Labour Law
Professor Adelle Blackett, Winter 2009, by Mae J. Nam (updated from Monika Rahman 2008
Summary)
I. INTRODUCTION TO THE FIELD OF LABOUR AND EMPLOYMENT LAW .................................................................. 3
(I) – INDUSTRIAL RELATIONS FRAMEWORK ..........................................................................................................................3
The Rand Decision (1946), [1996] 1 C.L.L.R. 1356 .................................................................................................3
Fudge & Tucker on Industrial Legality (Not in Assigned Readings) .......................................................................5
ILO Declaration of Fundamental Principles and Rights at Work – Key Messages .................................................5
(II) DIVISION OF POWERS - JURISDICTION............................................................................................................................6
Northern Telcom Ltd. v. Communications Workers, [1980] 1 SCR 115 .................................................................6
McIntyre c. I.A.M. & A. W. 2007 QCCA 1178 (41) .................................................................................................7
CAW – Canada, Local 444 v. Great Blue Heron Gaming, 2007 ONCA 814 (49) .....................................................7
II. COLLECTIVE BARGAINING POLICY & INDUSTRIAL LEGALITY ............................................................................... 9
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989 .....................................................................10
(I) FREEDOM OF ASSOCIATION FOR AGRICULTURAL WORKERS ..............................................................................................12
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 ...........................................................................12
Committee on Freedom of Association Report Canada (Case No. 1900), Report #308 (1997) ...........................14
Committee on Freedom of Association Report Canada (Case No. 1900), Report #330 (2003) ...........................15
Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 501 c. La Légumière Y. C.
inc. et al. (24 Sept 2007), 2007 QCCRT 0467.......................................................................................................16
III. RELATIONSHIP BETWEEN FREEDOM OF ASSOCIATION & COLLECTIVE BARGAINING POLICY ........................... 17
(I) THE LABOUR TRILOGY: NO RIGHT TO COLLECTIVE BARGAINING OR STRIKE ..........................................................................17
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 ...............................................17
PSAC v. Canada, [1987] 1 S.C.R. 424 ...................................................................................................................19
RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460 ....................................................................................................22
(II) OVERRIDING AN COLLECTIVELY BARGAINED AGREEMENT ................................................................................................23
Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381 .......................................................................23
(II) RIGHT TO COLLECTIVE BARGAINING RECOGNIZED ..........................................................................................................25
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 .............25
Fraser (Attorney General), 2008 ONCA 760 ........................................................................................................29
CSN c. Québec (Procurer general), 2007 QCCS 5513 ...........................................................................................30
Plourde v. Québec (Commission des relations du travail) 2007 QCCS 3165 ........................................................31
Plourde v. Québec (Commission des relations du travail) 2007 QCCA 1210 .......................................................32
IV. ACQUISITION AND TERMINATION OF BARGAINING RIGHTS ........................................................................... 32
(I) EMPLOYEE STATUS ...................................................................................................................................................32
CSN c. Québec (Procurer general), 2008 QCCS 5057 ...........................................................................................33
Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015 ...................................................................34
(II) BARGAINING UNIT DETERMINATION ...........................................................................................................................36
Natrel Inc. v. Syndicat démocratique des distributeurs (1996), T.T. 567 ............................................................36
(III) SUCCESSOR RIGHTS .................................................................................................................................................38
Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565 .........................................................................................39
Sept-Îles (City) v. Quebec (Labour Court), [2001] S.C.R. 670 ...............................................................................43
T.U.A.C. loc. 503 c. Quebec (Commission des relations du travail) [2008] D.T.E. E-38 .......................................45
Syndicat national du lair inc c. Laiterie Royala inc., 2004 QCRT 602) .................................................................46
V. UNFAIR LABOUR PRACTICES ............................................................................................................................ 47
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The Rise and Fall of A Collective Agreement .......................................................................................................47
(I) HAMPERING UNIONIZATION EFFORTS...........................................................................................................................47
Syndicat canadien des communications, de l’énergie et du papier, local 194 v. Disque Améric, [1996] A.Q.
3381 (Tribunal du travail)....................................................................................................................................48
(II) FAILURE TO BARGAIN IN GOOD FAITH..........................................................................................................................50
Royal Oak Mines. v. CASAW, Local 4, [1996] 1 S.C.R. 369 ..................................................................................50
(III) INTERFERENCE WITH UNION ACTIVITY .........................................................................................................................53
C.B.C. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 (“Goldhawk”) ..................................................53
(IV) DOUBLE-BREASTING (IN QUEBEC) .............................................................................................................................55
Ville-Marie Pontiac Buick Inc. v. Syndicat des travailleurs de garage de Montréal (C.S.N.), [1993] T.T. 162 .....55
(V) CLOSURE ...............................................................................................................................................................56
City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22 ....................................................................................57
I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, [2004] 1 S.C.R. 43 ..................................57
“Violations of NAALC Labor Principles and Obligations St-Hubert McDonald’s Restaurant” .............................59
Cie Wal-Mart du Canada c. Québec (Commission des relations du travail) 2008 QCCA 236 ..............................61
VI. NEGOTIATING A COLLECTIVE AGREEMENT ..................................................................................................... 61
VII. INDUSTRIAL CONFLICT ................................................................................................................................... 64
(I) LEAFLETTING ...........................................................................................................................................................66
U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083 .............................................................................66
(II) PICKETING ..............................................................................................................................................................68
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156 ...................................68
(III) REPLACEMENT WORKERS – S.109.1, QLC..................................................................................................................69
AGSEM c. Université McGill, 2008 QCCRT 0179 (295) ........................................................................................70
VIII. ADMINISTRATION OF THE COLLECTIVE AGREEMENT .................................................................................... 71
Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. V. Syndicat national des employés de garage du
Québec inc., [2006] 1 S.C.R. 27 ...........................................................................................................................72
IX. THE INDIVIDUAL UNDER THE COLLECTIVE AGREEMENT .................................................................................. 74
Steele v. Louisville & Nashville Railroad Company, 323 U.S. 192 (1944) ............................................................75
McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital eneral de
Montréal, [2007] 1 S.C.R. 161 .............................................................................................................................77
X. NEW APPROACHES TO LABOUR LAW IN A GLOBALIZING ECONOMY ............................................................... 80
Harry Arthurs: Labour Law Without the State (1996) .........................................................................................81
Blackett, A Labour Law Critique of Codes of Corporate Conduct (2000) .............................................................81
STEPS IN CERTIFICATION, UNFAIR LABOUR PRACTICES, ETC. ............................................................................... 82
STEPS............................................................................................................................. ERROR! BOOKMARK NOT DEFINED.
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I. Introduction to the Field of Labour and Employment Law
What are the underlying objectives of labour law? What are the three regimes identified to meet those
objectives during the fordist era? Why is Canadian labour law primarily regulated at the provincial level? Is
current labour regulation in Canada in-sync with contemporary labour market challenges?
Blackett argues that many situations could be covered by labour law – seasonal agricultural workers, Wal-Mart
employees, lawyers and articling students – but aren’t. The typical case that is covered by labour law is a person
covered by a collective agreement. This might be a government employee, but unionization of gov’t workers didn’t
emerge until the 1960s. We see the heart of intersection b/w labour law and industrialization in case involving Ford
Motors in a judgment by Laskin CJ.
Labour law’s history is very much a history of people claiming their ability to marshal their power to organize and
extract better working, and hence living, conditions. Initially, many unions claimed the right to be left alone – i.e. not to
have CML step in. The story of labour law is also the story of industry and business in a Post-Industrial World
We will consider interface between human rights norms and collective representation.

The Rand Decision comes at the end of a period in Cdn history of massive strikes, deeply politicised,
sometimes quite violent.
 The Rand formula (also referred to as automatic check-off) is a workplace situation where the payment of
trade union dues is mandatory regardless of the worker's union status. This formula is designed to ensure
that no employee will opt out of the union simply to avoid dues yet reap the benefits of the union's
accomplishments (such as ensuring higher wages, better job security or other benefits).
 Supreme Court of Canada Justice Ivan Rand, the eponym of this law, introduced this formula in 1946 as an
arbitration decision ending the Ford Strike of 1945 in Windsor, Ontario.
Sources of Labour Law: relationship and power dynamic between - Charter (2(d) and 15), Labour Codes (QLC, CLC,
OLRA), alternative statutes, CML law, international law
(I) – INDUSTRIAL RELATIONS FRAMEWORK
The Rand Decision (1946), [1996] 1 C.L.L.R. 1356
Jurisdiction
Facts
Issues
Holding
Reasoning
There was a strike of the Ford Motor Company in 1945 in Windsor Ontario. The union accepted a joint
plan of settlement of the Dominion and Ontario governments. The plan called for arbitration by a judge
of the Supreme Court of Canada on points that could not be settled by collective bargaining
negotiations. Justice Rand was named arbitrator, and delivered his decision January 29, 1946
Can the union have union shop with check-off?
No union shop – no obligatory membership – but yes check-off to support the union.
Rand J:
 The issue here is not a simple application of rules in a defined legal setting. This is a contest of
extra-legal relations which must be resolved by the force of ethical and economic factors resting
ultimately on the exercise of economic power
Background: The Need for Security and Stability
 Any change in the relations between these parties (capital vs. labour) must be made in the
framework of a society where the private enterprise is the dynamic of social life.
 The social desirability of the organization of workers and collective bargaining has been written into
statute. Labour unions should therefore be strong in order to carry out the functions for which they
are intended.
 Industry is so interrelated with economic and social harmony that any disturbance affects many
interests. The economic life and fortunes of men become hostages to industry’s continuance, which
in turn takes its place as part of the general security.
 As in the public political sphere, the economic sphere requires counterchecks between power and
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individual opinion.
 Organized labour is necessary to redress the balance of social justice; however organized labour
itself develops and depends upon power, which in turn must be met with balancing control in
relation to individual workers.
 The organization of labour must be elaborated and strengthened in a civilized manner for its
essential function in a private economy. There must be a balancing of interests on all ends. Not
every loss must end in a labour strike.
Historic Moment of this Case: The “Immature” Union
 The root of the conflict between Ford Motor and its employees is the absolutist conception of
property. Management kept employees at an arm’s length, and hostility and tension was inevitable.
Given the psychological effects of working in repetitive operations, the employees required
sympathetic handling.
 Rand then disapprovingly cites stupid moves on the part of the strikers – destroying plant property,
involving innocent members of the public. Clearly they were exasperated, but a strike is not a tea
party, and when passions are deeply aroused civilized restraint goes by the board. 
 There must be growth within unions through experience to bring about maturity of judgment &
conduct. It has been suggested that the union leaders are only concerned with maintaining their
own positions of seniority – the only remedy for this abuse is greater democratization of the union.
The Issue of Union Security
 Union security is the maintenance of the strength and integrity of the union.
 The union wanted a “union shop” with a check-off where an employer can hire who they want but
must dismiss them after a certain time if the employee doesn’t join the union (as opposed to “closed
shop” where only a union member can be employed in the first place). The check-off means dues
are subtracted directly from wages.
 I cannot award a union shop. It would deny the Canadian to seek out work and work independently
of any organized group. It would also make him vulnerable to the danger of arbitrary action of
individuals and put him at the mercy of the power of an unmatured and uncontrolled group (i.e. the
union).
 The employer can, if he chooses, subject his employees to the full force of unionism. The
individual’s right against the organization is destroyed.
 On the other hand we don’t want employees becoming the beneficiaries of union action and
receiving the protection of organization without contributing. It would not be inequitable to require
all employees to pay a contribution towards the administration of the law of their
employment.
 The obligation to pay dues may induce membership, and this will serve the wider interest. The
union will have to keep justifying itself to the majority.
 It is not unfair that an employee has to contribute to funds when he has no control over their
expenditure. Much more important to the ey’ee is the right, in the conditions to be attached to
the check-off, to have a voice in the decision to strike.
 Another condition attached to the obligatory check-off is the inability of a union to call a strike
without a secret ballot vote. If the union violates this, the penalty would be the suspension of the
check-off. Any employee will have the right to become a member of the union.
Comments
Historical Development of our Basic Labour Relations Framework:

The Rand Decision represents a key aspect of the difference between the Canadian model of industrial
relations and the US model, making a significant difference in making unionization viable in

Fudge and Tucker identify three key periods of Canadian IR –
1. liberal voluntarism – labour relations occurred without particular labour legislation
2. 1900-48 – emergence of early labour legislation, some of it federal that sought not to impose but
rather to provide mechanisms to foster conciliation between parties in the place of strike action and
criminal action
3. Industrial Legality – Institutional and legal arrangements characterized and certified by a legally
binding K b/w bureaucratic trade unions and the management

Seeking to identify representatives that are seen as autonomous of the employer but
nonetheless responsible; prepared to manage with the employer. Prepared to implement
and carry through the various requirements of the legislation.
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
This led to the need for a very different kind of actor than the kind of actor promoting and
following through on strike action as a force to ensure change.
Fudge & Tucker on Industrial Legality (Not in Assigned Readings)
In Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900-1948, Fudge and Tucker
identify three periods of industrial legality.
1. Liberal voluntarism (Prior to 1900) Terms and conditions of employment were determined primarily by the
operation of the labour market and the individual contract of employment. Despite the Trades Union Act,
1892,which gave a legal face to unions, employers, with the aid of the courts ,used the power of private
property to thwart collective labour action at every turn.
2. Industrial voluntarism. From 1900 state institutions played an increasingly important role in regulating
industrial conflict. During this time, “freedom of association remained a legal privilege, rather than a right
enforced by the Canadian state” (p.3). The Industrial Disputed Investigation Act, 1907, introduced
compulsory conciliation and “cooling off” periods that gave time for state investigators to document and
publicise strikes. “Faced with an employer who had little concern for public opinion and who refused to
becajoled by the government” (p.64), conciliation under the Act did little to benefit unions. Its main goal, the
authors argued was to distinguish between those unions that were responsible and those that were
irresponsible.
3. Industrial Pluralism. This period was put in place near the end of the war in 1944 through Privy Council
Order 1003. Under this wartime order unions were granted a distinctive legal status. The core elements of
this system remain in place in current Labour Relations Acts in all jurisdictions in Canada. Under this system
employers were legally required to recognise and negotiate with unions; freedom of association for the
purpose of collective bargaining became an enforceable legal right; and unions, in effect, were recognised
as the “junior partners” of business enterprise. In return for this legal status, unions and their leaders were
required to be responsible. Instead of replacing the regimes of liberal and industrial voluntarism the new
industrial legality was grafted on to employers' legal power of contract that is enforced through a wide range
of legal mechanisms.
 In the context of the workplace and industrial relations, responsibility means accepting the rule of
law and all its prohibitions on collective action during the life of the collective agreement. In other
words responsible unionism means denying the collective power of labour for most of the time and
relying on legal mechanisms to solve the conflict inherent in the employment
 Responsible unionism, as defined by the state and the courts, means relying on bureaucratic,
technical forms of action to resolve conflicts between labour and capital. It requires the kind of
union leader who must turn away, during the life of the collective agreement, from mobilising and
organising collective action. Militant organisers don't fit well with this system.
 Unionists must look to the requirements of legality rather than the collective power of workers for
their legitimacy. Union leaders must make legality their central organising principle and be prepared
to control and discipline members who go beyond the limits of the law. Under this system business
unionism flourished “as unions saw their role as obtaining the best deal for their specific
constituencies rather than as leading a broader social movement to obtain greater economic
equality for working people as a whole.”
 Also maintained seniority structure
ILO Declaration of Fundamental Principles and Rights at Work – Key Messages
 The clauses in the preamble highlight the important role of strong social policies and democratic institutions to
ensure equity, social progress and the eradication of poverty. Economic and social policies should be mutually
reinforcing.
 The need to give particular attention to problems of “persons with specialized needs” (e.g. unemployed and
migrant workers) is emphasized.
 The preamble also stresses the need to recognize universal and fundamental principles in the context of growing
economic interdependence
 The Declaration states that even if a Member State has not ratified all the conventions in question, that they have
an obligation arising from membership itself to promote and realize four fundamental principles:
a) freedom of association and the effective recognition of the right to collective bargaining;
b) the elimination of all forms of forced or compulsory labour;
c) the effective abolition of child labour; and
d) the elimination of discrimination in respect of employment and occupation.
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 There is also a state commitment to help Members promote and realize these principles.
Blackett Comment

Rand outlines why it’s time in this particular workplace structure to imagine a different kind of relationship
between labour and management. He talks about the economic sphere, the nature of private property, and
the shock that labour militancy poses for the liberal paradigm.

Labour is the necessary co-partner of capitalism. Social justice calls for a redressing of something that the
previous half-century had failed to capture.

He’s moving away from a standard K and out of a standard approach in which labour power is simply
purchased as a commodity.

With quite vivid imagery, he places the worker as a human surrounded by machines.

He then appeals to not only human rights and democratic principles, but focuses on the actors themselves,
and tries to paint a very different picture of who the interlocutors would be – an enlightened image of
unionists as opposed to the communist threat that shrouded attempts for negotiated settlements.

“The strike is not a tea party”—captures what is deeply controversial about labour relations (need to
facilitate industrial peace)

Parties have a shared rational self-interest in meeting each other – arriving at agreement rather than
subjecting everything to sheer brute industrial power.

He then makes a case for arriving at a form of co-determination through certain key principles of union
recognition

During the time of a collective agmt, if the eyer requires an eyee to do something in particular or doesn’t
respect one of the principles (e.g. seniority, the time you work for a particular employer bargaining unit gives
you additional rights, e.g. priority over someone newer/younger).

If employer says we’d rather have this more junior person, the more senior applicant could submit a
grievance, and the union is responsible for deciding the grievance and carrying it forward (with management
and the institution of grievance arbitration). In arbitration a neutral third party steps in an increasingly courtlike fashion.

All this time, production is not stopped – you can resolve controversial issues without striking

If you think about industrial legality narrowly, you see a unique system with its own rules and principles
working within the boundaries of the collective agreement legislation

If you think about industrial legality broadly – you see it as a way liberal, democratic systems seek to
institutionalize and legitimize mechanisms to resolve conflict that is central to relationships

Framework is both of democratic control and enlightened leadership responsibility (not just about rights but
explicit link to citizenship – but remember men, English - exclusionary)

We will be testing various limits of this model.
(II) DIVISION OF POWERS - JURISDICTION
Northern Telcom Ltd. v. Communications Workers, [1980] 1 SCR 115
Jurisdiction
Facts
On April 22, 1976, the Canada Labour Relations Board (the "Board") certified the Communications
Workers of Canada (the "Union") as bargaining agent for 148 employees of Northern Telecom Limited
("Telecom"). Telecom opposed application, stating supervisors of installers performed management
functions and were not "employees" within the meaning of the CLC. Before the Board, this was the
central issue.
The Board eventually found against Telecom on all counts and found that it had jurisdiction. It also
found that the supervisors were employees within the meaning of the CLC. The FCA dismissed an
application to set aside the Board decision b/c Telecom did not furnish any evidence of the facts
necessary to support the application was before the court.
Issues
Holding
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1) Are the employees of Telecom employed upon or in connection with the operation of any federal
work, undertaking or business, within the meaning of the Code?
2) For purposes of the class  how is constitution jurisdiction divided in Canadian labour relations?
1) Will not answer the question because there is a near-absence of evidence upon which the decision
ought to be made. 2) see below
Labour Law
Reasoning
Dickson J for the majority:

By virtue of s. 108 of the CLC, the Board has jurisdiction with respect to persons employed on
federal works, undertakings or businesses. Section 2 of the Code defines “federal work,
undertaking or business” (including telegraph connecting provinces, or work that is to the
advantage of two or more provinces).

Quoting Laskin “In the field of employer-employee and labour-management relations, the division
of authority between Parliament and provincial legislatures is based on an initial conclusion that
1) in so far as such relations have an independent constitutional value they are within provincial
competence; and, secondly, in so far as they are merely a facet of particular industries or
enterprises their regulation is within the legislative authority of that body which has power to
regulate the particular industry or enterprise ...

To determine constitutional jurisdiction in labour matters,
1. Begin with the operation which is at the core of the federal undertaking.
2. Operation – normal and habitual activity
3. Arrive at a judgment as to the relationship of that operation to the core federal undertaking,
the necessary relationship being variously characterized as "vital", "essential” or "integral".

To determine the constitutional issues, therefore, it is clear that certain kinds of 'constitutional
facts' are required. Among these are the general nature of Telecom's operation as a going
concern and, in particular:
1) 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;
4) the physical and operational connection between the installation department of Telecom and
the core federal undertaking within the telephone system.


In determining whether a particular subsidiary operation forms an integral part of the
federal undertaking, the judgment is functional and practical, emphasizing the factual
character of the ongoing undertaking, not the technical, legal niceties of corporate
structure. To ascertain the nature of the operation, one must assess the normal or
habitual activities of the business, which calls for a fairly complete set of factual findings.
As Telecom effectively deprived a reviewing court of the necessary constitutional facts upon
which to reach any valid conclusion on the constitutional issue, the matter will not be referred
back to the Board to hear evidence.
Comments
McIntyre c. I.A.M. & A. W. 2007 QCCA 1178 (41)
 McIntyre was an employee of Air Canada and was also working for the union as an employee, got fired, sued for
damages in Superior court, Union claimed that the dispute fell under Canadian Industrial Relations Board, Superior
court rejected the claim
 Issue is he employee of union or Air Canada? This answer impacts on whether he should have gone to superior
court or to Canadian Industrial Relations Board, (if union employee then governed under CCQ – superior court, if
Air Canada, then CLC – CIRB)
 Superior court pointed out that wages were paid by union, based on union bylaws (but Air Canada paid for half)
 Court of Appeal says the division of the salary isn’t necessarily the main indicator
 Established in case law that work relationship is maintained if you are not actually working (when he started
working for the union, he didn’t throw away the job relationship with air Canada)
 When appellant was on leave his work relationship with Air Canada was still ongoing
 Work relationship with original employer is not destroyed if you assume union functions
CAW – Canada, Local 444 v. Great Blue Heron Gaming, 2007 ONCA 814 (49)
 Anishnaabeg runs day-to-day business of a casino in Aboriginal lands, employs 1000 workers
 Workers voted to unionize with CAW and filed for accreditation under Labour Relations Act (LRA)
 Create Code a comprehensive modern-day labour relations code, modelled on Canada Labour Code, but: strikes
and lockouts are banned; a union must pay $3000 and obtain permission from the Dbaaknigewin (labour relations
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tribunal) to speak to workers; and workers must pay $12,000 to file an unfair labour practice complaint.
 The appellant maintained the LRA did not apply and Casino’s labour relations were governed by the Code
 OLRB held that it had jurisdiction and would hear constitutional question
 The appellant presented evidence of ancestral customs, practices and traditions focused on ancestral
customs and practices of decision-making relating to “work-related activities” and “territorial access”.
The OLRB rejected this evidence was capable of supporting enactment of Code as the exercise of an aboriginal or
treaty right.
1. Did Divisional Court err in too narrowly characterizing the aboriginal and treaty rights claimed? No
2. Did Divisional Court err in not finding that the OLRB had failed to consider the Crown’s duty to consult and to
accommodate regarding the aboriginal and treaty rights claimed by the First Nation? No
3. Did the Divisional Court err in failing to consider the rights claimed by the First Nation to be an intrinsic aspect of
an aboriginal treaty right? No (answered with issue 1)
 Three factors in this case must be considered in accordance with the Van der Peet test when characterizing the
claimed aboriginal right:
1. The enactment of the Code;
2. (The nature of the LRA with which it conflicts; and
3. The ancestral practice, custom or tradition upon which the appellant relies.
Step One
 Subject is labour relations, not the regulation of work activities or controlling access to aboriginal lands, Code is
essentially modelled on the Canada Labour Code, establishes a detailed regulatory framework to govern labour
relations and to resolve disputes arising between employers and workers in relation to the collective bargaining
process.
Step Two
 Practice not integral to distinctive culture. In Van der Peet, at para. 56, the Supreme Court rejected “aspects of the
aboriginal society that are true of every human society (e.g., eating to survive)” as practices capable of supporting
an aboriginal right and insisted that the focus be “on the aspects of the aboriginal society that make that society
distinctive”. The evidence led as to the traditional regulation of work activity bears no relation to modern collective
bargaining. The appellant cannot escape this deficiency by relying on the fact that the aboriginal society organized
the work activities of its members: the organization of work at that level of generality is a feature of every human
society.
Step Three
 failed to establish reasonable continuity between the pre-contact practice, custom or tradition and the
contemporary claim. Exhibits no meaningful relationship or connection with pre-contact communal, non-hierarchical
practices of decision-making in relation to the organization of work activities and access to territory, inspired by
values of family, clan and connection to the land. The Code is market-based, adversarial and inspired by the
Canada Labour Code. Its roots are entirely post-contact and derived from modern law dealing with contractual
relationships between employers and employees in a post-industrialist capitalist economy. No process or
community-wide consultation based on aboriginal custom or tradition was followed when the Code was enacted.
 Para 26 – application of Van der Peet
4. enactment of the Code
5. essential character (nature of Labour Relations Act with which it conflicts)
6. ancestral practise
 First: Modern labour relations code not different from most labour relations code, except for punitive elements ($12
000 fee, union needs permission to speak to workers, ban on strikes)
 Community claims that it is regulation of work and controlling access to aboriginal lands
 Van der Peet focuses on the subject – labour relations not regulation of work / controlling access to aboriginal
lands
 Court is looking to say more, case reads more like s. 35 rather than labour relations, would need to find the
legislative aim – interesting recantation of how Code is modern, detailed like Canada labour code, not particularly
characterized in manner to be open to claim of access and control of aboriginal land
 Second part of the teet – nature of labour relations act – very similar to modern labour regulatory framework
 Third ancestral tradition – that it relies on, burden of appellant to show continuity of tradition
 Parts of 1 and 2 emphasized with modern detail regulatory framework juxtaposed with community tradition – time
immemorial
 So detailed – not attempting to regulate or control land, if you juxtapose that reason in overlapping Aboriginal
claims (fed / Prov_ problems with approach more apparent
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Labour Law
Comments from Class
 Assertion of treaty rights, self government rights in jurisdiction of labour
 Beyond narrow federal and provincial
 Dialogue between Degamuukw and Van der Peet
 Van der Peet captures test for factors of self governance – even though Delgamuukw could give broader readings
of treaty rights more readily
 Reasoning inot robust, doesn’t assessment of where there is room for aboriginal claim over labour related matters
 Under treaty rights importance of disconnect of enactment
 Why demarcating labour relations and work related activities – not clear
 Nature of the activity – where is the line drawn (not clear)
 Reminder that division of power has broadened more threshold considerations when defining appropriate
jurisdiction for labour relations
II. Collective Bargaining Policy & Industrial Legality
Why does the law recognize collective labour relations? How are trade unions recognized? What is meant by
industrial legality? Who does industrial legality exclude?


Collective bargaining policy is shifting a lot based on the impact of human rights instruments, e.g. Charter.
One of the questions we’ll be asking is who should be making collective bargaining policy? If you imagine it
as a direct relationship between the human rights statute and the employee, without the statute in the middle
are the courts themselves shaping collective bargaining policy? And is this desirable?
Collective bargaining legislation governs who has access to rights and entitlements. Also controls employer
domination.
E.g. Quebec Labour Code
Article 3 QLC
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
Article 12 QLC
No employer, or person acting for an employer or an association of employers, shall in any manner seek to
dominate, hinder or finance the formation or the activities of any association of employees, or to participate
therein.
No association of employees, or person acting on behalf of any such organization, shall belong to an
association of employers or seek to dominate, hinder or finance the formation or activities of any such
association, or to participate therein.
Parallel provisions in Canada Labour Code (We’ll be focusing on Part I):
Article 8. (1) CLC
Every employee is free to join the trade union of their choice and to participate in its lawful activities.
Article 25. (1) CLC
Notwithstanding anything in this Part, where the Board is satisfied that a trade union is so dominated or
influenced by an employer that the fitness of the trade union to represent employees of the employer for the
purpose of collective bargaining is impaired, the Board shall not certify the trade union as the bargaining
agent for any unit comprised of employees of the employer and any collective agreement between the trade
union and the employer that applies to any such employees shall be deemed not to be a collective
agreement for the purposes of this Part.
These pieces of legislation are exclusive. They exclude workers that do not readily fit the paradigm of employees. But
they also exclude workers that have no problem being considered employees under traditional tests.
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Labour Law
Note that in Quebec Labour Code, Article 4 looks at municipal constables, and doesn’t take away their rights to
unionize, but they may only be unions of constables and cannot be in unions with other public servants.
Freedom of Association

We can think of section 2(d) of the Charter defining the scope of freedom of association. Some would argue
that freedom of association is fundamental because workers have taken it – through labour militancy etc.

Also enshrined in international instruments, and also in soft law like the ILO Declaration.

So FoA is a panoply of rights that may be claimed, and in the labour context is understood to include:
o the right to organize – as defined in article 3 of QLC
o the right to bargain collectively
o unfair labour practice protections (there has been less concern about this falling within section 2(d)
but ey’r can just stamp that out then is it really protected and fundamental?)
o right to strike – usually around when collective bargain is about to expire or has expired but it’s not
confined. We’d see fascinating results if the right to strike was constitutionalized. It is not.
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989
Jurisdiction
Facts
Issues
Holding
Reasoning
The appellant is a member of the RCMP and president of an informal association created with the aim
of representing the job-related interests of RCMP members in Quebec. He brought a motion
personally before the Superior Court, requesting that para. (e) of the definition of “employee” in s. 2 of
the Public Service Staff Relations Act (“PSSRA”) and s. 6 of the CLC be declared of no force or effect
as violating ss. 2(d), 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms. Paragraph 2(e)
expressly excludes RCMP members from the application of the PSSRA and s. 6 of the Canada
Labour Code provides that Part I of the Code does not apply to employees of Her Majesty in right of
Canada. His motion was dismissed and the Court of Appeal affirmed the decision.
Do section 2 of the PSSRA and section 6 of the CLC violate 2(d) of the Charter?
No.
Bastarache J (+Gonthier, McLachlin, Major):

Respect for freedom of association does not require that the appellant be included in either the
regime of the PSSRA or any other regime, as s. 2(d) of the Charter protects the appellant directly
against such interference by management intended to discourage the establishment of an
employee association

Only the establishment of an independent employee association and the exercise in association
of the lawful rights of its members are protected under s. 2(d).

What s. 2(d) does and doesn’t protect:
1) Section 2(d) protects the freedom to establish, belong to and maintain an association;
2) It does not protect an activity solely on the ground that the activity is a foundational or
essential purpose of an association;
3) Section 2(d) protects the exercise in association of the constitutional rights and freedoms of
individuals; and
4) Section 2(d) protects the exercise in association of the lawful rights of individuals.




10 | P a g e
What factors must be considered for discovering the purpose of s.2 of the PSSRA? Extrinsic
sources may be used, but when the meaning is clear, they are of little use. Absent ambiguity in
the meaning of a provision, it is primarily the statute as a whole which indicates its
purpose. This does not mean that the general context should be ignored, but rather that the
context is legislative above all else.
Neither the purpose nor the effects of definition of “employee” infringe s. 2(d) of the Charter.
Knowing that the legislative context shows that the purpose of the statute is to govern labour
relations in the public sector under a regime of collective bargaining and trade union
representation of workers, it is not possible to find that the purpose of the statute infringes s. 2(d).
Looking at the Report of the Preparatory Committee, social and economic context, and expert
reports (as Iacobucci and Cory have done) confuses motive of certain gov’t actors with the
purpose of the statute. At best these sources show the fear Parliament felt about the divided
loyalty that the existence of an RCMP members’ union association might create. That in no way
suggests that the purpose of the statute at issue was to prevent RCMP members from forming
any type of independent association
The exclusion of RCMP members is designed simply to not grant them any status under the
PSSRA, namely trade union representation and all it entails (which does not violate the
Labour Law





appellant’s freedom of association). An independent association (i.e. one without status under
the statute) enjoys protection analogous to that provided under ss. 6, 8 and 9 of the PSSRA
directly under s. 2(d) of the Charter.
With respect to the effects of para. (e), the fact that the appellant cannot invoke the protection of
the PSSRA has no impact on his freedom of association under the Charter. The fundamental
freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or
inclusion on Parliament or the government, except perhaps in exceptional circumstances which
are not at issue here. It is the very nature of the freedoms in s.2 that imposes a negative
obligation on the government.
There is no violation of s. 2(d) when certain groups of workers are excluded from a
specific trade union regime. The ability to form an independent association and to carry
on the protected activities exists independently of any statutory regime.
The exclusion of RCMP members is hardly exclusive. Numerous other groups such as the
armed forces, senior executives in the public service, and indeed judges are in a similar situation.
If RCMP management has used unfair labour practices with the object of interfering with the
creation of an association it is open to any party with standing to challenge these practices and
rules directly by relying on s. 2(d), as the RCMP is part of the government within the meaning of
s. 32(1) of the Charter.
No discrimination under s. 2d
Per L’Heureux-Dubé J. (concurring w/majority):

The majority’s reasons are generally agreed with. Where, as here, the Constitution itself prohibits
the activities that a claimant alleges interfere with his freedoms of association and of expression,
positive government action to include workers in a particular scheme is not required

I agree with the discussion in the reasons of Cory and Iacobucci JJ. of the importance of freedom
of association, and of the inherent vulnerability of workers in the face of management.

Finally, a violation of s. 15(1) of the Charter has not been demonstrated in this case.
Comments
11 | P a g e
Iacobucci and Cory JJ (dissenting):

The provisions in ss. 6, 8 and 9 of the PSSRA and in similar statutes which specifically protect
basic associational activities are the product of more than a century of economic and political
struggle, and their enactment represented a watershed in Canadian labour relations law. Until
the introduction of The Industrial Relations and Disputes Investigation Act, (1948), Parliament
had never provided full protection to the right of employees to freedom of association, and the
right to be protected against unfair labour practices by management. Associational activities,
always important to labour, were asserted as being equally fundamental to the Canadian fabric

The ability of employees, who are a vulnerable group in our society, to form and join an
employee association is crucially linked to their economic and emotional well being. A statute
whose purpose or effect is to interfere with the formation of employee associations will thus
clearly infringe s. 2(d) of the Charter.

If Parliament’s purpose in excluding a particular employee group from a labour statute was antiassociational, this is impermissible in light of s. 2(d) of the Charter.

In this case the purpose of para 2(e) is invalid. Parliament’s purpose in enacting para. (e) was to
ensure that individual RCMP members remained vulnerable to management interference with
their associational activities, in order to prevent the undesirable consequences which it was
feared would result from RCMP labour associations -- the perceived threat of a divided loyalty
among RCMP members. There was a perception that RCMP members might disobey superior
orders if they were both union members and members of a quasi-military institution

The issue of positive obligations and entitlements does not arise in this appeal. The appellant’s
claim is not premised upon the view that Parliament is obligated to protect him against
management interference, or to promote the formation of member associations.

The violation is not justified under section 1 of the Charter because it fails the rational connection
part of the proportionality test. In fact, the exclusion of RCMP members from the entirety of the
PSSRA to secure a stable national police may actually contribute to the very labour unrest
sought to be avoided.

Note that in dissent, Iacobucci and Cory characterize vulnerability as residing within the
employee qua employee (as opposed to in the broader societal context) – by virtue of being
an ey’ee in a work context, you are in a vulnerable vis-à-vis the employer.

But what happens if you’re not in any statute, and the SCC says that you don’t have to be
included under s. 2(d) – do you really have freedom of association? SCC seems to think sure
you do!
Labour Law
Seems like they’re saying  Look you have an informal association here and if you
have a specific problem, like you’re not allowed to strike when you want to, then
come back to us
Why would we want to have collective bargaining for peeps who are not the weakest
workers? There are a whole host of issues that have nothing to do with bargaining for
remuneration. There are issues of workplace relations, governance, seniority, etc. There’s an
assumption that the state is only for the poor.
o

(I) FREEDOM OF ASSOCIATION FOR AGRICULTURAL WORKERS
In Ontario
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016
Jurisdiction
Facts
Issues
Holding
Reasoning
12 | P a g e
Ontario to SCC
Agricultural workers had always been excluded from Ontario’s labour relations regime until 1994 when
the Ontario legislature enacted the Agricultural Labour Relations Act, 1994 (“ALRA”), which extended
trade union and collective bargaining rights to agricultural workers. A year later, by virtue of s. 80 of
the Labour Relations and Employment Statute Law Amendment Act, 1995 (“LRESLAA”), the
legislature repealed the ALRA in its entirety, in effect subjecting agricultural workers to s. 3(b) of the
Labour Relations Act, 1995 (“LRA”), which excluded them from the labour relations regime set out in
the LRA. Section 80 also terminated any certification rights of trade unions, and any collective
agreements certified, under the ALRA.
Is the exclusion of agricultural workers from the Labour Relations Act unconstitutional under s.2(d)
and 15(1) of the Charter?
Yes, appeal allowed.
Bastarache J (+ McLachlin, Gonthier, Iacobucci, Binnie, Arbour and LeBel)

The purpose of s. 2(d) of the Charter is to allow the achievement of individual potential through
interpersonal relationships and collective action. This purpose commands a single inquiry: has
the state precluded activity because of its concerted or associational nature, thereby
discouraging the collective pursuit of common goals?
 NOTE: In BC Health Services, McLachlin says that this a more contextual approach  the
whole of the context has to be considered.

However, in some cases s. 2(d) should be extended to protect activities that are inherently
collective in nature, in that they cannot be performed by individuals acting alone. To limit
s. 2(d) to activities that are performable by individuals would ... render futile these fundamental
initiatives. Certain union activities may be central to freedom of association. (*Big deal 
recognizing that s.2(d) has a collective dimension!*)

In order to make the freedom to organize meaningful, in this very particular context, s. 2(d) of
the Charter may impose a positive obligation on the state to extend protective legislation
to unprotected groups. The distinction between positive and negative state obligations ought
to be nuanced in the context of labour relations, in the sense that excluding agricultural workers
from a protective regime contributes substantially to the violation of protected freedoms.

Conflicting claims concerning the meaning of troubling comments in the legislature make it
impossible to conclude that the exclusion of agricultural workers from the LRA was intended to
infringe their freedom to organize, but the effect of the exclusion in s. 3(b) of the LRA is to
infringe their right to freedom of association

The claimants are not trying to claim a constitutional right to inclusion in the LRA, but simply the
freedom to create a trade association. This freedom to organize exists independently of any
statutory enactment, although its effective exercise may require legislative protection in some
cases

A proper evidentiary foundation of substantial interference with the exercise of protected
s. 2(d) activity must be provided before creating a positive obligation under the Charter. A
failure to include someone in a protective regime may affirmatively permit restraints on the
activity the regime is designed to protect. The rationale behind this is that underinclusive state
action falls into suspicion not simply to the extent it discriminates against an unprotected class,
but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental
freedoms.

ILO convention provisions confirm that discriminatory treatment implicates not only an
Labour Law
excluded group’s dignity interest, but also its basic freedom of association. Thus while
inclusion in legislation designed to protect such freedoms will normally be the province of
s. 15(1) of the Charter, claims for inclusion may, in rare cases, be cognizable under the
fundamental freedoms.
Application in this Case:

In this case, the evidentiary burden of substantial interference has been established. While the
mere fact of exclusion from protective legislation is not conclusive evidence of a Charter
violation, the evidence indicates that, but for the brief period covered by the ALRA, there has
never been an agricultural workers’ union in Ontario and agricultural workers have suffered
repeated attacks on their efforts to unionize.

The inability of agricultural workers to organize can be linked to state action. The
exclusion of agricultural workers from the LRA functions not simply to permit private interferences
with their fundamental freedoms, but to substantially reinforce such interferences. The inherent
difficulties of organizing farm workers, combined with the threat of economic reprisal from
employers, form only part of the reason why association is all but impossible in the agricultural
sector in Ontario.

Equally important is the message sent by the exclusion of agricultural workers from the LRA,
which delegitimizes their associational activity and thereby contributes to its ultimate failure.
The most palpable effect of the LRESLAA and the LRA is, therefore, to place a chilling effect on
non-statutory union activity.

SECTION 1: Fails on minimal impairment test. The categorical exclusion of agricultural workers
is unjustified where no satisfactory effort has been made to protect their basic right to form
associations. The exclusion is overly broad as it denies the right of association to every sector of
agriculture without distinction. The reliance on the “save the family farm” justification ignores an
increasing trend in Canada towards corporate farming and complex agribusiness. More
importantly, no justification is offered for excluding agricultural workers from all aspects of
unionization, in particular those protections that are necessary for the effective formation and
maintenance of employee associations.

Not necessary to deal with s.15(1).
L’H-D (concurring in result):

The evidence demonstrates that legislature’s purpose in enacting the exclusion was to ensure
that persons employed in agriculture remained vulnerable to management interference with their
associational activities, in order to prevent the undesirable consequences which it had feared
would result from agricultural workers’ labour associations.

On s.15. The occupational status of agricultural workers constitutes an “analogous ground” for
the purposes of an analysis under s. 15(1). Agricultural workers generally suffer from
disadvantage and the effect of the distinction made by their exclusion from the LRA is to devalue
and marginalize them within Canadian society.
Major J (dissenting):

The appellants failed to demonstrate that the impugned legislation has, either in purpose or
effect, infringed activities protected by s. 2(d) of the Charter. In particular, s. 2(d) does not
impose a positive obligation of protection or inclusion on the state in this case. Prior to the
enactment of the LRA, agricultural workers had historically faced significant difficulties organizing
and the appellants did not establish that the state is causally responsible for the inability of
agricultural workers to exercise a fundamental freedom.

Agricultural workers are not an analogous group for the purposes of s. 15(1) of the Charter and,
as a result, the exclusion of agricultural workers from the LRA does not violate their equality
rights.
Comments



13 | P a g e
Note: Although Bastarache J. took care to align the reasons in Dunmore with the Supreme
Court's earlier freedom of association decisions, the case marks a major change in direction. He
held that freedom of association imposes a positive obligation on the government to protect the
rights of vulnerable workers (such as agricultural workers) to join and participate in unions and to
make collective representations to their employer.
Bastarache J. also made it clear that the freedom of association protected in the Charter has a
collective dimension, referring to both Dickson C.J.'s dissent in the Alberta Reference and the
ILO's jurisprudence as support..
Nevertheless, he was careful to limit the extent of positive obligations on the state, and reiterated
that the freedom of association does not include collective bargaining and the right to strike.
Labour Law
Dunmore:
Reasoning:

History has shown and Canada’s legislatures have recognized that a posture of government restraint in the
area of labour relations will expose most workers not only to a range of unfair labour practices, but
potentially to legal liability under common law inhibitions on combinations and restraints of trade.

In order to make the freedom to organize meaningful, in this very particular context, s. 2(d) of the Charter
may impose a positive obligation on the state to extend protective legislation to unprotected groups.

The distinction between positive and negative state obligations ought to be nuanced in the context of labour
relations, in the sense that excluding agricultural workers from a protective regime contributes substantially
to the violation of protected freedoms.

Scope of state rationale in para 26

Article II of Convention 87

Courts turn to intl law and looks at the meaning of freedom of ass in article 2 of some ILO stuff. Applies to
workers without distinction
Note that in the majority reasoning, Bastarache notes that although provincial jurisdiction has prevented Canada from
ratifying Convention No. 11, the conventions provide a normative foundation for prohibiting any form of discrimination
in the protection of trade union freedoms.
Committee on Freedom of Association Report Canada (Case No. 1900), Report #308 (1997)
Jurisdiction
Facts
Canadian Labour Congress alleges that without statutory protection, workers are vulnerable to
penalties through Bill 7. Common law has not recognized the binding nature of collective agreements.
As a result, to be denied access to the statutory machinery of collective bargaining is to be denied
access to collective bargaining in any meaningful sense. While the NDP gov’t had expanded
protections, the current (Harris) gov’t repealed previous legislation and explicitly excluded domestic
workers and agricultural workers – two of the most vulnerable groups of workers – from protection
under the Labour Relations Act. The workers excluded from the 1995 Labour Relations Act also have
no right to strike and are not protected from the imposition of penalties or dismissal should they strike.
Furthermore, the present Government in Ontario has eliminated the application of successor and
related employer rights for Crown employees and those employed in the building services sector.
The Government, in its reply, notes that a challenge has been brought in the Ontario courts and
indicates its desire for the Committee to once again postpone its examination of this complaint until
the outcome of the case. The Government also provides rationales for Bill 7. As concerns the repeal
of the Agricultural Labour Relations Act, 1994, the Government indicates that agriculture in Ontario is
overwhelmingly dominated by family farms. The sector is thus characterized by extremely low profit
margins and unstructured, highly personal working relationships which make a statutory labour
relations regime (and collective bargaining dispute resolution mechanisms in particular) inappropriate.
The Government indicates its view that labour laws originally enacted with industrial settings in mind
are not always suitable for non-industrial workplaces, such as private homes and professional offices,
where occupational duties and professional obligations may not be compatible with the highly
formalized terms and conditions of employment and at least somewhat adversarial nature of
relationships typical of a unionized environment
Issues
Reasoning
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Re: Legislative repeal of statutory access to collective bargaining, termination of existing organizing
rights and nullification of collective agreements
The Committee:

The Committee notes that while domestic solutions are good, its competence to examine
allegations is not subject to the exhaustion of national procedures.

Article 2 of Convention No. 87 (ratified by Canada) is designed to give expression to the principle
of non-discrimination in trade union matters, and the words "without distinction whatsoever" used
in this Article mean that freedom of association should be guaranteed without discrimination of
any kind based on occupation, etc.

Furthermore, by virtue of the principles of freedom of association, all workers - with the sole
exception of members of the armed forces and police - should have the right to establish and to
join organizations of their own choosing.

The Committee calls upon the Government to take the necessary measures to ensure that all
Labour Law



these workers all enjoy the protection necessary, either through the LRA or by means of
occupationally specific regulations, to establish and join organizations of their own choosing
While not neglecting the importance it places on the voluntary nature of collective bargaining, the
Committee recalls that measures should be taken to encourage and promote the full
development and utilization of machinery for voluntary negotiation. The absence of any statutory
mechanism is an impediment to the objective of forming independent organizations capable of
concluding collective agreements
Re: successor rights in the construction industry: The Committee would, nevertheless, point out
that, in the absence of sufficient protective measures, a new contractor could take actions which
would threaten the right to organize and collective bargaining rights. It therefore requests the
Government to take measures to ensure that these rights are adequately protected
The Committee then makes a bunch of recommendations that gov’t of Ontario should take the
necessary measures to extend protection blah blah.
Comments
Committee on Freedom of Association Report Canada (Case No. 1900), Report #330 (2003)
Jurisdiction
Facts
Issues
Reasoning
Comments
This case was last examined in 1999. in December 2001 by the Supreme Court of Canada, which
ruled that the exclusion of agricultural workers from the right of freedom of association was
unconstitutional, and gave the Government 18 months to remedy the situation. The CLC wrote to the
Minister of Labour in December 2001, requesting that the exclusion of agricultural workers be
repealed. No action was taken and no consultations were undertaken with organized labour.
In a communication of 3 October 2002, the Government states that, while the Supreme Court decision
in Dunmore mandates the extension of some legislative protections to agricultural workers to ensure
they have the right to form associations, it does not require their inclusion in a full statutory bargaining
regime. The Government adds that this decision concerns only agricultural workers, and that it does
not plan any legislative amendments as regards the other categories of workers concerned in this
case; it reiterates that there are legitimate reasons for the exclusion of certain workers from the
general statutory bargaining regime.
Legislative repeal of statutory access to collective bargaining, termination of existing organizing rights
and nullification of collective agreements
The Committee:

As regards agricultural workers, the Committee further notes that the Government of Ontario
introduced Bill No. 187 in October 2002 (Agricultural Employees Protection Act, 2002) which
gives agricultural employees the right to form or join an employees’ association; it appears
however that this legislation does not give agricultural workers the right to establish and join
trade unions and to bargain collectively

As regards the other categories of workers concerned in the present complaint, the Committee
notes with regret the Government’s stated intention to maintain the status quo. Recalling once
again that all workers, with the sole possible exception of armed forces and police, should have
the right to organize, the Committee strongly urges the Government to amend its legislation so
that all the categories of workers fully enjoy this right and to keep it informed of developments.

Issues of division of powers,
See Fraser for update on the situation
In Quebec
QLC – s. 21.5 on Farm Employees
Persons employed in the operation of a farm shall not be deemed to be employees for the purposes of this division
unless at least three of such persons are ordinarily and continuously so employed.
15 | P a g e
Labour Law
Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 501 c. La Légumière Y. C.
inc. et al. (24 Sept 2007), 2007 QCCRT 0467
Jurisdiction
Facts
On August 21, 1996, the union requested to certify “All employees in the sense of the Labour Code,
with the exception of those normally excluded by law.” In October 2006, the union requested that the
bargaining unit be revised to include, “All workers and agricultural workers covered by a government
program on foreign workers to the employment of the employer.”
The program in question is the Seasonal Agricultural Workers Program. A Memorandum of
Understanding between Canada and Mexico established guidelines for wages, the provision of
accommodation, the requirement to sign an emynt K, and to review the K. The MOU also specifies
that it is “an administrative arrangement and not an intergovernmental or international treaty.” The
MOU also specifies arrangements to be made in Quebec and Mexico to administer the whole
program.
The emynt K provided for in the MOU includes the various provisions:
 The eyer agrees to hire the eyee for at least 240 hours over a period of between 6 weeks
and 8 months
 The normal working day is 8 hours, but in case of emergency the eyer may require the eyee
to extend it.
 After 6 days, the eyee is entitled to a day off but when necessary the eyee may postpone it at
the request of the eyer
 At least 2 rest periods of 10 minutes (paid or not, depending on prov’l statute)
 Free housing that is adequate
 The higher of three wages: 1) the provincial minimum; 2) the HRSDC rate established for
agricultural workers; 3) the wage rate paid by the eyer to CDN workers
 Health and workplace protection
 The eyee agrees not to work anywhere else, except if there is a breach of K by eyer
 “This contract shall be governed by the laws of Canada and the Province of employment”
Employer must demonstrate a need not fulfilled by Canadian workers, and HRSDC is informed of this
need. The Dept of Immigration in Quebec must approve and issues a certificate for a certain # of
workers which is sent to Citizenship and Immigration Canada. The Mexican government recruits.
Issues
Holding
Reasoning
16 | P a g e

Seasonal agricultural workers come and work on individual farms under a contract

Minimum 40 hour work week, unless the employer needs you to work more

1 day off a week, unless the employer needs you to work more

Two ten minute work periods, paid or not
-From the end of April to mid-October, Mexican workers alternate on different workstations. In midOctober, all that remains is the driver and the engineer who finish a few days later.
1) Is the Code inapplicable since, with respect to these employees, it is in conflict with federal law? 2)
Does article 21(5) of the Labour Code prevent agricultural workers from being certified?
1) No. 2) Yes.
Conflict of Laws

There is no conflict between the Labor Code and the federal program, as per the MOU. The
program is specifically an "administrative intergovernmental agreement" to "facilitate the hiring of
Mexican seasonal farm workers in all regions of Canada where their presence is deemed
necessary by the Canada to meet its agricultural market.” It is specifically stated that workers will
be treated the same as Cdn workers.

This program allows the governments of Canada and Quebec to allow producers to use a more
easy and quick to facilitate entry and the use of temporary foreign workers, while ensuring
compliance with laws and regulations respective on such workers.

This provided K only has to be used if the employer wishes to take advantage of the SAWP.

Accordingly, the Protocol and the Agreement shall not have the effect of encroaching on the
jurisdiction of Quebec in the field of labour relations – jurisdiction granted under the Constitution
Act 1867 and the provisions of the Labour Code applies.

Note that these employers meet the definition of employer within the meaning of the Labour
Code and the SCC decision of Pointe-Claire (1997).

The recommended K are only minimal requirements and nothing prevents employers from
providing working conditions exceeding those referred to in the K.
Labour Law


Certification, which allows collective bargaining for better working conditions, has a purpose for
these workers and the union that wants to represent them.
Furthermore, the seasonal nature of the work does not justify denial of the status of an
employee, especially when there is a high probability that they return to work the same employer
for the following year
Status as “employee”

Article 21(5) of the Quebec Labour Code states: “Persons employed in the operation of a farm
shall not be deemed to be employees for the purposes of this division unless at least three of
such persons are ordinarily and continuously so employed.”

The words "ordinarily and continuously" must be interpreted with common sense. This section
appears in the Division on “Certification of Associations of employees”, so it means that farm
employees cannot be certified unless there are at least three ordinarily and continuously
employed.

This phrase indicates permanent and non-seasonal employment of at least three. This reading of
the phrase is supported by doctrine and discussions in the National Assembly where a minister
said: “That's why we put the word ordinarily and our goal is to protect workers who work all year
long for growers or "gentlemen farmers”

Given that there is not at least three people and continuously ordinarily used in the operation of
Les Fermes Hotte & Wan Winden inc. and La Légumière Y.C. Inc., these people are not deemed
to be employees for purposes of accreditation by an association of employees. As a result,
requests for accreditation for these farms must be rejected.
Comments
III. Relationship between Freedom of Association & Collective
Bargaining Policy
(I) THE LABOUR TRILOGY: NO RIGHT TO COLLECTIVE BARGAINING OR STRIKE
Note: Dunmore and two other cases (Pepsi-Cola and Advance Cutting) constituted the second “labour trilogy”. Now
we’re going to look at the first labour trilogy that informed some of the reasoning of the second trilogy.

What should govern labour relations framework? Charter (fundamental?), labour statutes, alternative
statutes, CML – these cases show the importance of CML and statute

These cases grapple with the meaning and extent of 2d
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313
Jurisdiction
Facts
Several public sector unions challenged a bundle of Alberta statutes that placed restrictions on
collective bargaining by provincial government employees, firefighters, police, and hospital workers by
prohibiting strikes, restricting the scope of bargaining, and imposing compulsory arbitration.
Alberta referred to the Alberta Court of Appeal several constitutional questions which raised two main
issues:
(1) whether the provisions of the Public Service Employee Relations Act, the Labour Relations Act
and the Police Officers Collective Bargaining Act of Alberta, which prohibit strikes and impose
compulsory arbitration to resolve impasses in collective bargaining, were inconsistent with the
Canadian Charter of Rights and Freedoms; and
(2) whether the provisions of the Acts relating to the conduct of the arbitration and which limit the
arbitrability of certain items and require the arbitration board to consider certain factors in making the
arbitration award were inconsistent with the Charter. The first Act applied to public service employees,
the second to firefighters and hospital employees and the third to police officers.
Issue
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The majority of the Court of Appeal of Alberta answered the first issue in the negative and declined to
answer the second issue.
Does the Alberta legislation violate the guarantee of freedom of association in s. 2(d) of the Charter
and, if so, whether such violation can be justified under s. 1?
Labour Law
Holding
Reasoning
No, appeal dismissed.
Le Dain (+ Beetz and La Forest JJ) (majority):

The constitutional guarantee of freedom of association in s. 2(d) of the Charter does not
include, in the case of a trade union, a guarantee of the right to bargain collectively and the
right to strike, and accordingly I would dismiss the appeal.

It is essential to keep in mind that this concept must be applied to a wide range of associations or
organizations of a political, religious, social or economic nature. It is in this larger perspective that
one must consider the implications of extending a constitutional guarantee to the right to engage
in particular activity on the ground that the activity is essential to give an association meaningful
existence.

I reject the premise that without such additional constitutional protection the guarantee of
freedom of association would be a meaningless. Freedom of association is not only important to
the other freedoms in s.2, but its importance in the work context is reflected in its express
recognition in labour protection legislation.

What is in issue here is not the importance of freedom of association in this sense, 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. 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. They are the creation of
legislation, involving a balance of competing interests in a field which has been recognized by the
courts as requiring a specialized expertise.

OBITER: It is surprising that in an area in which this Court has affirmed a principle of judicial
restraint in the review of administrative action we should be considering the substitution of our
judgment for that of the Legislature by constitutionalizing in general and abstract terms rights
which the Legislature has found it necessary to define and qualify in various ways according to
the particular field of labour relations involved.
McIntyre J:
 The freedom of association in s. 2(d) of the Charter did not give constitutional protection to the right
of a trade union to strike as an incident to collective bargaining.
 Freedom of association under the Charter means 1) the freedom to engage collectively in
those activities which are constitutionally protected for each individual, and 2) the freedom
to associate for the purposes of activities which are lawful when performed alone.
 Freedom of association, however, does not vest independent rights in the group. People cannot, by
merely combining together, create an entity which has greater constitutional rights and freedoms
than they, as individuals, possess. The group can exercise only the constitutional rights of its
members on behalf of those members.
 It follows as well that the rights of the individual members of the group cannot be enlarged merely
by the fact of association. Therefore, the association does not acquire a constitutionally guaranteed
freedom to do what is unlawful for the individual. This definition fully realizes the purpose of freedom
of association which is to ensure that various goals may be pursued in common as well as
individually.
 When this definition of freedom of association is applied, it is clear that freedom of association does
not guarantee the right to strike. Since the right to strike is not independently protected under the
Charter, it can receive protection under freedom of association only if it is an activity which is
permitted by law to an individual.
 Further, read in the context of the whole Charter, s. 2(d) cannot support an interpretation of
freedom of association which could include a right to strike. Although strikes are commonplace in
Canada and have been for many years, the framers of the Constitution did not include a specific
reference to the right to strike in the Charter. This omission, taken with the fact that the
overwhelming preoccupation of the Charter is with individual, political, and democratic rights with
conspicuous inattention to economic and property rights, speaks strongly against any implication of
a right to strike.
 Finally, it must be recognized that the right to strike accorded by legislation throughout Canada is of
relatively recent vintage. 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.
Dickson & Wilson (dissenting):
 The purpose of the constitutional guarantee of freedom of association in s. 2(d) of the Charter is to
recognize the profoundly social nature of human endeavours and to protect the individual from
state-enforced isolation in the pursuit of his or her ends.
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Labour Law
Comments
 Section s. 2(d) must extend to give effective protection to the interests to which the constitutional
guarantee is directed and must protect the pursuit of the activities for which the association
was formed.
 The overarching consideration remains whether a legislative enactment or administrative action
interferes with the freedom of persons to join and act with others in common pursuits.
 In the context of labour relations, the guarantee of freedom of association in s. 2(d) of the Charter
includes not only the freedom to form and join associations but also the freedom to bargain
collectively and to strike.
 Freedom of association is the cornerstone of modern labour relations. 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. It remains vital to the capacity of individual employees
to participate in ensuring equitable and humane working conditions.
 Under our existing system of industrial relations, the effective constitutional protection of the
associational interests of employees in the collective bargaining process also requires concomitant
protection of their freedom to withdraw collectively their services, subject to s. 1 of the Charter.
Indeed, the right of workers to strike is an essential element in the principle of collective bargaining.
 This is not to say that s. 2(d) of the Charter entrenches for all time the existing system of labour
relations. The area of industrial relations is subject to significant legislative regulation. The point is
that this regulation cannot define the scope of the underlying freedom.
 In the present case, the three statutes prohibited strikes and defined a strike as a cessation of work
or refusal to work by two or more persons acting in combination or in concert or in accordance with
a common understanding. There is no doubt that the Alberta legislation was aimed at foreclosing a
particular collective activity because of its associational nature. The very nature of a strike is to
influence an employer by joint action which would be ineffective if it were carried out by an
individual.
 No justification under s.1. Protection of essential services is a valid objective and there is rational
connection, but prohibition of the right to strike of all hospital workers and public service employees
was too drastic a measure for achieving the object of protecting essential services (i.e. no minimal
impairment). Without evidence, it is not self-evident that interruption of these services would
endanger the lives and safety of the population.
 Furthermore, the arbitration system provided by the Acts was not an adequate replacement for the
employees' freedom to strike. Serious doubt is cast upon the fairness and effectiveness of an
arbitration scheme where matters which would normally be bargainable are excluded from
arbitration.
 "If freedom of association only protects the joining together of persons for common purposes, but
not the pursuit of the very activities for which the association was formed, then the freedom is
indeed legalistic, ungenerous, indeed vapid.”
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.
PSAC v. Canada, [1987] 1 S.C.R. 424
Jurisdiction
Facts
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The Public Service Alliance of Canada (PSAC) is a union representing approximately 168,000
employees of the federal government and its agencies. The Act applied only to the federal public
sector employees (s. 3) and employees of certain railway companies (s. 3(4) (the latter not
represented in this appeal). It defined a compensation plan as provisions for determining and
administering compensation, including provisions in collective agreements. The Act automatically
extended compensation plans in force on June 29, 1982 for a period of two years and fixed the wage
increases to 6 per cent in the first year and 5 per cent for the second.
Labour Law
For the groups not subject to a compensation plan on June 29, 1982, the Act extended the previous
compensation plan for one year and provided for an increase of 9 per cent for that year. At the end of
that period, these plans were extended for a further two years with the "6 and 5" increases. During the
period of extension, the compensation plans covered by the Act (s. 6(1)(a)) and those collective
agreements or arbitral awards which included such a compensation plan (s. 6(1)(b)) continued to be in
force without change, thus precluding collective bargaining on compensatory and non-compensatory
components of collective agreements. Section 6 is subject to s. 7 which permitted the parties to a
collective agreement to amend non compensatory terms and conditions by agreement only, but it did
not authorize employees to strike or submit proposed amendments to binding arbitration. Under s. 16,
the Governor in Council was empowered to terminate the application of the Act in respect of an
employee or a group of employees to which the Act applied.
Issues
Holding
Reasoning
The Federal Court, at trial and on appeal, held that the Act violated neither the right of freedom of
association in s. 2(d) of the Charter (because s.2(d) was not held to include the right to bargain
collectively or strike) nor the right to equality before the law in s. 1(b) of the Canadian Bill of Rights.
1) Does the Public Sector Compensation Restraint Act violates s. 2(d) of the Charter? 3) Does the Act
violate s. 1(b) of the Canadian Bill of Rights?
1) 2) No (I’m not dealing with this issue – not mentioned in class)
Dickson CJC (dissenting in part):
Section 2(d)

For the reasons I have given in the Alberta Reference, I believe that freedom of association in
the labour relations context includes the freedom to participate in determining conditions of work
through collective bargaining and the right to strike. The Public Sector Compensation Restraint
Act, by automatically extending the terms and conditions of collective agreements and arbitral
awards and by fixing wage increases for a two year period, infringes the freedom of public sector
employees to engage in collective bargaining.

Furthermore, a union has no effective bargaining power under s.7 or s.16 since it lacks the legal
capacity to withdraw services collectively or even to remit a dispute to binding arbitration. Without
the capacity to strike or to submit a dispute to binding arbitration, employees seeking non
compensatory amendments under s. 7, or employees requesting the Governor in Council to
suspend the operation of the Act are not in an effective position to bargain.
Section 1

The objective of reducing inflation was, at the time of passage of the Act, of sufficient importance
for the purpose of s. 1 of the Charter, but not all the means chosen to achieve that objective were
"reasonable and demonstrably justified".

The important leadership role of the government in economic matters and its concern to control
wage demands and production costs in its fight against inflation justified, under s. 1, the
imposition of controls on federal public sector employees and the suspension of collective
bargaining on compensation issues, including non pecuniary benefits. I am also prepared to
accept that the temporary suspension of collective bargaining on compensation issues was a
justifiable infringement of freedom of association having regard to the third limb of the
proportionality test.

Furthermore, I cannot accept that Parliament must consider the government to be just another
employer. The gov’t plays an important leadership role, and there is a psychological component
of that role in relation to economic matters. Rightly or wrongly, the public sector is perceived to
occupy a central role in defining the parameters of negotiations between employer and
employee. By enacting its "6 and 5" programme, Parliament intended to send a dramatic
message conveying its resolve to fight inflation.

But the removal of the right to strike over non-compensatory issues as well as the right to submit
such disputes to binding arbitration was not a justifiable infringement of the freedom of
association. The effective nullification of the employees' ability to bargain collectively on noncompensatory issues represented a profound intrusion into the associational freedoms of
workers, and one which bore no apparent connection to the objectives of an inflation restraint
programme.

The Act swept away virtually the full range of collective bargaining activities of federal
employees, seemingly without any thought as to whether such draconian measures were
necessary. It follows that the Act, by means of s. 6(1)(b), over reached the otherwise acceptable
justification offered for the Act's impairment of public sector workers' freedom of association.
Therefore, s. 6(1)(b) is of no force and effect. The remainder of the Act with the exception of s.
3(4) upon which no opinion was expressed was justifiable under s. 1 of the Charter.
20 | P a g e
Labour Law
McIntyre J:

For the reasons I expressed in the Alberta Reference, the Public Sector Compensation Restraint
Act did not interfere with collective bargaining so as to infringe the Charter guarantee of freedom
of association. My finding in the Alberta Reference does not, however, preclude the possibility
that other aspects of collective bargaining may receive Charter protection under the guarantee of
freedom of association.

The Act did not restrict the role of the trade union as the exclusive agent of the employees. It
required the employer to continue to bargain and deal with the unionized employees through the
Union. It also permitted continued negotiations between the parties with respect to changes in
the terms and conditions of employment which did not involve compensation.

The effect of the Act was simply to deny the use of the economic weapons of strikes and
lockouts for a two year period. This may limit the bargaining power of trade union but it did not
violate s. 2(d) of the Charter which does not include a constitutional guarantee of a right to strike.
Le Dain (+ Beetz and La Forest JJ):

For the reasons I expressed in the Alberta Reference I am of the opinion that the guarantee of
freedom of association in s. 2(d) of the Charter does not include a guarantee of the right to
bargain collectively and the right to strike. I would accordingly dismiss the appeal and answer the
constitutional questions in the manner of McIntyre.
Comments
PSAC

Wilson J (dissenting):

I agree with the CJ that the Act violates s.2(d), but I disagree with him that it is saved under s.1.

Although the objective of controlling inflation was at the time of the passage of the Act of
sufficient importance to warrant a limitation of freedom of association, the imposition of the
limitation only on the federal public sector employees was not a measure carefully designed to
achieve the objective in question and did not meet the test set out by this Court in Oakes. The
measures adopted were arbitrary and unfair.

They were imposed upon a captive constituency, were not, on the government's own admission,
expected to have any direct effect on inflation and could not possibly constitute an example of
voluntary compliance for others to follow.
Canadian Bill of Rights
1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist
without discrimination by reason of race, national origin, colour, religion or sex, the following human
rights and fundamental freedoms, namely: [...]
(b) the right of the individual to equality before the law and the protection of the law;
McIntyre J  he tried to give substantive reasons and leaves some space for action including the potential
for collective bargaining, but says that this isn’t one of those cases so doesn’t get to s.1 at all
o Says the Act did not restrict the role of the trade union as the exclusive agent of the employees. It
required the employer to continue to bargain and deal with the unionized employees through the
Union. It also permitted continued negotiations between the parties with respect to changes in the
terms and conditions of employment which did not involve compensation.
o Finds that the effect of the Act was simply to deny the use of the economic weapons of strikes and
lockouts for a two-year period. This may limit the bargaining power of trade union but it did
not violate s. 2(d) of the Charter which does not include a constitutional guarantee of a right
to strike.  Left the door opening in area of collective bargaining.
Dickson (dissenting):

Starts off by recognizing freedom to participate in determining conditions of work through collective
bargaining and the right to strike. He finds off the bat that by automatically extending the terms and
conditions of collective agreements and arbitral awards and by fixing wage increases for a two-year period,
the Act infringed the freedom of public sector employees to engage in collective bargaining

Bulk of his decision is a s.1 justification.

He focuses on rational connection. The purpose is legitimate – reducing inflation. However, gov’t workers
are only 5% of population and cannot cause inflation on their own.

At para 8, Dickson flags the requirements of the measure that warrant scrutiny – gov’t only employer in the
position to legislate its back to work conditions. Should the court attempt to treat the roles of gov’t and
employer separately and assess freedoms of workers wrt employment characteriziation, or should they allow
a broader set of justifications to come into play BECAUSE the employer is the fed’l gov’t?
21 | P a g e
Labour Law
o

If you reject the conflict of interest assumption, you are pushed to identify what the basis is for
allowing the gov’t to use this extraordinary power in the employment context
o You see a real attempt to justify this from the perspective of the public
o The government function is defined squarely – they are acting as a leader and are going to deal
with inflation problem and send a message to the private sector (note: several provinces followed
suit)
But the removal of the right to strike over non-compensatory issues as well as the right to submit such
disputes to binding arbitration was not a justifiable infringement of the freedom of association; therefore, s.
6(1)(b) is of no force and effect. The remainder of the Act was justifiable under s. 1 of the Charter
RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460
Jurisdiction
Facts
Issues
Holding
Reasoning
Following unsuccessful contract talks between the unions and the only major dairy businesses in
Saskatchewan, the unions served strike notices on the dairies. Before the rotating strike could begin,
the dairies served the unions with a series of lock-out notices covering all of their fluid milk plants. The
provincial legislature responded to these developments by passing The Dairy Workers (Maintenance
of Operations) Act which temporarily prohibited the dairy employees from striking and the dairies from
locking out their employees. The Saskatchewan Court of Queen's Bench dismissed the unions’
application for a declaration that the Act infringed the freedom of association guaranteed by s. 2(d) of
the Charter, but their appeal to the Court of Appeal was allowed.
Does the Act violate s. 2(d) of the Charter?
No.
Beetz, Le Dain and La Forest JJ.:

For the reasons expressed by Le Dain J. in the Alberta Reference, the guarantee of freedom of
association in s. 2(d) of the Charter does not include a guarantee of the right to bargain
collectively and the right to strike. Accordingly, The Dairy Workers (Maintenance of Operations)
Act did not violate s. 2(d) of the Charter.
Per McIntyre J.:

For the reasons I expressed in the Alberta Reference, the Act did not violate freedom of
association guaranteed in s. 2(d) of the Charter because freedom of association does not
embody the right to strike.
Dickson C.J.:

In the context of labour relations, the guarantee of freedom of association in s. 2(d) of the Charter
included the freedom to bargain collectively and to strike. Therefore, The Dairy Workers
(Maintenance of Operations) Act violated s. 2(d) of the Charter to the extent that it interfered with
the employees' freedom to engage in strike activity that would have been lawful in the absence of
the Act.

The Act was justifiable under s. 1 of the Charter. A legislature is entitled to abrogate the
freedom of employees to strike if the effect of a strike or lock‑out would be especially injurious
to the economic interests of third parties, provided that the legislature substituted a fair
arbitration scheme to resolve the dispute. The rationale for such an abrogation is that third
parties who do not participate in a particular collective bargaining process ought not to be unduly
harmed when the bargaining fails to produce a settlement.

Economic harm to a third party will not always suffice, however, to justify, under s. 1, legislation
abrogating the right to strike. In an interdependent economy, it is inevitable that a work stoppage
in one industry will entail detrimental economic consequences for at least some individuals in
other industries.

In view of the principles established in Oakes, the relevant question to be answered in making
such a determination is whether the potential for economic harm to third parties during a work
stoppage is so massive and immediate and so focussed in its intensity as to justify the limitation
of a constitutionally guaranteed freedom in respect of those employees.

In the case at bar, the legislative objective of avoiding serious harm to dairy farmers, in light of
the unique nature of the dairy industry, constituted a satisfactory justification for the abrogation of
the freedom of the dairy plant workers to strike. The evidence adduced indicated that the strike
and the lock‑out would entail a virtually total closure of milk processing facilities in
Saskatchewan. These facilities provided the sole outlet for dairy farmers and their closure would
pose a serious threat to the farmers in that they would be forced to dump their product. The dairy
22 | P a g e
Labour Law


farmers could not stop production and could not store the milk for more than three days.
These effects would persist whether the work stoppage was of a short or long duration. Not only
were the threatened economic losses large in absolute terms but they were to be borne in their
full intensity by the province's 800 dairy farmers. The economic harm threatened by a total work
stoppage in the dairy processing industry was so immediate, of such a high degree and of such
an intense focus as to fall well within the ambit of the legislature's discretion to substitute a fair
and efficient arbitration scheme for the dairy processing employees' freedom to strike.
The compulsory arbitration scheme enacted in the Act met the criteria of proportionality for such
a scheme. The Act applied only to the workers in the dairy industry; it provided for a neutral
arbitrator; either party could ultimately compel the other to submit to arbitration without
interference from the government; and the scope of arbitration was not legislatively restricted.
Accordingly, the Act satisfied the requirements of s. 1 of the Charter and embodied a reasonable
limit on freedom of association.
Wilson J. (dissenting):

The Dairy Workers (Maintenance of Operations) Act could not be saved under s. 1. The
prevention of economic harm to a particular sector is not per se a government objective of
sufficient importance to justify the limitation on the freedom of association guaranteed by s. 2(d).

To justify government interference with the collective bargaining process the government must
satisfy the court that as a minimum the damage to the dairy industry as a consequence of the
work stoppage would be considerably greater than that which would flow in the ordinary course
of things from a work stoppage of reasonable duration.

There is no basis of solid fact in this case on which to make a judgment as to whether the
government's intervention was reasonable or not. The government has thus failed to discharge
its onus and the infringement of respondents' freedom of association accordingly was not
demonstrably justified.

Assuming that the objective of protecting the economic interests of dairy farmers was of sufficient
importance to justify overriding the workers' right to strike, the means chosen were not closely
tailored to the objective so as to ensure the least possible infringement of the right. The
government should not automatically respond with a total strike ban and the institution of
compulsory arbitration. In the complex area of economic harm, the tailoring need not be exact
but tailoring there must be.

The second government objective supporting the limitation on the freedom under s. 2(d) was that
the dairy workers provided an essential service‑‑the delivery of an important food product to the
consumers‑‑and that the cessation of such delivery might threaten the health of part of the
population. There was no evidence to support this allegation. No threat to the health of
Saskatchewan consumers was therefore established.
Comments
Dickson relied on newspaper articles on economic argument, no evidence submitted – very shaky
RWDSU:

Look at para. 55 in Wilson’s judgement  when should governments intervene to prohibit strikes? In the
past the focus was on when it was BEST to intervene, not when it was constitutional. Section 2(d) now gives
the right to collective bargaining and the right to strike. “I cannot conclude, however, that the prevention of
economic harm to a particular sector is per se a government objective of sufficient importance to justify the
abrogation of the freedom guaranteed by s. 2(d)

Note that the ILO protection of freedom of association doesn’t assume the existence of a section 1. If there’s
balancing it’s done within the core right or freedom. So then perhaps the ILO doesn’t provide helpful
guidance if we can just take the whole analysis outside of the freedom.
(II) OVERRIDING AN COLLECTIVELY BARGAINED AGREEMENT
Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381
Jurisdiction
Facts
23 | P a g e
In 1988, the government of Newfoundland and Labrador signed a Pay Equity Agreement for female
employees in the health care sector including those represented in collective bargaining by the
appellant union. The collective agreements that had been in force between the government and the
public sector unions for a number of years included a prohibition against discrimination on the ground
Labour Law
of sex. Despite this provision, the parties had negotiated collective agreements from year to year
which paid female-dominated work classifications less than was paid to male-dominated
classifications for work of equal value.
In 1991, the government introduced the Public Sector Restraint Act, which deferred from 1988 to 1991
the commencement of the promised pay equity increase (s. 9) and extinguished the 1988-91 arrears.
The effect of s. 9 was to erase an obligation the Province had for approximately $24 million. The
justification for extinguishing the arrears was that the government was experiencing a financial crisis
unprecedented in the Province’s history.
The government adopted other severe measures to reduce the Province’s deficit, including a freeze
on wage scales for public sector employees, a closure of hospital beds, and a freeze on per capita
student grants and equalization grants to school boards. It also laid off almost two thousand
employees and terminated medicare coverage for certain items.
Issues
Holding
Reasoning
Grievances were filed by the union on behalf of some female employees affected by the cut to pay
equity. The Arbitration Board ordered the government to comply with the original terms of the Pay
Equity Agreement, holding that s. 9 of the Act infringed s. 15(1) of the Charter and that the
infringement could not be saved under s. 1. On judicial review, the motions judge quashed the
Board’s decision and dismissed the grievances. He agreed that s. 9 infringed s. 15(1) but found the
infringement justifiable under s. 1. This decision was upheld by the Court of Appeal decision.
1. Is the Public Sector Restraint Act a violation of s.15 of the Charter? 2. If so, can the violation be
justified under s.1?
1. Yes; 2. Yes.
Binnie J:

Pay equity has been one of the most difficult and controversial workplace issues of our times. By
1988, it had become a significant collective bargaining issue between the provincial government
in Newfoundland and the public sector unions.

The Pay Equity Agreement signed on June 24, 1988 was a major achievement. No doubt it was
bought by the public sector unions with concessions on other fronts. Progress on such an
important issue, once achieved, should not be lightly set aside.

But when the provincial government signed the Pay Equity Agreement in 1988, it changed the
legal landscape by creating enforceable contractual rights to end pay discrimination by a
procedure contractually binding on all of the parties. This process converted pay equity from a
policy argument into an existing legal obligation for the benefit of the female hospital workers.

The purpose of the Public Sector Restraint Act was to reduce the women’s pay below this
contractual entitlement and its intended effect was to continue to pay women less than was paid
to men for work of equal value. The female hospital workers were being told that they did not
deserve equal pay despite making a contribution of equal value.

The contextual factors listed in Law lead to the conclusion that the targeting of an acquired right
to pay equity amounted to discrimination within the meaning of s. 15(1) of the Charter. First, a
pre-existing disadvantage is shown since “women’s jobs” are chronically underpaid and the Act
perpetuated and reinforced the idea that women could be paid less for no reason other than the
fact that they were women. Second, the postponement of pay equity did not correspond to the
actual needs, capacity or circumstances of the claimants. Indeed, it did just the opposite. Third,
the Act did not have an ameliorative purpose in relation to the workforce. Fourth, since work is
an important part of life, the (nature and scope of the) interest affected by the Act was of great
importance. In sum, s. 9 of the Act affirmed a policy of gender discrimination which the provincial
government had itself denounced three years previously.
Section 1

Nevertheless, s.9 is justified under s.1 of the Charter. The need to address the fiscal crisis was a
pressing and substantial legislative objective in the spring of 1991. The crisis was severe. The
cost of putting pay equity into effect according to the original timetable was a major expenditure.
A lower credit rating, and its impact on the government’s ability to borrow, and the added cost of
borrowing to finance the provincial debt, were matters of great importance.
 Note: The Court defers to legislature regarding evidence. Only factual evidence was an
extract from Hansard and some budget documents, but since it is only public accounts that
are in question, the court took “judicial notice” of it.
 Moreover, the government was debating not just rights versus dollars, but rights versus
hospital beds, layoffs, jobs, education and social welfare.
24 | P a g e
Labour Law


Courts will continue to look with strong scepticism at attempts to justify infringements of
Charter rights on the basis of budgetary constraints. Nevertheless, the courts cannot close
their eyes to the periodic occurrence of financial emergencies when measures must be
taken to juggle priorities to see a government through the crisis.
The government’s response to its fiscal crisis was also proportional to its objective.
 First, as the pay equity payout represented a significant portion of the budget, its
postponement was rationally connected to averting a serious financial crisis.
 Second, the government’s response was tailored to minimally impair rights in the context of
the problem it confronted. Despite the scale of the fiscal crisis, the government proceeded
to implement the pay equity plan, albeit at a slower pace. In addition, the government
initiated a consultation process with the union to find alternative measures. There were
broad cuts to jobs and services. The exceptional financial crisis called for an exceptional
response. In such cases, a legislature must be given reasonable room to manoeuvre.
(NOTE: Binnie notes that this case provides a contrast with Eldridge, where the cost of
compliance amounted to no more than a matter of administrative convenience. This seems
weird to me – like the minimal impairment can be taken more seriously when the right being
minimally impaired is less expensive to realize?)
 Third, on a balance of probabilities the detrimental impact of a delay in achieving pay equity
did not outweigh the importance of preserving the fiscal health of a provincial government
through a temporary but serious financial crisis. The seriousness of the crisis, combined
with the relative size of the $24 million required to bring pay equity in line with the original
schedule, are the compelling factors in that respect. The fiscal measures adopted by the
government did more good than harm, despite the adverse effects on the women hospital
workers.
Comments
N.A.P.E.:

What’s central in this case is that the very negotiation of the agreement was an extremely clear statement of
discrimination in pay practices.
o So we know that the gov’t consulted with the union and even “negotiatiate” to consider what other
options might be possible. There’s even an agreement about the original pay equity agreement –
it’s incorporated into the collective agreement

What is the relationship between the Charter, the agreement, and the worker?

Paragraph 33 – employer undertakes a remedial measure – it cannot be constitutionalized. At para 46,
Binnie says: “The Public Sector Restraint Act reinforced an inferior status by taking away the remedial
benefits their unions had negotiated on their behalf.”
o Pay attention to how the entry into s. 15 is constructed here.
o Compare with how cases in s. 2(d) have been treated

The crux of the NAPE decision is s. 1. Court takes judicial notice of the financial crisis and a very willing
position on a particular type of gov’t action.
o Decision turns on minimal impairment argument.

The upshot is that it’s going to cost the government a lot of money

What would paying have meant – it would have meant a bigger deficit

Is the court’s role to step that far into the budgetary matters? – Was there really minimal impairment?
Blackett thinks that the reasoning in the minimal impairment section sounds more like justification of the
government’s actions than an explanation of how the rights were minimally impaired.
(II) RIGHT TO COLLECTIVE BARGAINING RECOGNIZED
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27
Jurisdiction
Facts
25 | P a g e
The Health and Social Services Delivery Improvement Act was adopted as a response to the “crisis in
sustainability” facing British Columbia’s health care system. In the period from 1991 to 2001, the
growth rate of health care costs in BC was three times that of the provincial economy. The Act was
quickly passed and there was no meaningful consultation with unions before it became law. Union
representatives expressed their desire to be further consulted. The Minister of Health Services
phoned a union representative 20 minutes before Bill 29 was introduced in the legislature to inform the
Labour Law
union that the legislation would deal with employment security and other provisions of existing
collective agreements. This was the only consultation with unions before the Act was passed.
Issues
Holding
Reasoning
26 | P a g e
In British Columbia, the collective bargaining structure in the health services is sectoral. Thus, the Act
affects labour relations between “health sector employers” and their unionized employees. Part 2 of
the Act introduced changes to transfers and multi worksite assignment rights (ss. 4 and 5), contracting
out (s. 6), the status of contracted out employees (s. 6), job security programs (ss. 7 and 8), and
layoffs and bumping rights (s. 9). It gave health care employers greater flexibility to organize their
relations with their employees as they see fit, and in some cases, to do so in ways that would not have
been permissible under existing collective agreements and without adhering to requirements of
consultation and notice that would otherwise obtain. It invalidated important provisions of collective
agreements then in force, and effectively precluded meaningful collective bargaining on a number of
specific issues. Furthermore, s. 10 voided any part of a collective agreement, past or future, which
was inconsistent with Part 2, and any collective agreement purporting to modify these restrictions.
The appellants, who are unions and members of the unions representing the nurses, facilities, or
community subsectors.
Does Part 2 of the Act violate freedom of association and equality under the Charter?
Sections 6(2), 6(4) and 9 violate s.2(d), but not s.15 (summary not dealing with s.15).
McLachlin + Le Bel (+Bastarache, Binnie, Fish, Abella):

Freedom of association includes a procedural right to collective bargaining. This
protection does not cover all aspects of “collective bargaining”, as understood in the statutory
regimes that are in place across the country. Nor does it ensure a particular outcome in a labour
dispute, or guarantee access to any particular statutory regime. What is protected is simply the
right of employees to associate in a process of collective action to achieve workplace goals. If
the government substantially interferes with that right, it violates s. 2(d) of the Charter
(Dunmore)

We note that the present case does not concern the right to strike.

The history of collective bargaining demonstrates that association for such purposes has long
been recognized as a fundamental Canadian right which predated the Charter.
 We can look to the framework of rights and responsibility established by the state (1940s)
after it apparent that unions were natural concomitants of a mixed enterprise economy.
 We can also trace our labour law roots to British and American law. American law became
an influential force when the United States passed the Wagner Act in 1935
 The development of labour relations law in Canada may be divided into three major eras:
repression, toleration and recognition.
 Workers in Canada began forming collectives to bargain over working conditions with their
employers as early as the 18th century. However, the common law cast a shadow over
the rights of workers to act collectively. When Parliament first began recognizing workers’
rights, trade unions had no express statutory right to negotiate collectively with employers.
Employers could simply ignore them. However, workers used the powerful economic
weapon of strikes to gradually force employers to recognize unions and to bargain
collectively with them.
By adopting the Wagner Act (see notes below) model,
governments across Canada recognized the fundamental need for workers to participate
in the regulation of their work environment. This legislation confirmed what the labour
movement had been fighting for over centuries and what it had access to in the laissezfaire era through the use of strikes — the right to collective bargaining with employers.
 By the time the Charter was enacted in 1982, collective bargaining had a long tradition in
Canada and was recognized as part of freedom of association in the labour context

Canada’s international obligations can assist courts charged with interpreting the
Charter’s guarantees.
 Canada’s adherence to international documents recognizing a right to collective
bargaining also supports recognition of that right in s. 2(d). The Charter should be
presumed to provide at least as great a level of protection as is found in the international
human rights documents that Canada has ratified. The most important sources are the
ICESCR, the ICCPR and Convention No. 87 which all extend protection to the functioning
of trade unions in a manner suggesting that a right to collective bargaining is part of
freedom of association.
 Note a recent ILO report summarizing principles concerning collective bargaining
recognizes the principle of good faith in collective bargaining (which implies recognizing
representative organizations, endeavouring to reach an agreement, engaging in genuine
and constructive negotiations, avoiding unjustified delays in negotiation and mutually
Labour Law

respecting commitments), and notes the unacceptability of compulsory arbitration in
deadlock or interventions by governments that modify or nullify past collective
agreements. It also notes that restrictions on future collective agreements are only
permissible following consultation and must be exceptional measures; of limited duration;
and include protection for workers’ standards of living.
Finally the right to bargain collectively with an employer is consistent with Charter values, and
enhances the human dignity, liberty, autonomy, and equality of workers.
The Right to Collective Bargaining under s.2(d)

The constitutional right to collective bargaining concerns the protection of the ability of workers to
engage in associational activities, and their capacity to act in common to reach shared goals
related to workplace issues and terms of employment.

NOT A SUBSTANTIVE RIGHT. Section 2(d) of the Charter does not guarantee the particular
objectives sought through this associational activity but rather the process through which those
goals are pursued.

It means that employees have the right to unite, to present demands to government employers
collectively and to engage in discussions in an attempt to achieve workplace related goals.
Section 2(d) imposes corresponding duties on government employers to agree to meet and
discuss with them. It also puts constraints on the exercise of legislative powers in respect of the
right to collective bargaining.

Section 2(d) protects only against “substantial interference” with associational activity. Intent to
interfere with the associational right of collective bargaining is not essential to establish breach of
s. 2(d). It is enough if the effect of the state law or action is to substantially interfere with the
activity of collective bargaining.
Test
To constitute substantial interference with freedom of association, the intent or effect must seriously
undercut or undermine the activity of workers joining together to pursue the common goals of
negotiating workplace conditions and terms of employment with their employer.

Determining whether a government measure affecting the protected process of collective
bargaining amounts to substantial interference involves two inquiries:
1) The importance of the matter affected to the process of collective bargaining, and
more specifically, the capacity of the union members to come together and pursue
collective goals in concert.
 It is probably not a violation if there is interference with bargaining over issues of less
importance.
 The importance of an issue to the union and its members is not itself determinative, but
will bear on the “single inquiry” prescribed in Dunmore as it applies in the particular
context of collective bargaining: does interference with collective bargaining over certain
subject matter affect the ability of the union members to come together and pursue
common goals?
 The more important, the more likely there is substantial interference.
2) The manner in which the measure impacts on the collective right to good faith
negotiation and consultation.
 A basic element of the duty to bargain in good faith is the obligation to actually meet and
to commit time to the process. The parties have a duty to engage in meaningful dialogue,
to exchange and explain their positions and to make a reasonable effort to arrive at an
acceptable contract.
 However, the duty to bargain in good faith does not impose on the parties an obligation to
conclude a collective agreement, nor does it include a duty to accept any particular
contractual provisions.
 In considering whether the legislative provisions impinge on the collective right to good
faith negotiations and consultation, regard must be had for the circumstances surrounding
their adoption. Situations of exigency and urgency may affect the content and the
modalities of the duty to bargain in good faith.

If the matters affected do not substantially impact on the process of collective bargaining (i.e.
don’t meet step 1), the measure does not violate s. 2(d) and the employer may be under no duty
to discuss and consult. If, on the other hand, the changes substantially touch on collective
bargaining (i.e. does meet step 1), they will still not violate s. 2(d) if they preserve a process of
consultation and good faith negotiation (i.e. step 2 is met). Only where the matter is both
important to the process of collective bargaining and has been imposed in violation of the duty of
27 | P a g e
Labour Law
good faith negotiation will s. 2(d) be breached.
Application to Case

In this case, ss. 4, 5, 6(2), 6(4) and 9 of the Act, in conjunction with s. 10, interfere with the
process of collective bargaining, either by disregarding past processes of collective bargaining,
by pre-emptively undermining future processes of collective bargaining, or both. Sections 4 and
5 are concerned with relatively minor modifications to in place schemes for transferring and
reassigning employees. Significant protections remained in place. While the Act took these
issues off the collective bargaining table for the future, on balance, ss. 4 and 5 cannot be said to
amount to a substantial interference with the union’s ability to engage in collective bargaining so
as to attract the protection under s. 2(d) of the Charter.

However, the provisions dealing with contracting out (ss. 6(2) and 6(4)), layoffs (ss. 9(a), 9(b)
and 9(c)) and bumping (s. 9(d)) infringe the right to bargain collectively protected by s. 2(d).
These provisions deal with matters central to the freedom of association and amount to
substantial interference with associational activities. Furthermore, these provisions did not
preserve the processes of collective bargaining.

Although the government was facing a situation of exigency, the measures it adopted constituted
a virtual denial of the s. 2(d) right to a process of good faith bargaining and consultation.

The section 2(d) infringement is not justified under s. 1 of the Charter. While the government
established that the Act’s main objective of improving the delivery of health care services and
sub objectives were pressing and substantial, and while it could logically and reasonably be
concluded that there was a rational connection between the means adopted by the Act and the
objectives, it was not shown that the Act minimally impaired the employees’ s. 2(d) right of
collective bargaining. The record discloses no consideration by the government of whether it
could reach its goal by less intrusive measures. A range of options were on the table, but the
government presented no evidence as to why this particular solution was chosen and why there
was no meaningful consultation with the unions about the range of options open to it.

This was an important and significant piece of labour legislation which had the potential to affect
the rights of employees dramatically and unusually. Yet, it was adopted rapidly with full
knowledge that the unions were strongly opposed to many of the provisions.

Deschamps J (dissenting in part):

Yes s.2(d) includes a right to bargain collectively, but the analysis should be reversed: First
consider good faith consultation and interference in the process of negotiation; then turn to step
two and consider whether issues are significant.

While I agree ss. 4, 5, 6(2) and 9 violate s.2(d), they are all justified. Only s. 6(4) is not saved
under s.1.
Comments
Note that in the section 15 analysis, the court says at para 165 that although there may be categories
that are female-dominated, the segregation of different sectors of employment is not discrimination
per se. The differential and adverse effects of the legislation on some groups of workers relate
essentially to the type of work they do, and not to the persons they are.
B.C. Health Services cont’d:

Court notes that Canada has committed itself to Convention 87 bilaterally, but does not mention Convention
98 which is not ratified and speaks specifically to collective bargaining. However, 98 does relate to the ILO
Declaration.

So why mention the declaration at all? The Court requires dynamic interpretation of the Charter, and the
Declaration provides international consensus on certain fundamental principles. The consensus itself has
crystallized in the document.

The substance of collective bargaining is drawn entirely from our labour relations framework – the Wagner
Act model. In B.C. Health Services, the court cited Klare who identified the following main objects of the
Wagner Act:
1.
2.
28 | P a g e
Industrial Peace: By encouraging collective bargaining, the Act aimed to subdue “strikes and other
forms of industrial strife or unrest,” because industrial warfare interfered with interstate commerce;
that is, it was unhealthy in a business economy. Moreover, although this thought was not embodied
in the text, industrial warfare clearly promoted other undesirable conditions, such as political
turmoil, violence, and general uncertainty.
Collective Bargaining: The Act sought to enhance collective bargaining for its own sake because of
its presumed “mediating” or “therapeutic” impact on industrial conflict.
Labour Law
3.
4.
5.
6.






Bargaining Power: The Act aimed to promote “actual liberty of contract” by redressing the unequal
balance of bargaining power between employers and employees.
Free Choice: The Act was intended to protect the free choice of workers to associate amongst
themselves and to select representatives of their own choosing for collective bargaining.
Underconsumption: The Act was designed to promote economic recovery and to prevent future
depressions by increasing the earnings and purchasing power of workers.
Industrial Democracy: This is the most elusive aspect of the legislative purpose, although most
commentators indicate that a concept of industrial democracy is embedded in the statutory
scheme, or at the least was one of the articulated goals of the sponsors of the Act. Senator Wagner
frequently sounded the industrial democracy theme in ringing notes, and scholars have
subsequently seen in collective bargaining “the means of establishing industrial democracy, . . . the
means of providing for the workers’ lives in industry the sense of worth, of freedom, and of
participation that democratic government promises them as citizens.”
The goal is not to constitutionalize any particular industrial relations framework – we don’t know if this
framework is going to survive – it’s a historically specific framework of workers and employees
What are the three core underpinnings of this process of collective bargaining? Grounded in procedural stuff
What does collective bargaining mean, if we focus on the process?  Good-faith consultation
negotiation. This is what the court seizes upon in this context to mean collective bargaining.
There isn’t a lot of reasoning offered to explain why the interference is considered to substantial
Strange reasoning around minimal impairment in paragraphs 156-160 -- Paragraph 159 – strong
condemnation of absence of consultation of union, para 160 – alternative ways that gov’t can achieve
objectives
Deschamps reasoning:
o Her contextualizing invokes the health care system
Fraser (Attorney General), 2008 ONCA 760










This case follows Dunmore, gov. lost, created a statute, but made a requirement of consultation, no
protection of bargaining rights
First superior court lose 2d (before BC Health), after Dunmore, required to do something, made a statute –
but it
Judge says without statutory duty to bargain in good faith, there is no meaning in collective bargaining
process, quite expansive
But still talks about vulnerability
Need a majority union structure, legislatively protected to respect constitutional freedoms (since BC Health)
Majoritarian requirement is new – BC Health talked about the process (not about structures), in Wagner
need majority for certification
Minimum statutes required for meaningful exercise of freedom
1. Statutory duty to bargain gf
2. Statutory duty exclusivity and majoritarianism
3. Statutory duty to have dispute resolution
S. 1 analysis – accepts family farm was pressing and substantial but captures government under
proportionality (not rationally connected to farm economy – agro-business not family farm)
Remedy is to suspend the law, and have the government try again
Just granted leave to SCC
Fraser v. Ontario [2008] Supreme Court of Canada, Casebook p. 68
Facts
 Michael Fraser and other claimants worked in a mushroom factory called Rol-Land Farms,
and were trying to form a union with UFCW
 This case deals with the same group of agricultural workers excluded from the Labour
Relations Act by the Mike Harris Conservative government
 See Dunmore, or ILO reports for extensive discussion of the facts
 In Dunmore, the SCC did not require Ontario to allow agricultural workers access to the
statutory protections of a full collective bargaining regime like the LRA, but it did demand
access to “machinery” that would allow them access to their s.2(d) rights
 In response, the Ontario gov’t brought in the AEPA (Agricultural Employees Protection
Act), which allowed some limited rights (e.g. to form associations), but did not require the
employer to recognize or bargain with an employee association
29 | P a g e
Labour Law
 The workers now claim, in a post-BC Heatlh Services context, that the AEPA statute
infringes on their s.2(d) rights to collectively bargain
1. Does the AEPA substantially interfere in the s.2(d) rights of the agriculture workers,
such as the right to organize and bargain collectively?
2. Does the AEPA violate the s.15 rights of these workers, since many are
marginalized?
1. Yes, the AEPA is a violation of s.2(d) not saved under s.1.
2. No, the s.15 rights are not violated.
Violation of s. 2(d)
 Previously (e.g. in Dunmore), the scope of s.2d had been circumscribed more narrowly,
granting the freedom to form associations was a constitutional right, but not anything more
 Since BC Health Services, the right to bargain collectively – which essentially means
employers must meet with these associations and treat them as the representatives of
employees – has been considered protected, widening the scope of s.2d
 Here, the court holds that sometimes access to the right of collective bargaining imposes
positive obligations on governments to enact legislation protecting vulnerable workers (¶
52); test for when positive action by gov’t required is called Baier Test
1. Is the activity for which claimants seek s.2d protection associational activity?
2. Are applicants seeking positive action from gov’t? If yes…must meet next criteria.
3. Is the claim grounded in a fundamental freedom protected by s.2(d) or just an
exclusion from a particular statutory regime?
4. Does the purpose or effect of exclusion from a statutory regime substantially
interfere with freedom to organize associations, or right to bargain collectively?
5. Is gov’t responsible for inability to exercise this freedom?
 Applying the Baier test, we see applicants are seeking positive gov’t action, though not
necessarily inclusion within the LRA, just statutory support to bargain collectively
 In effect, if not purpose, legislation substantially interferes w/ 2d right to bargain
collectively
 Right to collective bargaining must mean a single organization be selected by workers on
a majoritarian basis and imbued w/ exclusive bargaining rights (¶ 92)
Issues
Holding
Ratio
Is violation saved by Oakes Test?
 Pressing and Substantial Objective: Yes, ensuring farm productivity & family farm success
 No Rational Connection: “the wholesale exclusion of agricultural employees from a
collective bargaining scheme is not adequately tailored to meet the objective of protecting
the family farm”; also arbitrary to exclude agricultural workers from bargaining based on
economic situation of agriculture industry, when other industries with thin profit margins
don’t have this exclusion (¶ 129)
 No Minimal Impairment: Court notes all agricultural employees excluded (compared to in
NB or QC, where farm workplaces need 5 or 3 workers minimum to unionize)
Remedy: AEPA is declared invalid (with 12 month grace period), and gov’t must provide
agricultural workers with “sufficient protections” to be able to bargain collectively;
Comment
Violation of s.15
 Agricultural worker does not qualify as a protected group
- The government of Ontario has been granted leave to appeal to the case to the SCC
CSN c. Québec (Procurer general), 2007 QCCS 5513







Gov. created Bill 30 which took out bargining from labour code and created a dramatic restructuring of
health sector
Different bargaining units were reduced (numerous units to 4) and many were bargaining at different levels,
the government insisted that certain matters were to be bargained at local levels
Merged units who were not in the same interests (anaesthesiologists, nurses and auxiliary nurses)
Nurses and auxiliary nurses had opposite interests
Court emphasized right to chose own units for negotiation
Used the history of negotiations to understand situation – nutritionists and dieticians fought for professional
recognition (predominantly female) with specific organizational and associational interests – their union had
30 | P a g e
Labour Law





1000 workers and in the merged union constituted less than 1% of the members
Nurses and nurses aids had different locus for their work – discussion of distinctiveness of work
Discusses social history and distinct application of freedom of association – doesn’t prevent unions from
existing but undermines associational character –distinction made in terms of effects and avoiding
interference – encroachment impacts on good faith
Infringed on collective bargaining for health services, extended protection to the issue of definition
of units
Remedy is not reinclude, but to let the legislature figure it out
Currently being appealed Court of Appeal
Plourde
QLC
15. Where an employer or a person acting for an employer or an employers' association dismisses, suspends or
transfers an employee, practises discrimination or takes reprisals against him or imposes any other sanction upon
him because the employee exercises a right arising from this Code, the Commission may
(a) order the employer or a person acting for an employer or an employers' association to reinstate such employee in
his employment, within eight days of the service of the decision, with all his rights and privileges, and to pay him as
an indemnity the equivalent of the salary and other benefits of which he was deprived due to dismissal, suspension or
transfer.
Indemnity.
That indemnity is due in respect of the whole period comprised between the time of dismissal, suspension or transfer
and that of the carrying out of the order, or the default of the employee to resume his employment after having been
duly recalled by his employer.
Deduction.
If the employee has worked elsewhere during the above mentioned period, the salary which he so earned shall be
deducted from such indemnity;
(b) order the employer or the person acting for an employer or an employers' association to cancel the sanction or to
cease practising discrimination or taking reprisals against the employee and to pay him as an indemnity the
equivalent of the salary and other benefits of which he was deprived due to the sanction, discrimination or reprisals.
QLC
Complaint.
16. The employees who believe that they have been the victim of a sanction or action referred to in section 15 must,
if they wish to avail themselves of the provisions of that section, file a complaint at one of the offices of the
Commission within thirty days of the sanction or action.
QLC
Burden of proof.
17. If it is shown to the satisfaction of the Commission that the employee exercised a right arising from this Code,
there is a simple presumption in his favour that the sanction was imposed on him or the action was taken against him
because he exercised such right, and the burden of proof is upon the employer that he resorted to the sanction or
action against the employee for good and sufficient reason.
Plourde v. Québec (Commission des relations du travail) 2007 QCCS 3165





Walmart closed once collective bargaining was underway, the workers had just unionized, had trouble
establishing a bargaining relationship – legislation provided for an arbitrator to get bargaining under way –
Walmart closed the store
Plourde was involved in organizing, then plant closed, lost his job
Framed as s. 15 (employer who is dismissing or discriminating punishing employee because of exercising a right
under the code, then CRT can intervene and direct employee – remedy power) and 17 QLC
Plourde files a claim under 15 and following QLC (technically 16 – employee can file the claim, 15 powers of
commission and circumstances it can act, 17 is presumption for the employee, burden on employer to rebut the
claim and establish sufficient and just cause)
A judicial review of CRT decision, CRT had said freedom of association doesn’t prevent closing of plant whatever
his motives, if closing is definite, the closure is reason job terminated, and reason is not union activity
31 | P a g e
Labour Law



Standard of review is reasonableness (not correctness)
Does not discuss whether this is consistent with 2d
Court’s decision : Para 34 closure of the plant is not itself a punishment or sanction on individual – but
the cause of the job, thus it sufficient and justified (closing the plant is not against employee – it is an
indirect way of subverting unionization)
Plourde v. Québec (Commission des relations du travail) 2007 QCCA 1210


Reiterates the Superior Court – even at the face of Health Services, the doctrine Place des Arts (which had
pickied up on City Buick) – is not displaced by Health Services
An employer can close a business and this is not anti-union activity
IV. Acquisition and Termination of Bargaining Rights
What are the strengths and weaknesses of enterprise-level organizing?
(I) EMPLOYEE STATUS
NOTE: See La Légumière re employee status of seasonal agricultural workers.
Definition of Employee
s. 1(l) – QLC
(l) “employee”: a person who works for an employer and for remuneration, but the word does not include:
(1) a person who, in the opinion of the Commission, is employed as manager, superintendent, foreman or
representative of the employer in his relations with his employees;
(2) a director or officer of a legal person, unless a person acts as such with regard to his employer after having been
designated by the employees or a certified association;
(3) a public servant of the Government whose position is of a confidential nature in the opinion of the Commission or
under the terms of an agreement binding the Government and the associations certified in accordance with Chapter
IV of the Public Service Act ( chapter F-3.1.1) which are parties to a collective agreement that otherwise would apply
to such public servant; such is the position of a conciliation officer, a mediator or a mediator-arbitrator of the Ministère
du Travail, a mediator of the Conseil des services essentiels, a member of the staff of the executive council, of the
Auditor General, of the Commission de la Fonction publique or of the executive staff of a minister or of a deputy
minister, or a public servant who, in a department or agency of the Government, is a member of the personnel
service or of a personnel management division;
(3.1) a public servant of the Ministère du Conseil exécutif, except in the cases that the Government may determine
by order;
(3.2) a public servant of the Conseil du trésor, except in the cases that the Government may determine by order;
(3.3) a public servant of the Institut de la statistique du Québec assigned to functions referred to in section 4 of the
Act respecting the Institut de la statistique du Québec ( chapter I-13.011);
(4) a criminal and penal prosecuting attorney;
(5) a member of the Sûreté du Québec;
(6) a member of the personnel of the chief electoral officer;
(7) a labour relations officer of the Commission;
*see s.. 21.5 QLC for Agricultural worker (also Legumiere)
Powers of the Commission. - QLC
s. 39. Of its own motion during its investigation and at any time upon request by an interested party, the Commission
may decide if a person is an employee or a member of an association, if he is included in the bargaining unit, and any
other matters relating to certification.
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Labour Law
s. 3 Canada Labour Code
“employee”
“employee” means any person employed by an employer and includes a dependent contractor and a private
constable, but does not include a person who performs management functions or is employed in a confidential
capacity in matters relating to industrial relations;
“employer”
“employer” means
(a) any person who employs one or more employees, and
(b) in respect of a dependent contractor, such person as, in the opinion of the Board, has a relationship with
the dependent contractor to such extent that the arrangement that governs the performance of services by
the dependent contractor for that person can be the subject of collective bargaining;
s. 4 Canada Labour Code
Application of Part
4. This Part applies in respect of employees who are employed on or in connection with the operation of any federal
work, undertaking or business, in respect of the employers of all such employees in their relations with those
employees and in respect of trade unions and employers’ organizations composed of those employees or employers.
-CLC is divided into 3 sections ( 1) collective bargaining, 2) employment standards and occupational safety, 3)
industrial labour standards)
-the emphasis for manager is real authority, responsibility rather than just making decision that need to be vetted by a
supervisor – in New Economy, the attempt to give some authority and decision-making ability to supervisors /
associates – more restrictive approach to interpret exception
-exception is there, consistently dealt with in Quebec – trying to understand managerial authority distinguished from
broad range of exercise for some responsibility
CSN c. Québec (Procurer general), 2008 QCCS 5057
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2 categories of workers – childcare worker and workers for adults without capacity, mostly were poor women
workers, these workers went to the Commission des relations du travail, the commissioner told them they
were workers, unions began to form
In 2003, a newly installed provincial government enacted Loi sur les services de santé et les services
sociaux [Loi 7] and Loi sur les centres de la petite enfance et autres services de garde à l’enfance [Loi 8] to
deem that despite any decision made to the contrary, at-home caregivers were not employees and had
never been employees. The effect of Loi 7 and Loi 8 was that the caregivers were not able to engage in
collective bargaining.
The litigants brought an action under s. 2(d) and s. 15 of the Charter (seeking access to QLC)
Are Loi 7 and Loi 8 unconstitutional (according to s. 2d and 15). Yes.
If yes, are the laws justified under s. 1? No
Justice Grenier found that the impugned laws infringed both on caregivers’ freedom of association and
equality rights
have been in unions – so disbanding, the process of collective bargaining to obtain minimal norms of
protection – if you deprive them collective bargaining – deprive them of rights achieved (also highlights that
this law was retroactive)
drew extensively from international law in her s. 2(d) analysis
in s. 15 analysis ruled that the caregivers were discriminated against on two grounds, the enumerated
ground of gender (work was gendered) and the analogous ground of “at-home care work” – location is key –
if these workers were in a private business or in a public enterprise – would not have received the same
treatment
talks about historic disadvantage, stereotyping
careful to talk about the nature of the work, historical isolation of it and how it had never been accepted as
real work
discusses the vulnerability of the workers, picks up on L’Heureux-Dubé’s discussion of vulnerability in
Delisle
Found that these infringements were unjustified, and as such, the Court stuck down Loi 7 and Loi 8.
-in CSN think about the relationship between CSN and the Labour Code – interplay of employment status in other
statutory frameworks – this case finesses the significance of statutes
33 | P a g e
Labour Law
Pointe-Claire and Natrel show us another way of getting in the door. These cases are very different – there are actual
challenges to the definitions of employer and employee within the labour relations statute. There are structural
relationships that fail to capture the changing relationship between individual labourers and individuals/structures set
up to receive services provided.
In Pointe-Claire, there is no question of whether the employee is an employee. Madame is in a relationship of
subordination to someone. The question is WHO the employer is. Divide up the traditional characteristics to be an
employer. The Quebec Labour Code is deeply unhelpful. Who the e’yer is for one purpose (emyt standards) is not the
e’yer for unionization and collectivization under the Code. You see in the case a tension in trying to avoid absurdity in
consequence of the case.
There is absurdity in Natrel where they try to articulate what employee status might mean in the Labour Code.
Bifurcated status becomes critical. Does fidelity to employment standards models matter? Also Natrel brings up the
issue of how specific labour statute is.
Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015
Jurisdiction
Facts
Issues
Holding
Reasoning
34 | P a g e
City of Pointe Claire hired Ginette Lebeau through a personnel agency to work for 6 weeks as a
receptionist and then for 18 weeks as a clerk. During the two work assignments, the employee’s
wages were determined and paid by the agency, which submitted an invoice to the city. The
employee performed her work under the direction and supervision of a manager working for the city.
The general working conditions, such as hours of work, breaks and statutory holidays, were dictated
by the city. If the employee had not been qualified or had experienced problems in adapting, the city
would have informed the agency, which would have taken the appropriate action.
The city union requested to have the temporary employee included in the union’s bargaining unit. The
labour commissioner found that the city was the employee’s real employer since the evidence showed
that it had actual control over the work done by Ms. Lebeau and granted the union’s request. On
appeal, the Labour Court also stressed the importance of day-to-day control of working conditions. It
acknowledged that the agency recruited, assigned positions to, evaluated, disciplined and paid the
temporary employees, but concluded that the city was the real employer. The Labour Court also
noted that there was a relationship of legal subordination between the city and the employee because
the city’s managers directed and supervised how she did her day to day work. It also noted that while
wages were paid by the agency, they depended on the work requested by the City. The Superior
Court dismissed the motion in evocation brought by the city, finding that the Labour Court’s decision
was not patently unreasonable (affirmed by C.A.)
Who was the employee’s real employer (for the purposes of whether she could be included in the
bargaining unit)? (Was the Labour Court’s decision patently unreasonable?)
The city. (No.)
Lamer C.J. (+ La Forest, Gonthier and Cory JJ.):

Specialized administrative tribunals has established that the employer-employee relationship is
defined by three essential elements, as per the QLC: 1) performance of work, 2) remuneration
and 3) the legal subordination of the employee to the employer.

The Labour court has consistently underscored the importance of the legal subordination
criterion, which basically encompasses the notion of actual control by a party over the
employee’s day to day work. The court has consistently found that the agency’s client is the real
employer.

However, in Vassart (Qc S.C., 1990), the court held that the test of actual control over work
performance is much too rigid. Whether someone is an employee depends on a series of factors,
of which actual control over work is but one.

I agree with the court in Vassart that to identify the real employer in a tripartite relationship, a
comprehensive approach must be taken.
 The criterion of legal subordination (i.e. encompassing the notion of actual control by a party
over the employee’s day to day work), and the criterion of integration into the business must
not be used as exclusive criteria for identifying the real employer.

Moreover, when there is a certain splitting of the employer’s identity in the context of a tripartite
relationship, a comprehensive approach has the advantage of allowing for a consideration of
which party has the most control over all aspects of the work on the specific facts of each case.
This approach requires a consideration of the factors relevant to the employer-employee
relationship, including (but not limited to): the selection process, hiring, training, discipline,
evaluation, supervision, assignment of duties, remuneration and integration into the
Labour Law
business.
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Labour Court used a comprehensive approach by not basing its decision solely on the criterion of
legal subordination, looked at working conditions and the criterion of legal subordination, role of
the agency and the city with respect to remuneration and discipline, and the specific facts of the
employee’s case. Nor did the Labour Court ignore the agency’s role in recruiting, training and
evaluating the employee.
Furthermore, remuneration was not determinative in this case. Besides, the source of
remuneration is not conclusive in identifying the employer, because the QLC does not mention it.
The employee need only be given wages, and it was the City who bore the brunt of it anyway,
even if the agency actually paid the wages to the eyee.
However, it justified giving predominant weight to working conditions and the legal subordination
test by relying on the ultimate objective of the Labour Code. The purpose of certification is to
promote bargaining between the employer and the union in order to determine the employees’
working conditions. According to the Labour Court, those conditions are “essential aspects of an
employee’s experience”. The reasoning of the Labour Court was not patently unreasonable.
L’H-D (dissenting):

In the type of tripartite relationship at issue in this case, all of the traditional elements of an
employment relationship exist between the agency and its employee. As the Code only
envisages and regulates the negotiation of a bipartite employment relationship, and does
not contemplate the existence of two simultaneous employers for one employee, for the
same work, done at the same time, logic would dictate that an agency in such
circumstances is the employer of such an employee for the purposes of this regime.

The focus on identifying the employer to whom the employee is legally subordinate and the
examination of all the relevant factors of an employment relationship are essential to a global
determination of the true employer in a tripartite arrangement. The test of de facto control over
the work performed by the employee is too rigid and must be rejected. That test was developed
in the bipartite context and has a very different objective from that at issue in a tripartite
arrangement.

Worried that this decision will wreak havoc – co-existence of different statutory frameworks for
broad relationship employment, agency has done most of the functions – proposes that
legislation address this problem, not the court

In the interim, should be left as is, the agency is the employer

Labour court is moving outside its jurisdiction in deciding the tripartite relationship

Para 131 – absurdities of decision – “This situation creates a number of impracticable,
anomalous, and irrational consequences for the parties involved. First, confusion will inevitably
arise as to who the employer is, particularly as regards important rights in the workplace.
Second, the Labour Court’s decision creates incoherence within labour and employment
legislation. Third, some of the most important of an employee’s rights pursuant to the collective
agreement binding the City are unenforceable against the agency and, therefore, virtually
meaningless for the employee within this arrangement. Fourth, many conditions of employment
which are of great concern to a temporary services employee will be completely absent from
such a collective agreement. Fifth, the employee is prevented from exercising her rights,
pursuant to the Code, to collective negotiation with the agency of these and other important
terms of employment. Sixth, and finally, the employee is denied many other rights pursuant to
legislation aimed at ensuring minimum standards of employment. It is simply inconceivable to me
that a tribunal empowered to give effect to the collective bargaining regime established by the
Code would deny a vulnerable group of employees the right to avail themselves of not only this
regime, but others intended to protect employees.
Comments
Pointe Claire:

This case is about defining the relationship between the city and the employee.

City employee (Mdme Lebeau) worked on temporary basis through an agency for 6 weeks as a receptionist
and 18 weeks as a clerk. She was physically located at the city. She was under direction and supervision of
a manager working for the city. The general working conditions, such as hours of work, breaks and statutory
holidays, were dictated by the city. If there were any problems with her, the city would have let the agency
know and they would have dealt with her (“discipline”).

The city union wanted to be able to represent her. Can they?
35 | P a g e
Labour Law
What attributes of an employer did the city have? They set out working conditions, but they didn’t
pay her wages, and didn’t even know what her wages were.
Until this time, with one exception, the labour court has found that the city is the “employer” – e.g. the site
where the work is being undertaken.
Employer test:
o Court used to look to legal subordination and said that e’yee was legally subordinated to city.

In dissent L’Heureux-Dube says, no, there is legal subordination wrt agency, and factually
subordinated to city.
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The use of the word subordination assumes an inequality in bargaining power in the ey’ereyee relationship.

The classic element of identifying subordination  In Natrel, we see this element
identified through remuneration. Remuneration is the one tangible element found in the
labour code definition. We see this issue a lot in the farm labour situation.
o Control test. The control test becomes pivotal in the characterization of the different in notions of
subordination (e.g. day to day control, de facto control). Control becomes more difficult to identify
when your worker isn’t so centrally located behind a desk
o Does your actor assume risk? Does the person own the tools?
These are the crude ways we’ve tried to describe the obvious relationship.
In Pointe-Claire, there is a dividing up of the descriptors between the city and the agency. The majority looks
behind each one of the elements of employee status treating the e’yee status as a relationship, it’s not a
stand-alone.
o In the Labour Court it was control that jumped out for them. They zeroed in on day to day to control
and decided the agent is not really the employer.
o Probably they were thinking  What happens if the tribunal du travail decides that the Agency is
the employer? What happens to the right to bargain?
o Is she represented by the union to which she now apparently belongs?
The majority does uphold the decision of the tribunal on the results. However, it broadens the test beyond
the approach control taken by the tribunal.
o The majority essentially adopts the approach taken in a Superior Court decision called Vassart
where the court overturned the tribunal and it was found that the control test was too narrow. This
COMPREHENSIVE APPROACH includes consideration of other factors too. Majority says:
“Without drawing up an exhaustive list of factors pertaining to the employer-employee relationship, I
shall mention the following examples: the selection process, hiring, training, discipline, evaluation,
supervision, assignment of duties, remuneration and integration into the business.”
So is the notion of control pivotal (i.e. because it’s so obvious) or useless?
Lamer puts emphasis on Madame Lebeau’s perceptions of the relationship – a contextual analysis. Also
address seemingly minor factors – did she call the city when she had to be absent?! Yes! Does this kind of
fine tuning really facilitate coming to a principled result? Oh well, so be it.
Why did they even go to court for this? It used to be easy to include people like temps in the union; it used to
be the standard and was predictable. Recently it had gotten all fucked up.
o
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(II) BARGAINING UNIT DETERMINATION
Natrel Inc. v. Syndicat démocratique des distributeurs (1996), T.T. 567
Jurisdiction
Facts
36 | P a g e
On appeal from Commission (who found that they were employees), case was done in tribunal du
travail (now defunct Labour Court)
Appeal from a decision of a labour commissioner granting accreditation to the respondent to represent
the distributors employed by the appellant. The employer, Natrel, contested the decision on the basis
that the distributors were in fact independent contractors and not employees, and therefore were not
covered by the Labour Code. The appellant company was one of the largest milk distributors in
Quebec. It distributed milk by way of the employees, who typically had two types of clients, which
were retail clients, at home or in small businesses, and clients who were in fact Natrel's clients, which
billed them directly, and on which the distributors were paid a commission for delivery. 80% of the
volume of all purchases was billed directly to Natrel and 20% was payable directly to the distributor
(by the smaller purchasers). In the former case, the distributor's remuneration was based on whatever
mark-up he could charge the client. It was up to the distributor to build up his clients in his territory.
For most of the distributors, clients billed directly by Natrel constituted the majority of their clients. In
those cases, the distributors had little control over territory, no control over price, availability of
Labour Law
Issues
Holding
Reasoning
Comments
Natrel:
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product, or any related factor. Natrel was able, under the contract, to take over the business of a retail
client previously serviced directly by one of its distributors.
Are the distributors “employees”, allowing them to be accredited as a bargaining unit?
Yes, but only partially.
Monsieur le Juge Paul Yergeau:
 The Commissioner's decision was partially affirmed. The distributing agents were employees
concerning customers billed by Natrel, but concerning the rest of their sales they enjoyed a
degree of autonomy which was inconsistent with the status of employee.
 When the distributors sold products to customers billed directly by Natrel, they were, for
practical purposes, milk deliverymen on commission. Although the owner of his truck, he
delivers milk to the customer for Ks concluded by representatives of Natrel. It is Natrel
which negotiates shelf space within the trade, Natrel which sets the price paid per litre
of milk, and Natrel which indicates to the distributor where to deliver and during what
hours. The distributor must carry out its work in a professional manner and avoid
criticism as it may then lose that client, which will go on the road to another distributor.
The clientele belongs to Natrel.
 For the other 20% the distributor buys Natrel products and is free to sell them on its territory.
Natrel suggests prices for its products, but the distributor is free to follow or not. Obviously,
competition from food chains made sure that the distributor is a prisoner of this reality and if he
sells at a higher price than that offered to the chains, the distributor risks losing all its
customers. Nevertheless, in these circumstances, the distributor faces a different reality than
that of an “employee”. He can set his working hours, fix prices of the products, and sell the
goodwill that has developed among its own customers. The distributor can also buy the
goodwill of another distributor.
 80% is an “employee” (thus can bargain for 80%)
 It is almost as though these distributors have two jobs.
 The notion of a dependent contractor does not exist in the Quebec Labour Code. In the
Canada Labour Code, s. 3 (dependant contractor) is someone who owns their own vehicle,
and uses its vehicle to provide certain services, and is able to keep for personal use any profit
made once costs have been deducted. Also, this type of worker is said to provide services on
behalf of another person in such a way that it is under the economic dependence of the latter
and the obligation to perform certain tasks.
 Since we do not have this concept in the Quebec Labour Code, I am forced to conclude that
for the portion of sales paid directly to the distributor, they were indpdt contractors. Although
heavily dependent, economically speaking, on NATREL, the evidence reveals no legal
subordination.
 Therefore, they are employees when working for Natrel for clients that bill Natrel directly, and
they are not employees within the meaning of the Labour Code for the hybrid part of their work
they are doing with their residential customers. This is a decision that reflects the reality of the
duality of the distributors operations.
Note: Superior Court held that tribunal’s decision was not patently unreasonable. It found that the
distributors' freedom of action had become very limited over the years and their status as independent
contractors was no longer appropriate, at least for a large part of their work.
Issue is not who is the employer but whether it’s an employer at all – Is there an employer-employee
relationship? Or is it a service provider – service receiver relationship?
Commissioner says we’re going to treat these individuals as employees. Why does the tribunal de travail
see this differently? In Quebec, no such thing as dependent contractors.
These workers did not fulfill many of the typical characteristics of employees. However there is still
dependency. How can we characterize the dependency of the K’r? How does the Tribunal do that?
Economic dependency (subordinate relationship) is the central quality for employment, but we’ve
characterized subordination as a legal term. What’s the different between “legal subordination” and purely
economic subordination?
Used to be control test – that control just extends the label of employee.
What has the Canada Labour Code done – Article 3 – recognized this relationship – dependent contractor –
owner purchaser or lessee of a vehicle used by someone party to a K, under the terms of which they are
required to provide the vehicle... or entitled to use
o Very broadly articulated definition
So economic dependency is one way that a person can claim employee status, but we don’t have that in
Quebec.
37 | P a g e
Labour Law

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o Why doesn’t the Tribunal simply read it in?
Use Natrel for characterizing employee status, but also use Natrel as speaking directly to the fidelity of the
characterization of employee status.
Whether a category of employees is supervisory or not can be pivotal to whether they get certification
Structure of QLC: changed in 2001, particularly creation of labour court (current set up below)

Traditionally employers associations and worker association reps are vice presidents, 1 president

Recognition that Vps will come from employer or union sides – perspectives are valid not determinative

5 year renewable appointment
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114 – Commission des relations du travail responsible for adjudicating the code, responsibility

118-119 define the powers of the commission
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127 – commission des norms du travail retains the ability to review its own decisions

112 – says the commission is specialized and quasi-judicial... Agents de relations du travail are the ppl who
receive certification requests. They make the initial assessment about make-up of the collective bargaining
unit proposed to them. So they play a critical role. But they’re also considered staff members and therefore
treated differently, and btw they can’t unionize.
Certification Process in Quebec

The whole process of organizing in favour of certification tends to take place secretively (since environment
is usually hostile to unionization).

Article 1(a) defines association of ey’ees briefly. Purpose of definition is supposed to be economic, social,
educational – not political supposedly. This is impt b/c union are actually very impt political stakeholders.

S. 21 – clarifies the right to certification

S. 22 – sets out the time for application

S. 25 – outlines – petition for certification, authorization (signed by authorized reps, which groups of
employees, applications for membership, list or employees (employer post peition and notice of Commission
hearing at work, post a list of a list of employees within 5 days, also give list to labour relations officer)

s. 28 – outlines conditions for certification
o Immediate certification – labour relations officer will assure representative character of association,
investigates, if agreement between employe and the association on bargaining unit, must certify – if
doesn’t find representative character – then has summary of report to Commission
o Percentage of Employees as members – agreement with employer on bargaining unit, 35% to 50%
of employees comprised in unit are members of association, hold a ballot to see representative
character (50+1 needed)
o Disagreement on unit – if employer refuses agreement, LRO sends report to Commission, report
contains reasons, new unit that employer thinks suitable,
o Certification notwithstanding disagreement – if agreement on bargaining unit, but not on persons
inside it, then certifies it, lets commission decide if persons should be included
o Certification – even if employer doesn’t think bargaining unit is right, LRO can still certify if she
thinks it has representative character and is correct bargaining unit
o Existing Certified Association – if one existing, LRO will see if absolute majority is in favour of new
one, can hold secret ballot to find out, award based on results
(III) SUCCESSOR RIGHTS
Successor Rights: The continuation of a union's bargaining rights in the event of a sale of a business. To provide
permanence, the obligations flowing from these rights are not confined to a particular employer, but become attached
to a business. So long as the business continues to function, the obligations run with that business, regardless of any
change of ownership.
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Labour Law
QLC
Certification not invalidated by sale of undertaking
45. The alienation or operation by another in whole or in part of an undertaking shall not invalidate any certification
granted under this Code, any collective agreement or any proceeding for the securing of certification or for the
making or carrying out of a collective agreement.
New employer bound.
The new employer, notwithstanding the division, amalgamation or changed legal structure of the undertaking, shall be
bound by the certification or collective agreement as if he were named therein and shall become ipso facto a party to
any proceeding relating thereto, in the place and stead of the former employer.
Provision not applicable.
The second paragraph does not apply in the case of the transfer of part of the operation of an undertaking where
such transfer does not entail the transfer to the transferee, in addition to functions or the right to operate, of most of
the elements that characterize the part of the undertaking involved.
Rules applicable.
45.2. Where the operation of part of an undertaking is transferred, the following rules apply:
1) for the purposes of labour relations between the new employer and the association of employees involved, a
collective agreement referred to in the second paragraph of section 45 that has not expired on the effective date of
the transfer is deemed to expire on the day the transfer becomes effective;
2) the new employer is not bound by the certification or the collective agreement where a special agreement on the
transfer includes a clause to the effect that the parties waive the application of the second paragraph of section 45.
Such a clause binds the Commission but does not affect the effect, within the transferring employer's enterprise, of
the certification of the association of employees having signed the agreement.
-second paragraph suggests that certification follows the undertaking rather than the legal person of employee
CCQ 2097:
A contract of employment is not terminated by alienation of the enterprise or any change in its legal structure
by way of amalgamation or otherwise.
-s. 46 gives Commission power to deal with s. 45
But remember, from Isodore Garon, Labour Code s.41 (cancellation of certification when there are no workers left),
and s.45 (transferring certification and CA from one employer to another.)
Sections 96 and 96 of the Labour standards act - In the event of alienation or concession of an
undertaking ...the former employer and the new employer are bound solidarily in respect of that
claim.
Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565
Jurisdiction
Facts
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39 | P a g e
Ivanhoe is a property management company (owns shopping malls). It handled janitorial services
in its buildings until 1989 when it contracted those services to Moderne. All of Ivanhoe’s janitorial
eyees were transferred to Moderne. Ivanhoe’s janitors have been unionised since 1974 and they
have a collective agreement (CA). Certification and CA are transferred to Moderne.
In 1991, when its contract with Moderne was about to expire, Ivanhoe calls for bids for a new K’r.
Moderne does not bid, but it signed a new collective agreement with its janitorial employees.
Ivanhoe decided to engage four new contractors which employed their own staff and equipment.
When Moderne’s contract expired, Ivanhoe dismissed the entire janitorial staff responsible for
Ivanhoe’s buildings. There was NO legal relationship between Moderne and the four contractors.
The work performed by the new eyees was the same work that had been done for Moderne by
Ivanhoe.
The union, despite its bargaining unit having zero members, applies under s.45 to have
certification and CA transferred to the 4 contractors.
Ivanhoe 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
Labour Law
Issues
Holding
Reasoning
had been transferred, as required by s. 45(1), and that s. 45 applied since the tests in Bibeault
had been met.
Does s.45 apply to the certification or collective agreement such that it can be transferred from
Moderne to the 4 companies? Can Ivanhoe make a s.41 application and does it succeed? (Blackett:
"what does s.45 take out of the panoply of the possible within this context?")
Applies to the certification, but not the CA. Ivanhoe can make the application, but here it fails.
Arbour J :

Bibeault 1988 was a key SCC case with similar facts. (A school board subK'd its janitor work,
switched subK'rs; can certification and collective agreement be transferred from one subK'or to
another? No.)

Before Bibeault 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/ identified 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 (it's transferred)

On the s.45 issue, the court employs the theory of “retrocession”, which 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)

So in this case s.45 does apply to certification  when the K between Ivanhoe and Moderne
lapsed, the certification retrosceded to Ivanhoe for a notional instant and then is retransferred to
the 4 companies. This is the twisted way that s.45 is interpreted to make cert get transferred from
M to the 4. (Bibeault is distinguished: in Bibeault cert was not transferred, because unlike
Ivanhoe, the school board had never run janitorial service in-house before K'ing out.)

The 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. Ivanhoe)
actually taking back the operation before retransferring it. For the notional instant between
retroscession and retransferral to the 4 companies, Ivanhoe is the "potential employer."
Section 45 does not apply to the collective agreement (it's not transferred)

Cert and CA are normally transferred together, but here s.45 does not apply to the collective
agreement  Since the undertaking transferred from Ivanhoe to the 4 companies was Ivanhoe’s,
the collective agreement between Moderne and the union lapsed when the K between Ivanhoe
and Moderne expired. There was thus 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

Ivanhoe has the right to make the application because Ivanhoe's name is on the cert document.

But the application fails because Ivanhoe may not cancel certification during the temporary
period when the cert was subK'ed 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. hehe.
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.

-This is the L Court's decision; it's not patently unreasonable.
Bastarache dissenting in part:

Section 45 doesn't apply because there's a lack of connection between Moderne and the 4
companies, as required by s.45

Majority broke with Bibeault by using a functional definition of undertaking
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
Comments
Undertaking doesn't just mean "work." Something more, a going concern, must be transferred for
there to be transferral of an undertaking.

The majority 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.) Majority's using a func approach and calling it organic.

Potential employer and retroscession doctrines not supported by s.45

No one here thinks that the collective agreement should be transfered; that 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.

Ivanhoe 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 Iv's only a previous employer. Incongruous.

The Labour Court's commitment to an artificial interpretation of s.45 leads to problems with s.41.
This is all too complicated. Old Bastie's got a point!

-All this shizzle is patently unreasonable
So the question is: Using an organic (vs. functional) definition of undertaking, tas the undertaking
been alienated or was it being operated by another?
Ivanhoe:

Ivanhoe innovates and conserves at the same time - it is how the SCC has grappled with art 45 (labour
code) as it affects structural change in enterprise and the continuation of certification.

Ivanhoe owns malls, and included in its enterprise is janitorial services. The janitorial services were
unionised since 1974. There was a collective agreement (CA). In 1989, when the CA was almost run out,
Ivanhoe made a K with Moderne (another co) to perform the janitorial services for Ivanhoe.

So in 1989, the part of Ivanhoe which does janitor stuff gets K'ed out to Moderne.

1989-91: The CA was transferred. s.45 rights are considered to be automatic, but s.46 clarifies that they're
on request by the union. We see in the Sept-Iles case that despite their public order character, they can be
contracted. But back to the case: the CA between janitors and Ivanhoe is transferred to Moderne, as is the
certification.

Then the CA lapses, and Moderne renegotiates it. The new agreement is for Sept 91 to Aug 93. The K
between Moderne and Ivanhoe lapses right after this new CA is negotiated.

I asks for bids for new contractors to replace the K. M doesn't bid. Four other co.s sign agreements with I to
provide janitorial services.

The janitors who used to be with Ivanhoe and are now with M get fired.

The union tries to apply s.45, despite losing all its members, all members of the bargaining unit. It applies
under s.45 for certification rights.

I and 3 of the 4 contractors challenge the s.45 claim, but they also bring a s.41 claim. (s.41 allows you to
seek cancellation of the coll barg relationship if the association has ceased to exist or if the union no longer
represents a majority of the workers. This seems obvious since there are no more employees.


Bibeault decides that the bargaining rights have been transfered but not the CA itself. At the Labour court
level, Prudhomme J raises concept of retrocession.
back to the same facts: the union brings the s.45 request and M doesn't oppose it. The question becomes
what does s.45 take out of the panoply of the possible within this context

Arbour J's majority decision goes through a complex historical engagement with s. 45. There's the preBibaut context, and the post.

Pre-Bibaut, see para 36 and 38 of Arbour's judgment. One of the core elements that s.45 required the court
to id was the nature of an undertaking, because to engage in the transfer, you can't simply transfer indiv
parts with no unity. There's a requirement that you transfer an undertaking. There's a "functional" and an
"organic" definition of what an undertaking is.
Functional: we're talking about janitorial services, that's it and it's unified.
Organic: (para 36) tries to take into account a set of various components that are used to carry on an
activity. What's organic about this? not sure.
para 38: LeBel J (on Quebec CA) on something about Bibeault.
The attempt to arrive at a more holistic account of what an undertaking is led a section of the court to draw
in a legal relationship component to understanding transfer. This came to a head in Bibaut: there were all 11
judges of the labour court hearing the case and the minority was made up of 7 judges. none of the agreed.
Only 4 judges came close to agreeing on a test.
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Bibeault (that's the right spelling): facts are in para 40 of Ivanhoe. In B there's a school board which needs
janitorial services and has always used sub K'ors.
Ivanhoe distinguishes the facts of Bibeault. In B the school board had never had its own employees the way
I used to employ the janitors directly. The court says that the certification reverts back to Ivanhoe. There was
never a s.45 question in B.
In B, Beetz J rejected the functional approach and insists on the need for a consensual legal transfer
between one employer and another. The school board has never been an employer. Sure it needs the work
but it's never been an employer. So it's clear in B that there's no legal relationship between the first sub-K
and the second.
The functional approach would reach a diff result here because we're talking about the same work. "They
were cleaning now we're cleaning, it's not rocket science" hehe.
Is there more to the organic approach than legal relationship?
para 44 ff analysis of Beetz's reasoning.
There's a move into the language of continuity; the continuity of the relationship. That's what Beetz in B
winds up stressing in his articulation of what an undertaking is. Continuity arguably, as the majority in
Ivanhoe says, can include the functional aspects, which can become the basis for a surprising affirmation
something and real change in the application of this test.
Majority in Ivanhoe teases out the need to id an undertaking from the need to id a legal relationship.
Ivanhoe is characterised in relation to successive employers, and proceeds first in terms of more
contextualised understanding of the undertaking itself. There's a review of caselaw, note the Ajax case (Ont
CA) (para 70). Ajax sets in motion the process of rewriting the understanding of some shit about the
undertaking.
para 65 and 72: we see a stark attempt to embrace the organic approach but clarify that you can't ignore
functions themselves.
65: similarity of function indicates continuity. the majority treats function as one amongother characteristics I
think.
We're at the undertaking itself and how you establish a rewriting into a test that takes into account the
functional elements while retaining the label of an organic test.
So we still have the ability to take functions into account.
The the undertakings part of the test.

Now for legal relations. If you separate undertaking from legal relation, what does that let you do? What's the
fiction? Retrocession.
o Retrocession creates a fictional path from Moderne back up to Ivanhoe and then back down again
to the four new K'ors. So Ivanhoe is deemed to have ceded stuff to Moderne only temporarily, from
1991-93. So stuff can't move straight from Moderne to the 4, so we imagine that the move it back
up to I and then down to the 4. That's retrocession. It's also a "very slippery use of the language of
legality."
o The reason this wouldn't have worked on the Bibeault facts is that the janitors used to be employed
by I directly.
o So this retrocession path is a fiction, and what Arbour says about that is that there are lots of legal
fictions.
o It's not patently unreasonable to use a legal fiction that allows you to capture some crap

The union is now entitled to enter into collective bargaining relationships with the 4 companies. And this
even though the employees of the 4 and those that Moderne fired are not the same.
For the purposes of s.45, it's Ivanhoe that's passing on bargaining rights.


Ivanhoe opposes the union's s.45 application with s.41 remember? Well, they say, ok, if we're the employer
again for that fictional notional moment in time when the path is followed back up from Moderne to I before
going back down to the 4, then surely our s.41 claim should succeed.
o Why does the s.41 claim not succeed? Well, it would have been too easy. Yes the s.41 claim is
receivable, Ivanhoe can bring it by virtue of retrocession, but the labour court has the discretion to
reject it

What happens to the CA. It's found to have expired when Moderne's K expires. What gives the court the
authority to pass on certification to the 4, but not the CA? they do what they want.
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Labour Law
o
o
o
o
Certification is what survived this. The CA is gone, the employees are gone.
The result protects the union.
What's the labour court trying to do here?
Is this an effective way (policy-wise) of responding to the restructuring of companies? Think
about fitting new structures into old legal categories.
Sept-Îles (City) v. Quebec (Labour Court), [2001] S.C.R. 670
Jurisdiction
Facts
The city of Sept-Îles contracted out garbage collection in certain districts of the City to subcontractors.
In accordance with s. 15 of the collective agreement between the City and the respondent union
representing the City’s salaried manual labourers (since 1982), no unionized employees were laid off,
had wages cut or lost benefits as a result of the contracts with the subcontractors.
The union filed motions under s. 45 of the Labour Code with the labour commissioner general,
seeking to have the transfer of the certification and the collective agreement to the subcontractors
recorded. According to the evidence adduced, the subcontractors used their own staff and their own
equipment, continued to exercise complete authority to manage their staff and were required to
comply with the City’s instructions regarding the proper performance of the contract. If there was a
breach, the City could go after the contractor and not the eyees. The City continued to be ultimately
responsible for a number of aspects of the garbage collection service (e.g. specifying tasks, volume of
containers installed, dealing with customers, need according to season, etc.).
The labour commissioner recorded the partial transfer of the City’s rights and obligations to the
subcontractors and held that they were bound by the certification and collective agreement. The
commissioner noted that according to previous decisions of the Labour Court, s. 45 could be applied
to the transfer of a right to operate janitorial or green space upkeep services.
The Labour Court affirmed the decision and:
 Held that the City, which continues to be responsible to the public for collection services, may
nevertheless contract out the operation of the services to someone else.
 Concurred with a previous decision that although contracts for services involve much closer
control now than they used to, this does not mean that s. 45 cannot be applied.
 Found that in service industries, the transfer of technology or equipment is of much less
significance to the analysis that must be done under s. 45, and the fact that taxing authority
is not transferred is not decisive either.
 The clause in the collective agreement authorizing subcontracting cannot defeat the
application of s. 45, which is a provision of public order.
Issues
Holding
Reasoning
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The Superior Court found that it was patently unreasonable to consider only the transfer of functions
and allowed the applications for judicial review brought by the City and one of its subcontractors. The
Court of Appeal restored the decision of the Labour Court, stating that it was not patently
unreasonable.
1) Is the Quebec Labour Court’s interpretation of the application of s. 45 of the Labour Code,
regarding transfer of the operation of part of an undertaking, in conflict with Bibeault? 2) Does the
Labour Court have the power to conclude that a union’s certification and collective agreement may be
transferred to a subcontractor of the employer?
1) No. 3) Yes.
Arbour J (+ McLachlin, L’H-D, Gonthier, Iacobucci, Major JJ):

The standard of review for s. 45 cases is patent unreasonableness (Ivanhoe).

Under the principles developed by the Labour Court following Bibeault, s. 45 of the Labour Code
may apply to subcontracts where the transferee, in addition to performing functions similar to
those performed by the transferor to which the certification originally applied, receives a right to
operate part of the transferor’s undertaking.

Those principles are not patently unreasonable and do not conflict with the decisions of this
Court, which provide that it is up to the specialized decision making authorities to weigh the
applicable criteria in order to determine whether a transfer of the operation of an undertaking has
occurred.

Moreover, the decisions of the commissioner and the Labour Court in this case do not represent
a return to a functional definition of an undertaking. On the contrary, the specialized decision-
Labour Law
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making authorities have 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. That approach is consistent with the definition of
an undertaking adopted by this Court in Bibeault.
In addition, in situations involving the transfer of the operation of part of an undertaking, the
Labour Court has developed reasonable principles for adapting the requirement that the
transferee be given a sufficient degree of autonomy so that a conclusion may be made that the
operation of an undertaking has been transferred.
In this case, the commissioner and the Labour Court used the criterion of the subordination of the
employees to the contractors in order to determine the degree of legal autonomy that the
contracts gave the contractors. This criterion can be used to establish whether the legal
transaction between the parties gives the transferee sufficient authority to enable it to effectively
become the new employer in charge of operating the part of the undertaking in question
The existence of a contract laying down certain precise methods of performing the work is not a
barrier to applying s. 45. In Bibeault, this Court did not establish that a subcontractor must have
total control over the part of the undertaking of which operation was transferred. Indeed,
requiring total control would be incompatible with the very concept of the transfer of the operation
of part of an undertaking.
Authorizing subcontracting on certain conditions does not amount to a waiver of the application
of s. 45. Indeed, since s. 45 is a provision of public order, its application cannot be precluded by
a contractual provision.
Certification vs. Collective Agreement

Although the collective agreement will normally follow the certification, a distinction can be made,
under ss. 45 and 46 of the Labour Code, between first transferring the certification and then
deciding whether it is appropriate to transfer the entire collective agreement. It is possible, as in
Ivanhoe that the CA won’t be transferred.

Contractual provisions designed to protect the employees in the event of a transfer of operation,
as well as the concrete fact situation prevailing in the undertaking and the industry in general, are
relevant factors that the commissioner may consider when deciding whether the collective
agreement should be transferred. However, the commissioner and the Labour Court have the
sole authority to examine the factors in question and select the solution they consider most
appropriate.

In this case, the specialized decision-making authorities opted for transfer of the collective
agreement. That solution involves certain disadvantages. First, this may limit the municipality’s
opportunities for subcontracting by deterring potential bidders. Second, it may prove difficult to
put into effect in the case of contractors that employ a small number of workers. However, these
disadvantages are not sufficient to warrant judicial review in a situation where the standard of
review to be applied is patent unreasonableness.

The Act respecting sales of municipal public utilities is not relevant in determining whether s. 45
of the Labour Code applies. The fact that there are special mechanisms to enable a municipality
to alienate certain public utilities does not affect the analysis of the consequences, in labour law,
of the alienation or transfer of those services.
Bastarache (dissenting):

Bibeault prohibited a purely functional definition of “undertaking” (“entreprise”) in s. 45 that would
be revived by a finding of successorship in a situation such as this where all that was transferred
was tasks or work.

When Beetz J in Bibeault said that, in this context, subcontracting does not mean a person
simply assumes “responsibility for certain parts of a project, supply contract or undertaking for
which another has overall responsibility” but rather it means the “practice by which an
organization assigns the performance of certain work to an independent specialized contractor
[where] [t]his contractor assumes complete responsibility for the work, which he performs himself
or has performed by his own employees”. In other words, he adopted a “total control”
understanding of the type of subcontracting that could trigger s. 45.

This is not what’s going on here. What we have in this case is the type of subcontracting that is
the work alone and the City remains responsible for the provision of the service.

According to Bibeault, “an undertaking for the purposes of s. 45 cannot consist merely of work,
tasks or functions performed by the employees under the former employer. Something more
must be sold or operated by another in order for the successorship provision to be triggered.”

Furthermore, in Lester this court required an element of finality to the transfer for s.45 to apply.
44 | P a g e
Labour Law
First, what is transferred must be a viable functional economic vehicle or entity. Second, there
must be an element of finality to the transfer in the sense that the first business no longer has
control over the part of the business that has been given over, i.e. relinquished it to be obtained
by another
Comments
So it has to be a big enough transfer is the point. Corporations are allowed to sub-contract, and
should be able to do so without having to extend the rights of union employees to sub-contractors (we
don’t want to apply s. 45 to mere subcontracting of “functions”; hence the rejection of the functional
approach). However, if it’s a big enough transfer, such that a main, severable part of the undertaking
is moved, then transfer of the rights of union employees is merited (in order to ensure that
corporations can’t just use sub-contracting to get out of having to deal with unions).
Sept-Isles
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City sub-contracts garbage collection. City used to be the employer except in one small place where it had
always sub-Kd. Sept-Isles wants to contract out some services.

The employees have a really good collective agreement and conditions that protect their employees even
with temporary lay-offs, ensures info for the union, no temp lay-offs of regular employees if sub-Krs doing
work at that time. Clause 15 basically protects the employees jobs.

This clause overcomes one of the absurd possibilities that s. 45 left.

There’s a request for transfer and none of the employees have moved to the sub-Ks but that’s not a bar to s.
45.

Why would you transfer under an Ivanhoe type of situation but not here? The argument made here is that
the operation of clause 15 of the agmt served as an alternative to the protections of s. 45. The union and the
initial employer K’lly agreed to the conditions that would govern sub-K’ing relationships. They did so in a way
that protected those that we’re concerned about (e.g. the employees). There is no longer a harm that s. 45
should be addressing.
o Court disagrees.

Quelles provisions peut-Sept-Ils nous offrir?

On ne doit pas fabriquer les “concerns”.

You can have the transfer without transferring everything – e.g. don’t need total concern. In this case, even
though the municipality retained some ability to give guidance, there was a substantial transfer.

Para 36 – Bastarache states his concern about the purely functional test.
T.U.A.C. loc. 503 c. Quebec (Commission des relations du travail) [2008] D.T.E. E-38
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There was a strip mall, an IGA operated there and had a union, owner wanted to close it, another IGA was
started in the mall (had a different style) but both were under Sobeys
The first mall closed and everyone lost their jobs
The union wanted to transfer certification under s. 45 (tried once in 1999 and 2003)
Wanted to claim, first that union flowed from one IGA to the second one, the union fails – commissioner said
no transfer between IGA1 and IGA2 – need a legal relationship between the two entities – need transfer (like
in Ivanhoe used the organic approach – had services, didn’t have transfer necessarily – can transfer a right
and the actual work can be sufficient a work context) – need legal relation between 2 entities, in a
subcontracting, if first employer contracted out, then contract expires – when the contracting out, the
accreditation under 45 to sub-contracter – then contract expires, then accreditation goes back to employer,
then subsequent subcontracter – retrocession theory – accreditation rolls back to first employer
union argues that sobeys had a fiduciary role – no legal document to explain fiduciary duty – in Ivanhoe
alienation or transfer can be done between entities even in the absence of formal legal documents
union trying to say there was a transfer from IGAs even without formal doc, but commisioner said there was
not fiduciary role for Sobeys (who were overlooking whole thing), didn’t meet legal burden of link between
sobeys and igas for 45 – no legal
CRT 2 levels– first instance commissioner from CRT, appeal to Tribunal (3), then JR
tribunal and JR do not disturb facts of Commission = thus can’t question the finding that there was no
evidence
Justification is because of a quesion of facts – ultimately the interpretation of facts (defer to Commissar in
this and this ensures expeditious functioning of administrative system
TUAC says that the fact that Sobeys was the wholesaler and trustee (2 functions) for both IGAs, the
certification could transfer from one IGA to the other
The Commission maintained that the matter ahd already been judged – facts were the same, same parties,
no real movement on what should be considered – maybe Superior court could revisit
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Court of Appeal says the decision of Commission is on the grounds of reasonableness – not correctness
s. 45 is not as broad as we think, hard to establish idea of legal transfer or relationship – in context
of contracting out with theory of retrocession – in some situations, allows for a legal relation but
here, with different establishments that have the same purposes but are not directly contractually
related – it’s very difficult
Syndicat national du lair inc c. Laiterie Royala inc., 2004 QCRT 602)
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after legislative modification 3 paragraph of s. 45
after Ivanhoe and Sept-Iles
gave more leeway for contracting without automatic transfer of accreditation
in this case milk union wants to have transfer of accreditation
transfered right to do business and not much else, under ivanhoe this would have worked, transfer would
have been made, but with new provision of s. 45, in order to have transfer also need
when transfer of a part of operation of an undertaking – most have most elements that characterize
undertaking to have transfer
need to have the following
new persons have their own machines, own means of production – thus no transfer of charcateristic
elements (the means used before were not transfered)
in this case no equipment (in contrast to Ivanhoe – physical aspects, legal altogether constitutes the
undertaking), in this one you need most parts of undertaking to have it followed
in this judge there wasn’t very much – emphasis on numerical aspects and quantitative aspects – blurs
characteristics of service sectors – not so much physical stuff to be transfer
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Labour Law
V. Unfair Labour Practices
Are current approaches to the regulation and enforcement of unfair labour practices effective means by which to
safeguard the freedom of association and right to bargain collectively?
The Rise and Fall of A Collective Agreement
No Interference throughout
12 QLC, 94 - 99 CLC
1. Pre-certification
Freeze 1
Organize
File
quietly
App.
(No Protec’n)
S. 59 QLC
2. Certification
Granted
3. First
C.A.
Freeze 2
s. 59 QLC
s. 53(2) CLC
4. C.A.
Achieved
Life of Agreement
Special arbit’n available
s. 93.1 – 93.9 QLC and s. 80 CLC
No strikes or lock-outs
5. End
of C.A.
Termination
of Bargaining rts
Freeze 3
Can Strike following procedures
Stage One – Pre-Certification
1. Organizing through signing cards, done very quietly, once a union representative has a majority or assumes to have a majority (within 35 – 50 %
range) then will file with Labour Commission / Board
2. At this point, get first statutory freeze – limit to what changes can be undertaken in the work place, full range of statutory protection enters in for
the employees (s. 59 of QLC)
Stage Two – Certification Granted
3. Certification is granted (once see there is a majority, if 35% within a bargaining unit, then order a vote to see if majority, also if see unfair labour
practice, can just grant certification as a remedy)
4. First freeze ends with certification
5. This stage has a good faith requirement
Stage Three – First Contract Negotiations
6. This is the second freeze – special protections in place to ensure no changes in the relationship (i.e. s. 59 QLC, s. 53(2) CLC)
7. Collective bargaining for the first contract is usually difficult (hostility), thus s. 93.1 – 93.9 QLC and s. 80 CLC – first contract arbitration if parties
are unable to arrive at collective agreement (not mandatory, triggered by responsible minister (therefore discretionary) – get bargaining into play
Stage Four – Collective Agreement
8.
Terms of CA rule, no strikes or lock-outs allowed (s. 88(1) CLC)
Stage Five – End of Collective Agreement
9.
When collective agreement is nearing its end, and no earlier than 90 days of expiry, s. 52 and 52.1 QLC allows for notice of starting
negotiations, if you don’t do it then, presumed to have notice once expired
10. Third Freeze, now have an established relationship, thus arbitration clauses for first contract do not apply
11. During the bargaining have general protections and freeze protections in place
12. Strikes only after 90 days of reception of notice QLC 58, strike procedure in CLC s. 89(1)
13. There is a good faith requirement every time parties enter into collective bargaining and ongoing while at the table (throughout strike) .s 50(a)
and (b) CLC and 53 of QLC (recourses for breach is s. 144, 141 QLC)
14. At any point can ask Minister for conciliation officer to help (s. 54 – 55 QLC)
(I) HAMPERING UNIONIZATION EFFORTS
There is a problem of how to reconcile fair protections with the broader panoply of protections, like free speech and
association. During the process of organization to unionize, there's a card-signing process (recruitment of union
members that's kept secret from the employer), and then there's application for certification. But what happens when
the employer gets wind, as in Disque Americ?
QLC
Interfering with employees' association.
12. No employer, or person acting for an employer or an association of employers, shall in any manner seek to
dominate, hinder or finance the formation or the activities of any association of employees, or to participate therein.
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Labour Law
CLC
Employer interference in trade union
94. (1) No employer or person acting on behalf of an employer shall
(a) participate in or interfere with the formation or administration of a trade union or the representation of employees
by a trade union; or
(b) contribute financial or other support to a trade union.
Exception
(2) An employer is deemed not to contravene subsection (1) by reason only that they
(a) in respect of a trade union that is the bargaining agent for a bargaining unit comprised of or including employees
of the employer,
(i) permit an employee or representative of the trade union to confer with them during hours of work or to attend to the
business of the trade union during hours of work without any deduction from wages or any deduction of time worked
for the employer,
(ii) provide free transportation to representatives of the trade union for purposes of collective bargaining, the
administration of a collective agreement and related matters, or
(iii) permit the trade union to use their premises for the purposes of the trade union;
(b) contribute financial support to any pension, health or other welfare trust fund the sole purpose of which is to
provide pension, health or other welfare rights or benefits to employees; or
(c) express a personal point of view, so long as the employer does not use coercion, intimidation, threats,
promises or undue influence.
Syndicat canadien des communications, de l’énergie et du papier, local 194 v. Disque Améric, [1996] A.Q.
3381 (Tribunal du travail)
Jurisdiction
Facts
Disque Americ produced optical CDs. It employed about 700, including 600 in production, 300 of
which were temporary. The staff had certain bones of contention. For e.g., the temporary staff “casual”
employees who were laid off in recurring periods of respite, particularly in the fall, wanted better
opportunities to access permanent jobs. Also, they wanted to relax the standards of the fairly
demanding number of hours worked. On the evidence, it was clear that CEO Pierre Deschênes had
strong feelings against unionization. He felt a union would discourage an environment of hard work,
slowdowns, and encourage strikes. He called for a more "flexible" communications in the enterprise
via a voluntary association called the “Comité Bonne Entente” whose members were chosen in an
informal manner by the workers.
An application for certification was filed June 2, 1994. The next day a compulsory meeting was called
and on the agenda was “the past, present and future of Americ Disc”, with the emphasis on the impact
of the new plant in Miami, as well as a focus on the organizing campaign. At the meeting Deschênes
said that the eyees were free to choose, but that the corporation favoured the Comité Bonne Entente,
whose representatives encouraged their fellow employees to leave the proposed bargaining unit.
Through discussions with the Committee, an "Employee Manual" was created, and included
numerous elements to be found in a collective agreement, ranging from seniority to financial
assistance through the protection of the 'employment, benefits and health and safety. A binder was
provided to each employee, with a word of welcome from the chief executive officer
An intense period of campaigning occurred in October and inevitably a lot of rumours and
various comments were circulating, some referring to a possible closure, or that all employees
would be made temporary. It appears, however, that the atmosphere at any time did not
become explosive and disruptive to the task and operation of the company. On October 14, a
letter was sent by the management to all employees outlining “problems solved” in the past,
and announced topics to be addressed in the near future with the informal committee
structure, such as bonuses, salary increases, the recall list for temporary employees and the
respect of their seniority, and so on. Another meeting was held during work hours, so eyees
attending were paid, and a 4% bonus for all eyees was announced.
The director of Human Resources took the position that it had to confront exaggerations and
misleading untruths being spread by the pro-union people, and that some of the anti-union people
48 | P a g e
Labour Law
wanted the eyer to formally address the issues. It had to be done before the secret ballot. In the end,
300 of the 450 opposed the accreditation.
Issues
Holding
Reasoning
Were Disque Americ’s actions interference, contrary to article 12 of the QLC?
Commite was not bad, telling his opinion was not bad, but shouldn’t have made meetings mandatory
Juge Lesage:

What constitutes interference, domination, coercion, and hampering changes according to time
and place and the legislature feels that a specialized body should deal with the issue.

Note that prior to 1969 it was quite legal for an employer to openly oppose unionization.
Furthermore, given the advent of the Charter, freedom of expression is now a constitutionally
protected right. Just because a corporation might be motivated by profits doesn’t limit freedom of
expression (RJR-MacDonald)

It is therefore necessary to balance this freedom of expression with the freedom to associate, the
latter being an important part of the democratic process and requiring strong protection. The
interface between these freedoms must evaluated according to each context.

An employer will exercise his legitimate right as a citizen exercising public voice, when no
promise or threat whatsoever, direct or indirect, is made, without controversy or
outrageous lies, and when it is were geared primarily to reason rather than emotions of
the receiver who must be free to receive the message or not.

The words that the employer can put, in words or in writing, to its employees to express its
opposition to unionization, must meet the following requirements such that it is using its legal
right to free expression, rather than constituting interference in the right of association:
1. There should be no direct or indirect threat;
2. There should be no direct or indirect promise to induce employees to adopt his
point of view;
3. It must take account justifiable concerns about their reality, without aim to deceive;
4. It must apply to the reason and reflection of people and not raise their emotions,
especially their contempt, avoiding anything outrageous or pathetic;
5. Its interlocutors must be free or not to listen to or receive his message;
6. In some respect, it should not in any way use his authority as an employer, based
on the relationship of subordination established with employees, to propagate his
views against unionism.

In determining the legitimate intent of the employer to exercise its right to free expression, rather
than its intent to seek to harm the rights of association, it is important to detect the unsaid, e.g.
any fact which can colour a statement by the employer, neutral on its face, but in reality
intimidating or retaliatory. The specialised body of work must bear this delicate trial, with the tools
of his experience, updated in contemporary reality without overprotecting the weak but not naive
to the good conscience of the strong.

Of course the employer can respond to attacks unjust or falsehood; but it does not mean he can
force others to listen to it in all circumstances, for instance, through meetings during working
hours, where it mixes factual information with an attack on the opponent. No employer should
use its legal authority, its management powers to compel its employees involved in a
unionization to suffer his views on trade union issues without the consent of the association,
unless there are immediate problems of running of the company to settle.

In this case the defendant had a generally sound record.

The Committee was not just a puppet but a genuine effort to deal with issues. There was a
bit of hampering when the Committee was collecting resignations from the bargaining
unit at the end of the mtg. But Deschênes did tell eyees they could freely choose.

When the application for accreditation was presented, Disque Americ didn’t tighten any discipline
and took a legitimate stance.

The letter they wrote on October 14 was clearly anti-union, outlining past union failures,
but it was phrased in measured terms, without exaggeration, and expressed a reasonable
and defensible opinion. Most importantly, the letter contained no threat or promise and
eyees were not compelled to read the letter.

The bonus was also okay because it was not conditional on their rejecting the accreditation (I
think).

HOWEVER, the meetings held on October 21 and 25 were too much. The letter was
enough to refute false accusations with facts  it was too much to require employees to
come to a meeting during work hours to listen to what was really an attack on the union.
Comments
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Disque Americ:
 We’re in the pre-certification context here
 Facts: The employer had set up some sort of committee meant to deal with employees' problems to
discourage them from unionising. It was called the Comité Bonne Entente. This seems directly to contravene
s. 12.
o Para: 59  The employer called an obligatory meeting during work hours and expressed their
views about unionisation. This was a big problem because it was obligatory and paid.
 Issue  was there an attempt to hamper the unionisation process? So there are already protections for the
unionisation process even this early on.
 s. 12 of the Quebec Labour Code, gives the general basic protection against interference in the unionisation
process. Its protections are not time-bound. It says no employer shall in any manner seek to dominate the
proceedings.
o Section 94 is the parallel provision in the Canada Labour Code.
 This provision captures the situation where the employer gets wind of unionization.
 Where there's a diff is in the institution of the statutory freeze. The statutory freeze provides that when a
claim for certification has been made, and when the union and employer are in a position to start collective
bargaining, so within a certain number of days of the existing collective agreement, working conditions are
meant to stay the same.
 So say the employer gets wind and decides to fire a bunch of ppl.
o Employer speech: What if anything can an employer say to employees when unionisation is under
way. That's the context we’re working in.
o There's the idea that the employer should be able to express an opinion so that the workers can
come to a more informed position. This is based on a democracy analogy.
o Unionisation in the free speech model suggests that it's one of several valid options and thus
should be subject to discussion.
 This is a helpful case cause it encapsulates many challenges that surround the unionisation process.
Potential Violations
1. first meeting June 1994 – all employees called – talks about risk of transferring orders to Miami, employers
expressed well known views about unionization, paid for meeting, then employer left and Cmmité took over
and tried to convince people to join
a. violation was found since meeting was compulsory and promoting commité as more appropriate than
union
2. Intense information campaign on pros and cons – bulletin board, rumours about permanent positions, closure
rumours
a. was not seen as unfair labour practice – because non-emotional – bulletin board viewed as
sufficiently detached, employer allowed to have freedom of expression as long as it is not threatening
3. Letters from Commité saying that unionization would be bad, asking employer to act
a. Reasoned and measured letter therefore not unfair
4. Information sessions during work time, workers forced
5. Found to be unfair labour practice
6. Bonus news not seen as unfair because wasn’t contingent
7. repetition of unions being inferior by CEO, and HR sessions on how bad unions are (subtext not violation but
work time was)
(II) FAILURE TO BARGAIN IN GOOD FAITH
Royal Oak Mines. v. CASAW, Local 4, [1996] 1 S.C.R. 369
Jurisdiction
Facts
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The unionized workers of Royal Oak Mines voted overwhelmingly to reject a tentative agreement put
forward by the appellant. Royal Oak, whose management was inexperienced in collective bargaining,
was shocked and outraged. A bitter and violent 18-month strike, which affected the whole community,
occurred. After several bouts of violence in 1992, RO dismissed 49 eyees. Later, RO refused to
consider a process of reinstating these eyees, and this issue became the biggest barrier to
bargaining. In Sept 1992, an explosion at the mine killed 9 replacement workers, and a striking
member of the bargaining unit was convicted of murder. Various attempts to effect a settlement were
made during the strike, from the appointment of an industrial commission to the naming of very
experienced mediators. RO often was the party who refused settlements.
Labour Law
The Canada Labour Relations Board, on an application made by the union, unanimously found that
the appellant employer had failed to bargain in good faith (so had the union, but this wasn’t on the
table), not fulfilling their obligation under s.50, for three reasons: 1) The employer refused to bargain
until the certification of replacement workers had been resolved – they are required to deal exclusively
with the bargaining unit. 2) Further the employer wished to impose a probationary period on all
returning strikers. 3) Finally the employer refused to agree to a provision for any type of arbitration or
consideration of questions arising from discharge of the 49 employees, which completely blocked
bargaining. In light of the long history of intransigence and the bitterness of the parties, the Board
decided that to issue the usual remedy of a cease and desist order, or a direction to the parties to
bargain, would be "unrealistic and even a cruel waste of time".
Issues
Holding
Reasoning
The Board directed the appellant employer to tender the tentative agreement which it had put forward
earlier (and which had been rejected) with the exception of four issues about which the appellant
employer had changed its position. The parties were given 30 days of bargaining to settle those
issues and, if they remained unresolved, then compulsory mediation was to be imposed. At issue is
the jurisdiction of the Board to make this order.
Was the Board’s finding of RO’s breach of the duty to bargain in good faith patently unreasonable?
Was the Board’s remedy patently unreasonable?
No. No. The Board was acting within its jurisdiction on both issues.
Cory J (+Gonthier and L’H-D):

The standard of review of the Board’s jurisdiction is patent unreasonableness. The Code
provides that parties may complain to the Board if the duty to bargain in good faith is not fulfilled,
and the Board will assist in settling the complaint. So clearly this issue is in the Board’s
jurisdiction.

All provincial labour statues have an equivalent of this duty  In the context of the duty to
bargain in good faith a commitment is required from each side to honestly strive to find a middle
ground between their opposing interests.

Two facets  Not only must the parties bargain in good faith, but they must also make “every
reasonable effort” (s.50(a)(ii)) to enter into a collective agreement. Breach of either component is
a breach of the duty.

In this case the appellant’s behaviour was so egregious that clearly the Board’s finding of a
breach of the duty of good faith was not patently unreasonable.
On the issue of the remedy:

There are four situations in which a remedial order will be considered patently unreasonable: (1)
where the remedy is punitive in nature; (2) where the remedy granted infringes the Canadian
Charter of Rights and Freedoms; (3) where there is no rational connection between the breach,
its consequences, and the remedy; and (4) where the remedy contradicts the objects and
purposes of the Code. In this case at issue are #3 and 4.

Clearly it can never be forgotten that free collective bargaining is a corner stone of the Canada
Labour Code and of labour relations. As a general rule it should be permitted to function.
Nonetheless, situations will arise when that principle can no longer be permitted to dominate a
situation. Where the dispute has been bitter and lengthy; the parties intransigent and their
positions intractable; when it has been found that one of the parties has not been bargaining in
good faith and that this failure has frustrated the formation of a collective bargaining agreement;
and where a community is suffering as a result of the strike then a Board will be justified in
exercising its experience and special skill in order to fashion a remedy.

This will be true even if the consequence of the remedy is to put an end to free collective
bargaining. The Board's order rightly placed more weight on the Code’s objectives of promoting
the common well-being and encouraging the constructive settlement of disputes. It demonstrated
a balanced and carefully considered approach to the particular situation confronting it.

In this case, there is a rational connection between the breach, the consequences and the
remedy. The position of the appellant, particularly on the dismissed eyees issue, put an end to
any possibility of true bargaining between the parties.

In the circumstances of this case it was beneficial to the parties and to the community that the
Board applied its experience and skill to design a remedy that was eminently fair and sensible.

The Board didn’t just impose any random agreement. Rather the Board used as a basis for the
bulk of its remedy the tentative agreement drafted and put forward by the appellant, and ordered
mediation on the 4 unresolved issues. They had tried conciliation, mediation, ministerial
intervention and the appointment of an Industrial Inquiry Commission.
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

Therefore, in light of both the lack of cooperation and the lack of good faith bargaining by the
appellant and the damage to the community which the parties' dispute had caused, the Board
properly exercised its discretion to impose a remedy which would put an end to the impasse.
Even if the standard were correctness, the decision would be correct.
Lamer CJ (concurring in the result):

While I share some of Major J’s concerns about the intrusive nature of the Board’s order, I agree
with Cory J that the Board’s finding of bad faith bargaining fell w/in the specialized jurisdiction of
the Board and that the finding was not patently unreasonable under the circumstances.

However, I have chosen to write separately because I wish to stress that such an extraordinary
order, while justified in these circumstances, runs against the established grain of federal and
provincial labour codes by overriding the cherished principle of "free collective bargaining" which
animates our labour laws. While Cory J. is correct in emphasizing that the principle of "free
collective bargaining" is not the only policy interest advanced by the Code, it is undoubtedly one
of the most important and one of the most sacred.

It would be an ironic and tragic development in our labour law if the principle of free collective
bargaining were to be regularly subordinated to the societal goal of the "constructive settlement
of disputes". Normally, such a decision would be PU.
Major (+ McLachlin and Sopinka JJ) (dissenting):

Agree with the issue of bad faith bargaining.

The issue of remedy is one of jurisdiction, and therefore the SoR is correctness.

Re, rational connection  The breach which caused the Board's intervention was the appellant's
bad faith bargaining regarding the claims of dismissed employees. The Board did not hold that
this bad faith bargaining caused the parties not to reach a collective agreement. Rather it held
that it was the consequence of the failures of both parties to bargain in good faith over the course
of the negotiations. This does not justify the imposition of the complete terms of a collective
agreement on one of those parties which happens to now be in breach of its good faith
bargaining duty in only one particular respect.

Re, policy considerations  The Board incorrectly concluded that the failure to reach a collective
agreement was adverse to the objects of the Code. The objects of the Code are the
encouragement of free collective bargaining and the constructive settlement of disputes by the
parties through the collective bargaining process. The obligations of the bargaining parties under
the Code are to bargain in good faith and to "make every reasonable effort". Parties are not
required to reach an agreement.

What the Board could have done is ordered the employer (1) to table within a specified time a
collective agreement which it was willing to honour, and (2) to cease and desist from its
unreasonable position with respect to the dismissed employees (or even impose a specific term
to deal with this issue alone).
Comments
Royal Oak Mines:
 This case is about one of the most violent and destructive moments in recent Canadian history. A number of
state inquiries and other state mechanism became involved.
 All this boils down to whether something was a failure to bargain in good faith.
 Lamer CJ sides with the Cory decision, but on the remedies issue he's clear that he wants to see the initial
offer by Royal Oaks (which was rejected)  para 2
 We're dealing with s.50 of the Canada Labour Code.
 So failure to bargain in good faith is a breach of a duty under the code. And that breach prevents the
exercise of free collective bargaining.
 Is there any tailoring of the measure to the breach?
 What are the problematic aspects of the exercise of remedial authority that flow through Major J's dissent?
Well it seems to be contrary to the general purpose of the code, which is free collective bargaining.
 The argument is that the principle of free collective bargaining is opposed to an attempt to impose a
collective agreement. In this case, the decision by the board to require the last offer to go back on the table
and to require bargaining on certain issues that were not seen to be the result of the specific breach was an
exercise of remedial power that the board didn't have. It just didn't have the authority to act as a compulsory
arbitrator.
 Two diff characterisations: one that takes you’re outside the jurisdiction of the code, the other that sees this
as squarely within the jurisdiction of the code and not patently unreasonable.
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


The expectation of what is or isn't patently unreasonable can easily slip into the question of whether you
have jurisdiction or not.
If you're questioning whether you have jurisdiction, then the answer to that question is meant to be
determined on a standard of correctness, so you no longer have the latitude to make some, you have to get
it right.
This is an important case because it's shaped the way the law has developed on the issue of replacement
workers.
(III) INTERFERENCE WITH UNION ACTIVITY
C.B.C. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 (“Goldhawk”)
Jurisdiction
Facts
Goldhawk was the host of Cross Country Check-Up, and the president of Alliance of Canadian Cinema,
Television and Radio Artists (ACTRA). Under the union's by-laws, the president is also its official
spokesperson. In the midst of an election campaign in which free trade was a central issue, Goldhawk
wrote an article against free trade in the union newspaper. The CBC was concerned that his article and
his public involvement as president of the union violated the CBC's journalistic policy requiring impartiality
of journalists. It was agreed that, as an interim measure, Goldhawk would cease hosting his program until
after election day. After the election, Goldhawk offered to relinquish his duties as the union's
spokesperson, while remaining its president, in order to accommodate the CBC's concerns. The CBC
rejected the offer and forced him to choose between his job as host of a radio program and his role as the
president of the union. Goldhawk resigned as union president and resumed hosting his radio program.
The Canada Labour Relations Board upheld the union’s complaint that the CBC had interfered with the
activities of a trade union, contrary to s. 94(1)(a) of the Canada Labour Code. The majority found that G's
article was a union activity protected by s. 94(1)(a) and concluded that the CBC committed an unfair
labour practice in forcing him to choose between the two positions and that the CBC's journalistic policy
did not justify its action. The Federal Court of Appeal dismissed the CBC's application for judicial review.
Issues
Holding
Reasoning
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Are the union's statements on political matters outside the collective bargaining context protected by
s. 94(1)(a) of the Canada Labour Code? Did CBC’s request to Goldhawk to choose between hosting
his show or his union activity constitute interference with a union activity?
Yes. Yes.
Iacobucci J (+Lamer C.J. and Cory, Major, as well La Forest with very very slightly different
reasons):

Whether there has been interference with a union activity is a question of law that Parliament
intended to be answered by the Board, and not the courts, and so the SoR is patent
unreasonableness.

The jurisdiction of the Board encompasses the authority to develop a test for when such
interference is established, and to define the scope of the concepts of "administration" of a union
and "representation" of employees

The test developed by the Board to adjudicate the s. 94(1)(a) claims involves (1) a
characterization of the activities of the union and a determination as to whether there has been
employer interference with them; and (2), if such interference is made out by the union, whether
there was justification for the interference

The fact that the CBC is a creation of, and is governed by, an external statute – the Broadcasting
Act – does not raise the overall standard of review to one of correctness, even though no
deference will be shown to the Board in its interpretation of the provisions of that statute.

The Board's decision that the CBC had interfered with the administration of a trade union or the
representation of employees by that union was not patently unreasonable.
 The Board, while recognizing that s. 94(1)(a) has its limits, found that the publication by a
union and its officer of an article in a union newsletter expressing an opinion that a
government economic policy constituted a threat or a benefit to its members was
protected by s. 94(1)(a).
 Given the context, the extension of the content protection was not wholly unwarranted.
The substance of the article was not aimed at the employer, but rather at gathering
support from members for the union's official position.
 It is not unreasonable to find a connection between the collective bargaining relationship
and the activities of unions as they relate to external social issues affecting their members.
Labour Law



Alternatively, the Board also found that the CBC's action in refusing to accept G's offer that he
retain his position as union president while no longer serving as its spokesperson had the effect
of preventing any broadcast journalist from being the president of the union, and thus affected
the right of the union to choose its president from among its entire membership.
This act alone amounted to a violation of the Code. On any standard of review, the Board was
entitled to find that the election of whichever person the union members wish to have as their
president is an activity that falls within the concept of "administration" of a trade union or
"representation" of employees by that union.
Finally, the Board's conclusion that the CBC had failed to show a valid and compelling business
justification for its interference is not unreasonable. The Board considered the journalistic policy
but did not find that it compelled the CBC to take the action that it did in order to fulfil its
requirement of impartiality.
Gonthier J:

Subject to the comment of L'Heureux Dubé J., the reasons of Iacobucci J. were agreed with.
L’H-D J:

Subject to the following comment, Iacobucci J.'s reasons were substantially agreed with. An
administrative tribunal protected by a full privative clause, as is the Board, is entitled to curial
deference in its interpretation of an external statute. The interpretation of an external statute
cannot be characterized as a jurisdictional question as such.
Sopinka J:

The SoR for what constitutes interference under 94(1)(a) should be correctness but agree with
outcome.
McLachlin J (dissenting):

A court can only interfere with the Board's conclusion that G's statements were protected by the
Code if its conclusion is patently unreasonable.

This conclusion is patently unreasonable from the perspective of both the purpose of the Code
and the authorities. The purpose of the Code is to promote and preserve the collective
bargaining system and the protection provided by s. 94(1)(a) to employees who speak out is
confined to that purpose.

Thus, only union statements relating to the collective bargaining process fall within the ambit of s.
94(1)(a) protection; statements made for personal or political reasons are not protected.
 The union representative making a political statement unrelated to collective bargaining is
for practical purposes in the same position as a non-union person making a similar
statement.
 Since the matter does not touch collective bargaining issues, there is no justification for
treating the union person differently.
 If the statement puts the employee in a situation where the employer's policy necessitates
taking some action, then there is no reason why the employer should not do so since the
employee's activity does not come within the ambit of s. 94(1)(a) protection.

On the question of interference with a union activity, the applicable standard of review is also
patent unreasonableness. Had the CBC's action in putting G to a choice between continuing as
union president and continuing as host of his program been in response of a statement made by
G in the course of collective bargaining, it would clearly have constituted interference with a
union activity under s. 94(1)(a).

Finally, assuming the CBC interfered with a union activity protected by the Code, the standard of
review applicable to the Board's conclusion on the question of the justifiability of the CBC's
conduct under its statutory regime is correctness. The CBC policy was capable of being
considered a "compelling reason" for interfering with the activity of the union, given the special
position obligation placed on it by law.
Comments
CLC 94. (1) No employer or person acting on behalf of an employer shall
(a) participate in or interfere with the formation or administration of a trade union or the representation
of employees by a trade union; or
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Goldhawk
 Facts: CBC journalist was president of the journalist union, and one of the union's rules was that the
president was also official spokesperson. He wrote an article against free trade when that was an issue. The
journal was only distributed to union members. CBC was concerned that this went against its impartiality
policy. The CBC only found out about his article months later when it got published publicly and became
public knowledge. The CBC said give up either the presidency or your radio show (cross country check-up).
He was forced to choose between union activity and his host position. He gave up the presidency.
 Section 94 is critical here  s.94(1)(a). No employer shall interfere in formation of union or representation of
employees by a union. This provision is contrasted with 94(3)(a)(1) and another one and s.96, all of which
deal with unfair labour practices.
 Iacobucci (majority):
o Characterises test in 94(1): (a) was there interference (b) if yes was it justified? (para 39). This was
the test set out by the board.
o For Iacobucci, this test, especially the first part, is at the heart of the board's jurisdiction. You close
off the discussion right at the outset. Of course their job is to characterise union activity. On the
basis of that we can get into the issue of classification and whether there has been employer
interference.
o So how did he characterise the activity in this case? What did Goldhawk do? Iacobucci said that
writing an opinion piece had nothing to do with collective bargaining.
o But s. 94 talks about formation, administration, and representation of a union, so why are we talking
about collective bargaining? This provision is a lot broader than collective bargaining.
o How broad is it? Why is Goldhawk's article in a union magazine raising concern? If s. 94(1)(a) is
this broad, what falls outside of it?

Political work is excluded. Why?

Recall when we looked at QLC, which helpfully lists objectives of trade unions and
employee associations; there is range of interests listed (political interests do not appear
on list)

Historically, political activities have fallen outside of what gains specific protection within
statutory framework

Exclusion of political activities is an underlying concern (you see in this decision)
o There is a broader/parallel concern: that CBC's position prevents union from electing a president
from all its membership (limiting access to union activities by parties on radio shows, etc.)
o Different entry point: what would be effects if we were to read this provision in a manner that
prevented us from considering these kinds of choices

s. 94(1)(a), if interpreted broadly, raises spectre of any gamut of trade union activity
potentially falling under s. 94

All workplace mediations would fall under provisions
 Concern in the minority opinions  If section 94(1)(a) is interpreted broadly, it raises the spectre of any
gamut of trained union activities potentially falling within s.94(1). You could then see just about all workplace
mediations as falling subject to its provisions.
o What does the majority do with this concern? Do they even settle the issue?
 Making this characterisation falls back into a jurisdiction question. E.g. let the board make the determination.
Interfering with the right to choose a president could very well be breach of s.94
 McLachlin (dissent):
o Analogises to the example employees making political statements on the job, e.g. wearing a button
of a political party. She says that if you give full freedom of expression to employees and capture it
with s.94, then you're permitting the employees to put forward a position that could reasonably be
attributed to the employer.
(IV) DOUBLE-BREASTING (IN QUEBEC)
Ville-Marie Pontiac Buick Inc. v. Syndicat des travailleurs de garage de Montréal (C.S.N.), [1993] T.T. 162
Jurisdiction
Facts
The Labour Commissioner found that the two employers constituted a single employer for the purpose
of the accreditation of the union.
Ville-Marie was a car dealer of General Motors and Pontiac Buick cars and had originally had a union
- Fraternité canadienne des cheminots, local – which was replaced by the plaintiff-respondent in 1990.
As a result of a union dispute, it had to close its doors on Dec. 31, 1990. Passeport Hochelaga had a
more elite car dealership with Saabs and Isuzu. The administrators of both were René Forte et René
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Issues
Holding
Reasoning
LeGrand. Each had separate advertising, administration and external contacts. Hochelaga paid rent to
Ville-Marie. Except for vendors and the receptionist, the staff (mostly mechanics and servicemen) at
Hochelaga were hired and paid by Ville Marie. The Ville-Marie union applied to have a s.45
transferred, but this was denied. The union then tried to apply under s.39 to have employees of
Hochelaga recognized as members of the other union, saying they were the same employer. The
union argued that the companies belonged to the same people, and that Legrand had the final say on
all personnel issues.
Is there only one single employer here for the purposes of accreditation?
No.
Le Juge Bernard Lesage:

Without hesitation I can say that there is not one single employer here

This case provides me with a good opportunity to comment on the concept of “a single employer.
The Canada Labour Code has this concept in s.35 where the Board may declare a single
employer where two or more employers have common control or direction, thereby determining
whether the employees constitute one or more collective bargaining units.

In Lestor, McLachlin J distinguished the “classic situation”, when a business or part of a business
is transferred from one company to another (s. 45 type situations). Absent legislation, the effect
of the transfer is to terminate the relationship between the union and the employer, with the result
that the employees would lose their bargaining rights.

The second situation arises where one company, which continues to carry on business subject to
a union contract, sets up a second parallel company which operates without a union. This
practice is known as "double breasting". By having a new non-union company take on a
new job, the employer can avoid the union contract. The workers for the first company, if
they want work, may be compelled to work in a non-union shop for the second company.
In the absence of some type of disposition, successorship provisions will not prevent
double breasting.

Although it is difficult to figure this out in concrete factual scenarios, it appears that at the level of
principle, it's quite simple. We should not use “single employer” terminology in the way it’s
applied in other jurisdictions where both companies are closely linked and benefit each other,
and where it would be convenient to have only one certification and a single collective
agreement.

In our current state of the law, it is necessary to go further and see if all organized elements for
the production of the two major seemingly distinct entities rest in one entrepreneur, regardless of
whether the attributes thereof can be found in several natural or legal persons. This is a difficult
judgement to make in concrete cases.

These dealerships certainly benefit each other in their secondary activities, but their
structure and basic means of production remain distinct, as does their legal structure and
their history. On this last point, it is easy to see here that the establishment of Passport
Hochelaga may have been inspired by a desire to thwart unionization.

It seems to me that, if we had in Quebec, a provision authorizing the concept of a single
employer in this case a single accreditation could have been ordered. But as the law stands, I
cannot so conclude.
Comments
Ville-Marie Pontiac Buick
 why is this not a successor employer case? Facts: there were two diff businesses going on. One was unionised
and one was not.
 Union tried to rely on QLC 39
 s. 35 CLC lets the board declare a single employer, but there's no equivalent of s.35 in QLC.
 As a result, the request fails. The tribunal du travail is not prepared to read in a power equivalent to that given in
s. 35, which would mean taking two entities and declaring them to be one.

Despite real sharing between the two, they're not seen as together
 Case shows limits of s. 45 as we've seen it before

Also shows operation of inability to work with the closing of enterprises with related activity and carry those
forward for the purposes of unionization, except when you can see a transfer

Think especially about Wal-Mart situation, where that leaves us
 Simple case: can't do it in quebec, can do it elsewhere.
(V) CLOSURE
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City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22
Jurisdiction
Facts
Issues
Holding
Reasoning
City Buick Pontiac sells and services vehicles. The employees were unionized, and were trying to
renew their collective agreement. The general manager, Loyd Rogers freely admitted that it was
closing up shop because of its inability to negotiate a satisfactory agreement with its sales staff. A
letter dismissing the employees also stated that due to considerable financial losses, the dealership
would have to close, and that some of these losses were attributable to the inability to come to agmt.
The letter expressed regret at having to close and dismiss the employees. In the following weeks, the
dealership was totally closed down.
Is it legal for an employer to close shop in the face of an inability to negotiate a collective agreement?
Is this just cause for dismissal?
Yes. Yes.
Juge Lesage:

It was not for the Labour Tribunal to sit in judgment of the employer’s reasons for shutting down,
but only to assure that the employer carried out that decision genuinely and did not merely
engage in an elaborate sham to break the employees’ strike.

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. It is not prohibited 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.

It is still necessary, and this is of utmost importance, that the decision to discontinue be authentic
and not a simulation, merely an argument in the arsenal of methods used to overcome union
demands, because it would then be a pretext and a fiction that would preclude a consideration of
it independently of the reasons therefor.

This would be the case if, by subterfuge, the employer continued its activities indirectly, with the
assistance of others, elsewhere or in other ways or after a period of time has passed in order to
keep up appearances.

Any indication that it is keeping a door open to resume the same business would preclude a
finding of its complete and definitive discontinuance.

It is certainly with the utmost strictness that the circumstances of the decision to close must be
scrutinized in order to assess its true nature . .
Comments
City Buick Pontiac

So what happens when a business really goes out of business? In this case, this guy truly went out of
business – there was no pretext
o Even if he rehired same people and reopened business, would still be new business

Given that we’re in a liberal economic system, there is no obligation of the employer to stay in business

This case has become very significant and re-interpreted to a range of different contexts – franchise, multibranch/unit, and even parts of an undertaking

Judge says that the legislation that we have doesn’t have anything more than directly firing the employee (as
opposed to an employer shutting down all or part of an undertaking

Industrial relations framework assumes business is still around in order to calculate damages for an unfair
labour practice, however doesn’t compel business to stay open

Through series of cases we'll see today, see how significant this decision has become
o Has been reinterpreted to range of contexts (franchises, multi-branch, parts of an undertaking, etc.)



It seems that there's now a right given to employers in the code to go out of business.
This right has now gained a status virtually to trump constitutional rights.
E.g. you can trump freedom of association by going out of business.
I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, [2004] 1 S.C.R. 43
Jurisdiction
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Facts
The collective agreement between the Société de la Place des Arts de Montréal (“SPA”) and the
respondent union provided that the SPA would only employ union stage technicians. The stage
technicians performed duties related to the handling, installation and repairing of set decor as well as
the operation of electric, electronic and mechanical equipment during performances. Likewise, the
leases between the SPA and the tenants stipulated that the tenants would only use union
technicians. The collective agreement ended February 28, 1999. Following a protracted labour
dispute with its technicians, including a strike, the SPA decided to quit providing technical services (on
November 8, 1999) and amended the leases accordingly, leaving the tenants to hire their own stage
technicians from that point forward.
The union brought proceedings against the SPA for infringement of s. 109.1(b) of the Labour Code,
which prohibits every employer from utilizing the services of a person employed by another employer
to discharge the duties of an employee who is a member of the bargaining unit on strike. The SPA
was fined by the Labour Tribunal. That decision was upheld on appeal. The SPA paid the fine but did
not amend its conduct. The union therefore sought an injunction to prevent the SPA from continuing
to infringe s. 109.1(b) of the Code. The Superior Court granted the injunction on January 25, 2001,
which was upheld by the Court of Appeal in a majority decision.
“The Disputed Period”  November 1999 to January 2001
Issues
Holding
Reasoning
1) Is the SPA’s appeal an abuse of process, given the decision by the Labour Tribunal?
2) Was SPA in violation of s. 109.1(b) of the QLC?
1) No.
2) No.
Gonthier J:
Is the SPA re-litigating a matter already litigating by defending itself against the violation of
s.109(1)(b) of the code?

The SPA is not circumventing the Labour Tribunal’s decision. When hearing the injunction
application the Superior Court was sitting in first instance, not in judicial review. An injunction is
an extraordinary remedy available in Quebec only from the Superior Court. The applicant must
demonstrate that the circumstances warrant such a potentially intrusive remedy, and that he is
deserving of it.

Just as Normand J. had to determine for himself, independently of the Labour Tribunal’s finding,
whether the SPA was in violation of s. 109.1(b) of the Code, the Court of Appeal and now this
Court must do the same. No deference will be shown to the Labour Tribunal vis-a-vis the
decision to uphold an injunction.
Violation of s.109(1)(b)

The union wants us to characterize the state of affairs in Places des Arts during the disputed
period “holistically” using the organic approach promoted in Bibeault.

It is not helpful to rely on cases interpreting s.45 to understand what was going on here during
the disputed period. Under s. 45, collective agreements and certification proceedings survive the
alienation or operation by another of an undertaking, and the new employer is bound by the
certification or collective agreement as if it were named therein. The Union has not sought to
invoke s. 45 of the Code against the Tenants. We are not concerned with s.45 here. There is
nothing in s. 45 or elsewhere in the Code that prevents the SPA from restructuring its business
and abandoning the provision of technical services to its Tenants.

Furthermore, the accreditation certificate only applies to those in employ of SPA.

The courts below gave too broad a meaning to the concept of “utilizing” in s. 109.1(b) of the
Code. The interpretation of s. 109.1(b) should bear in mind that the SPA and its tenants are
distinct legal entities, and that the SPA has the right under Quebec law to go partially or
completely out of business (City Pontiac Buick)

While the SPA benefits indirectly from the services of stage technicians employed by the tenants,
it does not utilize the services of persons employed by another employer contrary to s. 109.1(b).
“To utilize” involves a positive act by the user. One who merely passively benefits from a given
state of affairs does not utilize anything.

Courts and tribunals must carefully scrutinize the facts of each case to make sure that the
decision to close up shop is genuine and not merely a strike-breaking ruse.

Several factors point in this case to the conclusion that the SPA had genuinely abandoned the
technical services side of its business to its tenants.
 First there is the SPA’s Resolution, which declared its definitive intent to quit
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

Comments
offering and providing stage technician services to its Tenants and to amend the
Tenants’ leases accordingly.
 Next there are the lease amendments carried out in accordance with the Resolution.
 The actual practices of the SPA and the Tenants during the Disputed Period also
support the view that the SPA had genuinely abandoned its technical services
business. During that time, the SPA had nothing to do with the hiring, supervision
or remuneration of stage technicians. Those responsibilities fell solely to the
Tenants
Where an employer genuinely goes out of business, its motive for doing so is not subject to
review under s. 109.1(b). There is NO such limitation in law that the right of an employer to go
out of business is premised on the employer having credible reasons of an economic nature for
doing so.
The union has not sought to invoke s. 45 of the Code against the tenants and there is nothing in
this provision that prevents the SPA from restructuring its business and abandoning the provision
of technical services to its tenants.
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 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...
*See Prof. Blackett’s handout to show what 109.1 protects
Place des Arts (SCC, short decision, unanimous)

The collective agreement expired in feb 1999. In june 1999 there was a strike. After a time the board
decided to stop proving stage technicians to its tenants. The board also modified the lease agreement with
the tenants and decided it was out of the business of providing technician services.

Initial claim brought in respect of Quebec’s rigorous legislation about replacement workers. . The union was
successful, and there was a fine imposed and an order to cease and desist. The fine was paid but the
practice not ceased

What changed according to Gonthier so that the courts are not simply enforcing the decision of the labour
board? Contesting the injunction, not the finding of a violation. Basically we've got a trial be novo. There's no
deference given to the tribunal du travail. And Place Des Arts is enabled to bring distinct argumentation at
this level.

Why then a closure? Has Place des Arts gone out of business? No! So what changed?

Gonthier relies on Pontiac Buick to say they can close part of their business

In this judgment we see efforts to avoid circumscribing unduly the ability of a business to restructure
“Violations of NAALC Labor Principles and Obligations St-Hubert McDonald’s Restaurant”
Public Communication No. 9803 on Labor Law Matters Arising in Canada (Québec) before the National
Administrative Office of the United States under the North American Agreement on Labor Cooperation (NAALC)
Note: NAALC is the labour side accord of NAFTA.
**SEE PAGE 6 FOR A SUMMARY OF THE CERTIFICATION PROCESS IN QUEBEC.**





This submission raises questions regarding the absence of recourses under Quebec law for anti-union
motivated plant closures, as well as unwarranted delays in the certification process. It also raises the issue of
access to certification by sector in order to address problems in the certification process related to multiple
employers or multiple facilities systems of corporate structures.
In 1998, a St-Hubert’s closed down when certification seemed imminent. Quebec law does not provide for a
remedy in such situations.
Furthermore, the requirement that a formal hearing be held whenever the employer disagrees with the
proposed bargaining unit causes delays in the certification process, allowing eyers to pose artificial challenges.
In the case of this St-Hubert’s, the restaurant submitted lists of employees who allegedly disagreed with
unionization but these employees had never worked there. They also required hearings on the make-up of the
bargaining unit.
During the long hearings, the restaurant shut down and then withdrew its objections. The eyees of the now
closed restaurant were then certified! 
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







Quebec is the only Canadian jurisdiction having ratified the NAALC which maintains a legal doctrine permitting
an employer to close a facility for anti-union motivation with impunity.
The only way of avoiding the City Buick Pontiac doctrine is to demonstrate that the employer is most likely
using a scheme to avoid certification or to avoid a first collective agreement and that the evidence shows that
he has the intention of reopening its facilities.
Note that under U.S. law, it is an unfair labour practice to close down one part of a business in order to deter
other parts from unionizing. That is what happened in St-Huberts, but City Buick Pontiac still apples.
It is ironic to threats to shut down because of union activity is a unfair labour practice, but actually shutting
down is not!
So in Quebec, there are real difficulties when seeking certification in sectors where businesses are structured
in multiple locations or facilities or based on the franchise system of corporate ownership.
The Quebec Labour Code and its certification procedure are based on a traditional bipartite employeremployee relationship and limited to single employer bargaining units. This model does not adapt very well to
the reality of the workplace, which is increasingly service-oriented.
Bargaining unit definition, limited by law to a single employer, is complex in industries where corporate
ownership is not limited to the traditional one plant-one owner model. In this context, the franchise system of
corporate ownership may also act to obscure the employment relationship and bar attempts to certify a union.
Solutions that have been proposed to address these issues include the possibility of permitting multipleemployer bargaining units and establishing a system of certification by sector.
NAALC Case:
• McDonald's employees tried to unionize in St-Hubert; franchise owner closed
- 11 months later: many trial days: long enough period for employer to reconfigure and stamp out interest in
unionisation
- NAALC mechanism tacked on to NAFTA to get Bill Clinton's signature
• Initially embraced with enthusiasm by labour unions who thought that NAALC could become mechanism
for transnational solidarity of unions, and could thus reform labour laws in US and Mexico
• Little imagination initially that it would be used in Canadian provinces that had agreed to submit to
jurisdiction (Quebec agreed, Ontario did not)
• Came into force 1 Jan 1994
· Falling into disuse
• Decision made to use it here: shock value/media success: shocking that Quebec could fall behind
trading partners in labour law issues
• Thought at the time to have been very significant campaign because of media attention
· Government ultimately provoked unions and got agreement from them; said it would, in upcoming
2001-2002 review of labour law, introduce changes that would respond to the concerns outlined in
the submission
◦ Unions agreed to withdraw submission even before NAALC was able to issue initial report
◦ Didn't even get to stage of basic ministerial consultations
- Why look at this position?
• p. 7: City Buick and Darlington case: distinguish: in this case, six franchise operations, and they're
closing one of them (okay, because they're distinct); US says no, if you're keeping one open, you're not
closing for the purposes of this doctrine
· No one is contesting the fact that you may have taken this particular branch out of operation
· You have closed it for anti-union purposes; you recognize through the structure that that employer
is still in business, which allows you not to compel employer to open up necessarily, but to
calculate damages (including potentially punitive damages for what remains an unfair labour
practice)
◦ In case of multi-branch franchises, can go even further by ordering reinstatement of
employees into other branches (which has happened in other jurisdictions in Canada
including at federal level: Banque Nationale decision landmark in terms of range of
remedies ordered)
• In this submission, attempt to reflect on Lesage's judgment in City Pontiac and what is closed down
- Quebec government agreed in its reforms to address aspects of concern in the NAALC scenario
• Aspect that was dealt with: tightening up the process for certification, to really reduce delays, put in place
mechanisms so hearings would take place much faster
• But then there was McDonald's Peel: much faster process happened when they tried to certify
· Owner in that case closed shop and said rent prices too high (despite speed that had been
significantly improved)
- Left with a quandary: bigger part (per Blackett): challenge remains with this doctrine that closing for anti-union
animus is not an unfair labour practice
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Cie Wal-Mart du Canada c. Québec (Commission des relations du travail) 2008 QCCA 236



S. 15, 17 of QLC claim dealing with Walmart closure as anti-union activity
S. 17 says needs a good and sufficient reasons for actions, Walmart says closing and this rebuts the
presumption of sl 17
CRT had ruled in favour of the union, commissioner relied on the fact that Walmart didn’t get rid of the lease,
they are holding onto it, so closure is not final
Reasoning of Superior Court

The only evidence Wal-Mart has shown is the empty store; however there is no evidence that Wal-Mart has
sought or seek to terminate its lease or sublease the building. Nor is there evidence that the building is being
rented, sold or about to be demolished

In City Buick Pontiac, Judge Lesage said that if an employer really was going to close shop, it is not prohibited,
provided it’s genuine and permanent. In Place des Arts, the Court found that SPA had really abandoned
providing such services.

The Commission cannot, therefore, issue an interim injunction to reopen unless it appears that the closure is not
real, true or definitive.

In City Buick Pontiac, the court held that “any indication that the employer keeps an open door to resume the
same company, precludes a complete and definitive cessation thereof.” In that case there was no such
indication, and the building had been sold. The employer did not retain any interest.

However, in the case of an institution such as Wal-Mart in Jonquiere, where, several months after the
announcement closure, it is still the tenant and no effort is being made to sublease or otherwise, this is an
indication that the operator keeps a door open to resume the same business. Notably, Wal-Mart has not offered
any explanation to this effect.

Therefore, it is clear that, given the presumption that some of the plaintiffs receive, Wal-Mart has not met its
burden of persuading the Commission that the closure of the establishment was genuine or definitive as required
by the relevant jurisprudence to constitute good and sufficient cause.
Court of Appeal

Court of Appeal quotes City Buick, goes more into the closure and whether it was final, delves deeper they say
all the inventory is gone, no signs, no equipment, no other Walmart built in Jonquiere

Commissioner said Walmart keeping open door by not doing anything with the lease so not final, Court of Appeal
says to do this would reverse the burden for article 17 (burden is on the employer, the employer says we closed
it, the commissioner says you didn’t have plans with the lease, CAP says by asking for plans for the lease you
are putting a reversal of the burden – already had proved it prima facie – burden is to just show just cause – not
absense of subterfuge)

So Court applies City Buick and Places des Arts doctrine

Doesn’t mention BC health services, focuses on 15, 16, 17
Notes from Class

Unlike Place des Arts and City Buick, Walmart has many neighbouring stores

Should it matter (not like a franchise – still maintatins control of each enterprise), has a huge size, can exert
cost-undercutting which impacts on suppliers and other retailers establied in the area)

Business model is premised on might and ability to shape buying and selling

An analysis of Walmart’s reasons for closing does not have this nuanced sense

City Buick doesn’t require employer to show financial viability – this closes the discussion

In Walmart case – has transfered wickets to neighbouring stores, allowing consumers to take a short detour

Chilling effect on all Walmart workers

Issues perhaps to be addressed at policy level, fines for unfair labour practice are very small, this is nothing
for Walmart

In Ontario, Walmart lobbied Harris government that got rid of card signing legislation, need to have a vote to
get certified (this was reaction to first Walmart opened in Windsor)

Case speaks to the potential power of certain corporate actors in regulatory frameworks
VI. Negotiating a Collective Agreement
What are the specificities of and justifications for first contract arbitration?
- What are the specificities of and justifications for first contract arbitration?
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- (Negotiations exercise and preparatory readings to be distributed)
- This class will help us bridge the theory/practical divide
• We will go through three distinct parts of negotiation from a legal perspective
· (1) the provisions
· (2) look more closely at the content of the duty to bargain in good faith
· (3) different bargaining approaches
- (1) Legal framework
• Core provisions found in ss. 53 ff. Quebec Labour Code
• Very technical characterization in s. 52 of period you should be given for negotiation
· Basic rule: 8 days of written notice during 90 day period preceding expiration of agreement
• s. 53: duty to negotiate in good faith
• s. 53.1: neither party may refuse to negotiate on ground that parties disagree
• Saw indirectly in Wal-Mart cases: mechanisms for first-contract arbitration
- (2) Duty to bargain in good faith
• What does this emphasis on diligence and good faith mean in collective bargaining?
• Starting assumption that collective bargaining does not require parties to agree
· They needn't even conclude an agreement
◦ Became an issue in 1985 Superior Court Decision (Service d'assurance Les Cooperants)
• Not obliged to agree, but expected to engage in process in hope you will arrive at position in which you
can bargain
• Imposing responsibility to get to bargaining table to facilitate arriving at mutual concessions
· But need more than sitting together at table (though this is a good start)
◦ Focus is to foster informed discussions
- One of the most important aspects of what is required in the good faith bargaining
process: how much, if any, information need the parties (particularly, the party with
knowledge of what it can or cannot afford – employer) be required to share with a
view to fostering informed discussion?
• Has been some challenge both as to content and to approach
• If an employer enters negotiations stating for XYZ reasons, we cannot afford
this wage increase, what follows? Must the union take that at face value?
Has the invocation of an inability to meet a request for material reasons
resulted in an obligation to provide supporting information?
∙ This is a bargaining process in which bargaining style becomes
important
∙ Bargaining approach determines how you go about sharing/not sharing
information
∙ How you go about fostering discussion in good faith manner without
necessarily requiring all the books to be opened up becomes an
important consideration
• Helpful cases in relation to this for ability to tackle the matter:
· Ontario decision by Paul Weiler (one of key labour arbitrators/thinkers on the structure of labour
relations system)
◦ Miranda Metal: employer sent out letters to employees setting out differences in cost
between position taken by employer vs. position taken by union in negotiations
- When union followed up with request for information, employer refused to discuss
costs
- Weiler considered this to be a violation of good faith bargaining (refusal to disclose
information – union requires factual data in order to appraise proposals in an
intelligent fashion)
• Need information to enable selves to make every reasonable effort to come
to decision
- Drew on US cases
• But significant variation on how far you have to go
· Westinghouse case (Ontario)
◦ Employer planning to move manufacturing division to other locations to detriment of
bargaining unit (but didn't inform union)
- No violation of good faith requirement
• Though employer must respond in honest fashion at bargaining table,
employer doesn't have duty to tell all (particularly, doesn't have duty to tell its
final decision)
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•
•
•
•
◦ Has been deeply critiqued: line between how much information needs to be provided
remains relatively fluid line in the law on the duty to bargain in good faith
- Captures attempt on the one hand to think about negotiation as rational process
facilitating mutual agreement, but on the other hand, recognition (implicitly) of areas
where interests may be mutual or distinct
Attention to collective bargaining has largely been in its process
· e.g., failure to sit down at bargaining table is plainest example of failure to bargain in good faith
· e.g., put in place requirement/position that is considered unreasonable (Royal Oak Mines) similarly
problematic
How far does duty to bargain in good faith go?
· Does it encompass procedural mechanisms? (e.g., need to set meeting, need to attend meetings,
etc.)
· What about putting forward provisions such as minimum wage that may be lower than what the law
requires but might have elements of flexibility?
◦ Public policy argument (generally accepted): if it's against the law for a reason, it is not in
good faith
◦ But what if other perquisites made it a better wage in real terms?
- Grey issues when it comes to articulating an unconventional position, and that might
but up against public policy
- There isn't much of a margin in labour standards legislation for deviating from
statutory minimums
- Appreciation entailed with assessing whether those violate good faith bargaining
occur on a substantive level (you're looking at content of the offer, not
procedure/action)
· Conflict of values: want to endorse self-interest, but promote mutual-gains approach to bargaining
◦ Don't alway sit side by side (especially in terms of information requirements, but also
thinking flexibly about requirements)
Duration of bargaining
· Is it a violation of good faith to let negotiation process go on for years and years (e.g., Concordia)?
· Outer limit of sorts in s. 58 QLC (confers right to strike/lockout)
◦ But as you see, duty to bargain in good faith does not end simply because a strike has been
called
- Becomes all the more important to ensure that we can get beyond the strike to an
agreement
◦ Yet the assumption that you could be bargaining in good faith and yet need to strike/lockout
suggests precisely the kind of tension Blackett has sought to capture
- You might not be agreeing, might be taking hard position, might need to resort to
marshalling economic power to force a conclusion
• Might do that, yet remain within contours of good faith bargaining
· No set duration in legislation; language of reasonableness prevails in interpretation
◦ Mechanisms put in place within labour codes (including Quebec Labour Code) to capture
how you begin to move parties beyond stalemates toward arriving at agreements
· First contract-arbitration scenario: parties have no history of bargaining (right after certification)
◦ Doesn't go straight to first-contract arbitration
◦ s. 54: At any stage, either party may request minister to designate conciliation officer
(neutral third party) to assist in reaching agreement
◦ QLA: First Collective Agreement (ss. 93.1-93.3)
- s. 93.1: if conciliator not successful, party may apply to submit dispute to arbitrator
◦ First-contract arbitration fairly common and credited with saving the entire process
- If union can get certified, they have chance to stay because this process is there
Sanctions possible
· Both civil and penal
· Starts to get interesting in sanctions dimension; this is where you see controversies
· Main penal provision: article 141
◦ Since 1981 decision, clarification that when thinking about duty to bargain in good faith, it is
one composite duty that can be breached
- Diligence requirement does not change the nature of the duty (don't have to prove
failure of diligence and failure of good faith)
- Give rise to breach sanctionable under s. 141
• s. 141 requires you, as alleger, to establish (with burden of proof) that there's
been a breach
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• s. 141 has tended to be used in the most obvious cases (failure to show at
bargaining table, to do the most objectively determinable actions)
∙ Practice of applying s. 141 almost by default in these cases
• Otherwise, tendency to use article 12 (which we've already seen)
∙ Broad unfair labour practice protection which gives rise to burden of
proof on party alleged to have done unfair labour practice
· Civil provisions (articles 118 and 119 QLC)
◦ Allow Commission to require/enjoin employer to cease particular action in unfair labour
practice context
◦ Sidestepping union to go directly to employees is considered violation of duty to bargain in
good faith, but can be addressed through cease and desist order (arts. 12, 118, 119)
- (3) Different bargaining approaches
• Positional bargaining
· Characterized by staking of claims and attempt (in traditional fashion) to get movement on
offers/claims that have been put on the table (define your line in the sand)
• Needs/interest-based bargaining
· Relatively newer approach
· Epitomized in “Getting to Yes” approach
· Negotiation meant to be based on information, persuasion, cooperation; coercion seen as
dysfunctional
◦ Idea: to focus on objective statements of interest in order to arrive at mutually
advantageous solutions (seeking to enlarge the pie)
· Different starting point/idea of what should be going on around tables
· Workers and interests have to continue working with each other, so some feel this model should
dominate
VII. Industrial Conflict
What are the expressive and associational values protected through the right to strike? What are the limits on trade
union solidarity?
- What are the expressive and associational values protected through the right to strike?
- What are the limits on trade union solidarity?
- What is a strike?
• Key provision in Quebec Labour Code: article 1(g) (definitions section) (Canada LC: s. 3(1))
· Sets out nature of a strike
· QLC: “concerted cessation of work”
◦ Definition says nothing about timing
◦ Intent: “concerted” suggests intellectual element (have to have turned one's mind to a
strike)
◦ Factual dimension: cessation of work
• Pre-Charter: test focused on objectively classifying whether there had been level of concertation (e.g.,
union vote)
• What about other kinds of scenario?
· Work to rule, rotating strikes, etc.
· What if a group of workers on the direction of their union decide to ticket anyone who goes over
30km/h along a main artery?
· What if they go really slowly at work?
· This kind of action has been repeatedly relied upon
◦ Usually element of concertation
◦ What do these elements try to capture in definition of a strike?
- Approaches cessation, but it isn't
- Managing economic pressure without actually stopping work; manages to disrupt
industrial peace
• Some jurisdictions have regulated these more harshly than others
- Key element that has been determinative as to whether they are legal has turned
more around issue of timing than definition
• Recall discussion of process/life of CA: there is a period of time in which
strike activity permitted
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- What if the collective agreement is still in place?
• That is when these mechanisms have tended to be employed (e.g., in
Quebec) to assert certain level of economic pressure without automatically
falling within category of having struck (which would be illegal)
∙ Might happen in strike-legal period, too, if union can't afford strike, etc.
• What if employees, in collective agreement, have individually the right to refuse to work overtime?
· What if they, in a concerted manner, collectively refused to work (voluntary) overtime?
◦ They have collectively ceased...
· Employees took this action in BC during life of CA because employer had taken decision to lay off
employees
◦ Not in position to bargain, renegotiate
◦ Was considered to be a strike
◦ Importance of thinking about what the industrial peace clause is meant to capture
◦ If you got friends to refuse overtime (not through union, but informal):
- Remember, right to strike resides not in employees, but in union itself
• Union will usually take strike vote
• Union has right to strike/end strike
- You would be operating out of this system, and outside of the protections
• Outside these protections, employer would deal with you individually
• Legal strike: what if you decide not to cross the picket-line/report to work to show solidarity (and shut
entire industry down): in this case, union local takes position solidarity should be demonstrated, and
urges members not to cross
· How do you consider the refusal to cross the picket lines?
◦ Is it the equivalent of a strike?
- Normal procedure for calling strike is a strike vote
- The non-crossers are not in a legal strike position
- Objective test: looking to factual context to determine whether you have a cessation
of work
◦ Question: do they have opportunity to work at home? (Important in replacement worker
legislation)
◦ Need to know extent to which collective agreement foresees solidarity strikes
◦ Case that captured this situation: considered to have concerted work stoppage in this
context
· When you are in the legal position to strike, you generally want to be considered striking (because
you have the protections available)
◦ If outside statutory period, you don't want to be classified as on strike (illegal)
· We will look at how the characterization shapes who hears your case (Place des Arts situation) and
what they can do
- These cases illustrate changing conception of what is protected in strike
- Current events
• Security guard strike (14,000) in sectoral agreement in Quebec
• Agreement expired in July
• Negotiation for wages, specific premiums granted in specific circumstances (e.g., in psychiatric wards,
etc.)
• Rotating strike situation
· Very clearly, they want to be considered to be on strike
· Measure was voted on by membership (dispute as to whether they actually had majority)
• What else is at issue? Essential services
- Essential services
• Labour Code, 111.0.1 ff.
· Establishes Essential Services Council
· Composition described in 111.0.3
· Defines what is considered to be public service, and public, para-public sectors
· Key provision: s. 111.0.17
◦ Council has power, if strike might endanger public health/safety, order maintenance of
essential service
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◦ Following provisions dictate whether certain sectors/elements required to come up with plan
even before they can call a strike, or come up with plan of the ESC requires them to do so
after the fact
· s. 111.0.19: list
· Power for ESC to seek to suspend right to strike under s. 111.0.24
· Power of injunction s. 111.0.25
· Fairly comprehensive scheme that came into place in effort to ensure level of stability/predictability
in sectors that have faced significant labour relations strife/legislating back to work
· s. 111.2: broader definition than public service itself
◦ Comprises public and para-public sector
- Many educational institutions regulated here (MUSH sector)
◦ Recognition fo right to strike, but strict identification of what must remain
• Overall, tight control by Council over public services and some remaining controla in broader definition of
public/para-public
- City of Montreal v. CUPE (1997)
• Workers refused to work on Labour Day (concerted refusal: intent requirement, so can be considered
strike; but if occurs during life of CA, it is illegal)
• City asked for Conseil to intervene in anticipation because it was feared that a broad range of public
services would be interrupted as a result
• Gives indication of broad scope of action/comprehensiveness of regime
Essential Services Legislation:

Fairly comprehensive scheme that came into place in an effort to ensure a level of stability and predictability
in sectors that have faced significant labour relations strife

There’s a council that controls public services and some remaining control over the broader definition of
public services

Gives us an idea of the broad scope of the council’s power and comprehensive nature of the legislation

See CUPE v. City of Montreal (1997, SCC)
(I) LEAFLETTING
Kmart:




The case distinguishes b/w primary and secondary sites of picketing (including leafleting)
Primary site: the location where the employees actually work
Secondary site
Dolphin Delivery says that picketing is a protected form of expression but divided between private action and
government action – taken a lot of labour relations out of the direct reach of Charter scrutiny
o Dolphin Delivery says that to regard a court order as a government act means that scope of
Charter would widen to include “virtually all private litigation” (i.e. through the structural vehicle of a
court order)
U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083
Jurisdiction
Facts
Issues
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From BC to SCC
During a labour dispute with two KMart stores, members of the appellant union distributed leaflets at
other KMart stores where the union does not represent eyees (“secondary sites”). They handed out
two types of leaflets, describing KMart’s alleged unfair practices and urging customers to shop
elsewhere. The distribution of leaflets did not interfere with employees at the secondary sites nor was
there any indication that it interfered with the delivery of supplies. The activity was carried out
peacefully and it did not impede public access to the stores. Neither was there any evidence of verbal
or physical intimidation. The evidence did indicate that as a result of the distribution of leaflets some
customers appeared confused and a small number appeared to turn away.
The Labour Relations Board) ordered the union to refrain from picketing at the secondary sites. The
Board rejected the union’s argument that the statutory definition of “picketing” was unconstitutional
and should be read down to exclude leafleting in light of s. 2(b) of the Charter. The union applied for a
reconsideration of the decision. While the Board dismissed the application, because the labour
dispute had been settled and become moot, it concluded that the restriction of secondary picketing in
the Labour Relations Code was overly broad.
Does the definition of picketing in s.1(1) of the Code infringe s. 2(b) of the Charter by being overly
broad (thus encompassing peaceful distribution of leaflets at the secondary sites)? If so, is the
infringement justifiable under s. 1?
Labour Law
Holding
Reasoning
Yes (No)
Justice Cory for the court:
 Work is important to a person's identity, self-worth, and emotional well-being. Workers, and
especially retail workers, remain vulnerable and there is an inherent inequality in their relationship
with the employer.
 Workers, particularly vulnerable workers, must be able to speak freely on issue related to
working conditions.
 Section 64 of the BC Labour Relations Code provides that a trade union and its members are
free to communicate information to the public with regard to a labour dispute, except in a
manner which may constitute picketing. Leafleting has long been recognised as an effective
and economical method of providing info and assisting rational persuasion.
 Both the legislation and the Board decisions that news ads, press releases etc. are okay
appreciate how very important it is for workers to disseminate accurate information in a lawful
manner with regard to a labour dispute.
 Sections 65(3) and 67 establish the parameters of permissible and impermissible picketing. The
definition of picketing in s.1(1) is overly broad in a way that certainly includes leafletting and all three
provisions have the effect of infringing s.2(b) of the Charter.
Oakes
 The s.1 analysis in Dolphin Delivery is not helpful in this case. It was not necessary for to express
an opinion on s. 1 (Charter was held not to apply in that case) and so what followed was clearly
obiter. In Dolphin Delivery the determination of the objective proceeded on the assumption that the
anticipated picketing would involve conventional picket lines with tortious activity, interfering with
contractual rights of third parties. It was assumed that some employees of the picketed enterprise
and other trade union members of customers would decline to cross the picket lines, and that the
business would be disrupted to a considerable extent.
 There can be no doubt that picketing is a protected exercise of freedom of expression.
Nonetheless, consumer leafleting is very different from a picket line, which acts as a barrier and
impedes public access to goods or services, employees’ access to their workplace, and suppliers’
access to the site of deliveries. On the other hand, leafleting seeks to inform ppl and engage in
rational discourse, which is the stuff of free speech. It's not physically coercive the way a picket line
is.
 In the absence of independently tortious activity, protection from economic harm resulting from
peaceful persuasion, urging a lawful course of action, has not been accepted at common law as a
protected legal right. Motivation to bring economic pressure on the employer is irrelevant to
whether the respondent has established that the restriction is justified as an infringement of s. 2(b).
Sure the co might lose some money, but that could happen by plenty of legit means, like a boycott.
 Leafleting is acceptable when customers are (a) free to make up their minds about whether shop or
not, and (b) free to stop and read the material or not.
 In this case:
a)
the info on the leaflets was accurate and lawful,
b)
they clearly stated that the dispute was only with the primary employer (meaning not the
franchise?).
c)
the manner of handing them out was not coercive or unlawful in any way.
d)
there weren't enough ppl handing them out to be intimidating.
e)
didn't block access to or from the store.
f)
didnt keep the employees and contractors of that store from working.
 The above kinds of leafleting may be lawful means of freedom of expression, but would have been
prohibited by the Code.
 The purpose of the legislation is to insulate third parties from the harmful effects of labour dispute
and picketing. While a restriction on conventional picketing is rationally connected, this prohibition is
too broad. Many kinds of expressive activities could be caught in this purpose.
 Just like any time the legislature has to balance interests on complex issue, some deference is
called for. However, deference should not deter the courts from determining whether those political
choices fall within constitutionally permissible parameters of reasonable alternatives.
 When a Board applies the Charter, we use a correctness SoR. Sections 1, 65 and 67 act as a
blanket prohibition on any persuasive activity by striking or locked out employees at neutral sites.
Here, the Code limits expression more than is necessary to achieve the legislative objective – fails
on minimal impairment branch of proportionality.
 The suggestion that today’s consumers will be intimidated by the mere sight of a few individuals
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distributing leaflets at the entrance to a shopping mall is not convincing.
 Had the workers blocked access, that would have been diff (same effect as picketing).
 Definition of picketing is struck down; declaration of invalidity is suspended for 6 months.
Comments
(II) PICKETING
Pepsi-Cola

Even though the CML should evolve slowly, it needs to evolve in line with fundamental Canadian values and
principles.

Para 30: picketing represents a continuum of expression – very subtle rethinking

The question is where along the continuum you need legislative clarity and intervention

How to adopt a common law method that allows us to respect the expressive content in the picketing action?

Just b/c there’s an economic consequence does not render the expressive exercise in picketing wrong

Innocent third parties should be shielded from undue harm (para 45). Undue harm is analyzed through three
lenses with court
o Historical approach
o Hersees approach – discredited in this case

How far has Pepsi-Cola brought us? How broad is tortious liability?

So what do we say about signalling in this decision? – we should not underestimate the ability of people to
make choices despite the actions of picketers.
o The court tries to take it out of the abstract
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156
Jurisdiction
Facts
Issues
Holding
Reasoning
From Saskatchewan to SCC
The union engaged in a variety of protest and picketing activities during a lawful strike and lockout at
one of the appellant’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 which effectively prohibited the union
from engaging in picketing activities at secondary locations. A majority of 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.
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.)
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.
McLachlin CJ and LeBel J for the court:
Changing the CML

Any change to the CML should be incremental. But the change in the CML at issue here lies
within the proper power of the courts. 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.

Furthermore, the development of the CML must reflect the values in the Charter and grows with
the Charter.

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.”
Secondary Picketing

In the post WWII era of labour law, it has come to be accepted that when negotiations stall,
unions and eyers may legitimately exert economic pressure on each other to the end of resolving
their dispute.

One labour law text says that ingredients common to the act of picketing in all jurisdictions
appear to be the physical presence of persons called pickets, the conveying of information, and
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



the object of persuasion (expressive components).
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
No matter what, it always touches on expression though – a highly protected value in Canada,
particularly critical in the labour context. Stuff about identity and worth etc.
Secondary picketing is generally lawful unless it involves tortious or criminal conduct (overturning
the CML rule against secondary picketing).
 This “wrongful action” model best balances the interests in a way that conforms to the values
in the Charter, and allows for balance with traditional CML rights.
 It also falls in line with the core principles of the collective bargaining system put in place in
this country in the years following the Second World War. The wrongful action approach
focuses on the character and effects of the activity as opposed to its location.
 This approach offers a rational test for limiting picketing, and avoids the difficult and often
arbitrary distinction between primary and secondary picketing. In addition, labour and nonlabour expression is treated in a consistent manner.
The Hersees approaches, which start with the proposition that secondary picketing is “illegal per
se” regardless of its character or impact, are out of step with Charter values.
 In Hersees, the court, in obiter said, that any conceivable right to engage in secondary
picketing must give way to the other party’s right to trade.
 They also deny protection for free expression and place excessive emphasis on economic
harm, in a rigid and inflexible way.
 Both primary and secondary picketing engage freedom of expression, a value enshrined in
s. 2(b) of the Charter.
 While protection from economic harm is an important value capable of justifying limitations
on freedom of expression, it is an error to accord this value absolute or pre-eminent
importance over all other values, including free expression.
A wrongful action rule offers sufficient protection for neutral third parties
 Picketing which breaches the criminal law or one of the specific torts will be impermissible,
regardless of where it occurs.
 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, and will protect free access to private premises.
 Finally, rights arising out of contracts or business relationships also receive basic protection
through the tort of inducing breach of contract.
 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.
Comments
(III) REPLACEMENT WORKERS – S.109.1, QLC

Can't hire workers during a strike. The time period is clearly defined as from the first day of negotiation to the
last day of the strike of lockout.
o So what if the employer hires someone before that period and then uses them as scabs?
o How do you ensure that the striking workers are not undermined? If you say that some employees
in the establishment don't share a sufficient unity of purpose etc to justify putting them in the same
bargaining unit...
o This is the sort of consideration that gets front-loaded when certification is applied for. A little like a
closed shop I guess.

First issue: hiring scabs to do work that falls within the bargaining unit, but hiring them before negotiation
starts  should that be allowed or not?
In the Carbonneau case, the tribunal allowed this behaviour.
o You might say that it's prohibited because of the intent to break the law.

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o
I thought about calling this bad faith negotiation, but the hiring would have taken place before
negotiation, Blackett says... still, it's bad faith.

What about volunteers? Well that could work but the company would have to show this person is really a
volunteer.

What about the employer who can get the work done outside of the establishment where there’s striking?
o They might be able to use contractors to do the work, and have the contractors' employees do it.
o This is narrow, because s.45 can kick in if you can consider the work to have followed
o Of course, there are businesses where the work is not done in a particular place. Think of delivery
or bus drivers or something.
o This has led to a double standard which is rather unsatisfying.
o Also employers who can just have the work done elsewhere.
o The opposite of this would be like janitorial services that have to be done in a particular place.

109.1(c) employer can't use an employee from the bargaining unit, unless this has been agreed on, or
there's public order something and stuff.
o You can do this if there's been an agreement, but then you can't go beyond the agreement.
o Even if the law allows more than the collective agreement, you're stuck with the narrowness of the
collective agreement.
o What happens if the agreement is narrower in some ways and wider in some ways? Does it entirely
supplant the law, or does it only narrow insofar as it is narrow. Blackett just gave the answer to that.
And I understood it but I didn't write it down. Isn't that too bad for you the reader?
(d) you can't use a member of the bargaining unit in another establishment than the one that is struck.
(e) you can't use, in a struck establishment, the services of an employee from another establishment.
(f) captures a person who is an employee in another establishment who is not a member of the bargaining
unit. So we're talking about an employee of the same employer, at a different establishment, in the same
bargaining unit.
Management and supervisory employees are always entitled to work.
o So there's the struck establishment and the other one.
o Management in the struck establishment can still work.
o In the other establishment, there are bargaining unit workers, and there's management.
o But there may also be a third class of employees: part-time workers, confidential employees and
stuff like that. What this provision does is to limit which of these part-timers can be brought in.
The managers are all free to work all the time. That much is clear.
The idea of looking at these provisions that we don't understand is to show how there's a general principle of
not using scabs, but it's been got around a bunch of times and so there are all these detailed attempts to
close up the loopholes.
There no recognised right of the employee to refuse to cross a picket line.
The legislation is strictly enforced and determined on an objective standard whether the employer has met
the conduct required.
Section 109.1 is within the jurisdiction of the labour commissioner.
See also 109.2 and .3 for the ability to the employer to hire employees to protect property (109.3).
o Think of Royal Oak.
o When there's a risk of violence or destruction of property, the employer can take action there. But
the exception in 109.3 is quite narrow.










AGSEM c. Université McGill, 2008 QCCRT 0179 (295)







109.1 workers – replacement workers
parties had an agreement on marking papers – question was to what extent did parties have control for
courses, TA union said in the courses that they taught – they were responsible (not the prof) – especially
when the TA taught alone
University’s position was that the responsibility lay with the Prof, had the right to reclaim and mark all papers
Ultimately Commission agreed with the University
Then parties got together and talked about how to mark, University wanted administrators to mark as well
Mcgill wanted to settle this (not go to CRT), the way work is characterized is important for 109.1
union trying to get injunction from marking exams – court says management can do some of the work
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VIII. Administration of the Collective Agreement
What is the specificity of labour arbitration?

In this section our focus is on the scope of the arbitral power. When, and in respect of what legis, can
arbitrators decide? How broadly are we to understand what the arbitrator may rely upon to resolve the
dispute?

As we see in Isidore Garon, it’s not just a matter of consistency of interpretation with constitutional
principles, but who should be doing the interpreting, and wrt to what ground rules.

Key consideration is the way we think about the relationship that’s been formed on certification.
o Laskin thought that the collective bargaining relation creates a new regime into which previous
notions of contract law, in particular, should not intervene.
o You’ve created a framework that’s entirely constructed on the basis of equality of bargaining power
between the parties and the law that they negotiate to resolve their disputes.

McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718: any attempt to measure rights and duties in
employee-employer relation wrt to pre-collective bargaining standards is an attempt to re-enter a world
which no longer exists.

Quote from this case: “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.”
o These passages are often cited, but it doesn’t really represent the dominant view of what the
arbitrator is to do.

The alternative, and dominant school, is the idea of reserved rights. It holds that an employer reserves for
itself residual management rights to the extent that they’re not expressly provided for in the collective
agreement. So if it’s not expressly in the agreement, then the right stays with the employer.
o This is important for the arbitrator because the arbitrator’s ability to act is not drawn from the CML
but rather from the agreement.
o If we take the position that we’re in a new regime, then any vagueness would have to be resolved
by the arbitrator. But the new regime theory is not the dominant one. That theory seeks to reestablish a grounding in labour relation principles.
o The key decision in which this got settled came from Prof Harry Arthurs in an arbitration decision
where he came down in favour of the reserved rights school, not the new regime school. This was
the Russell Steel (1966) decision.
o The reserved rights approach became the dominant paradigm through which we now see what it is
that an arbitrator is meant to do when an agreement doesn’t provide all the elements needed to
decide, and especially when the agreement just doesn’t give the answer.
o In that case, contracting out was at issue and it wasn’t dealt with in the agreement. Arthurs said if
there’s no specific provision, management has reserved the right to make that decision on its own.
o So Arthurs was saying that he, the arbitrator, didn’t have jurisdiction to determine stuff that’s not in
the agreement. So it’s up to management.
o This decision on contracting out has been criticised: if management and union have agreed that a
certain job will be done for a certain amount of pay, so why do we allow the employer to K out
which amounts to changing that agreement? The employer argues that, well, an employee can stop
working, quit his job, when he wants, but for a reason I didn’t get, those two things are not
equivalent.

What’s at issue in the recent string of decisions on this stuff is the extent to which we draw this private
mechanism into interpretation of public policy laws.
The Weber decision addressed this.
Sleight v. Davidson from first year was about the ability of an arbitrator to apply the Charter.




Landscape of labour arbitration is still largely undefined and cases are still defining it
Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157
was an influential decision:
o In that case, Johanne O’Brien was a probationary employee of Parry Sound Social Services Admin
Bd and a member of the union. The CA stated that “a probationary employee may be discharged at
the sole discretion of and for any reason satisfactory to the Employer and such action by the
Employer is not subject to the grievance and arbitration procedures …”
o O’Brien went on mat leave and the eyer discharged w/in a few days of her returning. She filed a
grievance and the Board found discrimination, but the employer won on judicial review, arguing that
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



the Board can only apply the Human Rights Code to matters which are properly the subject of a
grievance – the matter of discharge was not properly a subject of grievance.
o Iacobucci upheld the Board’s decision and, for the majority, found that substantive rights and
obligations of the Human Rights Code are incorporated into each CA, over which an arbitrator has
jurisdiction.
o He wrote that human rights and other employment related statutes establish a floor beneath which
an employer and union cannot contract.
o The majority found that under a collective agreement, the broad rights of an employer to manage
the enterprise and direct the work force are subject not only to 1) the express provisions of the
collective agreement, but also to 2) statutory provisions of the Human Rights Code and 3) other
employment related statutes.
o The absence of an express provision prohibiting violation of a statutory right is not enough to
conclude that a violation of that right does not constitute a violation of the collective agreement.
Again we see conflict between the scope of management rights and the substantive supplementary
framework that in this case was found to be the applicable framework. Iacobucci thought about the
relationship in a broader fashion and expanded the scope of arbitral power
In Lebel and Major’s dissent, they found Human Rights Code claim is not the subject of the agreement
between her employer and her Union, and is therefore not arbitrable.
o They found that the HRC was not incorporated into all collective agreements and that unless the
legislature says that a statute must be incorporated, unions and employers may define which
employees and disputes are covered by a collective agreement and therefore when binding
arbitration is applicable.
o We see a real concern that the institution of arbitration should remain a forum for conflict resolution
without being unduly encumbered by statutory and human rights. This decision sent shockwaves
throughout the labour relations community.
o Note the dissent thought O’Brien should have grieved under the Employment Standards Act, which
barred discrimination based on pregnancy, and which the legislature had incorporated into all Cas.
They noted that she was not without remedy and could have gone to the Human Rights
Commission.
Question: Should we be buttressing the institution of private arbitration, as opposed to limiting the public
institutions?
We have what is known as enabling legislation. Can see the pluralist approach to this legislative mode.
Arbitrator given power to interpret collective agreement. So we have to ask, what law is the arbitrator further
able to apply? Collective agmts can coexist and also conflict with state law
Isidore Garon ltée v. Tremblay; Fillion et Frères (1976) inc. V. Syndicat national des employés de garage du
Québec inc., [2006] 1 S.C.R. 27
Jurisdiction
Facts
G (hardware store) and F (a car dealership) notified their employees that they would cease operating
their businesses and gave each of them a notice that complied with the time requirement established
by the Act Respecting Labour Standards (“A.L.S.”). Neither of the Cas had any provisions about the
closing of the business, although G’s agreement did provide that the employer had to give notice as
provided for in the A.L.S. in the event of a layoff for more than six months. The two unions
(representing the two groups of workers contended that the notice of termination was not given in
reasonable time within the meaning of s. 2091 of the C.C.Q. and claimed compensation equivalent to
four weeks’ salary per year of service for each employee.
The eyers argued that arbitrators had no jurisdiction to decide the grievances absent a connection
with the CA but the arbitrators disagreed. The arbitrator dealing with F followed Weber v. Ontario
Hydro, [1995] 2 S.C.R. 929 and found that the C.C.Q. can complement the collective agreement
where the agreement is silent on a matter that concerns the employees and their employer. In the
Superior Court, F’s application for judicial review was allowed, while G’s was dismissed. The Court of
Appeal concluded that the arbitrators had jurisdiction to hear the grievances because the rule set out
in arts. 2091 and 2092 had been implicitly incorporated into the collective agreements.
Issues
Holding
Reasoning
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Does an arbitrator arbitrating Cas that don’t (explicitly) incorporate the CCQ have jurisdiction over a
CCQ claim? How is the jurisdiction of the arbitrator defined?
No jurisdiction. The arbit has juris over rules that are compatible with the collective labour relations
scheme; incompatible rules cannot be incorporated into a CA.
Deschamps J (+ Bastarache, Binnie, and Charron JJ):
Labour Law

There have been two lines of cases about the interplay between individual rights and the rights
arising from Cas.
 In the first line of cases, the general law and individual negotiation have no place in
matters relating to working conditions in the collective labour relations context (e.g.
McGavin Toastmaster, Noel, cases in reacting to economic liberalism underlying the law,
trying to maintain the integrity of the collective scheme).
 In the second line of cases, the minimum employment standards, substantive rights and
freedoms in human rights legislation and the principles of the Canadian Charter have
been incorporated into Cas (culminating in Parry Sound.) In Weber, the Court stated that
arbitrators apply the law of the land, “be it the common law, statute law or the Charter”. At
the heart of these cases was the desire to protect the employee and all employer-related
recourses can be exercised in the same forum.
 A desire to achieve an outcome favourable to the employees in a particular case cannot
dictate which principles apply. The collective scheme must survive disputes involving
individual rights and yet remain coherent. But we want to make sure that an eyee’s
statutory rights remain meaningful.

The principle that arose from Parry Sound is that if a rule is incompatible with the collective
labour relations scheme, it cannot be incorporated and must be disregarded. If the rule is found
to be compatible and if it is a supplementary or mandatory norm, the arbitrator will have
jurisdiction to apply it.
 The individual K is only suspended while a CA is in effect, and when the union’s
certification is revoked, the K comes into effect again. It’s not like the employment
relationship hinges entirely on the collective relations.
 Not everything is in a collective agreement, but it doesn’t exist in a vacuum.
 The fact that individual contracts are subordinate to the collective scheme allows collective
interests to be reconciled with individual interests in situations where it is possible for the
latter to subsist without hindering the proper conduct of collective relations.
 So only those CCQ rules which are compatible with the collective labour relations scheme
may be incorporated into a CA.
How do we decide if a particular provision is compatible with the collective scheme? Well, the
arbitrator has jurisdiction over all disputes that can be connected with the collective agreement
through their factual context and will decide those disputes by referring to the express or implicit
rules of the agreement.
In this case, the rule in s. 2091 is incompatible with the collective scheme (and therefore should
not be incorporated) for three reasons.
1. The very nature of notice of termination demonstrates that it is not compatible with a context
in which a collective agreement exists. S. 2091 is shown to be incompatible as it reflects the
consensual approach of the law of K. The conditions in a CA are agreed upon collectively
and in advance; the notice in 2091 is agreed on individually at the time of termination.
Length of notice is determined by the CA (so long as it meets the minimum standards in
ALS).
2. In the general law, the employer has the right to terminate at any time without giving cause,
so long as he either pays or gives notice; that’s the context of the 2091 notice requirement.
In the collective relations scheme, the employer’s right to dismiss is limited as the continuity
of the eymt relationship is sought to be preserved. So 2091 is incompatible.
3. 2091’s legis history shows that it was not intended to be incorporated into the coll scheme. A
proposal to have the CCQ govern both individual and collective labour relations was
rejected.


LeBel (+ McLachlin and Fish) (dissenting):
 An individual K continues to exist even after a union is certified, so CCQ rules on individual Ks
continue to apply.
 Labour legis 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 ener 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 ALS is of public order (minimum standards) and an employee likewise cannot renounce his
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Comments
rights under 2091 and 2092, cause 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 Garon, the CA makes provision for notice; here the arbit must decide whether that
provision is in agreement with the CCQ.
 In the case of Fillion, the CA has no provision; here the arbit must determine whether, having
regard to 2091, the minimum standard in the ALS is sufficient in the circumstances.
ME: this is weird; what’s not being dealt with here is the interaction between the CCQ and the ALS.
The ALS sets a minimum, which everyone agrees is of public order, and then the CCQ imposes a
higher standard to be determined in the circumstances of the case? Well, maybe that makes sense.
Still weird though.
Isidore Garon:

CCQ regulates individual labour K in CCQ 2085 onwards in order to move beyond the CCLC’s approach
(master-servant) and clarify what a modern employment relationship should look like by codifying the case

CCQ 2091 captures both the freedom of the parties to leave the employment relationship, but also the
conditions on which they may leave.

Note freedom to leave also applies to employees but in practice this hasn’t evolved

Important tool to discipline employers and ensure some kind of employment stability. E.g. notice is required

So this is the individual context. What’s different in the collective context? The difference is really just the
forum – who decides the cases?

Big issue for the majority is whether the employee can be reinstated – this is a critical diffce between
collective and individual contexts. There is no right for an individual employee to have their job back; the
only issue is how much does the employer have to pay to get rid of you. In the arbitration context, the
arbitrator can order reinstatement. This is a huge change in the employer’s right to manage – eyer loses
ability to decide who works for it.

Let’s look at how Deschamps crafts the incompatibility argument. Why would a provision that provides notice
to those that have no right to be reinstated not fit a collective model?

In the collective agreement, it’s weirdly organized so that the individual has to make their own little claims…

So there are two distinct ways of thinking about the relationship

Can reasonable notice be negotiated?

Who the hell is going to be able to make a decision whether something falls under arbitrator’s jurisdiction or
not?

Lebel looks at case history and where courts have taken us thus far to say what the role of the arbitrator is…

How do we step in and decide the scope? Lebel decides in terms of a hierarchy. Not simply picking
legislative schemes of compatibility or incompatibility. Recognize the existence of different norms and
weight.

He also says that the provisions can be suppletive – stepping in to regulate the relationship when there is a
gap
 For Lebel you bring as much into the comprehensive structure by understanding the law that supplements
the collective agreement as it applies to individuals in the relationship, while ensuring that the collective
agmt continues to govern.
IX. The Individual under the Collective Agreement
Who does the union represent? Can equality rights and reasonable accommodation be reconciled with a new
citizenship at work?

A range of considerations are trusted to the union for the good of the collective. But within that there are the
rights and interest of individuals. Labour law has historically been resistant about thinking too broadly about
the individual
Steele v. Louisville

Takes place in Alabama

The black employees are not strictly members of the union (b/c the constitution excludes them)
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
The Court has to first assert that the union member does indeed have to “represent” in the sense of
representing interests
What did the black firemen ask for? They were asking only for an injunction against enforcement of the
agreements made, ostensibly on behalf
o In modern context, we still see the procedural difficulties of “minority” union members to grieve with
discrimination complaints when there are concerns of jurisdiction
o There is a movement now to seek direct access to the Quebec Human Rights Tribunal
Should turn attention to the concurring decision in Steele. Murphy seems to be suggesting that the majority’s
decision stopped too soon and should have more directly addressed the issue of racism and the (lack of)
constitutionality in the way in which the union was trying to use Congressional authority
o However, though Justice Murphy’s decision is much more to the point, it was good to have CJ
Stone’s analysis of the faulty way of Brotherhood’s way of interpreting the statute and making sure
that they didn’t get away with that characterization
What’s really important is to recognize the impt issue in CJ Stone’s judgment that the board that would be
doing the dispute resolution was made up of people chosen by union members – i.e. the respondent! Also,
the Board only heard disputes through the union and not individual cases.
o Clearly it would be very hard to have the case even see the light of day if the courts didn’t have
jurisdiction
o This situation still exists and goes back to the issue of “minority” members who may have their
claim die out in the union processes
o New idea of hiring different counsel for the individual and the union has been proposed as a way of
making sure the interests of each are represented in any litigation
Quebec Labour Code
Duty of Fair Representation:
47.2. A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious
negligence in respect of employees comprised in a bargaining unit represented by it, whether or not they are
members.
Remedy:
47.3. If an employee who has been dismissed or the subject of a disciplinary sanction or who believes he has been
the victim of psychological harassment under sections 81.18 to 81.20 of the Act respecting labour standards ( chapter
N-1.1), believes that, in that respect, the certified association has contravened section 47.2, the employee must, if he
wishes to rely on that section, file, within six months, a complaint with and apply in writing to the Commission for an
order directing that the employee’s claim be referred to arbitration.



These provisions give the employee another route to grieve
Key decision in this area: Centre hospitalier Régina Ltée v. Labour Court, [1990] 1 S.C.R. 1330
(http://csc.lexum.umontreal.ca/en/1990/1990rcs1-1330/1990rcs1-1330.html)
o There was a settlement b/w union and employer to settle all grievances in exchange for certain
terms in the collective agreement
o Individual had their case thrown out under this guise
Holds that union’s discretion to negotiate is not absolute
Steele v. Louisville & Nashville Railroad Company, 323 U.S. 192 (1944)
Jurisdiction
Facts
United States Supreme Court
The petitioner, Mr. Steele, was a black person employed by the Railroad. The respondent is
Brotherhood, the labour organization designated under the Railway Labour Act as the exclusive
bargaining agent of the craft of firemen employed by the Railroad. The majority of the firemen are
white and members of the Brotherhood, but a substantial minority are black, who are excluded from
membership (by its constitution and by practice). Because the members make up a majority of the
Railway employees, they have a right to choose their representative, and black firemen must accept
Brotherhood as their representative.
The Brotherhood, purporting to act as representative of all firemen, without informing the black
fireman or giving them an opportunity to be heard, proceeded to negotiate to amend the collective
bargaining agreement to ultimately exclude all black firemen from the service. The agreement
provided that not more than 50% of the firemen in each class should be black, and until such a
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percentage is reached, all new vacancies should be filled by white men. Mr. Steele was in a
“passenger pool” with one white and 5 other black firemen, and the latter were all disqualified and
then twice reassigned to work more arduous, longer, and less remunerative.
Issues
Holding
Reasoning
The Brotherhood claimed that the statute did not create a relationship of principal and agent between
the members and Brotherhood, but conferred on them the plenary authority to enter into Ks fixing
rates of pay and working conditions for the craft as a whole w/o any legal obligation to protect the
rights of minorities from discrimination or unfair treatment.
1. Does the Railway Labour Act impose on a labour organization, acting by authority of the statute as
the exclusive bargaining representative of a craft or class of railway employees, the duty to represent
all the employees in the craft without discrimination because of their race? 2. If so, do the courts have
jurisdiction to protect the minority of the craft from a violation of this duty?
1. Yes; 2. Yes.
Mr. Chief Justice Stone (for the Court):
 If the Brotherhood’s claims are correct, as the state court held, then constitutional issues arise
because the representative is clothed with power not unlike that of a legislature which is subject to
constitutional limitations on its power to deny, restrict destroy or discriminate against the rights of
those for whom it legislates
 But we think that Congress did not intend to confer plenary power upon the union to sacrifice, for
the benefit of its members, rights of the minority of the craft, without imposing on it any duty to
protect the minority.
 The use of the word ‘representative,’ as thus defined and in all the contexts in which it is found,
plainly implies that the representative is to act on behalf of all the employees which, majority as well
as minority, by virtue of the statute, it undertakes to represent (at para 2). It is to act for and not
against whom it represents (at para 9/10).
 The purposes of the Act of avoiding interruption to commerce by encouraging the prompt and
orderly settlement of disputes would hardly be attained if a substantial minority of the craft were
denied the right to have their interests considered, and if their interests were ultimately sacrificed.
 The Act, requiring carriers to bargain with the representative so chosen, operates to exclude any
other from representing a craft. The minority members of a craft are thus deprived by the statute of
the right, which they would otherwise possess, to choose a representative of their own, and its
members cannot bargain individually on behalf of themselves as to matters which are properly the
subject of collective bargaining.
 The labor organization chosen to be the representative of the craft or class of employees is thus
chosen to represent all of its members, regardless of their union affiliations or want of them. The
very purpose of providing for a representative is to secure benefits by virtue of the strength of the
bargaining group, and not to deprive them of those benefits.
 Thus, unless the Brotherhood owes some duty to represent non-union members, at least to the
extent of not discriminating against them in K’s, the minority would be left with no means of
protecting their interests. We hold that the Act expresses the aim of Congress to impose on the
bargaining representative of a craft or class of employees the duty to exercise fairly the power
conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them.
 This does not mean that there may be unfavourable effects on some members in variations in the
terms of Ks for seniority, types of work, competence and skill with which it’s performed. However,
here the discriminations are based on irrelevant and invidious discrimination based on race.
 The court also holds that it has jurisdiction in this case because the right asserted by the petitioner
is “under the Constitution” and a statute of the U.S. Further, the Adjustment Board, who is to deal
with disputes of the union, is out of reach to Mr. Steele, because an individual must go through the
union. Further, the members of the Adjustment Board are chosen according to rules by the
Brotherhood and so the black firemen would be required to appear before a group which is in large
part chosen by the respondents.
 There is no mode of enforcement other than resort to the courts.
Mr. Justice Murphy (concurring):
 The utter disregard for the dignity and the well-being of colored citizens shown by this record is so
pronounced as to demand the invocation of constitutional condemnation. To decide the case and to
analyze the statute solely upon the basis of legal niceties, while remaining mute and placid as to the
obvious and oppressive deprivation of constitutional guarantees, is to make the judicial function
something less than it should be.
 It cannot be assumed that Congress meant to authorize the representative to act so as to ignore
rights guaranteed by the Constitution.
Otherwise the Act would bear the stigma of
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unconstitutionality under the Fifth Amendment in this respect. I am thus willing to read the statute
as not permitting or allowing any action by the bargaining representative in the exercise of its
delegated powers which would in effect violate the constitutional rights of individuals.
 However, I am not sure if the majority’s construction of the statute rests on this basis, however the
constitutional issue cannot lightly be dismissed.
 The cloak of racism surrounding the actions of the Brotherhood in refusing membership to Negroes
and in entering into and enforcing agreements discriminating against them, all under the guise of
Congressional authority, still remains. No statutory interpretation can erase this ugly example of
economic cruelty against colored citizens of the United States. The answer given in how this Act
should be interpreted will determine the constitutionality of this Act.
Comments
In Korematsu v. United States, 323 U.S. 214 (1944) Mr. Murphy charged that by upholding the forced
relocation of Japanese-Americans during World War II the Court was sinking into “the ugly abyss of
racism.” This was the first time the word was used. When Murphy left the court the word wasn’t used
again for two decades.
McGill University Health Centre:

Huge divergence between the Deschamps and Abella decision

How one begins to assess what the duty of accommodation – are we even in the context of grieving
Justice Deschamps:

Deschamps takes for granted that a case of discrimination exists by virtue of the fact that there is a
termination of employment clause – she goes right into the issue of justification and focuses quite a bit on
undue hardship.

At para 15 we get a list of some indications to take into account when assessing undue hardship.
Deschamps focuses on how the clause negotiated is a reflection of negotiated mutual interest and should
therefore be taken into account when considering whether reasonable accommodation has occurred

Blackett thinks that we’ve only been able to come to this point in decision-making because we’ve had the
Chambly decision (mentioned in para 15) come before, because courts have been willing to impose a
responsibility on employers to act in a way that encourages employers to arrive at reasonable
accommodation.
Justice Abella:

Doesn’t take for granted that a case of prima facie discrimination even exists.

Distinguishes between distinction and discrimination. Emphasizes the need for stereotypes and arbitrariness
o Seems to come down to
o The language of “arbitrariness” needs to be kept separate from the language of “stereotype”

She’s not even in the realm of reasonable accommodation. She says we’re not at the level of distinction
here. Collective agreements have to make distinctions and we want these distinctions to be as generous as
possible.

Abella is saying that we can’t start at the reasonable accommodation just because a distinction is made –
otherwise we might open up each and every one of these clauses (which might be very generous!) to
litigation!

Abella is seeing the need to balance an older needs-based framework (keeping open time for rehabilitation
process as well as trying to find) with the employer’s needs

Abella stays within the older framework in order to maintain these kinds of generous clauses which are
specifically

Deschamps’ decision looks to arbitrator’s finding that in fact Ms. Brady was unable to say as of the last day
of trial whether she’d be able to come back to work within a reasonable amount of time. She brings it back to
the context of the decision.

Blackett would say that there is a need for line-drawing. In our context, the employer has a right to dismiss
for just cause and while there’s an amount of time to allow for rehabilitation etc., ultimately the employer’s
right to get the work done.
McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital
Montréal, [2007] 1 S.C.R. 161
eneral de
Jurisdiction
Facts
In March 2000, Ms. Brady took a leave of absence from her job at a hospital on account of health
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problems. For more than two years, following her doctor’s orders, she tried unsuccessfully to return to
work. After the expiry of a period of rehabilitation that was provided for in the collective agreement,
and which had been extended by the employer, B was to return to full-time work in September 2002,
but she had an automobile accident. In March 2003, the hospital, citing B’s prolonged absence,
notified her that her employment relationship would be terminated on April 3, 2003.
The union filed a grievance in which it contested the decision and asked the hospital to negotiate a
reasonable accommodation with B. The arbitrator dismissed the grievance. He noted that the
hospital had already accommodated B by granting her rehabilitation periods more generous than were
provided for in the collective agreement, and that B was still unfit for work at the end of the
three-year period provided for in the agreement. The Superior Court dismissed the union’s application
for judicial review. The Court of Appeal reversed that decision and remitted the case to the arbitrator
to assess the accommodation issue on an individualized basis and, if applicable, rule on the
appropriate compensation
In the collective agreement, there was a termination of employment clause stating that an employee
shall lose seniority rights and employment if absent by reason of illness or of an accident… after the
thirty-sixth month of absence.
Issues
1)
Holding
2)
1)
2)
Can the scope of the duty to accommodate, vis-a-vis a termination of employment clause, be
agreed upon in advance in the context of a collective agreement?
Did the Hospital discharge its duty to reasonably accommodate Ms. Brady?
Not in absolute terms, but a negotiated term is an important indicator of what the two parties
considered to be fair accommodation. However, individual circumstances should still be
considered.
Yes.
Reasoning
Deschamps (+ Binnie, LeBel, Fish, Charron & Rothstein)
 The duty to accommodate in the workplace arises when an employer seeks to apply a standard
that is prejudicial to an employee on the basis of specific characteristics that are protected by
human rights legislation.
 Collective agreements often contain clauses providing for ToE after an absence of specified period
of time, and are clearly aimed at ill or disabled clauses. In this case, the period of time was 36
months.
 The employee must justify the standard is seeks to apply by establishing that
1) the employer adopted the standard for a purpose rationally connected to the performance
of the job;
2) that the e’yer adopted the standard in an honest and good faith belief that it was necessary;
and
3) that the standard is reasonably necessary for that legitimate work-related purpose, which is
demonstrated by showing that it’s impossible to accommodate an individual claimant without
imposing undue hardship on the employer. (Meiorin)
 The factors that will support a finding of undue hardship are not entrenched but may include a) cost
of the possible accommodation method, b) employee morale and mobility, c) the interchangeability
of facilities, and 4) the prospect of interference with other employees’ rights or of disruption of the
collective agreement (Chambly)
 Since the right to reasonable accommodation is not absolute, consideration of all relevant factors
can lead to the conclusion that the application of a prejudicial standard is legitimate.
 It must be recognized that parties to a collective agreement have a right to negotiate clauses to
ensure that sick employees return to work within a reasonable period of time. If this valid objective
is recognized, the establishment of a maximum period of time for absences is thus a form of
negotiated accommodation.
 The consensus on this period of time is significant as representing mutual interest because it was
reached by the people who are most familiar with the particular circumstances of the enterprise,
and also because they were representing different interest.
 This clause is therefore among the measures implemented to enable a sick employee to be
accommodated. The period negotiated is therefore a factor to consider when assessing the
duty of reasonable accommodation. However, such clauses do not definitively determine
the specific accommodation measure to which an employee is entitled, since each case
must be evaluated on the basis of its particular circumstances.
 Since the right to equality is a fundamental right, the parties to a collective agreement cannot agree
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Comments
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to a level of protection that is lower than the one to which employees are entitled under human
rights legislation, nor can they definitively establish the length of the period in advance, since the
specific circumstances of a given case will not be known until they occur, that is, after the collective
agreement has been signed.
The importance of the individualized nature of the accommodation process cannot be minimized.
The scope of the duty to accommodate varies according to the characteristics of each enterprise,
the specific needs of each employee and the specific circumstances in which the decision is to be
made. However, it is incumbent upon the employee to facilitate implementation of a reasonable
proposal.
Reasonable accommodation is thus incompatible with the mechanical application of a general
standard; however the arbitrator can review the standard provided for in the collective agreement to
ensure that applying it would be consistent with the eyer’s duty to accommodate. Thus a ToE
clause will thus be applicable only if it meets the requirements that apply with respect to
reasonable accommodation, in particular the requirement that the measure be adapted to
the individual circumstances of the specific case.
If the clause is less generous than what the eyee is entitled to under HR statutes, then the clause
will have no effect and the eyer will have to accommodate further.
The three year period provided for in this CA is longer than the minimum in statutes. Although the
clause is not determinative, it does give indication of the intention of the parties wrt reasonable
accommodation. It might serve as evdce of the maximum period beyond which the eyer will
experience undue hardship.
In this case the arbitrator did not decide the case by automatically applying the ToE clause, and
noted that the rehabilitation period here was longer than the one provided for in the CA. He couldn’t
foresee Ms. Brady’s return to work.
Undue hardship must be assessed globally, starting from the beginning of the hardship – NOT from
the expiry of the three-year period. If Ms. Brady thought she could go back to work in a reasonable
amount of time, she had to provide evidence to that effect.
Abella (+ McLachlin & Bastarache) (concurring in the result)
 The central issue is whether Ms. B has established prima facie discrimination, shifting the onus to
the employer to justify the standard or conduct. A CA does not immunize an employer from a duty
not to discriminate, but this is diff’t from creating a legal paradigm where even if the eyer’s conduct
is not discriminatory, there is a legal duty to justify all distinctions.
 At the heart of definitions of discrimination is the understanding that a standard should not
disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of
preventing discriminatory barriers is inclusion. The essence of discrimination is the arbitrariness of
barriers imposed. There NOT EVERY DISTINCTION IS DISCRIMINATORY.
 Automatic termination clauses in a collective agreement are not presumptively discriminatory. To
accept that such clauses automatically represent prima facie discrimination would render all timelimited legislated employment protections for absences due, for example, to illness, disability, or
pregnancy, presumptively vulnerable no matter how reasonable the protections may be in terms of
their length, and would remove the incentive to negotiate mutually acceptable absences.
 Saying these clauses are presumptively discriminatory removes the incentive to negotiate mutually
acceptable absences, especially for disabled employees.
 Automatic termination clauses of reasonable length represent a trade-off for employees between
their right to be dismissed for just and sufficient cause, and the certainty of maintaining an eymt
relationship for a fixed period. There is nothing inherently discriminatory in such a trade-off,
especially if the protection is longer than in statues.
 Here, Ms. Brady did not claim that the automatic termination clause of the collective agreement
was discriminatory. Both the arbitrator and the Superior Court judge found no discrimination in the
employer’s refusal to continue to employ someone who, after three years of absence due to illness,
was still deemed incapable of returning to work by her own doctor. Absent a finding of prima facie
discrimination, the employer is not required to justify the clause or its conduct.
 The absence of a clause such as this leaves the employee vulnerable to dismissal for just cause
(e.g. for non-culpable absenteeism).
Looks like Abella is trying to prevent a situation where eyers are not encouraged to put in generous
clauses since they will all be considered prima facie discrimination.
Labour Law
X. New Approaches to Labour Law in a Globalizing Economy
What is the relationship between transnational and domestic regulation in labour law?

BC Health Services – Recall that one aspect of Bill 29 was contracting out – maintenance work is one area
where work is easily contracted out. Workers used to work for $19. They were fired, and hired back for $10.

Enter the third dimension – migrant workers are brought in under one of the temporary migrant schemes that
have emerged recently. Looks a lot like SAW programme but applies to many sectors without defined
seasons.

In sectors where an employer is unable to find employees that are willing to work at a certain wage, can
bring in workers from other countries.

This phenomenon is not just national but multi-national

Not simply driven by corporate actors but very heavily involves the state

Why the call to reduce wages and render what were seen as domestic sectors to be more competitive?

There is no comparison between the mobility of capital and labour – capital is much more mobile.

This leads to the need for regulatory environments to adapt and create incentives for capital to spread.

Why come to Canada, BC or Quebec instead of Thailand, Singapore or the U.K.

There’s been criticism of government that has big expenditures, over-reaches, and regulates – in these
areas, a lot was cut. Part of the attraction of contracting out parts of public service is therefore to hand over
an envelope of public expenditures to other sources, but also to create investment opportunities for those
other sources.
The Regulatory Environment

How particular kinds of labour policy affect regulatory choices

We’ve looked at the Wal-mart example – tension between attracting capital and maintaining labour policies
within a different kind of environment
o Resolutely in the service sector. Labour policy is modelled on the Fordist factory scenario.
o In the service sector that ability to organize and systemize gets more readily lost. You have what
Wal-mart refers to as tasks that flow easily in and out of each other – not readily separable. What is
being hired is ability to offer services to the public – interchangability of services like stocking
shelves or being a cashier is not quite as impt as it might be in a close factory that doesn’t have a
public service aspect.
o Wal-Mart calls them “associates”

What we see at Wal-Mart is what we see at the regulatory level regarding where the products are coming
from – fundamental labour rights violations in production line.

This model has influenced our regulatory structure. A large multinational been essentially been able to enter
the labour market, thwart unionization efforts (e.g. Windsor where Wal-Mart lobbied Harris gov’t to legislate
away ability to unionize  http://www.nupge.ca/news_2005/n10ma05a.htm)

Contrast Germany – tight regulatory labour environment with significant worker participation

Presumption has been that the state’s ability to regulate… how is globalization involved

Multinational character of much of business production

Walmart is a composite of supply chains and production processes across many parts of the world.

We’re like connected to the rest of the world.

There’s a more direct relationship

Labour law is as much as it is in access and enforcement as it is in paper. ?

The impact of migration policies on labour markets is under analyzed.

Labour law as application and enforcement…. WHAT?

Where are the proactive mechanisms in industries where substandard conditions are pretty much accepted?
Labour Law Without the State

History – we started with Fudge and innovation of industrial legality as framework –unions managing
alongside management of workplace environment

Arthurs is different – leaves space for larger role for normativity coming from individual (key idea)

Known for gloomy predictions – but lens through which he understands what’s central to labour law as a
discipline

Economic space no longer connected with nation state (now NAFTA, EU, WTO)

Difference in importance of the state compared to Fudge

Model of Wagner is central in Fudge, they admit different socio-economic conditions, but prism is still
Wagner

Need to rethink labour law – go beyond nation states – think about equity – here political space does not
correspond with economy
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






Ability of state to insure social policy part of labour law framework
Worker as consumer in particular nation state
In the 50’s competition was limited to Europe and North America, after colonialism there was a detangling of
raw goods to metropole – direct competition – new international division of labour argument – more
produced, greater surplus, more markets – led to decoupling of citizen and consumer
You don’t buy what you made, but the cheapest good (made by workers who earn a lot less)
This undermines your own status – more greater competitiveness in your own job – especially after WTO
got rid of tariffs and looked at subsidies and export restrictions – in Canada the autopact between Canada
and the US was suspicious
Inability to make laws on the assumption that workers were citizens, and that they would stay in one location
No one signing NAFTA thought this would happen
Harry Arthurs: Labour Law Without the State (1996)






Thesis: in an era where state disappearing in relevance, it used to be that the state in 19 th century where
state didn’t control employment
Before the state controlled labour law: safe work place, 40 hours, minimum wages – working environment –
central actor
Now global scale other forces – Wbank, markets, MNCs and state is recoiling (who makes decision for who
makes shoes)
Doom and gloom
Interesting question – what is the role of the state in the future – labour law is inherently localized (depends
where you are), international labour market shifts, what is the role of the union
Increasingly harder for unions to organize
Blackett, A Labour Law Critique of Codes of Corporate Conduct (2000)
















Global governance structure is more important than individual state structures in regulating labour
Consumer worker is the nexus – assumes spatial relationship
First move to say corporate code is labour regulation – beyond space (codes no matter where it is, no matter
whether we have legal link0
Corporation has nothing but contractual link with supplier
Supplier can get supplies from somewhere else
Consumer groups linking actors, creating shadow state – creating standards that should apply, international
law to regulate relationship, OECD guidelines adopted in 1976 – threat that General Assembly would be
dominated by 3rd world – would bind multinationals, so created guidelines that MNC’s have voluntarism
model
Consumer must get information from practice of MNC to make informed decision to buy
Spotlight on public gaze – basis for information may be made
Therefore it is a form of labour regulation
Seeks to impact Canadians by ensuring labour is regulated but does so without the principles of labour
regulation being promoted
Completely outside jurisdiction of the state, any form of trade control could be punished by WTO violation of
competition
Arbitrariness of having consumer set the law (consumer in industrial North is sympathetic to child labour,
determines what conditions are acceptable, but without engaging with workers themselves you are doing the
production
Lower prices as circle theoretically creates greater space for worker or consumer but worker becomes
dependant on the employer – needs Walmart for a job and to buy goods (don’t get paid well, thus needs to
save money, shops at work)
Corporate codes seek to bridge gap between consumer and worker, but ability to regulate connected to
consuming
Challenge of thinking regulations across borders that recognize different economic privilege
Trade economists don’t pay attention to argument of maintaining a standard of living in societies– social
welfare function in individualist states
New economy regulatory strategies

Significant attention in dev’ing cyns of weak states
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
Try corporate social responsibility approach if state is too weak – if sub-contractor is violating labour
practices, the deal is the company should stay and help them improve labour standards so that the fiasco of
corporate flight isn’t perpetuated
Often, companies will monitor the subcontractors and know they’re doing well but don’t do anything to
enforce labour standards! Missing a regulatory link to tighten up enforcement.
What would you say about a Code of Corporate Conduct here in Quebec to regulate conditions on farms?
Binding farmers (the owners, not farm workers). And the code is funded by the Ministry of Agriculture.
o Code specifies things like farm workers having access to clean facilities to change (e.g. clean
toilets)
o Much more detailed than standard legislation and detail is remarkably telling about the standards
workers in that industry must put up with
What’s crazy is the ppl who need Wal-Mart’s everyday low prices the most is its workers!
o Fordist model – I’m gonna pay my workers well so they can buy our stuff
o Wal-Mart – I’m not gonna pay my workers much but they can still afford our stuff





How does one create baselines for regulation below which one should not go?
But are baselines even enough? We want sectors that are viable that can be the basis for good wages and
how can that set in place a different kind of spiral – a spiral upwards… Includes social security, social
welfare provisions
How does industrial policy help sectors like manufacturing that are suffering deeply

XI. Steps in Certification, Unfair Labour Practices, etc.
The Rise and Fall of A Collective Agreement
No Interference throughout
12 QLC, 94 – 99 CLC
Pre-certification
Organize
File
quietly
App.
(No Protec’n)
Certification
Granted
Freeze 1
Freeze 2
S. 59 QLC
s. 59 QLC
S. 53(2) CLC
First
C.A.
Special arbit’n available
s. 93.1 – 93.9 QLC and s. 80 CLC
Can strike
C.A.
Achieved
End
of C.A.
Termination
of Bargaining rts
Life of Agreement
Freeze 3
No strikes or lock-outs (CLC 88.1)
Can Strike following procedures
Stage One – Pre-Certification
15. Organizing through signing cards, done very quietly, once a union representative has a majority or assumes to have a majority (within 35 – 50 %
range) then will file with Labour Commission / Board
16. At this point, get first statutory freeze – limit to what changes can be undertaken in the work place (cannot fire people or try to change way things run
drastically), full range of statutory protection enters in for the employees (s. 59 of QLC)
Stage Two – Certification Granted
17. Certification is granted (once see there is a majority, if 35% within a bargaining unit, then order a vote to see if majority, also if see unfair labour
practice, can just grant certification as a remedy)
18. First freeze ends with certification
19. This stage has a good faith requirement CLC s. 50(a)
Stage Three – First Contract Negotiations
20. This is the second freeze – special protections in place to ensure no changes in the relationship (i.e. s. 59 QLC, s. 53(2) CLC)
21. Collective bargaining for the first contract is usually difficult (hostility), thus s. 93.1 – 93.9 QLC and s. 80 CLC – first contract arbitration if parties are
unable to arrive at collective agreement (not mandatory, triggered by responsible minister (therefore discretionary) – get bargaining into play
Stage Four – Collective Agreement
22. Terms of CA rule, no strikes or lock-outs allowed (CLC 88.1)
Stage Five – End of Collective Agreement
23. When collective agreement is nearing its end, and no earlier than 90 days of expiry, s. 52 and 52.1 QLC allows for notice of starting negotiations, if
you don’t do it then, presumed to have notice once expired
24. Third Freeze, now have an established relationship, thus arbitration clauses for first contract do not apply
25. During the bargaining have general protections and freeze protections in place
26. Strikes only after 90 days of reception of notice QLC 58, strike procedure in CLC s. 89(1)
27. There is a good faith requirement every time parties enter into collective bargaining and ongoing while at the table (throughout strike) .s 50(a) and (b)
CLC and 53 of QLC (recourses for breach is s. 144, 141 QLC)
28. At any point can ask Minister for conciliation officer to help (s. 54 – 55 QLC)
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Certification Process in Quebec

The whole process of organizing in favour of certification tends to take place secretively (since environment
is usually hostile to unionization).

S, 1(a) defines association of ey’ees briefly. Purpose of definition is supposed to be economic, social,
educational – not political supposedly. This is impt b/c union are actually very impt political stakeholders.

S. 21 – clarifies the right to certification

S.. 22 – sets out the time for application

S. 25 – outlines – petition for certification, authorization (signed by authorized reps, which groups of
employees, applications for membership, list or employees (employer post peition and notice of Commission
hearing at work, post a list of a list of employees within 5 days, also give list to labour relations officer)

s. 28 – outlines conditions for certification
o Immediate certification – labour relations officer will assure representative character of association,
investigates, if agreement between employe and the association on bargaining unit, must certify – if
doesn’t find representative character – then has summary of report to Commission
o Percentage of Employees as members – agreement with employer on bargaining unit, 35% to 50%
of employees comprised in unit are members of association, hold a ballot to see representative
character (50+1 needed)
o Disagreement on unit – if employer refuses agreement, LRO sends report to Commission, report
contains reasons, new unit that employer thinks suitable,
o Certification notwithstanding disagreement – if agreement on bargaining unit, but not on persons
inside it, then certifies it, lets commission decide if persons should be included
o Certification – even if employer doesn’t think bargaining unit is right, LRO can still certify if she
thinks it has representative character and is correct bargaining unit
o Existing Certified Association – if one existing, LRO will see if absolute majority is in favour of new
one, can hold secret ballot to find out, award based on results
Flow Chart
1.
2.
3.
4.
5.
6.
7.
8.
9.
Federal or Provincial (test – see CLC 108 for federal jurisdiction, Northern Telecom pg. 7, McIntyre pg. 7)
Who can unionize
a. are we dealing with employees (subordination, supervision, - QLC 1(l), CLC 3, 4, Natrel, Legumiere
b. When alternative statutes defines you / block you – CSN 2008, Dunmore
c. Power of CRT to define employees (QLC s. 39 – Ville-Marie)
Who is the employer
a. McIntyre – ongoing relationship
b. Pointe Claire – subordination, contextual approach (not just who pays you)– Natrel independence
c. Ville-Marie Pontiac Buick CRT ha power to call someone a worker s. 39 (QLC) – but no double
breasting in Quebec (in CLC allowed under s. 35)
Is there already a union? Can rights transfer?
a. S. 45 QLC transfer– Ivanhoe (retrocession, organic test), Sept-Iles (CA also transfers)
b. Limits of s. 45, TUAC (need a legal relationship), new people have their own machines – thus no
go (Laiterie Royala), Ville-Marie Pontiac (tried to have this, but were denied)
Who is in bargaining unit?
a. CSN 2007 – worker’s right to have say in organizing the units
b. Natrel
Follow steps outlined above for certification (see 52 and following in QLC)
Good faith throughout negotiation
a. Discussion of what good faith constitutes (Royal Oaks, QLC s 53, 53.1, pg. 62 (duty to inform, etc.),
remedies penalty QLC s. 141 (fines), cease and desist QLC 118, 119, lease severe is 12 QLC
b. Royal Oaks CLC 50 – remedies available through CLC s. 99(1) –(2)
What pressures can they exert?
a. go slow –can’t technically do this (s. 108)
b. SCC has recognized economic pressure can be used to get a resolution (majority in Pepsico see
pg. 68
c. Strike (s. 58 QLC, can only strike after 90 days of giving notice to negotiate, s. 52 earliest can give
notice is 90 days before CA expires, otherwise notice deemed day CA expires)
Can the union strike?
a. Definition – s. 1(g) QLC and s. 3(1) in CLC
b. Make sure you have a union QLC 106, Make sure not during CA 107
c. No police / fireman QLC s. 105
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d.
10.
11.
12.
13.
14.
Is it an essential service? S. 111.0.1 and following Essential Services Council established, 111.0.19
sees list of decides if it is essential, has the power to suspend strike s. 111.0.24 and injunctions s.
111.0.25 (all QLC)
e. Can call for strike (s. 58 QLC, can only strike after 90 days of giving notice to negotiate, s. 52
earliest can give notice is 90 days before CA expires, otherwise notice deemed day CA expires),
get vote from members – then decide (in CLC procedures outlined in s. 89(1))
f. Workers cannot get fired (s. 110 QLC, 87.6 QLC – workers retain their rights and have ability to get
jobs back after strike)
g. Employers cannot replace workers (QLC s. 109.1 and post Royal Oak CLC 94(2.1) and 94(3))
Union’s responsibility to members
a. s. 47.2 QLC – duty of fair representation, s. 47.3 QLC – remedy (another route to grieve if union
won’t do anything) (think of Steele)
C.A. as governing the parties
a. Gaps in CA (see pg. 71 for different approaches)
b. Role of arbitrator – Isidore
c. Conflict between statutes – test pg. 73 Isidore
d. Prejudicial standards? (McGill – pg. 78)
Unfair Labour Practices?
a. Interfere with employee’s association (QLC s. 12), intimidate or threaten to induce or refrain from
being member (Disc Americ), Goldhawk (CLC s. 94(1)a)
b. Fire or places sanction for union activity (QLC s. 15) – Look at Plourde, City Buick, Ville Marie
c. Discriminate against employee exercising a right (QLC s. 14) – (Plourde)
d. Have replacement workers (QLC s. 109.1, see pg. 70 – but Place des Arts shows how easy to
circumvent this, look at Chart, McGill)
e. Psychological harassment (Normes du travail – 81.18 to 81.20)
Is shutting down a business an unfair practice? NO
a. City Buick – shutting down a business is ok
b. Ville Marie (double breasting case)
c. Shutting down part of a business is ok – Place Des Arts
d. Walmart cases (Plourde, Plourde, Walmart)
e. MacDonalds (NALC)
Sanctions for Employers
a. s. 141 QLC – penalty (pay up), less severe is 12 QLC
b. cease or desist order – s. 118 and 119 QLC
Placing a Complaint in Quebec (Disc Americ)

Employer cannot – Interfere with employee’s association (s. 12), intimidate or threaten to induce or refrain
from being member, discriminate against employee exercising a right (s. 14), fire or places sanction for
union activity (s. 15)

Place a complaint pursuant to s. 116 QLC

Presumption that employer has acted against workers (s. 17) – Employer can rebut with proof that actions
had good and sufficient reasons (can close a business (City Buick, Walmart) or part of a business Place des
Arts)

S. 118 QLC outlines powers of Commission

S. 124 QLC instructions for hearing, usually one commissioner listens to problem (sometimes can decide to
have three commissioners, then majority vote

S. 127 QLC can have a review or revocation of their own decision based on guidelines
Placing a Complaint for Federal (Goldhawk, Royal Oakes)
Standard of review is patent unreasonableness (Goldhawk – since this is their expertise – unfair labour
practice and good faith 94(1)(a))
Test for interference is 1) characterization of activities of union and whether had been interfered, 2) if
interference was it justified (Goldhawk )
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