Can A Union Fine Me for Crossing a Picket Line and Going to Work?

Can a Union Make Me Pay Such a Fine By Taking Me to Court?

For decades across Canada some unions:

1. Have threatened fines for crossing picket lines – but not fined employees.
2. Have fined some unionized employees but not pushed for payment.
3. Have convinced and some employees to pay a fine.
4. Have threatened to take employees to court – but did not take them to court.
5. Have taken employees to court - BUT the unions LOST in Court.

Courts in Ontario, Manitoba, Alberta, Newfoundland & Labrador have consistently refused to require unionized employees to pay these fines.

The Supreme Court of Canada in 2009 REFUSED to hear union appeals of union losses in Alberta and Ontario courts.

LabourWatch helped get the Ontario and Alberta employees from 2007 to 2009 legal help to win their cases against the unions that fined those employees.

LabourWatch research suggests the union losses in Ontario, Alberta and at the Supreme Court of Canada remain the current state of the law in 2025.

Call us at 1.888.652.2687 if a union is threatening fines or has fined you.

NOTE: the case law is a little different in Saskatchewan than all of the rest of Canada because of differences over the decades in the law that regulates unions and unionized employees.

The legal reasons to date across the rest of Canada have been based on the facts of each case and long-standing legal principles.

LabourWatch seeks to find and post these cases so that employees can read more if they want to get into the facts, outcome and court reasons.

MORE DETAILS ABOUT THE ABOVE KEY LEGAL INFORMATION

The current leading case on union fines in Ontario is Birch v. Union of Taxation Employees, 2008 ONCA 809, leave to appeal to Supreme Court of Canada was denied. In Birch the union attempted to recover fines from two actual union Members who agreed with their employer to work during a strike. The fines were calculated based on each employee’s daily gross pay. The Ontario Court of Appeal agreed with the Judge in the lower court that:

The Ontario Court of Appeal ultimately refused to enforce the fines. The Court decided the part of the union’s Constitution was a penalty clause and it was not a genuine pre-estimate of the financial cost to the union caused by a union Member crossing a picket line to work. The Court held that the clause was “unconscionable” (an important legal term). The court decided that:

• Inequality of bargaining power: union Members had no ability to negotiate the union constitution before joining the union.
• Unfairness of the fines: The penalties exceeded the employees’ take-home pay during a financially difficult time.
• Harsh consequences: In addition to the fines, the two Members were suspended from union Membership for three years, which meant loss of benefits of union Membership and potential ostracism.

The Ontario Court of Appeal sent a clear message that it did NOT want to enforce penalties and fines imposed by unions on union Members who cross a picket line to attend work.

Ontario is not alone.

From Alberta another case reached the Supreme Court of Canada along with the above Ontario case.

In TCU, Local 202 v. MacMillan, 2008 ABQB 657, the Alberta Court of King’s Bench also declined to enforce union fines. That court emphasized that the fines did not meet the definition of general, aggravated or punitive financial damages at law. The court decided that the fines were punitive, not compensatory, and did not meet the high threshold required for “punitive damages” — which must only be used for things that are “harsh, vindictive, reprehensible and malicious”.

Taken together, these cases suggest that civil actions by unions to recover fines from Members may face challenges, especially when the union constitution includes blanket penalty provisions similar to those in Birch. Courts appear to favour flexibility and fairness and are very wary of enforcing union Constitutions that impose severe financial consequences on individual union Members.

Finally, it really, really makes a difference whether you – as a unionized employee are an actual union Member – OR – whether instead you are a member of a unionized group of employees but NOT also an actual union Member.

Just because you pay union Dues does not make you also an actual union Member.

Unions can NOT discipline, fine, suspend or expel a unionized employee who is NOT an actual Member of that union that is in their workplace.

NOTE: In some workplaces, the law or the Collective Agreement require every unionized employee – every member (small m) of the Bargaining Unit (the group of unionized employees) to also become an actual union Member AND to remain an actual union Member “in good standing” in order to become and remain an employee.

If your Collective Agreement does NOT require you to be a union Member to remain employed then:

1. You may never have joined – you may have never been a union Member. Instead you have only been a member (small m) of a unionized group of employees.
2. You may have joined but can always resign from union Membership, keep your job and the union can not even legitimately threaten to fine you or actually fine you. BUT over the decades LabourWatch has spoken with unionized employees who knew they were not Members but the union threatened them with fines – or fined them and pressured them to pay. Some we spoke with paid. Others refused.
3. If your Collective Agreement requires you to become – and remain – a union Member in good standing to keep your job then in some parts of Canada the labour law protects you from losing job if you resign from union Membership or you are expelled from union Membership as long as you pay your regular union Dues. However, in some parts of Canada the legal protection of not as clear.

About LabourWatch - Informed Employees, Informed Choices

LabourWatch advances employee rights in labour relations. We provide resources on unionization to help employees make informed choices. The Canadian LabourWatch Association is a federally-incorporated, non-profit founded in 2000. LabourWatch's membership includes law firms and industry associations across Canada that provide financial and voluntary professional support for the organization's activities. LabourWatch encourages employers, particularly, to use the website in consultation with a labour lawyer.

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