Manitoba  -  No Industry Selected
Canadian Decisions
FedEx Ground Package System and Teamsters
CIRB Board File: 27851-C
Certification
|
Unfair Labour Practice
Style
Canada Council of Teamsters, complainant, and FedEx Ground Package System, Ltd., respondent.
File
Canada Industrial Relations Board File: 27851-C

Summary

Ontario (AG) v Fraser
Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3
Charter
Armstrong
Alberta Court of Queens Bench of Alberta
Fines
|
Queen's Bench of Alberta overturns ALRB decision that fined a union Member who worked non-Union job
Style
Armstrong v. International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No. 146, 2009 ABQB 477
Case
Court of Queen's Bench of Alberta
Docket
0801 03140

Summary

On August 6, 2009 the Alberta Court of Queen’s Bench dealt an important blow to the all too common practice of unions imposing significant fines upon members who work for employers not having a relationship with the union.

This case involved an experienced welder who was a member of the Boilermakers Union. He had been working in a managerial position for a building trades contractor and then had an opportunity to work for a non-union construction management company, also in a managerial position. When the Union learned of this employment, it implemented its disciplinary procedures and fined the member $5,000. This is common in the construction industry. The Labour Relations Board upheld this Union discipline.

The Court overturned the Labour Board’s decisions and thus the Union’s discipline. Two of the Court’s important findings were as follows:

1. The Union violated its member’s “right to counsel” that exists under the Labour Relations Code for union discipline proceedings. Both the Union Constitution and its communications with the member indicated that he could only be represented by a fellow union member, not a lawyer of his choosing. The member did not participate in the discipline proceedings because he viewed it as being a “kangaroo court”. Although the Union subsequently gave evidence that it would have allowed legal representation in its hearings, the Court found this did not satisfy the member’s right to counsel because the member did not know of this fact.

2. Although the Labour Relations Code allows unions to punish members in certain circumstances, they are not entitled to do so when a member is working for a non-union company in a managerial position. A union may only punish members in such circumstances where it can provide “reasonable alternate employment.” A position under a collective agreement is not reasonable alternate employment to a managerial position. Further, the Court found that the purpose of this provision is to allow limited union discipline only for employees working under a collective agreement, not managerial employees.

Although this decision is consistent with similar decisions made in other provinces, it is an important precedent in Alberta in limiting the harsh practices of some unions. It is unknown whether the Union will appeal this decision.

Election Act Ruling
Supreme Court of British Columbia
General
|
Election ads not in bargaining scope
Style
British Columbia Teachers' Federation v. British Columbia (Attorney General), 2009 BCSC 436
Case
Supreme Court of British Columbia
Docket
S085226

In this summary LabourWatch has only dealt with the narrow aspect of how this ruling affects the use of unionized worker’s dues in British Columbia. We have not addressed the greater issue surrounding the Election Act ruling and how it affects the spending limits during an election campaign.

Summary

Justice Cole held that the Election Act’s restrictions on the Charter were in breach of the Charter of Rights and Freedom.

However, the basis for his decision was quite limited. He rejected completely the claim of the Applicant Unions that unions and union members had greater constitutional rights to engage in election advertising under the Charter because of the constitutional protection of collective bargaining. He upheld an argument that election advertising does not come within the scope of collective bargaining as protected under the Charter.

The Applicant Unions argued in this case that collective bargaining should be viewed broadly for constitutional purposes, to include the use of union dues for purposes outside of the negotiation and administration of collective agreements. If this argument had been accepted, it would have blocked union member’s rights to challenge the use of their dues for political or social causes which they did not endorse or approve of. Nor could a legislature enact measures to protect union members from contributing monies to, and being associated with, political and social causes against their will. The constitutional protection of collective bargaining would have trumped the rights and interests of dissenting union members. Now, with this decision, it is open to union members such as Laurence and Weis to challenge constitutionally the ability of their unions to spend their union dues for purposes other than the negotiation and administration of collective agreements, and for the legislature to enact such a restriction.

In responding to the Union’s claim, counsel for Laurence and Weis not only challenged the assertion that the constitutional protection of collective bargaining should be expanded to include election advertising, but also argued that the restriction on election advertising in the Act were helpful in protecting their interests. The more the union could spend on election advertising, the more they were being forced to contribute to, and be associated with, political parties and causes with which they did not agree.

Significantly, Justice Cole did not rule that Laurence and Weis, and by extension other likeminded union members, had no constitutional rights worthy of protection, as the Unions argued. Rather, he accepted that their constitutional rights were detrimentally affected but held that in the context of this case, their rights did not outweigh the harmful effect of the legislation on all citizens.

Justice Cole was concerned about the proximity of the sitting of the legislature with the election date. The restrictions on election advertising during the 88 day period prior to the election meant that citizens were restricted in advertising for or against issues or proposed legislation being discussed in the legislature. Justice Cole thought this went too far. That is the limited basis of the decision.

In summary, the Court absolutely rejected the claim that Unions had a special constitutional right to engage in election advertising, and it accepted that the constitutional rights of dissenting union members are harmed by such advertising. This sets the stage for either a separate constitutional action brought by dissenting union members, or, preferably, legislative protection for their constitutional rights. If the government decides to enact legislation to confine the use of mandatory union dues to expenses directly related to collective bargaining, the decision could be used to support the proposed legislation in the Legislature and to defend against the inevitable constitutional challenge.

Radio Shack
Ontario L.R.B.
General
|
Unfair Labour Practice - Employer
Style
U.S.W.A. v. Radio Shack
File
Ontario LRB Docket: Doc. 1004-79-U

Summary

Collective Agreement -- Damages -- Duty to Bargain in Good Faith -- Interference in the Trade Union -- Company violating several provisions of Act -- Offering voluntary revocable check-off of dues -- Whether maintaining minimum statutory position on union security bargaining in bad faith -- Broad remedial order issuing -- Damages awarded to Union and Employees.

Birch & Luberti
Ontario Court of Appeal
Fines
|
Unions cannot use courts to collect fines
Style
Jeffery Birch and April Luberti and Union of Taxation Employees Local 70030
Case
Court of Appeal for Ontario
Docket
C48007

Summary

In a significant decision limiting the rights of trade unions, the Ontario Superior Court of Justice has ruled that the courts will not enforce financial penalties levied by trade unions against members who choose to cross a picket line during a legal work stoppage. The ruling in Birch and Luberti v. Union of Taxation Employees Local 70030 will make it more difficult for trade unions to use the threat of fines and other penalties to enforce picket line solidarity. It will also enhance the right of employees to decide for themselves whether they wish to participate in a work stoppage.

The decision was immediately appealed by the union in the Ontario Court of Appeal.

The union lost in a 2 to 1 decision on December 3, 2008.

Background

During a seven day PSAC strike in 2004, numerous members of the Union of Taxation Employees Local 70030 (Union), a division of PSAC, decided to cross the picket line and report for work. The Union responded by imposing a fine on each member equivalent to the employee's gross salary for each day worked during the strike. Many members refused to pay the fines, so the Union resorted to Ontario's Small Claims Court to recover the fines. The Union relied on a provision of its Constitution that purported to authorize the imposition and collection of fines.

Jeffrey Birch and April Luberti were two Union members who crossed the picket line, were fined by the Union, and were subsequently sued by the Union in Small Claims Court. Instead of defending in Small Claims Court, Birch and Luberti jointly brought an application in the Superior Court of Justice seeking two orders: (1) a declaration that the Ontario courts will not enforce the Union's financial penalties, and (2) an order dismissing the Union's lawsuits in Small Claims Court. Birch and Luberti were represented in the Superior Court of Justice by John Craig and Richard Sinclair of Heenan Blaikie LLP.

The October 2007 Decision

Justice Smith ruled in favour of Birch and Luberti on all the issues and granted the orders they were seeking. Justice Smith based his decision on the following considerations.

First, neither Birch nor Luberti had availed themselves of an internal appeal that was permitted under the Union's Constitution. The Union argued that failure to take advantage of an internal Union appeal meant that Birch and Luberti could not seek the assistance of the courts. Justice Smith disagreed, pointing out that the Union had resorted to the courts by suing Birch and Luberti. Birch and Luberti were entitled to defend themselves regardless of the existence of an internal Union appeal mechanism.

Second, Justice Smith confirmed the common law position that Ontario's courts will not enforce penalty clauses in contracts. The Union's Constitution was effectively a contract between the Union and its individual members. Therefore, if it contained a penalty clause, then that clause would not be enforceable in the courts. Justice Smith considered the specific provision of the Union Constitution at issue. He concluded that the provision permitted a financial penalty to be imposed that was excessive since the penalty (i.e. gross salary for the time worked) bore no relation whatsoever to actual losses suffered by the Union as a result of members crossing the picket line. The financial penalty therefore fell into the category of penalties that will not be enforced by the courts.

Third, the Union argued that the financial penalties were not unconscionable in the labour relations circumstances and therefore should be enforced in the courts. Justice Smith disagreed, finding that the financial penalties were "extremely onerous" and based on speculative assumptions. Significantly, he rejected the idea that a financial penalty for picket line crossing could be based on the supposed financial benefit of such crossing to the employer. The Union also asserted that the financial penalties were justifiable to deter "free riders" who would benefit from strike activity while continuing to report to work. In response, Justice Smith observed that trade unions should use strategies other than onerous financial penalties to encourage respect for picket lines (e.g. persuasive information campaigns and better strike pay).

Fourth, Justice Smith rejected the submission that the Public Service Labour Relations Act (PSLRA) authorized the imposition of financial penalties for crossing a picket line. The relevant provisions of the PSLRA are very similar to provisions of the Canada Labour Code. At best, these PSLRA provisions refrain from making it an unfair labour practice for unions to levy financial penalties against their members. However, there would have to be a clear statutory provision authorizing such penalties before the courts would enforce them.

The December 2008 Appeal Decision

In a 2 to 1 decision, the majority of the Court of Appeal agreed with the application judge and held that the provision in UTE's constitution authorizing the imposition of fines is unconscionable and therefore unenforceable. In applying the unconscionability test, the majority found that there was an inequality in bargaining power between the parties and that, you as the respondents did not have much choice in agreeing to the inclusion of such penalty provisions in their collective bargaining agreement. Moreover, the majority found that the penalties imposed were excessive. While the court recognized that union solidarity is a fundamental principle of the union movement and the collective bargaining process, the court found that the means adopted to achieve such solidarity were "very unfair". As such, the majority of the court found no basis to interfere with the decision of the application judge. As agreed by the parties at the conclusion of the oral arguments, the court awarded costs in the amount of $3,000 in our favour.

In a dissenting decision, Juriansz J.A. found that the fine was not unconscionable and that the common law rules that penalties are per se unenforceable does not apply to the disciplinary provisions of a union constitution. Justice Juriansz found that (i) there was no inequality of bargaining power; (ii) the amount of the fine was not unfair when considered in light of the actual damage suffered by the union; and (iii) the disciplinary provision is not inherently unenforceable as a penalty. As such, Justice Juriansz would allow the appeal.

Macmillan, Pinchak and Gejdos
Court of Queen's Bench of Alberta
Fines
|
Unions cannot use courts to collect fines

Summary

In response to an appeal to the Alberta Provincial Court decision of February 2008 the Telecommunication Workers Union (TWU) appealed to the Court of Queen's Bench of Alberta.

The Queen's Bench again ruled in agreement with other Canadian jurisdictions that Unions cannot enforce disciplinary penalties in a court of law.

Armstrong
Alberta Labour Relations Board
Fines
|
Labour Board upholds fine and Membership suspension of union Member who worked non-Union job

Summary

The Alberta Labour Relations Board rules against union Member Warren Armstrong, upholding his suspension from the union for failure to pay a fine levied by the Boilermakers union for working non-union.

Armstrong's position was that the union's imposition of a fine was coercive and improper. The Alberta Labour Board did not agree - "With respect to the improper motive for the imposition of discipline we find none. While banning work for non-union contractors at initial blush appears to be a restraint of trade, the fact is that is precisely what a Union is supposed to do."

Macmillan, Pinchak and Gejdos
Provincial Court of Alberta
Fines
|
Unions cannot use courts to collect fines

Summary

The Alberta Provincial Court rules in agreement with other Canadian jursidictions that Unions cannot enforce disciplinary penalties in a court of law.

Birch & Luberti - 2007 Decision
Ontario Superior Court of Justice
Fines
|
Unions cannot use courts to collect fines
Style
Jeffery Birch and April Luberti and Union of Taxation Employees Local 70030
Case
Ontario Superior Court of Justice
Docket
06-CV-35925
Hubner
British Columbia Labour Relations Board - BCLRB No. B231/2007
Membership
|
Hubner et al. v. United Food and Commercial Workers, Local 247
Certain Employees -and- United Food and Commercial Workers Union, Local 247

Summary

In 2007, members of the United Food and Commercial Workers Union, Local 247, requested that their union produce copies of its financial statements for the years 2001 to 2006. The employees had become concerned about the manner in which the UFCW was handling its finances. When the UFCW declined, the bargaining unit members applied to the BC Labour Relations Board for an order compelling the Union to do so

Summary of Canadian Decisions
Union Dues
|
A Brief Outline of Supreme Court of Canada Precedent

Summary

This is a summary of Supreme Court of Canada precedent concerning the use of forced union dues for political, social and other non-bargaining purposes. Click here to read.

BC Health Services
Supreme Court of Canada - 2007 SCC 27
Charter
|
Limited Right to Process of Collective Bargaining
Style
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia
Case
Supreme Court of Canada 2007 SCC 27
Docket
30554

Summary

This June 8 2007 Supreme Court of Canada decision reverses 20 years of precedents by concluding that the right to collective bargaining is encompassed by Canada’s Charter of Rights and Freedoms - Section 2(d), Freedom of Association.

Background

In the 1990’s the New Democratic Party (NDP) were the Government of the Canadian province of British Columbia. The NDP Government decided it needed to or at least needed to appear to be reducing spending. The government stated that public sector bargaining of wage increases were limited to “zero, zero and two”. It turned out that the increases, for example, for the unionized employees covered by the CA’s involved in this case were in fact “zero, zero and eleven”. Clearly, the NDP Government misled the taxpayers of BC to the amount of $1.3 billion.

During the provincial election campaign of 2001, the BC Liberals appeared top have a commanding lead in the polls. It was generally known that the NDP had given what some called sweetheart deals in the end times of their tenure as the Government. The BC Liberals leader, Gordon Campbell in a meeting with the internal union newspaper, just days before the election, promised to respect the CA’s or said he would not rip them up. The BC Liberals won a massive majority days later. Subsequently, claiming a health care funding crisis the BC Liberals broke their clear campaign promise to these union Members.

In January 2002 the Government of British Columbia enacted Bill 29, Health and Social Services Improvement Act. This was intended to remove limitations in the collective agreements of public sector health care employers.

Of particular note, Bill 29 voided clauses that required public sector health care employers to consult the union prior to contracting out non-clinical services and it rewrote “Layoff and Bumping” provisions.

The legislation was described by union officials as a “… law that restricted and gutted the bargaining rights of health care workers”.

After Bill 29 was upheld by British Columbia Courts, a number of health sector and public sector unions, as well as eight nurses took it to the Supreme Court of Canada claiming it violated the Canadian Charter of Rights and Freedoms in particular Section 2(d) - the right to Freedom of Association, and Section 15 - Equality.

The Decision

On June 8, 2007 the Supreme Court of Canada delivered a decision which found that three sections of Bill 29 violated the freedom of association provision of the Charter but did not find it to have violated the Equality provision (Section 15). Thus, the following sections of Bill 29: 6(2), 6(4), and 9, were declared unconstitutional. At the same time the Court gave the Government one year to find a solution.

The Court acknowledged that this decision reversed 20 years of Supreme Court of Canada rulings that had said there is no Charter right to collective bargaining. The Court appears to have a number of bases for reversing its own rulings:

Firstly, it essentially criticized prior decisions, even though current Members of the Court participated in them. The Court stated that the prior decisions did not withstand “principled scrutiny”!

We conclude that the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the Charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected.

Secondly, the Court also says that it is time for Canada to improve its positioning with respect to our country’s international obligations. The decisions states:

Under Canada’s federal system of government, the incorporation of international agreements into domestic law is properly the role of the federal Parliament or the provincial legislatures. However, Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees.

The primary international obligation the Courts speak of is the International Labour Organization’s (ILO’s) Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 68 U.N.T.S. 17 (“Convention No. 87”). Which Canada signed 35 years ago.

Thirdly, it appears that the Court was impacted by its finding that the Government made little to no effort to consult with the unions who would be so significantly impacted by the legislation. The Court noted that the Minister in charge had only telephoned a union representative 20 minutes before Bill 29 was introduced in the legislative assembly to inform the union that the government would be introducing legislation dealing with employment security and other provisions of existing collective agreements.

The long term impact of this new limited right to the process of collective bargaining is hard to predict. Unions have high hopes. Other experts suggest its impact will be felt largely in public sector bargaining by limiting unilateral action by governments through the legislative power they have that private sector employers do not have.

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining it is obvious that the current legal systems, industrial relations systems and traditions let alone the values of differ to varying degrees from country to country. That makes comparing certain legal realities in one country to others more challenging. At the same time, there are certain principles which can be used as a basis for evaluating a given country’s statutes and practices against others when asking whether a country should maintain its current policies or implement changes. It is in this framework that LabourWatch seeks to question key aspects of Canadian labour relations such as forced membership, conditional employment, forced union dues, union supervision of ratification and strike votes, etc.

Forced union Membership and conditional employment, whether by legislation or closed shop collective agreement provisions, are violations of the European Convention on Human Rights.

One would have to wonder what would have happened if the British Columbia Government had, even knowing that the proposed changes might well be rejected out of hand by the unions, made the effort to present them to the union anyway. The Government could have repeatedly reached out to the unions, made proposals and made the case on the financial crisis to the unions and to British Columbians. Chances are the union would have rejected these efforts out of hand. For example, maybe the unions would have left the meetings after 5 minutes and headed straight to the press to grandstand. This Government effort at collective bargaining might have sealed the union’s fate and no such decision as this would have been issued. Clearly the Court took umbrage at a Government that had a massive majority and had the audacity to only tell the union leaders minutes before introducing legislation that was essentially guaranteed to pass. It is also very likely that the Government’s legal advice, well founded on 20 years of what they would assume are principled decisions of our highest court.

Finally, the 135 page decision goes to considerable effort to educate the reader on the Court’s view of the history of the labour movement in Canada. Some experts question the legitimacy of this section. The Court states:

Further, the right to collective bargaining is neither of recent origin nor merely a creature of statute. The history of collective bargaining in Canada reveals that long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in the labour context .
Association for purposes of collective bargaining has long been recognized as a fundamental Canadian right which predated the Charter. The protection enshrined in s. 2(d) of the Charter may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining.

To find a Charter right that is not clearly enumerated the Court must establish that collective bargaining is a fundamental right and not a creature of statute. In 1949 Canada began to have statutes setting out collective bargaining. Prior to this year, there were statutes that banned certain organizations and essentially saw collective bargaining as an illegal restraint on trade.

It is remarkable that the Court could make the above statements given the actual historical record. From the 1850’s to 1949 the labour movement went through a great deal of difficulty including being considered illegal in certain respects. It might be fair to say that the Court’s finding that “long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society” does not withstand principled scrutiny.

Wal-Mart
Saskatchewan Court of Queens Bench 2004 SKQB 324
General

Summary

Judge Baynton's July 2004 Judgment is being appealed by the Union at this time, but it has received significant publicity in Canada because it criticizes the conduct and rulings of the Saskatchewan Labour Relations Board in very clear terms and because it raises the possibility of future Charter challenges. The future Charter issues around freedom of expression relate to our Guiding Principle #8 which deals with the importance of employees being able to hear from their employer in order to balance the wide latitude that unions have today to communicate with employees.

Berry v. Pulley
Supreme Court of Canada - [2002] 2 S.C.R. 493, 2002 SCC 40
Fines
|
Union members have no "bargaining power" with a union

Summary

This decision addresses the basic question of whether a union member may be personally liable to other members in a breach of contract action based on the terms of the union constitution. This requires an analysis of the nature of the obligations that exist between members of a trade union.

Drake
Newfoundland and Labrador Supreme Court - [2002] N.J. No. 25 Docket: 1996 G.B. No. 91
Fines
|
Union's cannot use courts to collect fines

Summary

Under the Labour Relations Act, a trade union had an unfettered and unqualified status as a legal entity for the purposes of suing and being sued. However, the judge correctly concluded that the fines were not debts. Although the Association's constitution considered the fines to be debts, there was no fixed amount or any agreed method of quantification. The fines were financial penalties, and were not intended to compensate the Association for loss. Therefore, there was no jurisdiction under the Small Claims Act. There was no determination of the public policy issue.

Advance Cutting & Coring
Supreme Court of Canada - [2001] 3 S.C.R. 209
Charter
|
Allowed Violation of Freedom to Not Associate
Style
Regina v. Advance Cutting and Coring
Case
[2001] 3 S.C.R. 209; [2001] S.C.J. No. 68; 2001 SCC 70
File
26664
Dates
2000: March 20 / 2001: October 19

Summary

This case deals with legislation in the Canadian province of Quebec that effectively forces construction workers to become and remain Members in good standing of one of five prescribed unions in order to obtain and keep employment on construction work sites in Quebec.

In summary, the Supreme Court of Canada decided (8-1) that there is a negative right to not associate under the Canadian Charter of Rights and Freedoms Section 2d) – the Right to Freedom of Association. The Court also decided (5-4) that the Quebec legislation violated the right to not associate. However, the Court ultimately decided (5-4), under Section 1 of the Charter, that the Quebec legislation was a justifiable denial of that right in a free and democratic society given the history of labour relations in Quebec’s construction industry. The history the court summarized was that of union violence.

Background

During the construction of Expo 1967 in Montreal and elsewhere more generally, construction employees and employers in Quebec faced violence and vandalism. Starting at least in the 1960’s evidence of significant levels of corruption gained more profile. It included: union actions against their own Members (sale of jobs, blackmailing, usury, physical violence); unions against other unions (physical violence, attempts to control job sites), unions against employers (sale of manpower through the hiring hall, kickbacks, payoffs), employers and government officials (bribes). During 1972, violence in Quebec’s construction sector was valued at 300 million dollars.

At the same time, Quebec police, governmental authorities and the courts did not ensure that the rule of law and the Criminal Code were effectively enforced to protect Quebecer.

Prior to 1968 the Quebec construction industry was covered for the most part by 15 separately negotiated labour agreements for various regions. In 1968, in response to this violence and corruption the province abandoned its existing system and adopted Bill 290, a province-wide approach with a single agreement that covered all trades and all construction employers in the province. This legislation was changed numerous times but most importantly in 1975, after serious violence at the James Bay Power project. In 1974, the Quebec Government established a Royal Commission of Inquiry into Union Freedom in the Construction Industry, known as the Cliche Commission.

This Commission was led Quebec Provincial Court Justice Robert Cliche, and included, Brian Mulroney, (then a labour lawyer in Montreal and subsequently Prime Minister of Canada from 1984 - 1992). The Commission recommended changes, some of which were included in Bill R20 which was intended to strengthen the law to deal with the recurring violence, vandalism and corruption that continued to plague the province’s construction sector. Some observers say that some changes were also included to make legal challenges to the law more difficult.

The Decision

In Advance Cutting and Coring, the appellant employer was charged with hiring employees who did not have the required competency certificates contrary to the Quebec Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction Industry (the "Construction Act").

The appellants asserted that workers could not obtain the competency certificates without becoming Members in one of the five unions listed in the Construction Act. The appellants claimed this requirement was unconstitutional as it breached employees' freedom of association as guaranteed in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter").

The Construction Act provided a mechanism where each certified construction worker - identified by the Commission de la construction du Quebec (the "Commission") - would select one of five union groups to act as his or her bargaining representative. The union group or association of groups that represented at least 50 percent of certified construction workers would then be granted the power to negotiate collective agreements.

While the Supreme Court of Canada had begun to acknowledge the negative right not to associate in their Lavigne decision (1991), it had also accepted a democratic rationale for putting limits on the right of non- association. In Lavigne, the Court noted that some forms of compelled association might be compatible with Charter values.

In Advance the Supreme Court of Canada clearly decided (8-1) that there is a negative right to not associate under the Canadian Charter of Rights and Freedoms 2 d) - Right to Freedom of Association. The Court also decided (5-4) that the Quebec legislation violated the right to not associate. However, the Court ultimately decided (5-4), under Section 1 of the Charter, that the Quebec legislation was a justifiable denial of that right in a free and democratic society given the violent and corrupt history of labour relations in Quebec’s construction industry.

The majority judgment suggested courts should be mindful to avoid second-guessing legislatures on controversial and complex political choices. It noted the Quebec legislation was attempting to address problems that had become a pressing social and economic issue.

The majority judgment found that the method chosen was the fairest and most effective way to determine the representativeness of the unions and to balance employee involvement in the union (as compared to the Rand Formula, whereby an employer deducts a portion of the wages of all employees within a bargaining unit, union Members or not, to go to the union as union dues – also referred to by some as "check off").

LabourWatch Commentary

Surely it is troubling that the highest Court in the land, with this ruling, has enabled the abrogation of the rights of Canadians because the police, the lower courts, crown prosecutors and the government departments responsible for the courts and police were not willing to enforce the law. Instead, construction employees had a Charter right that non-construction workers enjoy stripped away through forced union Membership as a condition of employment. The Court chose not to find that the police and judicial system of a whole province should instead have ensured the rights of all employees, employers and the public by striking down the legislation and saying, as in many countries of the world, that mandatory Membership and conditional employment are a violation of human rights.

It should then come as no surprise that again in Quebec in 2013, that the Charbonneau Commission is exposing union corruption in the construction sector. Further, there are continuing rumours that unionized employees, their local union and related employers from one part of the province who seek or take on construction jobs in another part of the province find their truck vandalized, for example. Similar experiences exist for operators from outside the province of Quebec who take on work in the province. It may not be at its historical levels, but it remains a fact of construction life in Quebec.

Litke
Brotherhood of Maintenance of Way Employees v. Litke - [1998] M.J. No. 569 Docket: CI 98-01-08761
Fines
|
Union's cannot use courts to collect fines

Summary

The Court ruled that the Union did not have the power to enforce its rules in a court of law as an unregistered Union at common law. Further, while the Small Claims Act did not specifically proscribe a claim to collect a penalty, penalties which were purely punitive rather than compensatory, such as the penalty in this matter, were unenforceable by the courts at common law.

Raeburn
Federal Court of Canada, Appeal Division
Decertification
|
Union Complaints Not Upheld

Summary

Employees opposed the unionization of their workplace and called for a vote in letters, which was evidenced in letters sent to Canada Labour Relations Board. In a prior decision, Board had ordered that a vote be taken. The vote was decided against the union and led to a dismissal of the certifi-cation application by a panel of Board. Board had before it the letters of employees. The union sought a reconsideration and notice was given to the employer, but not to employees. A full Board later unanimously reversed the decision of the earlier panel. Employees applied for judicial review. Held, the application was allowed. The decision of Board was set aside. A notice to persons concerned or who might be affected by the application was necessary and was in accordance with the principles of natural justice.

Alcorn Detwiller
Saskatchewan Labour Relations Board - 1995 LRB File No. 247-94
Fines
|
Union constitution did not meet code requirement to allow fines

Summary

Among numerous other things, this decision found that the Union had no jurisdiction to subject employees who were not members of the Union to the disciplinary policy, and the penalty of fines. Also, the constitution of the Union did not satisfy the requirements of Section 36(5) regarding assessment of fines, and thus the fines were disallowed.

Lavigne
Supreme Court of Canada - [1991] 2 S.C.R. 211
Charter
|
Allowed Union Dues for Political & Other Purposes
Style
Lavigne v. Ontario Public Service Employees Union
Case
Supreme Court of Canada [1991] 2 S.C.R. 211
Docket
21378
Dates
1990: June 18, 19; 1991: June 27

Summary

This case dealt with a challenge to the Colleges Collective Bargaining Act because of its incorporation of the Rand formula whereby an employer deducts a portion of the wages of all unionized employees in a bargaining unit, union Members or not, to go to the union as union dues ("checkoff") and in particular, what the union uses these dues for. The issue was the use of dues for purposes such as support for political parties or causes in Canada and other countries that the unionized employee objected to being associated with via his dues.

Ultimately the Court upheld the union’s ability to collect full dues from non-Members of a union in a unionized workplace and the union’s ability to use dues for political and other purposes that the individual employee might be opposed to.

Background

Francis (Merv) Lavigne had been a teacher at a provincial post secondary educational institution – a community college in Ontario. Lavigne had not voluntarily become a Member of the Ontario Public Services Employees Union ("OPSEU") and at the time, the Collective Agreement did not require him to become an OPSEU Member as a condition of employment. However, he was still required to pay fees (dues) to the union pursuant to, what is known in Canada as the Rand formula.

Under OPSEU's constitution, it was allowed to use the dues towards the advancement of the "common interests, economic, social and political, of the members and of all public employees, wherever possible, by all appropriate means". OPSEU put some of the money towards interests such as disarmament campaigns, the very militant National Union of Mine Workers in the United Kingdom, a health care workers' union in Nicaragua, and sponsored events for the New Democratic Party – a Canadian political party at federal and provincial levels of government that pursues socialist principles.

The practice was and is still not unusual for unions across Canada, but Lavigne opposed many of the causes supported by OPSEU with what he saw as his money. He brought an application for declaratory relief against the union on the basis that the Colleges Collective Bargaining Act, which gave the union the power to allocate funds to causes of their choosing, violated his right under the Canadian Charter of Rights and Freedoms, to freedom of association under section 2(d) and under 2(b) his freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication of the Charter.

The Decision

The Court unanimously held that the Charter did apply because in this case the obligation to pay dues can be attributed to government. However, it also decided not to grant Lavigne the relief requested, but for varying reasons. Lavigne is a very difficult decision to read because there are four separate judgments. It appears that the court was very divided in its rationale.

Some observers say that the majority decision held there was a violation of Lavigne’s freedom of association (section 2(d) of the Charter) - that the Rand formula interferes with the freedom from compelled association – what is generally known in international human rights terms as the negative right of non-association. However, the majority ruled that such interference was justified under section 1 of the Charter. The majority decision held that the use of the union dues did not constitute forced expression, and so there was no violation of the freedom of expression.

Section 1 states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The minority decision held that there was no violation at all, but if there was it would be saved under Section 1. The minority decision disagreed with the majority by finding the use of the union funds did have expressive content, but the payments did not imply that Lavigne supported any of the union's causes and did not prevent him from expressing his own personal views. Accordingly, there was no violation of the freedom of expression.

Lavigne is often cited for establishing the negative right not to associate as a Charter right in Canada. Specifically, the majority judgment states: "Recognition of the freedom of the individual to refrain from association is a necessary counterpart to meaningful association in keeping with democratic ideals. Thus, freedom from forced association and freedom to associate should not be viewed in opposition, one "negative" and the other "positive". They are not distinct rights, but two sides of a bilateral freedom which has as its unifying purpose the advancement of individual aspirations.

LabourWatch Commentary

Of the countries that recognize unions and collective bargaining it is obvious that the current legal systems, industrial relations systems and traditions let alone the values of jurisprudence differ to varying degrees from country to country. That makes comparing certain legal realities in one country to others more challenging. At the same time, there are certain principles which can be used as a basis for evaluating a given country’s statutes and practices against others when asking whether a country should maintain its current policies or implement changes. It is in this framework that LabourWatch seeks to question key aspects of Canadian labour relations such as forced union Membership, conditional employment, forced union dues, union supervision of ratification and strike votes, etc.

Forced union Membership and conditional employment, whether by legislation or closed shop collective agreement provisions, are violations of the European Convention on Human Rights.

In 2007, Canada increasingly stands alone in the world in allowing such violations of employee rights of non-association and freedom of expression. As a result of judicial rulings or legislation, workers in many countries but particularly all of the European Union, Australia, New Zealand and parts of United States are protected from forced union membership as a condition of employment. As such, unionized employees, who may be a member of a bargaining unit in a unionized workplace, but who do not choose to additionally become Members of the union, either do not pay dues at all or they pay dues that are related to the administration of the collective agreement that governs their employment only and not for other union interests such as the support for political parties and social causes the union leaders choose to support on behalf of their actual Members.

Lavigne was supported in his case by a Member of the Canadian LabourWatch Association – the National Citizen’s Coalition. Many unions succeeded in getting intervenor status and in the end the Court also awarded costs to the unions that represented hundreds of thousands of dollars that the NCC raised and paid on Lavigne’s behalf.

I.A.M. v. Hearn
Supreme Court of Newfoundland - [1986] N.J. No. 261 Action 1984 Nos. 1351, 1352 and 1353 (D.C.)
Fines
|
Union's cannot use courts to collect fines

Summary

The appellant is a trade union, whose membership includes persons employed by Eastern Provincial Airways (herein referred to as the employer) an air carrier with business premises, amongst other places, at Gander, Newfoundland. The appellants are residents of Gander, and at all times material to this action were employees of the employer and members of the appellant union. The employer operates in a field of federal jurisdiction and its labour relations with the appellant are governed by the Canadian Labour Code, Revised Statutes of Canada, 1970, Chapter L-1, under which the appellant was certified as a bargaining agent for a unit of its employees including the respondents. The appellant had had in effect a collective agreement between itself and the employer, but had been unsuccessful in negotiating a new agreement upon its expiry. In consequence, the appellant had declared a strike against the employer. In the course of the strike, which endured from January 7, l983 to March 16, 1983, certain of its employees in its bargaining unit, including the respondents, failed to comply with a request made to them by the appellant to desist from work at the employer's premises during the strike period, but continued their employment duties. In so doing, the respondents crossed the picket lines established by the appellant at the employer s premises. The respondents were duly charged by the appellant with commission of acts of misconduct contrary to the rules of its constitution, and upon following procedures outlined therein the respondents were found guilty of the offences charged and it imposed upon each of them a fine of $1,000.00. Although there was provision in the constitution allowing the respondents to appeal the decision of the appellant, they did not avail of it and the time limit provided for such appeal has now passed. The respondents have not paid the fines imposed upon them. By originating summons with statements of claim attached, issued out of the Provincial Court of Newfoundland on December 31st, 1983 the appellant sought to recover from the respondents the amount of the respective fines levied on them as debts. When the action came on for hearing in the Provincial Court of Newfoundland on the 25th day of May, A.D., 1984 His Honour Judge M.R. Reid, upon the application of the respondents struck out the claim of the appellant upon the ground that he lacked the jurisdiction to try the case.

Burke v Canada
Federal Court of Canada - Trial Division Ottawa, Ontario
General
|
Union dues levied for and Old Age Benefit and a Mortuary Benefit are not tax deductable
Between Herbert Burke, plaintiff and Her Majesty the Queen, defendant

Summary

This is a reference for determination under subsection 17(3) of the Federal Court Act, of a question arising under the Income Tax Act which the parties, pursuant to subsection 173(1) of that Act and subsection 17(3) of the Federal Court Act, have agreed in writing should be determined by the Court. The question, as settled by a supplementary agreement in writing filed since the hearing, is that of the extent, if any, to which certain amounts, totalling $383.87, paid by the plaintiff during the year 1973 as dues to a trade union, of which he was, at all material times, a member, are deductible in computing his income for that year.

Canadian Legislation

In this section we keep decisions and legislation by Canadian Courts that, in our view, represent examples of LabourWatch's Guiding Principles.

Union Financial Disclosure Provisions in Various Canadian Statutes
Legislation
|
Compendium of Financial Disclosure Provisions in Various Canadian Statutes

Summary

Click here to view the entire document.

This document contains excerpts from Canadian labour legislation that deal with financial disclosure requirements.

C-377 - Private Members Bill (PMB)
First Reading December, 2011
Legislation
|
An Act to amend the Income Tax Act (labour organizations)
Style
C-377 - Private Members Bill (PMB)
File
An Act to amend the Income Tax Act (labour organizations)

Summary

This enactment amends the Income Tax Act to require that labour organizations provide financial information to the Minister for public disclosure.

Forced Membership and Dues Legislation - Public Sector
Legislation
|
Public Sector - Compendium of Canadian Forced Membership and Dues Provisions

Summary

Click here to view the entire document.

This document contains excerpts from Canadian public sector labour legislation that deals with forced union membership and forced union dues.

Forced Membership and Dues Legislation and Decisions - Private Sector
Legislation
|
Private Sector - Compendium of Canadian Forced Membership and Dues Provisions

Summary

Click here to view the entire document.

This document contains excerpts from Canadian private sector labour legislation that deals with forced union membership and forced union dues.

Canadian Charter of Rights and Freedoms
Legislation

Summary

Click here to read our online PDF version of the Canadian Charter of Rights and Freedoms

This version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the Department of Justice's online version

This is the official version Canadian Charter of Rights and Freedoms on the Justice Department's website.

Quebec Charter of Human Rights and Freedoms
Legislation

Summary

As this document is continuously updated we have linked to the Commission des droits de la personne et des droits de la jeunesse Quebec website. We do not provide a PDF version of this document.

Click here to link to the official version.

Canadian Bill of Rights
Legislation

Summary

Click here to read our online PDF version of the Canadian Bill of Rights.

This version has been created for LabourWatch readers to have as reference while reading content on our website. It is not the "official" version.

Click here to read the Department of Justice's online version

The "Rand Formula"
Ford Motor Company of Canada Limited and The International Union United Automobile, Aircraft and Agricultural Implement Workers of America (U.A.W.C.I.O.).
Union Dues
|
Arbitration-Award on issue of union security.

Summary

The architect of compulsory union dues in Canada was then Supreme Court Mr. Justice Ivan C. Rand who was an Appointed as arbitrator to settle a strike. The dispute was between the Ford Motor Co. in Windsor, Ontario and the United Auto Workers Union. He handed down an Arbitration Award on January 29, 1946, that made union dues compulsory for both Members and non-Members of the union at this Ford location.

Advancing Employee Rights
Federal or Province
Caution

In most cases you will select the province where you work.

However, select "Federal and Territories", if any of the following apply:

  • You live in Northwest Territories, Nunavut or Yukon.
  • You work as a federal civil servant anywhere in Canada.
  • You work in one of the following industries:
    • airports or air transportation
    • broadcasting - radio, television or cable television
    • telecommunications
    • banking
    • fisheries (but only if your business relates to the protection and preservation of fisheries as a natural resource)
    • shipping and navigation (including loading and unloading vessels)
    • grain handling
    • uranium mining and processing
    • certain federal crown agencies
  • You work in one of the following industries AND (a) your activities connect one province to another OR (b) extend beyond the limit of one province:
    • air transport
    • canals
    • ferries, tunnels and bridges
    • highway transport of good or passengers
    • railway transport of goods or passengers