMBERS: DUTIES AND OBLIGATIONS
a. Conflicts of interests

The Union’s disciplinary powers

The Union’s failure or incapacity to represent a member
o Guilde de la marine marchande du Canada c. Gagnon, [1984] 1 R.C.S.
509
o 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
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 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 arbitration
Facts
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.
Issue
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.
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
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
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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)
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.
(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)
Notes

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 1330
Facts
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
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Issue
Ratio
Reasoning
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.
Did the union breach its duty of representation by “swapping” M's grievance
as part of the negotiation for a new collective agreement?
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,
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
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)
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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)
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.
Notes
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

Financial statements : s. 47.1 Quebec Labour code
d. Responsibilities of Certified Association

Union dues
o 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.
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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
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
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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
133