Labour Law
Professor Adelle Blackett, Winter 2008, Monika Rahman
I. INTRODUCTION TO THE FIELD OF LABOUR AND EMPLOYMENT LAW .................................................................. 3
The Rand Decision (1946), [1996] 1 C.L.L.R. 1356 .................................................................................................3
Fudge & Tucker on Industrial Legality (Not in Assigned Readings) .......................................................................6
Northern Telcom Ltd. v. Communications Workers, [1980] 1 SCR 115 .................................................................7
ILO Declaration of Fundamental Principles and Rights at Work – Key Messages .................................................9
II. COLLECTIVE BARGAINING POLICY & INDUSTRIAL LEGALITY ............................................................................... 9
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989 .....................................................................10
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 ...........................................................................14
Committee on Freedom of Association Report Canada (Case No. 1900), Report #308 (1997) ...........................17
Committee on Freedom of Association Report Canada (Case No. 1900), Report #330 (2003) ...........................18
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 .......................................................................................................19
III. RELATIONSHIP BETWEEN FREEDOM OF ASSOCIATION & COLLECTIVE BARGAINING POLICY ........................... 21
(I) THE LABOUR TRILOGY: NO RIGHT TO COLLECTIVE BARGAINING OR STRIKE ..........................................................................21
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 ...............................................21
PSAC v. Canada, [1987] 1 S.C.R. 424 ...................................................................................................................25
RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460 ....................................................................................................29
(II) OVERRIDING AN COLLECTIVELY BARGAINED AGREEMENT ................................................................................................31
Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381 .......................................................................31
(II) RIGHT TO COLLECTIVE BARGAINING RECOGNIZED ..........................................................................................................34
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 .............34
(IV) FREEDOM NOT TO ASSOCIATE UNDER SECTION 2(D) .....................................................................................................38
R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209 ....................................................................................39
IV. ACQUISITION AND TERMINATION OF BARGAINING RIGHTS ........................................................................... 43
(I) EMPLOYEE STATUS ...................................................................................................................................................43
Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015 ...................................................................44
(II) BARGAINING UNIT DETERMINATION ...........................................................................................................................47
Natrel Inc. c. Tribunal du Travail (2000), CanLII 11310 (QC C.A.) ........................................................................47
Natrel Inc. v. Syndicat démocratique des distributeurs (1996), T.T. 567 ............................................................48
(III) SUCCESSOR RIGHTS .................................................................................................................................................50
Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565 .........................................................................................51
Sept-Îles (City) v. Quebec (Labour Court), [2001] S.C.R. 670 ...............................................................................56
Locale 800 v. 9066-7148 Québec inc & École Maïmonides (2006), Q.C.C.R.T. 0383 ...........................................59
V. UNFAIR LABOUR PRACTICES ............................................................................................................................ 60
(I) HAMPERING UNIONIZATION EFFORTS...........................................................................................................................60
Syndicat canadien des communications, de l’énergie et du papier, local 194 v. Disque Améric, [1996] A.Q. 3381
(Tribunal du travail) ............................................................................................................................................60
(II) FAILURE TO BARGAIN IN GOOD FAITH..........................................................................................................................63
Royal Oak Mines. v. CASAW, Local 4, [1996] 1 S.C.R. 369...................................................................................63
(III) INTERFERENCE WITH UNION ACTIVITY .........................................................................................................................66
C.B.C. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 (“Goldhawk”) ..................................................66
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(IV) DOUBLE-BREASTING (IN QUEBEC) .............................................................................................................................70
Ville-Marie Pontiac Buick Inc. v. Syndicat des travailleurs de garage de la region de Montréal (C.S.N.), [1993]
T.T. 162 ...............................................................................................................................................................70
(V) CLOSURE ...............................................................................................................................................................71
City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22 ....................................................................................71
I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, [2004] 1 S.C.R. 43 ..................................72
Bourgeois v. Compagnie Wal-Mart du Canada, [2005] Q.C.C.R.T. 0502 ............................................................75
Boutin v. Wal-Mart, [2005] Q.C.C.R.T. 0503 .......................................................................................................77
“Violations of NAALC Labor Principles and Obligations in the Case of the St-Hubert McDonald’s Restaurant” .78
VI. NEGOTIATING A COLLECTIVE AGREEMENT ..................................................................................................... 79
VII. INDUSTRIAL CONFLICT ................................................................................................................................... 83
(I) LEAFLETTING ...........................................................................................................................................................86
U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083 .............................................................................86
(II) PICKETING ..............................................................................................................................................................88
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156 ...................................88
(III) REPLACEMENT WORKERS – S.109.1, QLC..................................................................................................................90
VIII. ADMINISTRATION OF THE COLLECTIVE AGREEMENT .................................................................................... 91
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 ...........................................................................................................................93
IX. THE INDIVIDUAL UNDER THE COLLECTIVE AGREEMENT .................................................................................. 96
Steele v. Louisville & Nashville Railroad Company, 323 U.S. 192 (1944) ............................................................98
McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de
Montréal, [2007] 1 S.C.R. 161 ...........................................................................................................................100
X. NEW APPROACHES TO LABOUR LAW IN A GLOBALIZING ECONOMY ............................................................. 103
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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?
January 3, 2008
Blackett argues that many situations could be covered by labour law – seasonal agricultural workers, WalMart 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 – moooaaahaahaahaa!
We will not be looking at employment K, but we will see the field of employment law through its gaps.
E.g. sale or transfer of enterprise and the law of collective relations is not seen by the CML courts to
provide full coverage of the moment and its consequences, and ordinary private law rules have started to
creep into the separate field of collective agreement law. Second regime – human rights legislation.
We will consider interface between human rights norms and collective representation.
For next class, read the Rand decision, and for Thursday Northern Telecom.
January 8, 2008
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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.
The Rand Decision (1946), [1996] 1 C.L.L.R. 1356
Jurisdiction
Facts
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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
Labour Law
Issues
Holding
Reasoning
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 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
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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.
 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.
The Rand Decision
 All hired employees must be part of the union.
 Justice Rand thought that the appropriate formula is not to constrain someone to JOIN, but
instead to impose dues on all workers.
 Much litigation has followed trying to challenge the Rand formula
o Levigne is the leading decision which challenged it on Charter grounds (s.2)
Going through the case more carefully:
 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
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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
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 a 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 court-like 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
We will be testing various limits of this model.
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). In this period 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
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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.”
January 10, 2008 – MISSING NOTES
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. At these proceedings,
Telecom did not directly contest the jurisdiction of the Board, stating it reserved its rights on
that constitutional 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
Reasoning
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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
Dickson J for the majority:
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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).
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What is in question here is not the Board's administrative jurisdiction in the classic
sense, but whether the jurisdiction given by Parliament to the Board, through s. 108 of
the Code, extends to the labour relations of the employees engaged in the work,
undertaking or business here at issue, i.e., the installation department of Telecom. The
answer to the question must be found, not in the principles of judicial review, but in the
principles governing the constitutional division of authority over labour relations.
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The best statement of legal principles in this area of labour relations may be found in
Laskin’s Cdn Constit Law: “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
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the legislative authority of that body which has power to regulate the particular industry
or enterprise ...
In Construction Montcalm Inc. v. Minimum Wage Commission (1979, SCC) Beetz J set
out the principles that while Parliament has no authority over labour relations as such
nor over the terms of a contract of employment, by way of exception, Parliament may
assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an
integral part of its primary competence over some other single federal subject. The
question whether an undertaking, service or business is a federal one depends on the
nature of its operation, which is determined by looking at the normal or habitual
activities of the business as those of "a going concern", without regard for exceptional
or casual factors; otherwise, the Constitution could not be applied with any degree of
continuity and regularity.
Therefore to determine constitutional jurisdiction in labour matters, first, one must begin
with the operation which is at the core of the federal undertaking. Then the courts look
at the particular subsidiary operation engaged in by the employees in question. The
court must then 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:
1) the general nature of Telecom's operation as a going concern and, in particular,
2) the role of the installation department within that operation;
3) the nature of the corporate relationship between Telecom and the companies that
4) it serves, notably Bell Canada;
5) the importance of the work done by the installation department of Telecom for Bell
6) Canada as compared with other customers;
7) 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.
Here, there is some question as to the presence of both federal and provincial
undertakings, requiring careful consideration of the connection between this subsidiary
operation and the core undertakings.
It is clear from the record that there is a near-total absence of relevant and material
constitutional facts upon which such a delicate judgment must be made. Absent these
facts, this Court would be ill-advised to essay to resolve the constitutional issue. 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.
This Court being in no position to give a definite answer to the constitutional issue, that
question awaits another day and the appeal is dismissed simply on the basis that the
appellant Telecom has failed to show reversible error on the part of the Board.
Comments
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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.
 There is also a state commitment to help Members promote and realize these principles.
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?
January 15, 2008
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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?
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Collective bargaining legislation governs who has access to rights and entitlements. Also controls
employer domination.
E.g. Quebec Labour Code
Article 3: 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: 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.
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Parallel provisions in Canada Labour Code (We’ll be focusing on Part I):
Article 8. (1) Every employee is free to join the trade union of their choice and to
participate in its lawful activities.
Article 25. (1) 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.
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
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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 FoS 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):
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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.
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 para. (e) of the 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 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.
The exclusion of RCMP members from the PSSRA does not infringe the freedom of
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expression guaranteed by s. 2(b) of the Charter. The reasoning that applies to the
issue of freedom of association also applies to the arguments concerning freedom of
expression. Except in exceptional circumstances, freedom of expression imposes only
an obligation that Parliament not interfere, and the exclusion of RCMP members from
the PSSRA regime therefore cannot violate it.
The exclusion of RCMP members from the PSSRA does not infringe the equality rights
guaranteed by s. 15 of the Charter. While the effect of the statute is to impose
differential treatment on the appellant, depriving him and other RCMP members of a
benefit available to most other public service employees, this distinction is not based on
one or more grounds enumerated in s. 15 or analogous thereto. Moreover, this
distinction is not discriminatory. A reasonable person in the appellant’s position would
conclude that it is because RCMP members perform a crucial function in maintaining
order that Parliament set them apart from other public service employees. Whether
this view is correct or not, it does not adversely affect the appellant’s dignity and is not
based on a characteristic attributed stereotypically to police officers as a group.
Per L’Heureux-Dubé J. (concurring w/majority):
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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. In addition, because s. 2(d) guarantees the
collective exercise of rights that are lawful for individuals, subject to s. 1 of the Charter,
RCMP management cannot refuse to recognize the right of an employee to be
represented by an employee association in lawful dealings with the employer.

The evidence adduced does not show that the object of the exclusion of RCMP
members from the PSSRA was to impede the formation of independent employee
associations, but rather suggests that the exclusion stemmed from a desire not to grant
RCMP members all the rights contemplated by the PSSRA and access to the particular
remedies contained within it. Nor can it be found, in this case, that the effect of the
exclusion is to violate freedom of association or expression by encouraging unfair
labour practices by government actors, because such practices are prohibited through
the guarantee of freedom of association in the Charter. Both intrinsic and extrinsic
sources are admissible and significant in determining legislative purpose and effects.
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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.
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Finally, a violation of s. 15(1) of the Charter has not been demonstrated in this case.
Iacobucci and Cory JJ (dissenting):
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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
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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 anti-associational, this is impermissible in light of s. 2(d) of the Charter.
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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
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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
Re effects of the legislation  no evidence was adduced that the legislation has
beneficial effects for RCMP; rather, RCMP members continue to be subject to practices
that would likely be enjoined as unfair labour practices under the PSSRA.
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.
Comments
Delisle:
 RCMP formed in 1985 an informal association – had no status under the Public Service Staff
Relations Act -- the public service legislation -- and Part I of CLC. RCMP officers are expressly
excluded.
o Majority: says that it’s not necessary that there be statutory inclusion of the RCMP
employees – doesn’t infringe s.2(d). The majority said that the order in council was
repealed before the case got to the court so it shouldn’t influence the decision.
o Minority: The order in council was repealed because it became redundant when the
public service legislation came in. The minority takes the order in council to express the
intent of the legislature.
 How does Bastarache articulate the purpose?
 Majority doesn’t have an problem with a purpose that fosters general labour relations but
excludes some eyee’s from scope
o Passage at para 30 court analogizes police officers to others excluded (including judges
themselves). Their vision of police officers is not of vulnerable, disenfranchised workers
in need of protection to be heard. They simply have a level of societal bargaining power,
not unlike other professionals – that, is they have a level of power that enables them
autonomously to seek respect of their workplace rights. Is there something to this?
o The majority seems to be saying that we need to root our (judicial) involvement in simply
more than your statement that you are an employee.
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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!
o 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.
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Last issue: invocation of divided loyalties
January 17, 2008
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016
Jurisdiction
Facts
Issues
Holding
Reasoning
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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)
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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.
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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!*)
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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.
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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
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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
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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
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orchestrates, encourages or sustains the violation of fundamental freedoms.
ILO convention provisions confirm that discriminatory treatment implicates not only an
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):
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There is clear evidence of intent on the part of the government of Ontario to breach the
s. 2(d) rights of agricultural workers. The evidence demonstrates that the 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.
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It is necessary to make just one observation about 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):
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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.
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Agricultural workers are not an analogous group for the purposes of s. 15(1) of the
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Charter and, as a result, the exclusion of agricultural workers from the LRA does not
violate their equality rights.
Comments
 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.
Dunmore:
Background:
In 1994, NDP government in Ontario legislated protection for farm workers, and when Mike Harris
government came in they passed legislation that reintroduced their exclusion. But why is this a Charter
case? Farm workers are governed by private law. Is there governmental action? In Delisle the employer
was the government so there was clearly state action. Interesting to see how Bastarache deals with this.
Issue: Whether exclusion of agricultural workers from statutory labour relations regime infringes freedom
of association.
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
Commentary:
 Let’s consider, if we’re resting our labour relations model, and whether you have access to
positive rights from the states, on whether the state has chosen to intervene in the first place, and
what result does this generate?
 We’re talking about vulnerable workers here, different treatment ... smells like s.15. Only
L’Heureux-Dube is willing to do a s.15 argument. Why does the majority want to do this under
s.2? Especially given the limits to this freedom.
 What they’re asking for is inclusion in the statutory regime.
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The court has been and remains deeply concerned about constitutionalizing any particular
legislative framework. Collective bargaining mechanisms are not the same everywhere
Section 15 might have allowed for inclusion in a broader panoply of collective bargaining
What is about the industrial legality rationale that informs this?
Would you have minimum wages if you didn’t have unions?
To what extent does this case give us guidance about freedom of association?
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
In a communication dated 23 August 1996, the Canadian Labour Congress (CLC)
submitted a complaint of violations of freedom of association against the Government of
Canada (Ontario). The complainant alleges that, under Bill 7, agricultural workers, domestic
workers and certain specified professionals (architects, dentists, land surveyors, lawyers
and doctors) are denied access to collective bargaining and the right to strike. In addition,
the existing organizing rights of these workers were terminated, their current collective
agreements were nullified and measures of protection against anti-union discrimination
were removed. Finally, the complainant adds that Bill 7 removes successor rights and
related employer rights from Crown employees in Ontario and eliminates successor
employer protection from workers in the building services sector.
The complainant alleges that without statutory protection, workers are vulnerable to
penalties. 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
NOTE: Canada has ratified the Freedom of Association and Protection of the Right to
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Issues
Reasoning
Organise Convention, 1948 (No. 87). It has not ratified the Right of Association (Agriculture)
Convention, 1921 (No. 11), the Right to Organise and Collective Bargaining Convention,
1949 (No. 98), the Rural Workers' Organizations Convention, 1975 (No. 141), the Labour
Relations (Public Service) Convention, 1978 (No. 151), or the Collective Bargaining
Convention, 1981 (No. 154).
Re: Legislative repeal of statutory access to collective bargaining, termination of existing
organizing rights and nullification of collective agreements
The Committee:
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The Committee notes that while domestic solutions are good, its competence to
examine allegations is not subject to the exhaustion of national procedures.
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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 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
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.
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Issues
Reasoning
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.
Comments
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”
To hire a SAW, the 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
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Canada. The Mexican government recruits.
Issues
Holding
Reasoning
The Légumière Y.C. Inc. is a family business of vegetable production which runs every year
from mid-March to mid-October. Luc Constantineau, his father and mother are the owners
of the company. Luc Constantineau and his secretary are the only people who work for the
company through the end of October to March. From the end of April to mid-October, the
services of Mexican workers and Quebec are required by the company and almost all of
these people work together and alternate on different workstations. In mid-October, 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.
Commissaire Michel Denis:

The purpose of this Agreement is to ensure that the workers who come to Canada, as
part of PTAS, are treated the same as Canadian workers who carry the same kind of
agricultural work, and that their working conditions are comply with labour standards
generally accepted in Canada.
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.

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”
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
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
La Légumière Y. C. Inc.
 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
 The farm actually agrees voluntarily in one of these cases to recognize the union (HydroSerre
Mirabel inc.)
January 22, 2008
La Légumière Y. C. inc.
 There’s a division of powers analysis flowing through the challenge to this rupture. A concurrent
jurisdiction decision is retained. It is not assumed that the feds have somehow taken responsibility
for the complete regime for migrant workers.
 Para 117 – attempt to show the back and forth between the legislature and the how the board
sought to interpret the legislation. It’s basically a process of lobbying
 So farm workers where workers return every single year in an industry where there is no activity
in the winter – how do you get any more continuous than that?!
 Why is there no reference to the Charter in this case?
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.
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
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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
Holding
Reasoning
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?
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
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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.
 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
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Comments
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.
Alberta Reference:
 The province of Alberta referred a reference question to the Alberta Court of Appeal, which was
eventually appealed to the Supreme Court. The questions concerned the constitutionality of
prohibiting strikes and replacing them with compulsory arbitration.
 McIntyre J  no right to strike, no right to bargain collectively
 These are statutes where the state has taken a particular area out of the common law courts
 We see the modern interpretation
 McIntyre's spectrum (he says it doesn't cover any possible point, but only the stuff discussed in
the case):
o (1) The Collymore situation. You have a right to associate, but you're outside of 2(d).
That's one extreme.
o The other extreme (#6) is including everything in 2(d) and leaving only s.1 as a question
(Dickson). So McIntyre decides easily to get rid of these two extremes and then sets out
to decide among 2-5.
 #2: what's constitutional for the indiv to do, the collective can do.
 #3: what's lawful for the indiv to do, the collective can do. (I think...)
There’s an equality of treatment analysis flowing through this. Internal to McIntyre’s justification is that
we should we should be treating likes alike – we shouldn’t be taking away rights from collectivities that
individuals might engage in.
See paragraph 177 for distinction between individual and collective  “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.”
Dickson CJ’s analysis (dissenting):
 This decision has been widely cited and has arguably become the law!
 Starting point is constitutional freedom of association in society but a more contextualized way of
thinking of FoA. E.g. what FoA means to working people.
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 He frames the questions carefully (look at paragraph 22 – 28) and relies on comparative sources
and international sources.
 Para 77 – distinction between rights and freedoms
 Para 87 – powerful and more critical contextualization of freedom of association
Note that Dickson reviews international law! He says in summary at para. 72:
“The most salient feature of the human rights documents discussed above in the context of this
case is the close relationship...between the concept of freedom of association and the organization
and activities of labour unions. As a party to these human rights documents, Canada is cognizant
of the importance of freedom of association to trade unionism, and has undertaken as a binding
international obligation to protect to some extent the associational freedoms of workers within
Canada. Both of the U.N. human rights Covenants contain explicit protection of the formation
and activities of trade unions subject to reasonable limits. Moreover, there is a clear consensus
amongst the I.L.O. adjudicative bodies that Convention No. 87 goes beyond merely protecting the
formation of labour unions and provides protection of their essential activities that is of
collective bargaining and the freedom to strike.”
January 24, 2008
Alberta Reference, Dickson CJ dissent:
 Dickson emphasizes importance of associations in enabling individuals to overcome vulnerability
and he grounds his analysis of the scope of 2(d) in that kind of reasoning
 His justification of the right to strike:
o Expansive language about collective bargaining – very impt dicta
o He recognizes the right to strike
o He sees work stoppage as part of the bargaining arsenal
o He uses pre-charter sources and sees the right to strike as legal activity
o In para 97 you get a caveat
o Para 117 – reference to restrictions on police officers and fire fighters
o Turns to ILO jurisprudence and articulates essential services within that framework. We
have to make sure bargaining is fair in the context.
o In this case, what’s the problem with the arbitration – pensions is an excluded topic for
arbitration so Dickson is concerned about the reach of this and the minimal impairment
portion is problematic
o Look at para 128-130 to see how he works through this legislation
 Recall Question 7 of the reference – it’s just not answered
Something to note in all three decisions – why is the AG of Manitoba lined up against the other AGs?
NDP was in power.
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
Labour Law
of two years and fixed the wage increases to 6 per cent in the first year and 5 per cent for
the second.
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
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

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 non-compensatory 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.
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
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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;
Labour Law
PSAC
 Note the timing – Charter came into effect in 1982, and Public Sector Compensation Restraint
Act came into effect at the same time
 Public Service Alliance Canada requested a declaration before Fed’l Court that the act was of no
effect for violating Charter
 The legislation extended collective agreements of public sector employees and fixed wage
increases for a two-year period to 5 or 6%
 Pecuniary issue went beyond wages to non-compensatory dimensions
 Majority decision by LeDain in one paragraph saying, look at Alberta Reference
 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?
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
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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 farmers could not stop
production and could not store the milk for more than three days.
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

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
RWDSU:
 Following unsuccessful contract talks between the respondent 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
 In this case you have a direct taking of sides in the labour relations balance of power
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




Wilson reminds Dickson that in PSAC we were talking about essential services in relation to the
rather tight framework of the ILO.
The language of ILO reports suggests something but I didn’t catch what
Dickson finds that the infringement is justified. 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.
o But economic harm to third parties will not always suffice
o 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.
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
January 29, 2008
Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381
Jurisdiction
Facts
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 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.
There had been in existence, the government agreed on June 24, 1988, systemic
discrimination.
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. This complex work to determine this amount was only
just completed in 1991. 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.
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
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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.
Issues
Holding
Reasoning
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.

It is true that in the ordinary course, legislative adoption of a remedial measure does
not “constitutionalize” it so as to fetter its repeal. 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.

When the Public Sector Restraint Act was passed, the female hospital workers were
not workers in search of “machinery” to pursue a claim. They were entitled under
their collective agreements to four years of pay equity adjustments (1988, 1989, 1990
and 1991) which, at that point, had been ascertained and agreed to by the government
and the union. The debt was payable on April 1, 1991. It was this entitlement, due to
an historically disadvantaged minority in the workforce, that was targeted by the Act.

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
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
versus hospital beds, layoffs, jobs, education and social welfare.
 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.:






Facts  There were these female health care workers who were getting paid less than male
workers and so there was an agreement to back pay them. The Newfoundland gov’t later passed a
law saying that they wouldn’t pay the arrears from 1988 and 1991, but the statute also included a
freeze on public sector employee wages and hospital bed freezes and all kinds of other things
because Newfoundland was going through a HUGE financial crisis. Remember, late 1980s –
minor recession (minor compared to the great depression that is)
Issue  was there a violation of s.15 in not paying the arrears? Held: Yes, but justified under s.1
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.
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


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
Issues
Holding
Reasoning
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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 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.
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)
Labour Law




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 became 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
laissez-faire 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 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
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




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.
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 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
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






Comments
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.
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:
 NOTE: missing some notes from January 29 – had to leave early
January 31, 2008
B.C. Health Services cont’d:
 Notice reference to 1998 ILO Declaration in majority decision. What NORMATIVITY does this
bring into the decision?
 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.
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






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. 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.
2. Collective Bargaining: The Act sought to enhance collective bargaining for its own sake
because of its presumed “mediating” or “therapeutic” impact on industrial conflict.
3. Bargaining Power: The Act aimed to promote “actual liberty of contract” by redressing
the unequal balance of bargaining power between employers and employees.
4. 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.
5. Underconsumption: The Act was designed to promote economic recovery and to prevent
future depressions by increasing the earnings and purchasing power of workers.
6. 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
(IV) FREEDOM NOT TO ASSOCIATE UNDER SECTION 2(D)
February 21, 2008
The construction industry gives us a very interesting example of a labour relations model that was
developed over a long time and is stable.
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Labour Law
R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209
Jurisdiction
Facts
Issues
Holding
Reasoning
Advance Cutting et al. (appellants) are contractors, real estate promoters and construction
workers, and were charged with hiring employees who did not have the required
competency certificates to work on a construction project (in accordance with the Quebec
Construction Act). The workers could not obtain the proper competency certificates without
becoming members of one of the union groups listed in s. 28 of the Construction Act.
At the time, s. 28 of the Construction Act provided that the five union groups listed were the
only groups entitled to an assessment of their representativeness. Under s. 30, the
Commission de la construction du Québec draws up a list of construction workers qualified
to take part in a mandatory vote under s. 32, during which each worker must opt for one of
the union groups as his or her bargaining representative. In order to take part in that vote, a
construction worker must hold a journeyman competency certificate, an occupation
competency certificate or an apprentice competency certificate. Construction workers must
also have worked 300 hours in the industry in the 15 months before the election is held. On
the basis of the vote, the Commission determines the representativeness of every
association under s. 35. This degree of representativeness determines the extent of the
influence of each association in the negotiation process. Only a union or a group of
associations with a representativeness of 50 percent or greater of all certified construction
workers may negotiate collective agreements. If a union’s degree of representativeness
does not reach at least 15 percent, it is even deprived of the right to attend collective
bargaining sessions.
1) Is there a freedom not to associate under s. 2(d) of the Charter?
2) Is the requirement that workers become members of one of listed union groups in order
to obtain competency certificates unconstitutional?
1) Yes but very limited scope. 2) No
 L’Heureux-Dube (concurring with majority) says here that there is no freedom NOT
to associate (à la Wilson)
o Adopts an approach that gives 2(d) as wholesome an interpretation as possible.
She reads freedom to association to exclude freedom not to associate saying it is
antithetical to the purpose and scope of the protected right of association.
o While no one should be forced to associate, s. 2(d) of the Charter does not offer
such constitutional protection. If someone were forced to associate, freedom of
expression and s.7 would kick in.
o The “common pursuit of individual goals” is not appropriate in the context of
freedom of association analysis. A row of taxis does not a bus make. The mere
addition of individual goals will not suffice. Society is more than the sum of its
parts.”
o In this context, a negative right would mean an individual is given the
constitutional right not to belong to an association. But, if the fundamental
purpose of freedom of association is to permit the collective pursuit of common
goals, then the very concept of a “negative freedom of association” becomes
suspect. At issue is the definition of “common goals”.

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At the other end of the spectrum, adopting the broadest approach to freedom of
association, is Bastarache J (with Binnie, McLachlin and Major) (dissenting):
o There is a right not to associate under 2(d) but the test for infringement of this
right, is not whether there is evidence of ideological coercion or conformity
imposed by the forced association. (this test requires too high a threshold for the
dissenters)
o For ideological conformity to exist, it is not necessary that there be evidence of
an imposition of union values or opinions on the member, evidence of a limitation
of the member’s free expression, or evidence that the union participates in
causes and activities of which the member disapproves.
Labour Law
o The interpretation of ideological conformity must be broader and take place
in context. In this case, this context would take into account the true nature of
unions as participatory bodies holding political and economic roles in society
which, in turn, translates into the existence of ideological positions. To mandate
that an individual adhere to such a union is ideological conformity.
o Under the Construction Act, membership in one of the unions is obligatory.
Membership has meaning and is about sharing values, joining to pursue goals in
common, etc. Unions are a potent force in public debate because they have
collective force.
o It is not necessary to have more independent evidence of the ideological views of
the specific unions involved in this case. Adherence to a scheme advocating
state-imposed compulsory membership which affects many other freedoms is
itself is a form of ideological coercion, and this is so even where there is no
evidence that the union is coercing its members to believe in what it promotes.
o Within this regime, democracy is further restricted by limited choice. There
is no guarantee that a majority of voters will exercise their right. A default
provision can determine the outcome of elections. Those voting for minority
associations may be left out of future negotiations.
o Not saved under s. 1. There is no rational connection between the legislation’s
stated objectives of ensuring competency and structured collective bargaining.
There all kinds of restrictions on admission to the industry, bargaining, mobility,
etc. Furthermore, being a resident of Quebec in the previous year, having worked
a set number of hours in that year, and being less than 50 years old have nothing
to do with competency. The rights were not minimally impaired – limiting the
freedom to associate or not to associate was not necessary to ensure
competency.
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
Somewhere in the middle but closer to Bastarache is Iacobucci J (concurring with
the majority in the result): He agrees there is a right not to associate however he
wants a more holistic way of thinking about what a right not to associate might look like.
An analysis that construes the negative freedom within s. 2(d) more broadly than the
“ideological conformity” test should be adopted.
o He doesn’t say you shouldn’t look at IC, but suggests that we look at other
factors
o He says that where the state obliges an association of individuals whose
affiliation is already compelled by the facts of life (such as in the workplace), and
the association serves the common good or furthers the collective social welfare,
s. 2(d) will not be violated unless the forced association imposes a danger to
a specific liberty interest.
o The state-imposed association established by the Construction Act does not
promote the common good or further the collective social welfare within the
context of s. 2(d) of the Charter. The legislation fails to provide any justification
for the compelled union association that it envisages for Quebec’s construction
industry and interferes with members’ liberty interests.
o However, the legislation is saved under s.1. Given the unique and complex
historical context of the Act, it served to promote distinct social and economic
objectives that were, and remain, pressing and substantial. Also meets the
proportionality test.

Lebel J (with Gonthier and Arbour) (majority) is also somewhere in the middle but
closer to L’H-D:
o The act of engaging in legal activities, in conjunction with others, receives
constitutional protection. The focus of the analysis remains on the individual, not
on the group.
o Labour relations in the Quebec construction industry have gone through a long,
complex and difficult history
Labour Law
o LeBel gives a robust defence of the choices available within this regime.
o While the majority of the Court acknowledged in Lavigne that there was a
negative right not to associate, it also accepted a democratic rationale for putting
internal limits on it. An approach that fails to read in some inner limits and
restrictions on a right not to associate would deny the individual the benefits
arising from an association.
o The acknowledgement of a negative right not to associate would not justify a
finding of an infringement of the guarantee whenever a form of compelled
association arises
o LeBel finds that in this case Advance Cutting has not made out a case that the
challenged legislation establishes a form of ideological conformity that would
trigger the application of s. 2(d) of the Charter.
o As it stands, the law does not impose on construction workers much more than
the bare obligation to belong to a union. Their obligation boils down to the
obligation to designate a collective bargaining representative, to belong to it for a
given period of time, and to pay union dues. At the same time, the Act provides
protection against past, present and potential abuses of union power. Unions are
deprived of any direct control over employment in the industry. They may not set
up or operate an office or union hall.
o No discrimination is allowed against the members of different unions. Provided
they hold the required competency certificates, all workers are entitled to work in
the construction industry without regard to their particular union affiliation.
Section 96 grants members clear rights of information and participation in union
life. The law allows any construction worker to change his or her union affiliation,
at the appropriate time.
o There is simply no evidence to support judicial notice of Quebec unions
ideologically coercing their members. The legislation does not impose a form of
ideological conformity or threaten a liberty interest protected by the Charter,
which is necessary for it to infringe the right not to associate under s. 2(d).
o LeBel promotes the democratic model  he says that the question at stake in
this appeal should be left to the political process because the management of
labour relations requires a delicate exercise in reconciling conflicting values and
interests. Legislatures are entitled to a substantial degree of latitude and
deference to settle social and economic policy issues.
Section 1
o Even if there were a violation, it would be saved under s.1.
Comments
Intro:
 Advance Cutting charged with hiring employees who did not have the required competency
certificates to work on a construction project or in the industry
 Advance Cutting asserted that workers could not obtain the proper competency certificates
without becoming members of one of the union groups listed in s. 28 of the Construction Act.
They claimed that this obligation was unconstitutional because it breached the right not to
associate which, in their opinion, was a component of the guarantee of freedom of association in
s. 2(d) of the Canadian Charter
 There are others involved here who are “interveners” – e.g. the Commission de la construction du
Québec charged with enforcing the construction industry’s labour relations scheme
 What is the labour history here? We’ve seen the collective decree system which has sought to
identify those sectors of the economy where a more regional focus might be more appropriate.
How historically did this construction industry scheme develop?
o Starting at Para 117, LeBel J outlines this history in great detail. There was an attempt to
consolidate the construction industry through a collective decree (I have no idea what this
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
means). There was some serious problems of violence and corruption within the
unionization process
o The collective decrees model was moved out of that mechanism that looked at specific
regions of the province but rather there were province-wide
o The Commission implements labour standards but leaves much of this function to the
unions themselves.
The decision is very divided. We will “map” both Lavigne (which is heavily cited in this
decision) and this decision.
Lavigne:
 Lavigne didn’t want to be part of union because of difference in politics (didn’t like NDP or
something). Lavigne complained that he should still not be forced to contribute union dues, even
if he has to be forced to join the union as a member.
 La Forest (+3) (majority) said you have the right not to associate and although there’s an internal
limit to that right, ultimately, because in this case the union dues were used to do more than
simply defend working conditions (e.g. money given to political purposes), there was a section
2(d) violation. However, it is saved under s.1.
 McLachlin  also accepted a right not to associate but focused on (lack of) ideological coercion.
However she didn’t even find a s.2(d) violation; she didn’t have to go to s.1.
 Wilson J  wouldn’t have even found a right not to associate within 2(d).
 This is what we come to Advance Cutting with – a spectrum from a right not to associate and the
right to associate not including right not to associate
Advance Cutting Reasoning:
 ILO material that is referred to in this decision ultimately doesn’t offer the same kind of
balancing that we see reflected in this spectrum approach
 See case summary above for the different judges’ opinions.
Think about the challenges that each of these models offer to the democratic project. If you had, not
compulsory membership, but compulsory dues and ability to vote, is that okay?
What is ideological coercion to the different justices?
 For LeBel, ideological coercion would be if the unions were promoting something other than the
working conditions for their members. It would require that the unions be holding a single
ideology and imposing it on their rank and file
o LeBel’s history seeks to suggest that there is not much by way of conformity. In fact, he
shows there are very different ideological positions coming through the construction
industry specifically, as well as in other industries.
 Bastarache has a much broader perspective – the very obligation to join something like a union
implies imposition of an ideology. Unions hold certain political and economic positions in society
which translates into an ideological position.
February 5, 2008
Hypotheticals  In light of BC Health Services:
 How might La legumiere be argued in light of BC Health Services?
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


Is there a right to strike?
Could NAPE be a s. 2(d) case?
Whether a gov’t can change historical patterns of negotiations and require to re-negotiate or
negotiate for the first time a number of specific subjects to determine the content of legislation?
Facts for Hypothetical 4
1: Nurses and nurses aids now have to bargain together – gov’t will not deal with them in separate unions.
 Does substantially touch on collective bargaining but it seems that if there is some process of
consultation and good faith negotiation, seems like no infringement.
2: With respect to Issue X, gov’t won’t deal with separate nurses unions, but will only deal with the whole
region of unions at once.
 This seems to be okay as long as they’re dealt with in good faith, but what if there is not good
faith? Cause it didn’t substantially impact in step one, you can’t get here.

B.C. Health Services doesn’t seem to allow you to say hey we had an OUTCOME, you have to
respect that. Rather it seems to say that the government has an obligation to step in and negotiate.
February 7, 2008
Final note on BC Health Services: There is some indeterminacy in where BC Health takes us. The
formulation of the test is not clear for different fact scenarios), and how section 1 will play out.
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.
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.
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Labour Law
Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015
Jurisdiction
Facts
Issues
Holding
Reasoning
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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.):

The Labour Code provides few indications of how to determine the real employer in a
tripartite relationship, and the definitions of the terms “employer” and “employee” found
in the Code have had to be interpreted by specialized administrative tribunals. It has
established that the employer-employee relationship is defined by three essential
elements, as per the QLC: the performance of work, remuneration and 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.

In a context of collective relations governed by the Labour Code, it is essential that
temporary employees be able to bargain with the party that exercises the greatest
control over all aspects of their work—and not only over the supervision of their day to
day work. 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):
Labour Law
the selection process, hiring, training, discipline, evaluation, supervision, assignment of
duties, remuneration and integration into the business.




Here, the Labour Court used a comprehensive approach by not basing its decision
solely on the criterion of legal subordination. It gave greater probative value to working
conditions and the criterion of legal subordination, but it also considered other factors
that define the employer-employee relationship, such as the 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.
The applicability of the city’s collective agreement to the employee during her
assignments does not raise any major difficulties. Although the agency was the
employee’s employer for the purposes of the Act Respecting Labour Standards, no
inconsistency can be found in the application of the Code and that Act. In such a
situation, it is thus natural that labour legislation designed to govern bipartite situations
must be adjusted in some ways.
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.
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?
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Labour Law
o








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.
 The use of the word subordination assumes an inequality in bargaining power in
the ey’er-eyee 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.
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Labour Law
(II) BARGAINING UNIT DETERMINATION
Natrel Inc. c. Tribunal du Travail (2000), CanLII 11310 (QC C.A.)
Jurisdiction
Facts
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Union has applied for certification to represent milk-delivering truck drivers who deliver
Natrel's milk. The Labour Commissionner (Garant) took into account the following facts:
o The distributers are bound to Natrel by K. They deliver milk to businesses and
indivs. Each distributer (driver) has a delivery route and a set of clients. Drivers
can't trade routes or clients among each other without Natrel's approval. Natrel can't
make unreasonable decisions in this respect, but it has the right to force one driver
to give his route to another driver already under K with N.
o In each region there's a Natrel coordinator who supervises distribution of milk and
deals with complaints from clients.
o Nartel reserves the right distribute in another other way besides these driver and to
modify the map of the territory in which a driver operates without compensating him.
o But the drivers are bound to distribute no other products than Natrel's (subject to
rare exceptions).
o When the driver go on vacation, they use the services of a replacement agency.
Natrel pays this agency and deducts the cost from what it pays the drivers.
o The drivers own and are fully responsible for their trucks, but the trucks have to say
"Natrel," and nothing else.
o Drivers have to buy a computer thing without which they can't deal with wholesale
clients; they can also use them for smaller clients.
o Clients are big businesses (IGA), small businesses, and individuals.
o Natrel bills the big boys, the drivers bill the indivs, and Natrel and the drivers split
the medium boys.
o Natrel bills for 80% of the volume of milk (so most of the driver's money comes from
the big clients), but this 80% of the volume accounts for only 6% of the physical
points of delivery. 94% of the points of delivery are billed by the drivers.
o Wrt to the clients billed by Natrel, the drivers are paid according to litres of milk
delivered. Wrt to the clients billed by the drivers, the drivers get the profit (ie they
buy the milk and then resell it).
o Natrel determines prices in the former case, the drivers in the latter case. The
drivers often buy the milk from Natrel at a higher price than do the big clients.
o Drivers are responsible for returns (or something) and certain losses; he's
responsible for all milk once it's in his truck.
o When a new business opens, a driver can solicit it, but Natrel won't necessarily give
that business as a client to the soliciting driver.
o Natrel can solicit the clients of a driver and the driver can't object. A driver can't
solicit clients of Natrel.
o Some drivers might deliver Natrel milk in a given territory while other drivers deliver
milk of another brand (Quebon or Laval) also produce by Natrel in the same
territory. In such a case, drivers compete with each other.
o Often, milk supply runs out. When this happens, the driver loses money, and
because the drivers have an ob to promote Natrel products, they, rather than
Natrel, can be blamed for the failure in supply.
o Sometimes Natrel will make mistakes like announcing a wrong price. When this
happens, the drivers have to pay the difference.
o Similarly, it can happen that Natrel ends a promotion, but the drivers have to keep
selling milk at the low price to keep their clients.
o Drivers are paid to attend optional classes on salesmanship.
o Some drivers are incorporated; Natrel has helped pay for some incorporations.
o Drivers make their own schedules, except where delivering to big clients is
concerned.
Labour Law
o
o
At some big clients, the drivers have to oversee unloading.
-The drivers are gradually losing their automony. That's the trend.
The Commissioner considered the criteria of legal subordination and economic dependence
in light of these facts and decided that the drivers are employees. Natrel appealed to the
Labour Court (Yergeau J), which found the drivers have double-status.
-They're dependent K'ors when they deliver to clients billed by Natrel (80%)
-They're independent K'ors when they deliver to their clients (20%)
So they're unionised for 80% of the work. Natrel seeks jud review, SC (Rochette J) rejects
request. Now they're applying to the Court of Appeal.
Issues
Holding
Reasoning
Did the Labour Court commit a manifestly unreasonable error in finding (a) double status or
(b) the concept of a dependent K'or? (neither concept exists in Quebec Labour Code)?
No. No.
Denis JA for the Court:

The trib has a strong privative clause, so to overturn them we must find manifestly
unreasonable error in fact or law, or violation of natural justice.

The trib has the independence to decide against precedent.

There is value in the good will of the drivers' clients, but the drivers don't really own
their routes or client lists. (Note: When you pay more for a business than book value,
you’re paying for “good will” which is an intangible. i.e. buying potential customers,
quotas, etc.)

The precariousness of the value of that good will puts the drivers right between two
categories, thus justifying the use of the dependent K'or concept.

Given the realities of developments in the economy and work organisation, it is wrong
to read the Labour Code's silence on the concept of double status as prohibiting the
use of the concept.

When in doubt, err on the side of protecting the workers.

ME: here there's a combination of a contractual relationship with economic
dependence.
Comments
Natrel Inc. v. Syndicat démocratique des distributeurs (1996), T.T. 567
Jurisdiction
Facts
Issues
Holding
Reasoning
48 | P a g e
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 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:
Labour Law
Comments
 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.
 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. It is defined as 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.
February 12, 2008
Natrel:
 Issue is not who is the employer but whether it’s an employer at all – Is there an employeremployee 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?
49 | P a g e
Labour Law





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.
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.
 114 – labour court responsible for adjudicating the code
 118-119 define the powers of the commission
 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
representativeness phooey about 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
 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.
 Art 25 – process and timeframe  First it sets up a process, then sets up a timeframe, then sets a
clock for unfair labour rejection or something, then it stops other from doing the same thing; ie
first union in a non-unionised environment is the one.
 Art 21 – clarifies the right to certification
 The union has to characterize the workplace in a way that allows it to estimate how many
signatures are required to get the representative majority required.
 If you make it too narrow the employer can come around and say too many are not included and
therefore not majority, and therefore no union.
 Theoretically one person could be a bargaining unit.
 The whole process of organizing in favour of certification tends to take place secretively (since
environment is usually hostile to unionization).
(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.
February 14, 2008 (Olly notes)
50 | P a g e
Labour Law
 In today's class we're concerned with transferring collective agreements. There is an issue of
privity of K here. It may be that a collective agreement is invalid if there's a transfer.
 Application of privity rules to coll agreement are questioned in CML, but in quebec they persist
more. The legislative attempt to deal with this issue is found in s.45.
 The first para of 45 is about the retention of certification.
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.
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.
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.
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.
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
-
-
51 | 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
Labour Law
own s.41 application to have certification cancelled with respect to itself.
The Labour Court affirmed that commissioners’ decisions that operation of part of an
undertaking had been transferred, as required by s. 45(1), and that s. 45 applied since
the tests in Bibeault had been met.
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.
-
Issues
Holding
Reasoning
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.
52 | P a g e
Labour Law
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.
Comments
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

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
53 | P a g e
Labour Law





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
pre-Bibaut 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.












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.
54 | P a g e
Labour Law






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.
o Certification is what survived this. The CA is gone, the employees are gone.
o The result protects the union.
o What's the labour court trying to do here?
o Is this an effective way (policy-wise) of responding to the restructuring of companies?
Think about fitting new structures into old legal categories.
February 19, 2008
55 | P a g e
Labour Law
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 art. 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
56 | P a g e
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
Labour Law





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-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.
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Comments
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. 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
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 subcontractors (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
 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 subK’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.
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Locale 800 v. 9066-7148 Québec inc & École Maïmonides (2006), Q.C.C.R.T. 0383
Jurisdiction
Facts
Maimonides School is a Jewish francophone private educational institution subsidized to the
tune of 60% by the state. The school was facing huge financial difficulties, was in huge
debt, etc. As part of their cost-saving venture, they wanted to outsource for minor repairs
which they say the janitors did not (and could not under the collective agreement) do. The
school administration did not consult with the union about ways to save money and
reorganize work. The services were contracted out to CB Star.
There is dispute in evidence about whether or not the janitors used to do minor repairs.
Some witnesses say they did (relevant to whether it was actually a transfer of a previous
part of the operation or not). The school and CB Star are arguing that the school has not
transferred most of the characteristic features of the business of housekeeping
Issues
Holding
Reasoning
Comments
Can s. 45 be applied in this situation to extend union rights to janitors in light of s. 45(3)?
(There’s also an issue of whether the union brought the application too late – i.e. later than
30 days after the alleged transfer...)
No.
Commissaire Louise Côté-Desbiolles:

Several commentators in employment law have stated that the amendment introduced
by the third paragraph seeks to exclude or limit the scope of Ivanhoe and Sept-Iles,
which noted that the only assignment of duties or the right to use a subcontracter could
allow the transmission of the rights and obligations of the former to the new employer

Also the Minister of Labour indicated that three reasons for the amendment of Article
45, the first being the order of "legal clarification": e.g. “The interpretation of the
Supreme Court in 2001 in its ruling on the town of Sept-Iles, made sure that Quebec is
the only place where the concession of the right to use a portion of the municipal area
required automatic application of Article 45, without transfer of resources.” (??)

For section 45 to apply, it is necessary to determine whether, beyond the functions or
the right to operate a part of an undertaking, other features of the company under the
“surrender” has been subject to a transfer.

The examination of those features should not be done purely quantitative and should
be weighed to reflect their relative importance.

This is in keeping with Bibeault, where the SCC held that the test “requires the
identification of the essential elements of an enterprise”, and this is an contextual
analysis, specific to the industry.

It is true that the functions are a crucial element of this type of business, but paragraph
3 of Article 45 obliges us to consider, in addition to these functions, or the right to
operate a part of an undertaking, whether we must determine the respective
importance, before applying Article 45.

In this case, in the absence of transfer of some other characteristic of the company
concerned, it is impossible to conclude a concession to justify the transmission of rights
and obligations.
In light of Ivanhoe and Sept-Iles, the third paragraph seems to be saying that when
functions and a right to operate a certain part of an undertaking is transferred, certification
and a collective agmt will not be transferred (e.g. s.45(2)) where most of the essential
elements of the undertaking are not transferred.
Maimonides:
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A private school funded 60% by Quebec government was having serious financial difficulties and
cut down on costs including janitorial costs
Why isn’t this a s. 45 transfer? How different is paragraph 3 from the reasoning we saw in the
two cases? Did Arbour ever say that we were proceeding on an analysis that was reduced to the
functions test?
If we bracket off the functions then what are we looking for?
Take a close look at the provision and consider what it seeks to capture in precisely this kind of
circumstance where the transfer suggests that it sought also to get rid of (if not the union as such)
some of the actors who were critical to the union.
How to analyze s.45 (3) having now looked at Ivanhoe and Sept-Isles and the Maimonides fact
pattern.
Is it open and shut?
Pick up on another method distinct to Quebec through which bargaining rights can be acquired.
When CB Star took over its operations, it applied to its eyees conditions existing under a
collective agreement. What is that mechanism? We have legislation dating prior to the Wagner
Act which provides the legislative extension of bargaining rights at a sectoral level in a limited #
of industries including cleaning of public buildings.
She’s saying something about hair dressers and agents securite and stuff. It’s a patchwork rather
than a comprehensive system.
Something about minimum wages for those particular sectors
We want to think about collective bargaining rights as free rights. This model assumes choice.
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?
March 4, 2008
(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?
Syndicat canadien des communications, de l’énergie et du papier, local 194 v. Disque Améric,
[1996] A.Q. 3381 (Tribunal du travail)
Jurisdiction
Facts
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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
Labour Law
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 antiunion people 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
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Were Disque Americ’s actions interference, contrary to article 12 of the QLC?
Juge Lesage:

Section 12 deals with this issue. 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
Labour Law
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

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
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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
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 art. 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.
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 Art. 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.
 Lesage J (Disque Americ I guess) says there's a need to think about the philosophy of art. 12 in
light of societal changes. One of the biggest of those changes is the advent of the charter. So now
we can talk about the employer's right of free speech to express a view on the matter.
 Para 52: can't make any threats, or any promises meant to persuade the workers of something.
Employer must hold factually-based positions. He must address himself to the reason, not the
emotions of the workers. The workers have to freely choose  the employer can't coerce or use
his position against them.
 Lesage J also says we have to look at the "non-dit" the unsaid.
 This is a helpful case cause it encapsulates many challenges that surround the unionisation
process.
(II) FAILURE TO BARGAIN IN GOOD FAITH
Royal Oak Mines. v. CASAW, Local 4, [1996] 1 S.C.R. 369
Jurisdiction
Facts
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 18month 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.
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
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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
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appellant, and ordered mediation on the 4 unresolved issues. They had tried
conciliation, mediation, ministerial intervention and the appointment of an Industrial
Inquiry Commission.
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.
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 Facts: Took place in Yellowknife. Royal Oaks bought up a gold mine. The miners were unionised
and their collective agmt was coming to an end. Royal Oaks made an offer that was rejected.
Couldn't agree. Strike. Violence by strikers. Led to violence in town among even non-workers.
Went on for 18 months. Finally the old agreement, with some changes, was imposed on Royal
Oaks, and they're contesting that.
 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.
 Something about para 42 and the two facets of s.50(a) and the relation between them.
March 6, 2008
Royal Oak Mines (cont’d):
 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.
 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
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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
Labour Law
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
67 | P a g e
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.

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
Labour Law
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
Goldhawk
68 | P a g e
Labour Law
 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
69 | P a g e
Labour Law
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 la region de Montréal
(C.S.N.), [1993] T.T. 162
Jurisdiction
Facts
Issues
Holding
Reasoning
70 | P a g e
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 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 (I
think) 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
Labour Law

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. There was a s.35 application that was rejected.
 -"employeur unique"
 Art. 35 CLC lets the board declare a single employer, but there's no equivalent of art.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 art. 35, which would mean taking two entities and declaring them to be one.
 Union tried to rely on QLC 39
 Tribunal du travail not prepared to read in ability to take two entities that are considered to be related
and declare 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
March 11, 2008
City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22
Jurisdiction
Facts
Issues
Holding
Reasoning
71 | P a g e
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
Labour Law





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, multi-branch/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
 Why did a group of unions, led by teamsters, put together some kind of thing in response to
NAFTA.
 Maintaining labour standards, and enforcement of those standards became important...
 Structure 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
Facts
72 | P a g e
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
Labour Law
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.
73 | P a g e
Labour Law




Comments
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
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...
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.
 Something about section 45
 What changed according to Gonthier so that the courts are not simply enforcing the decision of
the labour board? There's some important procedural point here. Something about an injunction.
Basically we've got a trial be novo. The courts of superior jurisdiction are required to act on their
inherent powers... and then to do so?
 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
 How did we get from Pontiac Buick to considering what Place des Arts does? I don’t know what
this question means.
o In this judgment we see efforts to avoid circumscribing unduly the ability of a business to
restructure
74 | P a g e
Labour Law
Bourgeois v. Compagnie Wal-Mart du Canada, [2005] Q.C.C.R.T. 0502
Jurisdiction
Facts
Issues
Holding
Reasoning
A Wal-Mart in Jonquière was closed down on April 29, 2005 and 190 employees lost their
jobs. The employees had just received certification in August 2004. Wal-Mart and the
association began negotiating a first collective agreement. There were several direct
negotiation sessions and a number of conciliation meetings. On February 2, 2005, the
association asked the Minister of Labour to appoint an arbitrator in the dispute, which the
minister agreed to by letter dated February 9, 2005. On the same day, Wal-Mart announced
that it would close the facility. One employee testified that after telling co-workers, including
her manager, that she joined the union, her relationship with her manager deteriorated.
The evidence of Wal-Mart was essentially photographs and supporting documents showing
that the Jonquiere store was closed to the public, emptied of its merchandise and
equipment and empty of any corporate identification for each sign or colours. An exmanager, Normand St-Pierre, says that he was unaware of any possible reopening.
However Wal-Mart still had a lease on the property. The complainants claim that Wal-Mart
closed the facility to avoid unionization, which does not constitute good and sufficient
reason for dismissal since such a closure would be to deny the freedom of association.
1) Can the plaintiffs benefit from the presumption of Article 17 of the Code?
2) If so, has Wal-Mart demonstrated another good and sufficient reason for dismissal?
1) Yes, those with the appropriate temporal connection.
2) No, not a genuine closure. Reserves decision on the remedy pending to full hearing.
Commissioner Pierre Flageole:
Section 17

Under s.17, if a complaining employee is shown to be exercising a right under the
Code, there is a simple presumption that a sanction or action was taken against him
because he exercised the right. The burden is then shifted to the employee who must
show good and sufficient reason.

In a previous tribunal case, it was held that for s.17 to operate, in addition to being a
member of the union, there must be a connection (e.g. temporal) to some kind of union
activity. Someone who is fired in close proximity to signing a membership card will
clearly have a stronger case than someone who had signed the card 10 years ago.

In this case, those who were involved in the certification process and signed
membership cards before the closure was announced may benefit from s.17.
The Closure

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
75 | P a g e
Labour Law

effect.
Therefore, it is clear that, given the presumption that some of the plaintiffs receive, WalMart 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.
Comments
Wal-Mart
 The September 15th judgment which followed the interlocutory measure
 Required Wal-Mart to delay a closing until a full hearing occurred. In the event of a definitive
closure, this was indeed closure.
 The same commissioner hears the evidence and a definitive determination is reached. He focuses
on the idea of keeping a door open. It looks like Wal-mart is trying to wait out the union by
closing the store but holding on to a lease on the building.
 Wal-mart presents no evidence saying what will happen to the building. On that basis, there's a
finding the Wal-mart has not definitively closed.
Kandice notes:
- Is closing an enterprise considered anti-union discrimination?
- WebCT: February 2008 CA decision (very short, but wreaks further havoc in this area)
- Commission (not TT and it's narrow...)
- Employees attempted to unionize; failed to gain required vote first time around, but second time,
certified
• During time they attempted to negotiate collective agreement, union asked for minister to
appoint arbitrator
· Wanted mechanism to come to first contract (independent third party can come in and
legislate the first collective agreement)
◦ Policy rationale: agreement permits parties to start managing the workplace
together and, over time, work together
· That day, Wal-Mart announced it would close the store
- June 2005: F received initial request from union to require Wal-Mart to delay decision to close until
full hearing
• Determined (on range of criteria through evidence presented by Wal-Mart) it had definitively
closed enterprise
· On basis of City Buick Pontiac, as confirmed in Place des Arts, this was closure
- Full evidence required in September decision: more evidence presented, definitive determination
• Talks about keeping a door open: if they have any plans to do anything with building; waiting
out current employees
• On this basis, prepared to find that Wal-Mart has not definitively/permanently closed; hence,
reasoning remains, but on evidentiary basis present and burden of proof fallen on Wal-Mart
(had not demonstrated it had not definitively closed)
- 2008 CA: says patently unreasonable
• Look at what you decided in June 2005, then Sept. 2005
• Evidence as a whole was not focused; one narrow element focused on to determine that
enterprise closed
• No one disputes applicability of Judge Lesage's reasoning
• To require of Wal-Mart not only that it provide proof that it has closed enterprise but to require
it to show it does not have negative/perverse intent is in fact to require a second burden of proof
(patently unreasonable interpretation of legislation)
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• Analysis of how burden of proof should be constructed: telling that board did not address this
(see para. 19 CA decision)
Boutin v. Wal-Mart, [2005] Q.C.C.R.T. 0503
Jurisdiction
Facts
Issues
Holding
Reasoning
Several unions applying for an injunction to order Wal-Mart to cease presenting obstacles to
union-organizing campaigns under way at various Wal-Marts, and to order Wal-Mart not to
announce the closure or close one or more of its locations in Quebec pending certain
decisions by the Commission. Mr. Mario Delisle, coordinator of recruitment campaigns,
testified that before Feb. 9, 2005, the campaigns were proceeding normally, but when WalMart announced the closure of the Jonquiere store, the first syndicated facility in Quebec,
employees in other stores have become reluctant or unwilling to join the union for fear of
losing their jobs.
During cross-examination of Mr. Delisle, the lawyer for Wal-Mart asked him for the names of
those who had contacted him from the Saint-Bruno location to organize a union. The union
objects to this question because of s.36 of the QLC which states that “The fact that a person
belongs to an association of employees shall not be revealed by anyone during the
certification or decertification proceeding” except to the Commissioner and other judicial
figures.
Does s.36 prohibit release of names of individuals wanting to organize a union even during
preparation for certification?
Yes.
Commissioner Pierre Flageole:

The question at issue is what “during the certification proceeding” means. Does it apply
during the period of preparation before certification proceedings?

It is clear that the legislature wanted to protect the identity of individuals who have
joined a trade union, during the entire period in which a certification process is
underway and not only within the narrow confines of the certification application itself.

The protection would be meaningless if it didn’t apply during the procedures envisioned
in articles 12-15. If the legislature had referred only to the time of application, they
would have said so as they did in s.25.

While the arguments Wal-Mart raises about its inability to defend itself fully without
having this information are serious, s. 36 is a public order provision

Section 36 of the Code therefore enjoys the presumption of validity and the
Commission must implement it in full rigour.
Comments
Boutin v. Walmart
 WM is not franchise, unlike McDonald’s situation: WM is a centralized enterprise.
• The commissioner received the request from the Wal-Mart to delay the decision until the
end of formal negotiation
 In June, the Commissioner deemed that, based on the evidence submitted by Wal-Mart, there is
an authentic closure.
 In September the Commissioner focused that WM retained the lease on the building and WM did
not present evidence on what they will do on that building => on that basis, Flageole decided that
WM has not definitely went out of the business.
 HW, the reasoning remains on the factual and evidentiary basis.
 NOTE: February 2008 Court of Appeal decision: CA says the Commissioner’s decision is
patently unreasonable.
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•
Requiring WM to show that there is no negative intent is equal to putting WM an
additional burden of proof. Thus, it is patently unreasonable decision.
“Violations of NAALC Labor Principles and Obligations in the Case of the 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 antiunion 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! 
 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
employer-employee 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
multiple-employer bargaining units and establishing a system of certification by sector.
NAALC Case:
- Why did group of union, led by Teamsters, put application before signed agreement to NAFTA?
What had just happened?
• McDonald's employees tried to unionize in St-Hubert; franchise owner closed
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- 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
VI. Negotiating a Collective Agreement
What are the specificities of and justifications for first contract arbitration?
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March 13, 2008
- What are the specificities of and justifications for first contract arbitration?
- (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:
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· 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)
◦ 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
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◦ 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
• 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)
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◦ 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?
March 20, 2008
- 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
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◦ 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
- 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
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- 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
◦ 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
March 25, 2008
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
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


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
Holding
Reasoning
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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?
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
Labour Law
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.
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 The suggestion that today’s consumers will be intimidated by the mere sight of a few
individuals 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
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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:
Labour Law
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 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 non-labour 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.
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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
March 27, 2008
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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.
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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.
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.
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What about volunteers? Well that could work but the company would have to show this person is
really a volunteer.
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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.
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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.
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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 parttimers 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.
VIII. Administration of the Collective Agreement
What is the specificity of labour arbitration?
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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.
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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.
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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 re-establish 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.
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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.
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April 1, 2008
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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
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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 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
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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
Labour Law
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 art. 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
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):
 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.
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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.
Labour Law
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Comments
In this case, the rule in art. 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. Art. 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 empyt 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 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
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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?
April 3, 2008
Announcements
 The section 109.9(?) chart is on WebCT.
 Tuesday’s class is no longer cancelled.
 Old exams are on WebCT
 April 10 class will look over the 2005 exam

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.
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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
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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 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
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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
Labour Law
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
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:
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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
général de Montréal, [2007] 1 S.C.R. 161
Jurisdiction
Facts
In March 2000, Ms. Brady took a leave of absence from her job at a hospital on account of
health 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
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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
Holding
1) 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?
2) Did the Hospital discharge its duty to reasonably accommodate Ms. Brady?
1) 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.
2) 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.
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 Since the right to equality is a fundamental right, the parties to a collective agreement
cannot agree 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 time-limited 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
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Comments
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.
X. New Approaches to Labour Law in a Globalizing Economy
What is the relationship between transnational and domestic regulation in labour law?
April 8, 2008
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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.
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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.
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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.
Hospitals – not privatized as such.
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.
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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.
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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?
New economy regulatory strategies
 Significant attention in dev’ing cyns of weak states
 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
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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
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