Volume 9, Issue 3

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Supreme Court of Canada Dismisses Two Union Applications

On May 7, 2009 the Supreme Court of Canada dismissed the applications for leave to appeal lower court losses of two unions, in two provinces. These unions had lost lower court rulings against collecting their fines in court. Unionized workers had exercised their right to work, at their own jobs, and crossed picket lines to do so only to be taken to court by their own union.

LabourWatch had the privilege of being of service to a number of these employees and their lawyers.

While hundreds and hundreds were prosecuted by both unions, two specific cases wound up at the Supreme Court of Canada last year and this year.

We commend the employees who held their union leaders to account by working and for not buckling to the intimidating tactics their union leaders deployed without a legal basis for doing so.

These cases demonstrate the inappropriate power imbalance between union leaders and unionized workers. It is time for reforms requiring by law, a percentage of all union dues go into legal aid funds in each jurisdiction. These funds would enable workers to both defend themselves against union persecution as well as enable employees to effectively file legal actions against unions.

In Saskatchewan, unionized workers under the provincial labour code can be fined for crossing picket lines. LabourWatch is not aware of any other place in the world where such laws exist. The Trade Union Act overrides the common law protection against collection of fines in court. These sections need to be repealed.

LabourWatch is currently working on new FAQ's to help exlain union fines across Canada.

Ontario Case: PSAC-UTE v Birch & Luberti

The most egregious of the two cases involved the union PSAC-UTE and unionized federal civil servants. In 2004 the union used forced dues to get a legal opinion. The then PSAC President wrote a memo to her Board stating: “The PSAC has a legal opinion that clearly and without ambiguity concludes that we have no legal ability to enforce the collection of fines, and would lose any legal action at more senior levels of the justice system.” A Board Committee recommended removal of the fining provision from the union’s own Constitution. Not only did they not do so, but they disregarded the legal opinion. Shortly after, this union began fining and suing the very people that paid for the legal opinion.

These unionized workers found themselves facing court proceedings and lawyers funded by their own dues, without resources to legal aid. Fortunately, counsel was found for some of the employees to help them right these wrongs.

Union of Taxation Employees, Local 70030 v. Birch, et al. (Labour relations - enforceability of union fine - fine imposed by union tribunal for breach of union constitution - whether or not fine enforceable)

On appeal from the judgment of the Ontario Court of Appeal pronounced December 3, 2008. The respondents, who were members of the applicant union, crossed the union’s picket line to attend work during a legal strike. The union brought disciplinary proceedings against them for violating the union’s constitution by working during a legal strike, suspended their membership for three years (one year for each day that they had crossed the picket line), and fined each the equivalent of their gross salary ($476.75) for the three days they crossed the picket line. When they refused to pay their fines, the union sought to enforce payment in the Small Claims Division of the Superior Court of Justice. The parties agreed that the matter should proceed by way of application brought by the respondents in the Superior Court on an agreed statement of facts as a test case. They sought: (1) a declaration that the Superior Court did not have jurisdiction to enforce provisions set out in a union constitution providing for fines or financial penalties against union member; (2) alternatively, a declaration that the court did not have jurisdiction to enforce union fines; and, (3) an order dismissing the claims brought by the union against the respondents in the Small Claims Branch. The application judge granted the application, ordered that the Superior Court would not enforce the fine, and dismissed the union’s claim in the Small Claims Branch. The Court of Appeal dismissed an appeal from that decision. No. 32989.

Alberta Case: TWU v Macmillan, Pinchak & Gejdos

The Respondents crossed their union's picket lines during a legal strike and were "charged" with violating the union's constitution. A union trial board was convened and following hearings, the Respondents, none of whom attended to answer the "charges", were found "guilty" and fined for "cause detrimental to the welfare of the Union" and for crossing or working behind a picket line. None of the Respondents paid the fine and two were suspended from the union. The union sued the Respondents in provincial court civil division, seeking a judgment in debt or, alternatively, damages to enforce the trial board's fines, together with interest. The Alberta Provincial Court decided that, while the federal Trade Unions Act did not preclude the union from advancing its claims in provincial court, the union's claims were not an action in either debt or damages, that no cause of action arose at common law or by statute authorizing the unions enforcing its disciplinary penalties in a court of law, and that neither the union's constitution nor by-laws authorized it to seek redress in the courts for an internal disciplinary matter. Erb J., on appeal in the Alberta Court of Queen's Bench dismissed an appeal from that judgment. Telecommunications Workers Union Local 202 v. Wayne MacMillan, Robert (Bob) Pinchak and Cody Gejdos (Alta. C.Q.B., October 23, 2008) (32940) "The application for leave to dismissed with costs."


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