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A. OVERVIEW
Labour law emerged as a subject after WW2 it came out as a CB law, superior to
KOE.

CURRENT STATE OF L&E LAW :

o
KOE regulates most employment, ruled by CML principles, supplemented
by min standards legislation; no longer subordinate mechanisms for determining T&C
of employment
o
Coverage of labour force by CB relationships, shrinking. ; no longer
subordinates CML & min stan leg

PROGRESSION OF LAW: Tucker, CB not progressive movement, rather that each

stage of progression combines elements of repression/toleration and promotion
o
SOCIAL ORDERS: SLAVE, FEUDAL, INDEPENDENT COMMODITY PRODUCTION,
CAPITALISM
Social Order/Key
Core
Ownership of labour
Ownership of means of
Features
relation of
power
production & product
production
Slave society

Slave/Master

None/All

None/All

Feudal society

Serf/Lord

Some/Some

Some/Some

Lord was entitled to

call upon serf to
perform work for a
period of time;
considered unfree form
of labour; but, serf still
owned some of his own
labour power

serf also had legally

enforceable claims to means of
production, ownership of what
they produced for themselves
during their own time

Independent
commodity
production

ICP/ICP

All/All

All/All

Capitalism

Servant,
Employee/Ma
ster,
Employer

All/None (except their

own)

None/All
means of production centered
in the hands of the few,
majority of people live off their
capacity to sell their labour

B. HISTORICAL DEVELOPMENT
FEUDALISM (TO MASTER AND SERVANT REGIME) 1000-1562

Regime (unfree labour) - Hierarchy of lords- tenants in chief-subtenants-serf

functional legitimation the system worked by providing the means of survival;
ideological legitimation an apparatus that established system as normative,
way ought to be done

Crisis and the Rise of the Master and Servant Regime:

Black Death 1348: killed up to half the English population which meant that
labour was in short supply,

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Effects: gives rise to Master and Servant regime , creates landless and lordless
class of people; diminishes population of labourers, increased bargaining power of
labourers

MASTER AND SERVANT REGIME (1562-1870)

Regime : compulsory labour; no termination without magistrate permission,
restricted labour mobility, hours of work established by law (sunrise sunset accords to
agro cycle); subsistence level wages fixed by magistrates ; Magistrate - wage recovery
mechanism
Distinctions from Feudalism: Presumption of yearly hiring defeated, Breach of
EK or picketing criminal sanctions, paternalistic coercion

CANADIAN CONTEXT
Master and Servant Law in Canada

Slavery was not a significant feature of labour history or economy, unclear as

to criminal law use for breach of EK & picketing, rarely enforce , tolerant to formation of
trade unions, unless violent or coercive

Transition: wage fixing disappears, set by a market vs. administrative

mechanism, criminal breach of EK endured..

Workers Combinations: workers began to fight for T&C ; Combinations Act:

criminalizes combinations of workers to regulate wages , draconiam measures of
enforcement (eventual perceived restraint on trade)
LIBERAL VOLUNTARISM (TO INDUSTRIAL PLURALISM) 1870-1970 (MARKET REGIME AND
NORMATIVE FORCES DRIVEN BY MARKET)

growth of TUs

A movement by workers to establish the 9 hour day. Targeted ER, George Brown
globe publisher prosecuted combination efforts, before resolved led to;

Trade Union Act, 1872 : immunity from criminal conspiracy directed at

improving conditions. Note formalized what was happening before George Brown
took action.

Criminal Law Amendment Act, 1872 : Further criminalization of means used to

advance combinations goals e.g. watching and besetting [= picketing]

Criminal Law Amendments, 1876: exempts peaceful legislation from leg

restricting picketing Criminal Code, 1892: exemption omitted drafters oversight, no
evidence of intent to recriminalize it

CAs : legally unenforceable, not lawfully recognized as a separate entity to sue or

be used, but no right to join a union, so T&Cs pursuant to CA unenforceable.

RISE OF MARKET BASED REGIME: individual KOEs workers could combine

subject to strict rules
INDUSTRIAL PLURALISM (NOT EXCLUSIVELY DRIVEN BY MARKET,
INSTITUTIONAL DRIVES -STATUTE AND STATE, COUNTERVAILING
FORCES INFLUENCE, NORMATIVE PLURALISM)

no longer market values that exclusively determine how the legal and political
order will be governed.

REGIME - embraces values of individual autonomy, guides other values - equality,

values of FOA, minimal protections

As market economies began to emerge regulations were established:

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created the following regulations:
State Role : Minimum standards (OHSA), Factory legislation and workers
compensation, ES including working hours.min wage, fairness and safety (formerly Ked);
HR codes, Pay & employment equity .

Elimination of paternalism ERS no longer paid workers if sick or injured in

Industrial Voluntarism

Collective bargaining laws: ERs should negotiate with responsible TUS to

form K/A - worked well for some sectors (railway), vs others (mining resistance to
how this lowered stand of living)

Legislative use of coercion and conciliation to reduce industrial conflict caused by

shortage of workers and inflation caused by the aftermath of WWI.

Criminalization of termination of workers that jointed union (CC)

LEGISLATION (sTATE PURPOSE IN CREATING OR MODIFYING)

PROTECTIVE OR DISCIPLINARY

Trade Dispute Legislation (1870-1890s): established mechanisms for TP

conciliation of disputes on voluntary basis.

Industrial Disputes Investigation Act, 1907

Industrial Standards Acts - 1930s

Freedom of Trade Union Association Acts 1930s

development of statutory collective bargaining schemes

INDUSTRIAL DISPUTES INVESTIGATION ACT

federal legislation pursuant to POGG power b/c such disputes in enterprises
threatened public interest. compulsory mechanisms for labour dispute resolution ;
established a system of ad hoc tripartite conciliation boards, authorized to investigate
and attempt to settle causes of disputes;
Snider decision, PC, 1925 legislative auth WRP to labour is in pith
and substance in relation to prop & civil rights, under
provincial jurisdiction ; federal legislature does not enjoy a
residual jurisdiction over labour relations

Act was amended to confine Acts operation to industries specifically within

federal legislative authority AND to render Act applicable to disputes within provincial
jurisdiction IF a province had enacted legislation adopting the federal scheme; adopted
by all provinces as of 1932 save for PEI

1.
2.
3.
4.
5.

PC 1003, 1944; POST-WAR STATUTORY COLLECTIVE BARGAINING LEGISLATION

Legislative response to large number of strike activities during ; implements
principles of CB scheme,
Wagner Act key principles
Implied recognition of worker right to join union without interference or
retaliation/reprisal
Administrative process to determine whether unions have majority support
amongst group of EES; union can become certified as legally recognized bargaining
agent for a group of workers
Union certification of BU imposes obligation on ER to recognize it, bargain in
good faith with view to CA formation
Incorporated elements of mandatory conciliatory process before striking or
walking out
Reduce industrial conflict: no strikes/lockouts during CA; disputes of
interpretation of CA provs to be resolved through grievance procedure, TP arbitrator
issues a legally binding decision
CRIMINAL CODE
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Prohibits ER interference with right to freedom of association; powerful
expression of State view

KEY GOALS OF INDUSTRIAL PLURALISM COLLECTIVE

BARGAINING
Reduce Industrial Conflict: End recognition strikes, postpone strikes and lockouts, prohibit
mid-term strikes and lockouts
Facilitates exercise of freedom of association: Not a protected right (at this stage) but is
said to provide a mechanism for democratic choice
Promotes industrial citizenship: Collective agreement is seen as a constitution, where
parties come together and establish the law of the workplace bring democracy into the
workplace
Promotes Equality: Unions provide countervailing power unions allow for a more equitable
set of tools for negotiations

ELEMENTS OF LABOUR AND EMPLOYMENT LAW CB , MIN

STANDARDS, STAT CB
Compone
nt
CML KOE

Creator

Administrator

Normative Foundations

Courts

Courts

Minimum
standard
s

Legislatu
re

Administrative
Tribunals,
Arbitrators, Courts

-Autonomy, freedom of choice, liberty, economic

efficiency, judicial prestige, FOK
-principles of justice: societal expectations of
preventing exploitation
-democracy and social justice
-decent work

Statutory
CB

Freedom of Association, worker voice,

countervailing power, redressing inequality

PERSPECTIVES ON LABOUR & EMPLOYMENT LAW:

NeoClassical/Uni
tary
Interests of
IdenticalLabour & Capital Profit
Maximizat
ion

Institutional/Liber
al Pluralist

Reconcilable
Differences
regulatory role of govt
to increase overall
efficiency and to
promote fairness in the
market
requires regulation of
markets due to
asymmetry of parties,
high transaction costs,
but not opposed to
market

Conflict

Deviant

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Normal but limited

Marxist/Radical

Antithetical
workers heavily dependent on
capital because they cannot
produce for themselves absent sale
of labour power ; owners can pull
out of market, subsist from capital
forced cooperation; no common
interest
owners of capital extract unfair %
of socially produced wealth
Fundamental transformation of
regimes must occur through worker
self-organization
Inherent and Fundamental

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Distribution of
Power

Irrelevant

Ind. K unequal

everyone,
strong & weak
both benefit
from these
exchanges

CB Countervailing

Goals of
Regulation

Constitute & Protect

Labour Markets
no system will make
everyone better off
than how they
already are

Preferred
Institutional
Vehicle

Common
Law/Courts

Promote
mutual gains
through
CB & Min
Stans

Legislation/Admin.
Agency

Fundamentally asymmetrical

Limited amelioration;
Transformation
amelioration is a good thing but
within structures of capitalism there
are limits to what amelioration can
be achieved, so transformation is
what is really needed
Worker Self-Organization; Political
Action

CHALLENGES TO CURRENT LABOUR LAW FROM GLOBALIZATION AND NEO-LIBERALISM

Free trade - opening up of economies to increasing competition

impact on regulatory capacities of nations/subnational units,
changes in dominant political orientation of sub/national governments,
impact on labour market actors
Demographics growth in women's labour force participation; growing
workforce diversity, growth of precarious employment (eg self-employment,
temporary employment), changing organization of production

CML KOE

A contractual relationship of employment must be recognized in law in order

for labour law to apply
KOE Agreement by one party to provide services to the other party, in
exchange for that partys remuneration of services (ER); intention to create
legal relations; all adults have capacity (exceptions for minors and
immigrants) ; includes offer of certain terms and acceptance thereof, and
consideration - express or inferred from conduct of parties
Ordinary KS performance terminates K; EK typically of infinite duration;
requirement that one party give notice to the other to terminate the K
Purpose of Contract offends Public Policy: A contract of employment
otherwise validly formed, may be held to be unenforceable or void if the purpose
of entering into the relationship was to engage in conduct which offends public
policy (contravenes criminal law, a statutory provision, the rules
governing restraint of trade or where the contract offends public
morality) Dann v. Curzon (1911)

MINIMUM STANDARDS LEGISLATION- ESA, OHSA

Legislated statutes to prescribe certain conditions of EMPLT

Policy objectives : aid weaker bargaining power, ensure certain social standards
are met

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ESA mandates min standards relating to T&C ; ; remedial purpose to

protect the interests of employees by compelling ER to comply with minimum
fair & reasonable standards re: EMPLT
OHSA mandates min standards relating to safety in the WP;

THE COLLECTIVE BARGAINING SCHEMES CLC, OLRA , GOALS

Canada Labour Code: (CLRC) Regulates labour relations falling w/in

enumerated heads of federal power interprovincial railways, telegraphs,
shipping and telephones..
Ontario Labour Relations Act, 1995 (OLRA) is the legislation that
governs collective bargaining in the private sector. The Ontario Labour
Relations Board (OLRB) administers the Ontario Labour Relations Act.
GOALS: industrial peace [subdue strikes]; collective bargaining; equal balance of
bargaining power; free choice to associate; industrial democracy

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APPLICATION OF CHARTER
SCOPE OF RIGHTS INLABOUR CONTEXT
DOLPHIN DELIVERY: established that the Charter does not apply to
private parties, only to direct state action.
PEPSI: CML OUGHT TODEVELOP IN ACCORDANCE WITH
CHARTER VALUES
(OBITER: CHARTER VALUES INFORM DEVELOPMENT OF
COMMON LAW)
WHAT IS THE SCOPE OF CHARTER RIGHTS?
The Charter applies when:
Private parties in a dispute invoke labour and employment related legislation.
Private parties challenge legislation directly on the ground that it violates
Charter-protected rights
The government is the employer
Statutory authorities are exercising statutory discretion (Slaight
Communications v Davidson)
EQUALITY DUNMORE, THE AGRICULTURAL WORKERS COULD NOT CLAIM
EQUALITY RIGHTS VIOLATION BECAUSE THEY WERE BEING DISCRIMINATED
AGAINST ON THE BASIS OF OCCUPATIONAL STATUS, WHICH IS NOT AN
ENUMERATED/ANALOGOUS GROUND TO S. 15 STATE IS NOT MAKING AN
INHERENT STATEMENT OF YOUR VALUE IN THE DECISION TO DISTINGUSHI
AMONGST WORKER CLASSES. COURTS HAVE REJECTED THE ARGUMENT THAT
IT SHOULD BE AN ANALOGOUS GROUND. (THEREFORE, S 2(D) MOST
OFTEN INVOKED)
FREEDOM OF ASSOCIATION:
Protects organization: the right to form a union, the freedom of
individuals to act in concert with other people
Protects collective bargaining (debatable)
Striking
Labour Trilogy (1987) S 2(d)m protects freedom to form associations, but not
to engage in activities solely on the basis they are foundational to the purpose of
the association, protects exercise in association of constitutional rights and
freedoms
Delisle FUNDAMENTAL FREEDOMS PROTECTED BY S. 2 DO NOT IMPOSE
OBLIGATION FOR THE GOVERNMENT TO PROVIDE A PARTICULAR LEGISLATIVE
SCHEME FOR ITS EMPLOYEES TO EXERCISE THEIR COLLECTIVE RIGHTS.

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Dunmore: Scope of Freedom of Association (underinclusive

legislation)
Hel d: The exclusion of agro workers violates the FOA, amounts to
substantial interfere with their right to exercise FOA. State has a
positive duty to protect agro workers in the same way it protects other
workers. Min Stat freedom to organization of s 5 ought to cover agro
workers and protections essential to its meaningful exercise, (1)such as
freedom to assemble,(2) to participate in the lawful activities of the
association and (3)to make representations, and (4) the right to be free
from interference, coercion and discrimination in the exercise of these
freedoms.
Threshold test to establish positive duty :
(1) PL must ground your claim in fundamental Charter freedoms
(2)rather than in access to a particular statutory regime;
(3) a proper evidentiary foundation required
(4) to show that exclusion from a statutory regime permits a substantial
interference with the exercise of a protected Charter right, includes
omission or failure to act .
Positive duty? Under certain circumstances the state is under a positive duty
to protect the exercise of freedom of association and other Charter rights and
freedoms.
Range of activities protected: Making collective representations to an
employer, adopting a majority political platform, federating with other unions
(Bastarache J, para 17)
FOA protects activities that don't have individual analogs , uniquely
collective, but did not extend FOA to protect CB rights and the right
to strike .
ILO FOA to be interpreted in a manner consistent with international obligations
BC Health Services Health Services and Support - Facilities
Subsector Bargaining Assn. v. British Columbia 2007 SCC 27
S2(d) violation of right to CB test
RATIO: FOA INCLUDES THE RIGHT TO CB, IMPOSES A GOOD FAITH DUTY ON
ER IN NEGOTIATIONS, GUARANTEES PROCESS THROUGH WHICH
GOALS ARE PURSUED (NOT OUTCOMES)
Reasons for Charter Protection
CB is not a modern right but a fundamental freedom based on
CDN labour history
Judicial deference does not require ignoring legislation subverts
fundamental freedoms , ensuring labour policy reflects these
values
Possible to protect the procedure of CB without protecting its
outcomes
Contextualized approach; consistent with international law
obligations
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Consider : (1) Importance of the matter affected to CB process ;

(2)manner in which the measure impacts good faith negotiation and
consultation (was measure acted post extensive-consultation or
unilaterally
Application - 3 Step Analysis
1. Does legislation interfere with collective bargaining?
2. Whether the interference is so substantial as to violate Charterprotected freedom of association
3. Section 1 Analysis

Justification of Infringement

1. Pressing and substantial objective (preserving health care)

2. Means adopted are rationally connected to achieving the objective
(reducing worker rights is rationally connected)
3. Minimal impairment (government fails to demonstrate that considered
less intrusive alternatives; absence of consultation with unions
undermines governments case)
Bill 29 was enacted by BC government without consultation, included
Facilitating privatization of health care jobs
Avoiding effects of pay equity obligations
Stripping existing collective agreements of protection against lay-offs, privatization
etc.
Limiting unions ability to negotiate over these issues in the futureDone without
advance notice to or consultation with unions
Limits
1. Charter does not impose a private sector duty of CB, only applies to
governments, to mandate this as a duty, then it must be legislated
2. Does not guarantee access to any particular model , like Wagner of CB
(para. 91)
3. The government retains discretion to design a CB bargaining regime
4. The right to collective bargaining does not protect legislated labour rights
(paras. 124-25)
5. protects against substantial interference only, not less serious interference
like King out, transfers

FRASER
Hel d Majority; AEPA is consistent w Health Services, is
constitutionally valid, contains duty to consider representations in
good faith, therefore protects FOA
Four judgments 3 uphold, 1 dissent (Abella)
Rothstein & Charron, would have reversed Health Services; one would have
interpreted it out of existence (Deschamps)
Ratio: S2 protects the right to associate to achieve collective goal,
includes a derivativ e right to CB - value of right is somewhat diminished ;
imposes a duty to consult in good faith, vs. duty to bargain in good faith
(BC Health)
Application - 3 Step Analysis
1. Does legislation interfere with collective bargaining?
2. Does the state interference or, absence of state protection protect
CB make it impossibl e for workers to exercise Charter FOA ?
(If absence of state of protection, positive duty is triggered)
3. Section 1 Analysis
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Justification of Infringement

4. Pressing and substantial objective (preserving health care)

5. Means adopted are rationally connected to achieving the objective
(reducing worker rights is rationally connected)
6. Minimal impairment (government fails to demonstrate that considered
less intrusive alternatives; absence of consultation with unions
undermines governments case)

Reasoning: (1) Statute should be interpreted in manner that gives

meaningful interpretation to provisions; (2) Parliament and
legislatures presumed to intend to comply with Charter (Minister
never intended that AEPA extend CB rights to agro workers) ;(3)
Expressed intention of Minister in legislative debate that AEPA extend
legislative protection of FOA to agro workers (but what about BC
Health)

M OUNTED P OLICE 2012 ONCA ( AFFIRMS FRASER )

RATIO
S 2(d) protects right to CB protects only the right to make
collective representations and to have those collective
representations considered in good faith; is a derivative right
Govt ER must engage in CB only where(1) EES claim the derivative
right under s. 2(d) has been engaged by establishing that state action
has made(2) the exercise of fundamental FOA is effectively
impossible.
Conclusion: Government has not violated workers right of CB . They have
not established state has made exercise of FOA fundamentally
impossible through a legislative framework. Members can form
voluntary association & there is extensive collaboration bt/w
elected SSRS & management; existence of Legal Fund for formation
and maintenance of SSRS.
CLAIM: Govt has positive duty to engage in CB, not that state interference
makes it impossible to exercise FOA
FACTS
The RCMP establishes a Staff Relations Representative Program (SRRP)
which
represents interests of RCMP members in staff relations matters,
representatives elected. There role is consultative, not to bargain
collectively, no dispute resolution mechanism. Gvt does not recognise
independent associations that RCMP is free to form.

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INTERNATIONAL LAW INFLUENCES ON CANADIAN

LABOUR LAW
PROMINENT USE OF SOFT LAW exerting influence on behavior on a normative
basis) dimensionsdoes not use law to command and control
TWO PRINCIPAL MOTIVATIONS FOR INTERNATIONAL LABOUR STANDARDS:
social revolution factor governments should accommodate some
level of worker demand so that there will not be gross
dissatisfaction leading to worker unrest (history ILO in 1919.
Winnipeg General Strike)
social dumping factor(race to the bottom argument) the fear
that lower labour standards in other jurisdictions will undercut
the competition in countries with higher labour standards (eg.
Mexican maquiladoras)
CANADA - DUALIST JURISDICTION IN INTERNATIONAL LAW REGIMES
treaty obligations do not become domestic law unless implemented in valid
domestic legislation. The Crown has the power to sign treaties, not to make it a
part of legislation

PRINCIPAL SOURCES OF INTERNATIONAL STANDARDS NAALC

& ILO
ILO (189 CONVENTIONS, CANADA HAS RATIFIED 29)
Compliance is carried out through soft law mechanisms
submission of periodic reports, naming and shaming. Hard law is used less
frequently (11 times), complaints initiated by one country against another OR by
ILO itself
FOA & RIGHT TO CB
CONTAINED W/IN ILO CONSTITUTION,DECLARATION OF
FUNDAMENTAL PRINCIPLES
CONVENTIONS: 87 (Freedom of Association); 98 (Collective
Bargaining)
COMMITTEE ON FREEDOM OF ASSOCATION
receives representations regarding ratifers and non ratifiers, no
enforcement power, promotes compliance by making
recommendations to Governing Body
Achieving Compliance with Conventions: General Obligations
States expected to bring domestic law into conformity with conventions it
ratifies and to remain in compliance
Performance is supervised by requirement that states submit periodic
reports on compliance; labour and employer groups provide observations;
ILO bodies examine and comment
If complaint does not involve freedom of association:
o Goes to Committee of Experts on Application of Conventions
and Recommendations (CEACR); Committee makes non-binding
recommendations without formal adjudication, which are reported to
the Governing Body
Hard Law: Complaints

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Only ratifiers of convention can file complaints to ILO governing body
Possible referral to Commission of Inquiry (3 indep. experts); 11 times
from 1919
Commission studies the complaint; issues a public report of its findings,
are advisory, no sanctions follow from a finding of violation or failure of
corrective govt action
Failure of country compliance entitles ILO to take case to ICJ
happened once
IMPACT OF THE ILO IN CANADA
Recent increase of complaints due to more frequent use of laws suspending
the right to strike.
Direct: Complaints and reports of violation receive little publicity; made
long after violation occurs; Governments largely disregard these findings
Indirect: ILO principles have influence on the Canadian courts
(Dunmore ;BC Health) Fraser - SCC chose not to note FOA violation,
caused filing of ILO complaint, SCC and ignored the CFA opinion.
Declaration on Fundamental Principles and Rights at Work (1998)
Freedom of association and effective recognition of the right to collective
bargaining
Elimination of all forms of forced or compulsory labour
Effective abolition of child labour
Elimination of discrimination in respect of employment and occupation
Current Crisis at the ILO stature and authority now questionable
Employers now contesting the legitimacy of Committee of Experts, not a judicial
body, whose findings are not law. Committee no auth to interpret convention
NORTH AMERICAN AGREEMENT ON LABOR COOPERATION (NAALC)
11 Labour Principles the three countries are committed to promote:
1. Freedom of association and
6. Minimum wage; hours of work
protection of the right to
and other labour standard
organize
7. Non-discrimination
2. The right to bargain
8. Equal pay for equal work
collectively
9. Occupational safety and
3. Right to strike
health
4. Protection against forced
10.Workers compensation
labour
11.Protection of migrant work
5. Prohibition of child labour
Soft Law : promotion through commission of labour cooperation;
Hard Law : provides complaint procedure, NOT specific remedies for
workers whose rights are violated; DOES NOT establish
international labour appeals court that can overrule domestic
authorities.
Enforcement
Tier 1 : Complaint to any NAO (National Administrative Organization),
except the NAO of the country where the matter complained of arose
Ministerial consultations can take place on any matter within the
scope of this Agreement. can be initiated by any minister without a
filing of submission
No complaint has ever gone beyond tier one
Tier 2 : Evaluation Committee of Experts; restricted to principles 4-11;

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matter must be trade related and covered by laws in both countries
Tier 3 : Arbitration Panel; restricted to child labour, minimum wages &
OHS; 2 of 3 countries must agree to further DR against 3 rd country and
must allege a persistent pattern of failure by the Party complained
against; matter must be trade related & covered by laws in both
countries; fines can be levied
Takes a govt to push a complaint to tier 2/3, private parties would have
to lobby a government to move the case forward to the ECE stage.
Sanctions: fine for failure to adopt action plan recommended by an
Arbitral Panel ;
Failure to pay fine possible suspension NAFTA tariff benefits for time necessary
to collect fine
Assessment (1994-2008)
35 complaints (Mexico 22; US 11; Canada 2)
declining usage of formal complaint mechanism
Evidence is thin that complaints have had some political impact
Also arguably has stimulated development of transnational labour
cooperation and creation of transnational advocacy networks
(Buchanan & Chaparro, 2008)

INTERNATIONAL SUPPLY CHAIN THROUGH PRINCIPAL VEHICLE OF CSR

Companies adopt voluntary codes of conduct ; KORS subject to
inspections by independent auditors
Effectiveness limited
Aug. 2012: Ali Enterprises, Karachi garment factory fire kills nearly 300
workers; exits locked; a few weeks earlier, factory recently given SA8000
certification by Social Accountability International
Nov. 2012: Tarzeen Fashion fire, 117 killed
April 2013: Rana Plaza building collapse, 1133 garment workers killed
Regulation of international supply chain
Companies adopt codes of conducts and the suppliers comply with
certain codes of conduct alongside (typically) enforcement
mechanisms, some form of independent monitoring of firms they
contracted with

Problematic built in conflicts of interes t: the company that sets out

these codes, tenders in competitive environments that insist cheap and high
production of goods temptation to cut companies that dont participate in
way that is profitable to them

ESTABLISHING THE COLLECTIVE BARGAINING

RELATIONSHIP
I.

BASIC CONCEPTS

Default is ind KOE except occupational health & safety (Other jurisdictions,
CB is default)
Opt-in to cb scheme required primarily through LRA certification or
recognition
Informal voluntary arrangements for voice or bargaininG employee
consultation or informal CB ER can dissolve at any time; unilateral
Statutory Mandates for voice or bargaining
Representation Plans: OHS JHSC; RCMP SRRP;
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Collective Bargaining: Teachers (dont need certification, must become
union members by statute)
Voluntary Recognition under the LRA
ALTERNATIVE OPT IN VOLUNTARY RECOGNITION ( SS7 (3) (16)) OR INFORMAL
ARRANGEMENTS
1. Voluntary Recognition (ss. 7(3), 16) ER voluntary recognizes BU,
same right as certified union, can be decertified if it is challenged
(within first year s 66) by ER or EES who dont want to be
represented requires that the union then establish that they indeed have
majority support
bargaining agent to be a trade union independent of management
influence (SS 1(1), 15)
2. There are also informal arrangements - faculty associations
With current LRA, LRB has exclusive authority to certify a union as
appropriate BU.
Trade-off for unions: give up autonomy to determine bargaining
structure but in turn ERs are under legal obligation to recognize and
bargain with BU certified by LRA

II.

LEGAL FRAMEWORK FOR CERTIFICATION

STEP 1: IS THE CLASS OF PERSONS ELIGIBLE UNDER THE LRA? (REFER TO TESTS RE:
EE V ER IN CHAPTER 3)
Applicants must show that they are covered by Statute. Coverage is limited to EEs
or dependent contractors, less those excluded (s. 1(3) lawyers, managers etc.;
s. (3) domestic workers, hunters, trappers and agricultural workers)
QUALIFICATIONS UNDER THE LRA - employees who do not qualify
S. 1(3) LRA: No person shall be deemed to be an EE,
(a)architectural, dental, land surveying, legal or medical profession
entitled to practice in Ontario and employed in a professional capacity, or
NOTE: the assumption is that they have enough market power
individually (or even to arrange amongst themselves to bargain
collectively)
(b)who, in the opinion of the Board, exercises managerial functions or is
employed in a confidential capacity in matters relating to labour
relations
NOTE:
i. Confidential persons may have to be entirely loyal to their ER
and would therefore experience a conflict of interest if they
were part of a union
ii. Managerial exclusion more controversial; at what level should
this kick in?
STEP 2: DOES THE APPLICANT HAVE TRADE UNION STATUS? SS. 1(1), 15, 113
s. 1(1): trade union makes the application for certification, not the EEs.
s.15: the provision that prohibits certain organizations from being trade unions, ie
if the ER has participated in its formation, or if it discriminates on prohibited
grounds to become a bargaining agent for a group of EEs
s. 113: trade union status need only be proved once, and thereafter the Boards
finding of status is prima facie evidence of status in future cases.
STEP 3: IS THE APPLICATION TIMELY?
Generally, application cannot be entertained while the conciliation process is
ongoing or during the currency of an existing collective agreement, except during
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the "open periods" prescribed by the statute (ss. 7(2-6) and 67: "incumbent
unions can seek to be certified only during open periods")
with an incumbent union and a collective agreement 3 years or less in
length, the union can only be challenged by another union during the last 3
months of the collective agreement
Check to see if any of the below provisions apply:
Bargaining rights may also be terminated in following circumstances:
1. EEs apply for termination if a union does not make a CA with ER within 1
year after its certification, s.63
2. Certification obtained fraudulently, s. 64
3. Union fails to give ER notice or bargain, s. 65
4. Termination of bargaining rights after (illicit) voluntary recognition, s. 66
o If TU hasnt been certified but enters into CA with ER, the Board may,
upon application, and within 1 year of the CAs operation (or during
the first year of a voluntary recognition agreement meant to lead to
an eventual CA), declare the TU was not entitled to represent the EEs
in the BU
Prior Unsuccessful Application, ss. 7(9-10(2)), 10(3)
o 7(9.1): If a union withdraws application before representation vote is held,
the board has discretion to bar that union from making another application
in relation to that group of employees for up to one year.
o 7(9.2): If a union withdraws application before representation vote is held,
and that trade union has withdrawn a previous application not more than 6
months earlier, all trade unions are barred from bringing a certification
application in relation to that group of employees until a year has elapsed
from the time the second application was withdrawn.
o 10(3): FOLLOWING A CERTIFICATION VOTE if Board dismisses
application, wont consider an application by any TU as the BA of any EE that
was in the BU involved in the original refused application until 1 year has
elapsed (since the dismissal/refusal)
Application for Certification Section 7
(1)Where no trade union certified and EEs not bound by collective agreement,
TU can apply at any time
(2)Where a TU has been certified as BA and no CA and no declaration by OLRB
that TU no longer represents another TU may apply after the expiration of
one year from the date of certification (open period)
(3)Voluntary Recognition in writing of TU but no CA and no declaration
from OLRB another TU may apply for certification only after 1 year from the
date that the recognition agreement was entered into
(4)CA for a term of not more than 3 years; a TU may apply for certification
only after the commencement of the last 3 months of its operation
(5)CA for more than 3 years; a TU may apply only after the commencement
of the 34th month and before commencement of 37th month AND during the
3 month period immediately preceding the end of each year that the
agreement continues to operate OR after the commencement of the last 3
months of its operation
Application for Certification or Termination Section 67
(1) Where TU has not made CA w/i 1 year and minister appoints conciliation
officer, no application for certification shall be made until
(a) 30 days have elapsed after Minister released the report of conciliation
(b) 30 days after notice from minister that conciliation not available
(c) 6 mnths after minister released report on conciliation that the differences
b/w parties had been settled
(2)Where notice of desire to bargain + minister has appointed a conciliation
officer/mediator, no application for certification shall be made after the date
when the agreement ceased to operate or the date when minister appointed
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conciliation officer [whichever is later] unless no collective agreement has
been made
(a)At least 12 months have elapsed since conciliation officer appoint
(b)30 days after the report
(c) 30 days after minister says not appropriate to appoint conciliator
(3)No application for certification of BA or declaration that union no
longer represents during lawful STRIKE/LOCKOUT until
(a) 6 months after the strike/lockout commenced
(b) 7 months have elapsed since conciliation report or notice from minister
that conciliation not available
Application for Certification by previously unsuccessful applications
Section 7
(9)If TU withdraws application before rep. vote, board may refuse another
application for certification for up to 1 year [7(9.1)]; if this is the second
time the TU did this within 6 months the board shall not consider another
appl. For 1 year [UNLESS 7(9.3a): EE position changed, AND (9.3b): EE
would not have been in the BU of the NEW application had he/she still
occupied the same position
(10) If TU withdraws after rep. vote the board shall not consider another appl.
For 1 year (10.1) unless EE position / BU composition changed
NOTE: these dont apply if the union simply had the application dismissed
for lack of support (votes)
POLICY: UNDERLYING THIS REQUIREMENT IS THE IDEA OF UNION SECURITY WHEN
THERE IS AN INCUMBENT UNION IT IS PROTECTED FROM BEING CHALLENGED BY
ANOTHER UNION OF DISGRUNTLED EES; PROTECTS UNIONS FROM BEING
DECERTIFIED; INTERESTS OF THE ER WHO SHOULDNT BE SUBJECT TO CONSTANT
UNIONIZATION DRIVES

APPLICATION FOR CERTIFICATION SECTION 7 STEPS

(6)Where no trade union certified and EEs not bound by collective agreement,
TU can apply at any time
(7)Where a TU has been certified as BA and no CA and no declaration by OLRB
that TU no longer represents another TU may apply after the expiration of
one year from the date of certification (open period)
(8)Voluntary Recognition in writing of TU but no CA and no declaration
from OLRB another TU may apply for certification only after 1 year from the
date that the recognition agreement was entered into
(9)CA for a term of not more than 3 years; a TU may apply for certification
only after the commencement of the last 3 months of its operation
(10)
CA for more than 3 years; a TU may apply only after the
commencement of the 34th month and before commencement of 37th month
AND during the 3 month period immediately preceding the end of each year
that the agreement continues to operate OR after the commencement of the
last 3 months of its operation
APPLICATION FOR CERTIFICATION OR TERMINATION SECTION 67 STEPS
(4) Where TU has not made CA w/i 1 year and minister appoints conciliation
officer, no application for certification shall be made until
(d) 30 days have elapsed after Minister released the report of conciliation
(e) 30 days after notice from minister that conciliation not available
(f) 6 mnths after minister released report on conciliation that the differences
b/w parties had been settled
(5)Where notice of desire to bargain + minister has appointed a conciliation
officer/mediator, no application for certification shall be made after the date
when the agreement ceased to operate or the date when minister appointed
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conciliation officer [whichever is later] unless no collective agreement has
been made
(d)At least 12 months have elapsed since conciliation officer appoint
(e)30 days after the report
(f) 30 days after minister says not appropriate to appoint conciliator
(6)No application for certification of BA or declaration that union no
longer represents during lawful STRIKE/LOCKOUT until
(c) 6 months after the strike/lockout commenced
(d) 7 months have elapsed since conciliation report or notice from minister
that conciliation not available
APPLICATION FOR CERTIFICATION BY PREVIOUSLY UNSUCCESSFUL APPLICATIONS
SECTION 7
(10)
If TU withdraws application before rep. vote, board may refuse
another application for certification for up to 1 year [7(9.1)]; if this is the
second time the TU did this within 6 months the board shall not consider
another appl. For 1 year [UNLESS 7(9.3a): EE position changed, AND
(9.3b): EE would not have been in the BU of the NEW application had he/she
still occupied the same position
(10) If TU withdraws after rep. vote the board shall not consider another appl.
For 1 year (10.1) unless EE position / BU composition changed
NOTE: these dont apply if the union simply had the application dismissed
for lack of support (votes)
POLICY: Underlying this requirement is the idea of union security when
there is an incumbent union it is protected from being challenged by another union
of disgruntled EEs; protects unions from being decertified; interests of the
ER who shouldnt be subject to constant unionization drives.
STEP 4: STAGES OF CERTIFICATION
1. Organizing Phase
Union signs up members of a target group must get 40% members to apply
for certification election.
ULPs important at this point
2 . Application Phase & Post-Application Phase
Union tenders documentary evidence of union membership and proposed BU
category
o LRA 7(11): union must give copy of application to ER according to time
rules made by LRB or, if there are none, the same day application is filed
o LRA 7(12): written description of proposed BU, estimate of # of individuals
in it
o LRA 7(13): evidence = list of members, evidence of their status as union
members (union does not give this info to ER)
o LRA 7(14): If ER disagrees with description of proposed BU, can propose
alternative; must do so within 2 working days of receiving application
LRB determines voting constituency, takes into account description of proposed
BU in application; and description proposed by ER LRA 8(1)
If at least 40% membership in BU, LRB will order representation vote - LRA
8(2)
Unless LRB directs otherwise, representation vote must be held w/in 5 days LRA 8(5)
o Policy: minimize the potential for employer interference in the vote
If ER disagrees with union estimate of # of individuals in unit, can notify Board
within 2 business days (LRA 8.1(1)-(3))
Board then makes a determination pursuant to LRA 8.1(5)((1)-(8))

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3. Election & Post-Election Phase
If no ER objection to BU or estimate: count vote
If employer proposed alternative BU or challenged BU membership, hold postvote hearing to determine issues LRA ss 8.1(1)-(5), 9(2)
o LRB always determines BU definition if it accepts a larger
definition of BU and this means that union did not actually have 40%
membership at time of application, vote will not be counted
o when the election is held within 5 days, ballots from individuals whose
eligibility is unverified are put in a special pile and sorted out afterwards
If union wins majority of votes cast, LRB certifies LRA s 10(1)
If union does not win majority support, LRB must dismiss application; union
barred for 1 yr after the decision from bringing another application for
certification in respect of those EEs LRA ss 10(2) and (3)
If union withdraws a certification application before vote: union
permitted to withdraw its application for certification but then LRB has
discretion to bar union from making another certification application in relation
to that group of employees for up to one year LRA ss 7(8) and (9)

III.

APPROPRIATE BARGAINING UNITS

ERS WANT A DEFINITION OF THE BU THAT WILL MINIMIZE THE LIKELIHOOD OF

GETTING CERTIFIED (and one that includes preferred/favourable employees so
that they can sway votes), while the union wants a definition that will
maximize its scope (also wants it to be large so that they can put pressure
on the employer)
COSTS OF SERVICING ARE IMPORTANT: if membership is too small to support
the costs of union services then the union will have to subsidize this unit

LEGAL FRAMEWORK:
Definition of bargaining unit, s. 1(1): the definition of a bargaining
unit is made by the LRB this means that unions have given up an
element of freedom of association .
Certification cannot occur for multi-employer units (construction
industry is different); can have smaller units (i.e. organizing on plant by
plant basis, or subdivision)
fragmentation is the norm CB doesnt occur at an industry-wide level
Power of the Board, s. 9(1): determines the unit of EES is appropriate
for CB not union or ER
Specific Rules, ss. 9(3)-9(5), 14:. LRB may take EE wishes into account, but
these are not determinative
BU must be at least 2 members, 9(1)
Trade or industry-specific rules:
LRA s 9(3): craft workers BU under a particular ER /particular plant
LRA s 9(4): professional engineers
LRA s 9(5): dependent contractors

LRA s 14: Security guards (employed by ER to monitor other EEs).

Board policy factors in determining appropriate Bargaining Unit s:community interest among BU members, wishes of ERs/EES,
undue fragmentation, EE types, appropriateness
Caselaw

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(Sick Children) Test for BU determination: Does the unit which

union seeks to represent encompass a group of employees with a
suffi ciently coherent community of interest so as to bargain
together on a viable basis w/o at the same time causing serious
labour relations problem for the employer

(SORWUC )single bank branch was not an appropriate bargaining unit

(Banque Nationale, 1985) Certify cluster of branches /win a local

boundary
(CSN 2007 QCC)Labour relations statutes preventing groups of
workers from establishing BU that accord w/ their own preferences
does not violate their constitutionally protected right of freedom of
association

2. Standard bargaining units v. flexibility

3. Other Considerations
Professional Skill: the mere exercise of professional or technical skill does not
justify separate units if their interests can be accommodated in a wider unit
Tag-end unit: Where most of the EEs of an ER are already covered by a
certificate or CA and the remaining EEs, usually because of their diversity, do
not form an appropriate BU by themselves, LRB will often, in order that they
not be deprived of CB rights, include them in a catch-all or so called tag-end
unit
Method of payment does not warrant the exclusion [i.e. salary v. hourly]
Particular types of EEs
Historically, have separate office and production units, BUT see Motor
Coach Industries Ltd
Seasonal EEs generally included
Casual, short-term, temporary and probationary employees and
trainees: question is not whether employees work regularly or irregularly but
whether when they do work it is on a full-time or part-time basis.
Part-time workers (including students): initially excluded, then let in, now
its case-by-case. LRBs practice has been to certify PT and FT EEs separately
because they have a different community of interest: part-time EEs are
more pragmatically concerned with immediate as opposed to long-term
benefits.

IV. UNFAIR LABOUR PRACTICES

STAT PROVISIONS - ULPS BY ER
LRA s 70: ER cannot interfere with the formation, selection or administration
of a trade union.
The ER is still allowed to express itself freely, so long as it is not coercive.
See caselaw
LRA s 72 (paras a and c): ER cant discriminate on basis of trade union
membership, cannot restrain an EE from becoming a member of a trade union
based on contract, cannot seek by threat of dismissal (or any other threat, financial
penalty etc.) to compel an employee to cease to be part of a union.
Note: Any violation of s. 72 is also considered a violation of s. 425 of
the Criminal Code and punishable as a summary offence. Permission
required to prosecute
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LRA s 73(1): ER cannot CB or enter into a CA with any other TU while TU
while a trade union continues to possess the right to represent the EEs of that
bargaining unit.
LRA s 76: Intimidation and Coercion - ER cannot use intimidation or coercion to
discourage membership. See case law
LRA s 77: LRA Duty of EE/TU not to persuade during WH does not authorize
any person to attempt to persuade an employee to join or refrain from joining a
trade union while at work during working hours
LRA s 87(1) & (2): Any witness testifying for the purposes of this Act is protected
from retribution from the employer and or the trade union
NOTE: While all ULP are equally unlawful, the board held in KMART that a
violation of s 87 must be viewed with the gravest concern, striking as it
does at the very root of the statutory framework.
LRA s 96: Authorizes the OLRB to investigate, report and a devise remedy for any
violations.
96(5): When ER has acted against the EE in relation to their
employment, onus shifts to ER to prove the actions they took were
without an anti-union animus
Just have to show there was no anti-union animus
o Typically do this by satisfying board on BoP that they didnt even
know there was a drive taking place, or if they did know that they had
other unrelated grounds for taking the action
LRA s 104: Makes it clear violations of LRA are an offence
LEGAL FRAMEWORK UNFAIR LABOUR PRACTICES BY UNIONS
LRA s 71: Unions not to interfere with ERs organizations/contribute financial
or other support to an ERs organization
LRA s 73(2): Trade Unions not to interfere with bargaining rights.
No union shall, so long as another trade union continues to be entitled to
represent the employees in a bargaining unit, bargain with or enter into a
collective agreement with an ER or an ERs organization
LRA s 77: Persuasion during working hours.
Nothing in this Act authorizes any person to attend the place at which
an EE works to persuade the EE during working hours to become or
refrain from becoming or continuing to be a member of a trade
union.
LRA s 76: Intimidation and Coercion.
No person, union or ERs organization shall seek by intimidation or coercion
to compel any person to become or refrain from exercising any other rights
or from performing any obligations under LRA
LRA s 104: Makes it clear violations of LRA are an offence

APPLICATION
1. UNION ACCESS TO CONTACT INFORMATION: THE UNION IS
NOT ENTITLED TO GET A LIST OF THE EES FROM THE ER.
THE REFUSAL TO RELEASE THIS INFO IS NOT AN ULP.
INCUMBENT UPON TU TO OBTAIN THIS INFORMATION
R V STEWART INFO IN ITS OWN RIGHT CANNOT BE THE SUBJECT OF THEFT (SECURITY
GUARD TRIES TO BRIBE EE TO GET EE INFORMATION AT A HOTEL).

ER ACCESS: UNFETTERED RIGHT SUBJECT TO LRA

RESTRICTIONS;
No duty to disclose list of EEs to union violation of PRIVACY
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ER DUTY NOT TO INTERFERE WITH ORGANIZING DURING

NWH, UNLESS LEGITIMATE BUSINESS JUSTIFICATION
(ADAMS MINE)

2. IN HOUSE UNION ORGANIZER RIGHT WHO IS EE (IN-HOUSE):

Cant be excluded based on private property rights;
NWH COMMUNICATION with EES is presumptively valid
WH COMMUNICATION WITH EES IS PRESUMPTIVELY INVALID;
Nothing in LRA authorizes organizing activity during working hours (s.76)

3. ER PROPERTY RIGHTS MAY EXCLUDE OUTSIDE UNION

ORGANIZERS FROM COMING ON THEIR PREMISES FOR THE
PURPOSE OF ENGAGING IN UNION ACTIVITY, UNLESS
PRIVATELY OWNED PUBLICLY USED
PUBLIC PROPERTY TU CAN ENTER PREMISES, SUBJECT TO GENERAL LAWS
PRIVATELY OWNED PUBLIC USED ERS NOT TP, MAY EXCLUDE THE WHOLE WORLD
UNLESS THERE IS A LEGITIMATE BUSINESS JUSTIFICATION - LIKE UNION PRESENCE
DISRUPTING MALL TRAFFIC.
NOT AN INTERFERENCE OF 3RD PARTY OWNERS PROPERTY RIGHTS WHEN IT IS A PUBLIC
LOCATION.

NON-UNION EE ACESS TO PROPERTY - INITIAL CONTACT AT WP

ENTRANCE IS ACCEPTABLE UNLESS OBSTRUCTING
ENTRANCE OR INTERFERING WITH THE NORMAL COURSE
OF BUSINESS
EXAPLES OF ULPS
K-Mart Canada Limited (Peterborough), [1981] OLRB bright example of when
ERS cross the line
(went to far with setup and structure of meetings regardless)
Analysi The Board decided to certify because of ERs ULPS surveillance of the union
s
organizers, the subjection of employees to repeated small meetings and their
continued exposure to the watchful eye of senior management, would
reasonably have caused many employees who might otherwise have supported
the union to not support it. K-mart deprived the employees of the ability to
choose freely whether or not they want to be represented by a union.
Undue Influence is ULP if : ER exerts undue influence on EES, ; takes
Ratio
unfair advantage of its position / authority in an attempt to
sway employees
EMPLOYERS EXPRESSION OPINIONS- fair : ER is free to communicate
opinions, unless method of communication intimidates, coerces
or exerts undue influence [section 56]
GENERAL SURVEILLANCE- fair : of a general nature is permissible,
unless overt.
However, overt surveillance is a tool to chill free expression and
control dissent
MEETINGS- fair : unless used to communicate threats
CAPTIVE AUDIENCE unfair IF, in circumstances where EEs opposed to
union are encouraged to seek out, ER went beyond bounds of
freedom of speech.
INDIVIDUAL CONVERSATIONS unfair IF : used as intimidation tactic,
like management circulating ostensibly on floor for long
periods of time
LETTER OF DISCIPLINE unfair IF: on same day to appear before LRB
Letter to employees the same day they first appeared to testify

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before LRB on behalf of the union amounts to a deliberate
attempt to obstruct witnesses from giving evidence.
DISCHARGE and REINSTATE pro-union EEs :
United Steelworkers of America (Applicant) v. Wal-Mart Canada, Inc. [1997]
OLRB --->
ER ECONOMIC PWR CANNOT BE USED AS FORM OF INTIMIDATION TO PREVENT UNIONIZATION;
INCLUDES THREAT OF POTENTIAL SHUTDOWN , BUT SHUTDOWN POST-UNIONIZATION NOT
ABSOLUTELY PROHIBITED, DEPENDS ON FACTS
Facts
Concerns an organizing drive at WM, upper management walked through
stores, constantly approaching EEs and soliciting Qs on the union. This
activity wasnt enough on its own; the key allegation in the unions view
is that the company raised issues of economic and job security with the
employees and then refused to answer questions asked on these matters.
In unions view, companys failure to answer the Q will the store close if
the union is successful led the EEs to conclude that the store would in fact
close if union was successful.
No overt surveillance, but covert surveillance possible
Group meetings? Ok, but have to be used carefully. OK (risk some EES
will denounce)
Individual conversations, ULP here Managers speaking with EES over
course of 6 days to ensure resources available extremely effective
tactic of intimidation or undue influence contrary to s. 70.
INDIVIDUAL MEETINGS THAT WALMART RAN? RISKY RESPONSE HERE, NOT ULP WITHOUT
MORE

Employees prepared statement , ULP, manner used to raise spectre of

job insecurity
IF ER did not distance itself from comments ; by not allowing the union
supporters to speak
R EFUSAL TO ANSWER , WOULD STORE CLOSE IF THERE WAS A UNION - B Y NOT ANSWERING
THE QUESTION , THE COMPANY WAS INTENTIONALLY FUELLING EE CONCERNS
Analysi Employer economic power cannot be abused to the extent that it becomes a form
s
of intimidation a threat of shut down would be intimidation and as a
matter of law it would be illegal for a store to close down after it unionized
employers would have the burden to establish that they didnt close down
because of anti-union animus. WalMart should have nullified the fears.

S OBEYS L ETTER --->

ONLY ULP TO APPEAL TO WORKERS LOYALTY IF EXPRESS THREAT OF

DISMISSAL ATTACHED TO APPEAL , EXPRESSING PREFERENCE IS A FAIR LP, UNLESS IF
YOU ARE DISLOYAL YOU WILL BE FIRED

Service Employees International Union, Local 204 v. Kennedy Lodge Inc, [1984]
OLRB ---> cannot utilize contractors when doing so will result in
termination of BU EEs
Facts
Nursing home is unionized. Decides to contract out so it can hire contract
employees to do work at lower wage than that agreed to in CA. This resulted in
large numbers of terminations of BU EEs.

EMPLOYER DEFENCES TO ULPS:

Freedom of Expression (LRA s 70 protects FOE)
Syncrude Canada - The mere expression of the employers preference
through the news media did not constitute wrongful interference .
S. 70 of the LRA specifically protects the employers freedom of
expression.
Ed Klassen ER held meetings w captive audience to express
views.LRA protects ER right to communicate statements of fact or
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opinion reasonably held about the business, including its relationship
with the EEs, even where such statements cause the union to lose
support . Complaint dismissed.
LRA s 77 Nothing in Act allows EEs to promote/discourage unionization
during WH
(ERs may also challenge the right of EEs to discuss unionization during
NWH ,) if such discussion interferes with its legitimate business
interests.)
Freedom of Capital to Reduce Labour Force - in response to an
economic downturn is a complete answer to the reverse onus to
a ULP termination, unless closure due to anti-union animus (See
Plourde;Accutext).

ANTI-UNION ANIMUS PRINCIPLES: DISCHARGE DURING

ORGANIZATION DRIVE (REVERSE ONUS CLAUSE)
BARRIE EXAMINER CASE, [1975] TO SUBSTANTIATE A CLAIM OF ULP, MUST SHOW ER
ACTION WAS IN PART DIRECTED AGAINST LAWFUL UNION ACTIVITY

Reverse onus of proof ER must establish on BOP, that it hasnt

violated LRA that:
that reasons given for the discharge are the only reasons;
that these reasons are not tainted by any anti-union motive.

U NITED R UBBER , [1979] OLRB : GIVEN AN ACTION RE : ULP, ER MUST PROVE ON B O P

THEY DID NOT ACT AGAINST UNION ACTIVITIES , EITHER BY SHOWING (1) NO
KNOWLEDGE OF ACTIVITY OR , (2)IF ER HAS KNOWLEDGE , ALTERNATIVE
JUSTIFICATION FOR DISMISSAL ( I . E . JUST CAUSE )

ENFORCEMENT AND LRB REMEDIES

ENFORCEMENT COMPLAINANT PROCESS S. 96 LONG-TERM, NOT INTERIM
LRB can investigate and try to mediate it and if this is unsuccessful it
will go to a labour board hearing based on the LRBs discretion.
The employer has to satisfy that there is no anti-union animus.
S 98(2) REMEDIES IF NO SETTLEMENT (STILL DOESNT REMEDY IMPOSSIBILITY OF
UNION THAT EXISTS DUE TO FEAR):
4(a) - CEASE : Order to cease doing the acts complained of
4(b) - RECITFY : Order directing the wrongdoer to rectify the acts
complained of
Posting Notices : that they had ULPs but will now stop .
General view is that this violates freedom of expression of ER, but that
its demonstrably justified .
Access Orders: to EE list and access to premises during NWH.
Compensatory Damages : ER compensates organizational costs
(attempt to unionize may be over at time of claim)
Resumption of Production (rare) e.g. Rapid Transformers Ltd if site
shut down where union tries to organize .
4(c) - REINSTATE/COMPENSATE : Order to reinstate or compensate; if sought
burden of proof is on the ER to prove otherwise ER has to show their
actions of discharge were not motivated by anti-union animus (s.96[5]).

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LRA S 98 INTERIM RELIEF: LRB EXERCISES POWER ONLY IF ALL OF THESE CONDITIONS
ARE MET

(1) On application in a pending proceeding a Board may make an interim order:

a) concerning procedural matters
b) Requiring an ER to reinstate an EE in employment on such terms
as it considers appropriate
c) Requiring an ER to respect initial T&C of an EE who has
subsequently been subject to reprisal, penalty or discipline
O NUS ON APPLICANT TO ESTABLISH ; (1) THE EVENTS GIVING RISE TO THE COMPLAINT
MUST HAVE OCCURRED DURING AN ORGANIZING DRIVE ; (2) THERE MUST BE A
SERIOUS ISSUE TO BE TRIED ; (3) REINSTATEMENT WILL PREVENT IRREPARABLE
HARM ; AND (4) THE BALANCE OF HARM FAVOURS THE UNION . I F B OARD THINK
ER A CTION WAS UNRELATED TO THE EE S EXERCISE OF RIGHTS UNDER ACT OF
RIGHTS UNDER THE ACT , THEN IT MAY NOT ORDER REINSTATEMENT . F INALLY ,
THE ONUS IS ON THE APPLICANT

S 11(1)(2) REMEDIAL CERTIFICATION (REQUISITE ELEMENTS)

(a)Where an ER contravenes this act and as a result (b) the true
wishes of the EEs in the BU were not likely reflected in the
representation vote; OR (c) a trade union was not able to
demonstrate that 40 per cent or more of the individuals in the BU
proposed in the application for certification appeared to be
members of the union at the time of application.
The board MAY
a) Order that a representation vote be taken and do anything to
ensure that the representation vote reflects the true wishes of
the employees in the BU
b) Order that another rep. vote be taken and do anything to sure
that reflect true wishes
c) Certify the trade union as the bargaining agent of the employees
in the B/U if no other remedy would be suffi cient to counter the
effects of the contraventions
(Walmart) Determinative factor IMPACT NOT EXTENT OF VIOLATION:
Whether a representation vote would likely reflect the true wishes of
EEs
Section 11(4): In making a decision under this section, the Board may
consider (a) results of a previous rep. vote; and (b) whether the
TU appears to have membership support adequate for the
purposes of collective bargaining.

If ULP IS A threat to employee security, CREATES - a request for

remedial certification stands a reasonable chance of succeeding threats make it impossible to ascertain the true wishes of EEs
If advising ERs - must avoid being found guilty of an ULP involving
planting fear of economic uncertainty
(NOTE: PROSECUTION S. 104 / CRIMINAL CODE S. 425 [LESS USED])
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WHO IS EMPLOYEE?
bright-line distinction between EEs and workers who provide service pursuant to
other contracts (ie independent contracting) is elusive
CML EE TEST (BASELINE WHICH THE STATUTORY DEFINITIONS EITHER SUPPLEMENT OR
MODIFY)
DEPENDS ON THE INFERENCES MADE FROM THE CONDUCT OF THE PARTIES

Ready Mixed Concrete: (1)There must be a wage or remuneration

in exchange for work or service; , (2) suffi cient ER control ; (3) K
provs consistent with it being a K of service
Montreal Locomotive: (1) Is EE subject to others control?; (2)
Who has ownership of the tools- owner is master evidentialy; (3)
chance of profit; (4) risk of loss
US v Silk: Whether the men were employees as a matter of
economic reality. Important factors: degrees of control,
opportunities of profit or loss, investment in facilities,
permanency of relation and skill required in the claimed
independent operation.
Slatford : Is the person in question in part and parcel of the
organization or are they in business for themselves? ; Were the
individuals in question employees as a matter of economic reality
(involves assessment of individual circumstances )
IF arrangements leave the driver-owners so much responsibility
for investment and management, they must be held to be
independent contractors.

CML VICARIOUS LIABILITY TEST (MUST SATISFY TEST TO JUSTIFY STRICT LIABILITY
POLICY)
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# Ontario Ltd. V. Sagaz Industries Canada Inc. [2001] 2 SCR 983 ---> test to
distinguish worker as an EE or IC wrt vicarious liability; nonexhaustive and no set formula as to its application; purpose
approach
Held Not an EE; therefore, no VL
Anal
The appellant Sagaz, the competitive supplier, is not vicariously liable for the
y
bribery scheme perpetrated by its consultant. The consultant was not an
employee of the supplier but an independent contractor. The relationship
between an employer and IC does not typically give rise to a claim in
VL.
Purposive approach is it appropriate to impose VL? (no one conclusive test)
SAGAZ TEST: "whether the person who has been engaged to perform the
services is performing them as a person in business on his own
account" [para 47]
CONTROL: not determinative
Whether the man performing the services provides his own equipment,
Whether he hires his own helpers,
The degree of financial risk taken by the worker,
The degree of responsibility for investment and management held by the
worker,
The workers opportunity of profiting from sound management in the
performance of his task
.POLICY REASONS

COMPENSATION, DEEP POCKETS FAIRNESS ; person or organization

that creates the enterprise and hence the risk should bear the loss

LOSS INTERNALIZATION The employer is often in the best position

to spread the losses through mechanisms like insurance and higher prices,

DETERRENCE ERs are in a position to reduce wrongs through effi cient

organization and supervision; incentivizes ER to take greater preventative steps in
the future

Employee v. IC: VICARIOUS LIABILITY: VL is fair in principle b/c the

hazards of the business, incl purchase of EEs labour should be borne by the
business itself; thus it does not make sense to anchor liability on an
employer for acts of an IC, someone who was in business on his own
account

CML PRESUMPTION: DC, NOT ICS ARE ENTITLED TO

PRESUMPTION OF REASONABLE NOTICE
MCKEE : DCS ARE ENTITLED TO REASONABLE NOTICE PRESUMPTION
Exclusivity of arrangement is going to be determinative factor to
answering this question & assuming other indicia of
dependency,
STORK DIAPER : IC OR EE ?TEST
Business reality test: hybrid test, involves a consideration of various
factors including:
1) Ownership of equipment used in the work or business;
2) The form of compensation paid to the worker or independent
operator (i.e., whether a fixed rate is agreed to or a variable
remuneration with an attendant prospect of profit or risk of
loss);
3) Business indicia;
4) Evidence of co-ordinational control as to where and when the
work is performed;
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5) The intention of the parties, often evidenced by an agency
agreement, employment agreement, contract for service,
contract of service or limited term contract;
6) Business or government records which reflect upon the status of the
parties;
7) The economic or business market;
8) The existence of the same or very similar services supplied to an
employer by a person or persons who are classified as
workers under the Act;
9) Substitute service;
10) Size of the consideration or payments;
11) Degree of integration.

BELTON 2004 ONCA COMMISSION AGENT ENTITLEMENT TO PRESUMPTION OF

REASONABLE NOTICE

Determination of status
1) whether the agent provided service exclusively to the principal; 2)
whether the agent is subject to the control of the principal, not
only as to what is sold, but to when, where and how it is sold; 3)
whether or not the agent has an investment or interest in the
tools relating to the service; 4) whether the agent has
undertaken any risk or has any expectation of profit distinct
from a fixed commission; and 5) whether the agent is part of the
business organization of the principal
FASKEN MARTINEAU, DUMOULIN 2014 SCC 39 CAN PARTNER BE EE AND PARTNER?
An individual in question cannot be a partner and EE b/c because collectively
partners are the ER, and therefore may be deprived of the protections labour
and employment law offer
Partner was not under genuine control, firm was both run by and for benefit of
partners
Absence of purposive discussion - Complainant argues to achieve purposes
of HR, the term EE should be interpreted expansively to cover as many

Employment Standards Act

EMPLOYMENT STANDARDS
DOES THE ESA APPLY? NO CONTRACTING OUT Section 5
(1)Subject to (2), no employer or agent of an employer and no employee or
agent of an employee shall contract out of or waive an employment
standard and any such contracting out or waiver is void.
(2)If one or more provisions in an employment contract or in another Act that
directly relate to the same subject matter as an employment standard
provide a greater benefit to an employee than the standard, the provision or
provisions in the contract or Act apply and the employment standard does
not apply.

HOWEVER The benefits under the ESA are not made available to all employees.
Exemptions - O. Reg. 285/01.
MANAGERIAL EXEMPTION S (managerial and supervisory employees;
not managerial if performining non-managerial work 50% of
the time)
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O. Reg. 285/01
s. 8(b): exemption of managerial and supervisory employees from OT
conditions in ESA
S.4(1): exemption of managers from: s.17 (hrs of work), 18 (hrs free from
work) and 19 (exceptional circumstances) of ESA
ESA ---> WHO IS AN EMPLOYEE ( s 1 definition)
a) A person, including an offi cer of a corporation, who performs
work for an employer for wages
b) A person who supplies services to an employer for wages
c) A person who receives training from a person who is an
employer, as set out in subsection (2), or
d) A person who is a homeworker.
employer includes,
a) An owner, proprietor, manager, superintendent, overseer, receiver or
trustee of an activity, business, work, trade, occupation, profession,
project, or undertaking who has control or direction of, or is directly
or indirectly responsible for, the employment of a person in it, and
b) Any persons treated as one employer under section 4
employment contract includes a collective agreement.
wages means, (ecludes tips, gifts, bonuses, expenses and
travelling allowances)
a) Monetary remuneration payable by an employer to an employee under
the terms of an employment contract, oral or written, expressed or
implied,
b) Any payment required to be made by an employer to an employee
under this Act, and
c) Any allowances for room or board under an employment contract or
prescribed allowances,
EXCLUSIONS
S. 1(2) Persons receiving training an individual receiving training
from a person who is an employer is an employee of that person if
the skill in which the individual is being trained is a skill used by
the persons employees, unless all of the following conditions
are met:
(1) training is similar to that which is given in a vocational school
(2) training is for the benefit of the individual
(3) person providing the training derives little, if any, benefit from the
individual while s/he is being trained
(4) the individual does not displace employees of the person providing
the training
(5) the individual is not accorded a right to become an employee of the
person providing the training
(6) the individual is advised that s/he will receive no remuneration for the
time that s/he spends in training

S.3(2)-(6): include: federal jurisdiction diplomatic personnel

employees of the Crown co-op program individual who is in a
correctional facility / detention work under the YCJA, work for
the purpose of rehab, a police offi cer
See Regulation O Reg. 285/01 for more exclusions
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S. 5(1): No contracting out. The ESA has to control attempts to evade
responsibility. Merely characterizing the relationship in a certain
way on paper is not determinative in law
The ESA does NOT apply to Contractors (independent or
dependent).
EXCEPTION FOR DEPENDENT CONTRACTORS: homeworkers
Re Becker Milk Co. Ltd. 1973 Whether ESA applies to managerial
staff?
BASED ON COMBINED WEIGHT OF FACTORS
(1) CONTROL; (DEGREE OF SUPERVISIO N, METHOD & TIMING OF WORK,
MANNER OF PAYMENT - LUMP SUM VS. PAYMENTS, EMPLOYS
OTHERS, MANNER OF TERMINATION?)
(2) OWNERSHIP OF THE TOOLS; (WORKER PROVIDING EQUIP & LABOUR?,
RELATES TO CONTROL)
(3) CHANCE OF PROFIT;(4) RISK OF LOSS (PERSON EMPLOYED OR IN
ENTREPRENEURIAL SITUATION - PROFITS DERIVED FROM DOING
BUSINESS?)
(CONTEXTUAL TEST, INVOLVING A PURPOSIVE APPROACH)

Held: Individuals in question not independent businessmen. Weighing all

the elements of the work situation that the four store managers were not
acting as independent businessmen. The degree of control asserted by the
company, the absence of any real chance of profit or risk of loss, and the
absence of any ownership of the tools of the trade can lead to no other
conclusion

Other applications of Sagaz (purposive approach may result in

expansive application of test)
Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 986
The harm which the Act seeks to remedy is that individual employees, and
in particular non-unionized employees, are often in an unequal
bargaining position in relation to their employers
2006515 Ont. Inc. (Greco Health Shack) [2005] O.E.A.S.D. No. 34 , the
adjudicator cited both Machtinger and Sagaz, , held that a worker
hired to operate a retail store selling nutritional supplements and
smoothies was an employee under the ESA and entitled to unpaid
wages and termination pay.
Superior-1 Cleaning Services Ltd., [2007] O.E.S.A.D. No. 1042.
Superior had a cleaning K, to clean a Swiss Chalet restaurant. It
sub-contracted w Mohammadi to do the cleaning and then did not
pay him for two weeks of work. K explicitly that M was a subcontractor , ESO found this to be the case. On review, Board used
Sagaz to find Mr. Mohammadi was an employee and was not in
business on his own account.
391165 Ontario Inc. (c.o.b. Wallace Transport), [2009] O.E.S.A.D. No.
593
Where an individual in question owns a substantial capital investment in
equipment used to perform the work in accordance with the
agreement at issue, it is evidence of a relationship at arm's
length; here, purchase enabled him to earn a living in the
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transportation industry as an Owner/Operator (highly significant
factor )

COLLECTIVE BARGAINING - LRA (SAYS INCL DEPENDENT KER)

Wide net cast to reduce industrial conflict, tensions between Kers and sub-Kers

SECTION 1(1); (S 9(5) APPROPRIATE FOR BU)

DEPENDENT CONTRACTOR: ...
who performs work or services for another person for compensation..
under T&C such that dependent contractor is in a position of economic
dependence ..upon, and under an obligation to perform duties for , that
person..
more closely resembling the relationship of an employee than that of
IC
EXCLUSIONS: SECTION 1(3) (A) WHO IS A MEMBER OF THE ARCHITECTURAL, DENTAL,
LAND SURVEYING, LEGAL OR MEDICAL PROFESSION ENTITLED TO PRACTICE IN
ONTARIO AND EMPLOYED IN A PROFESSIONAL CAPACITY; OR (B) WHO, IN THE
OPINION OF THE BOARD, EXERCISES MANAGERIAL FUNCTIONS OR IS EMPLOYED IN
A CONFIDENTIAL CAPACITY IN MATTERS RELATING TO LABOUR RELATIONS.
MORE EXCLUSIONS: Section 3: This act does not apply, [so they might meet the
legal definition but are excluded from the CB regime]
a) To a domestic employed in a private home;
b) To a person employed in hunting or trapping
c) (b.1) to an employee within the meaning of the Agricultural
Employees Protection Act 2002
d) To a person other than an employee of a municipality or a person
employed in silviculture, who is employed in horticulture by an
employer whose primary business is agriculture or horticulture
e) To a member of a police force within the meaning of the Police
Services Act;
f) Firefighters
g) Members of the teachers bargaining unit
h) To an employee of a college of applied arts and technology
i) To a provincial judge
j) To a person employed as a labour mediator or labour conciliator
TORONTO STAR [2001] OLRB REP. 168 WHETHER PERSON IS IC OR DC FOR
PURPOSES OF LRA?
If on EE-IC continuum, a Kor's relationship is closer to IC, then person is IC,
vice-versa, is an EE
A determination of employment status ;Do T&C of employment
relationship renders the individual economically dependent upon
ER, i.e. relationship of economic dependence
Is worker dependent on company for means of livelihood?
Duration of relationship - ongoing (more EE) or limited (more like IC)?
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Service provider serves only one customer?
. What is the opportunity for profit with that ER?
Nature of profit - selling one's own labour or investment of capital/risk

taking
PT or FT?

STATUS OF THE ARTIST ACT, SC

OBJECT : PERMITTING INDIVIDUALS TO OPERATE AS INDEPENDENT CONTRACTOR, BUT
PROVIDE SOME MECHANISM FOR BARGAINING OPPORTUNITY ABOVE MINIMAL
SCALE ; EXAMPLE OF AN INITIATIVE TO ADDRESS SITUATION OF ECONOMIC NEED
AND OPPORTUNITY TO COLLECTIVELY BARGAIN TERMS AND CONDITIONS IN WHICH
THEY WORK

applies to professional ICS who are authors of artistic works,

performers, and contributors to production of performing arts
Administrative tribunal defines sectors and certifies associations most
representative of
Contemplates creation of sectoral producer associations
Artists and producers bargain for scale agreements

MANAGERIAL EXCLUSION
(RATIONALE: ALLOWING MANAGERS TO ORGANIZE RESULTS IN CONFLICT OF INTEREST OR
AFFECTS UNION INDEPENDENCE)
Standard exclusions: Craft: non-working foremen ; Industrial:
foremen
Challenges to status quo? Comps w less hierarchical model; low level
managers more vulnerable that union protected workers
Factoring Test: City of Thunder Bay (1981) Manager or EE? Test
Facts: Managers monitor performance of employees and counsel them
Factors that influence where to draw the line between
employee/managerial roles
STEP 1: It is incumbent upon any party seeking to exclude EES from
Act come forward with affi rmative evidence that they exercise
managerial functions
STEP 2: Do EES make decisions which affect the economic lives of
their fellow employees: The right to hire, fire, promote, demote,
grant wage increases or discipline employees are all
manifestations of managerial authority OR Persons making
significant executive or business decisions or
recommendations (indirect authority or influence
STEP 3: Factual determination , the nature of the industry, the nature of
the particular business and the individual ERs organizational
scheme experienced persons will commonly supervise the work
of less experienced not necessarily managerial under section
1(3)(B); therefore, not excluded

Separate Bargaining Units: There has been a suggestion to allow for separate
BUs for managerial and non-managerial members to avoid the possibility that the
managerial EEs would take over the union/run it in line with their own preference.
But this requires legislative amendment [to recognize them in a separate BU].
There are concerns that if managers were allowed to form their own BU,
this would undermine the loyalty they owe to their ER.
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C HILDREN S A ID S OCIETY OF O TTAWA -C ARLETON : FLAT MANAGEMENT , SUPERVIORS
ENGAGED IN PERFORMANCE ASSESSMENT, COULD NOT FORM BU
Court : Here the Court is satisfied that the supervisors in the present case,
despite the less traditional disciplinary style adopted at the
CAS, play at least as significant a role in monitoring EE
performance and initiating disciplinary responses where required
as do foremen. Despite the flat management, the supervisors
are the eyes and ears of the employer.
Result : They were not allowed to form a BU.
Notes : Policy here was that managers may "rise to the top" and this would
defeat the purpose of a union; they would exist at the top of both
the employment chain and the union itself, which would lead to
even greater confusion in terms of ER loyalty

THE EMPLOYMENT RELATION: WHO IS THE

EMPLOYER?
COMMON LAW VICARIOUS LIABILITY ("BORROWED SERVANT)
MCKEE V. DUMAS :If, (1) in the course of performing the stipulated work, (2) EE injures someone, (3)
then general ER is responsible, (4) unless he can establish that the effect of the transfer to temp
ER in question, was to constitute that EE as belonging to the hirer on that part occasion.

(multi factored test applied)

WHO IS EMPLOYER FOR PURPOSES OF ESA?

TEST TO APPLY
York Condominium Corp test to determine bt/w parties employment
relationship exists
Who is the party:
exercising direction and control over the employees performing the work.
bearing the burden of remuneration.
imposing discipline.
hiring the employees.
with the authority to dismiss the employees.
which is perceived to be the employer by the employees.
The existence of an intention to create the relationship of employer and
employees.

(Pointe Claire)
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Factors should include: selection process, hiring, training, discipline,
evaluation, supervision, assignment of duties, remuneration and
integration into business.
Purpose of statute in question, determines how much weight to accord
to each factor ; provs to be interpreted on basis of their purpose

PARENT-SUBSIDIARY

PEOPLES DEPARTMENT STORE (RE) [1990] OESAD NO. 86:

CAUTION: OLRB now prefers comprehensive test, here legal
subordination test used
Conclusion: It is clear that subsidiary, Peoples is the ER b/c it fulfilled
functions above, not the Parent, Marks and Spencers. Parent
liable under s 58 for severance pay

CB CONTEXT
CS WIND CANADA INC. 2014 CANLII 14887 (ON LRB) (CS WIND CANADA ER FOR
CB)
FACTS: Workers in question were hired by CS Wind Vietnam, a subsidiary
of CS Wind Korea. CS Wind Korea EEs from its Vietnamese operation should
be sent to Ontario to assist in the start-up of CS Wind Canada in Windsor,
ON. Management for CS Wind Canada had no role in setting the
Vietnamese workers T&C of employment .
Application of York test: CSWC has arranged their accommodation;
their transportation to and from the plant; had meals delivered to the
plant for them; paid them various cash allowances; directed their
schedules and work; has made all arrangements for the extension of their
work permits; ... CSWC which will ultimately determine (control) when they
can return to Vietnam. 2 conds of work permit are 1) Vietnamese
Workers must continue to work for CSWC and ii) at the Windsor plant.

TEMPORARY HELP INDUSTRY

POINTE CLAIRE V. QUEBEC SCC: ER OF TEMP EES MAY BE PERMANENT ER FOR CB
PURPOSES (AGENCYS CLIENT) IN THE ABSENCE OF K BT/W BU & TEMP WORKER
Held : City, Permanent ER was ER for CB purposes. It had control
over temp EEs working conditions and performance of her work.
AGENCY trains, recruits, disciplines, evaluates. BUT City remunerates,
direct manner of EES work, sets work house
B.M. METALS SERVICES INC.: AN EE

MAY HAVE DIFFERENT ER FOR PURPOSES OF CB, I.E.

TEMP WORKERS EXCLUDED FROM BU. MAY BE USED BY ER TO REBUT CERTIFICATION
APPLICATION - BU SAYS WE HAVE 40% AND ER SAYS % OF IT IS TEMP WORKERS WHO
ARE EXCLUDED. 40% NOT MET, SO NO BU CERTIFICATION

SYSCO FINE MEATS : SYSCO WAS CONSIDERED TRUE ER OF TEMP WORKERS. UNION
SOUGHT TO EXCLUDE TEMP WORKERS FROM BU, WAS DENIED. AGENCY HIRED
AND SELECTED, SYSCO TRANSPORT AND PAY

ESA - PART XVIII.1

That part regulates temporary employment agencies and includes the
following provision:
74.3 Where a temporary help agency and a person agree, whether or not in
writing, that the agency will assign or attempt to assign the person to
perform work on a temporary basis for clients or potential clients of the
agency,
the temporary help agency is the persons employer ;
the person is an employee of the temporary help agency
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National Waster Services ESA does not bar Board from holding client as ER
for purposes of LRA) of it is of view that KL exercises most functions of
ER

RELATED EMPLOYERS CREATING JOINT LIABILITY

Related ER provisions are meant to allow treatment of several ERs as single ER
with joint and several liability
GENERAL RULE: IF THE REASON FOR A PARTICULAR FORM OF ORGANIZATION IS TO AVOID THE
STATUTE, THE ARRANGEMENT HAS NO LEGAL EFFECT.

ESA S 4
ESA: IN CERTAIN SITUATIONS, THE ADJUDICATOR CAN OVERRIDE THE EMPLOYERS ORGANIZATIONAL
ARRANGEMENT FOR THE PURPOSE OF THE STATUTE [ESA S. 4]
Section 4(1) ER and other person or persons shall all be treated as
one ER for the purposes of this act if,
a) Associated or related activities or businesses are or were carried on
by or through an ER and one or more other persons; AND
b) The intent or effect of their doing so is or has been to directly or
indirectly defeat the intent and purpose of this act
NOTE pursuant to 4(4) this will not hold SHs liable nor will it pierce
CV; Bilt-rite
(Refac Industrial Contractors (1990) When a business becomes insolvent

and its owners subsequently engage in the same kind of business as a different
corporation: in these circumstances, it ought to be possible to use s. 4 to
impose on the new business venture the liabilities of the previous ER
Avant Lithographics (1990): where it was determined that a related ER
finding was not warranted as the owners had not withdrawn funds from the old
business to invest in the new
The existence of common investors and officers does NOT automatically lead
to a related ER finding.(Novaquest)

4 TEST (LIAN)(VERTICAL INDUSTRY OF INTEGRATION IS NOT ENOUGH WITHOUT

MORE)

a) Always look to ESA purpose, protect EEs by creating minimum standards.

b) Then apply test from Lian.
(1) 2 or more bus entities involved in form of a corporation, individual, firm
syndicator or association, or combination thereof,
(2) Claimant must have been/presently be EE of one of those entities
during relevant period of time for which benefits are claim or the
legislative violation occurred,
(3) Businesses must be associated or related ,

Common management (550551 Ontario Ltd. v. Framingham)

Common financial control (Re Laverty Richards Guerrieri Investments)

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Common trade name (Re Million Dollar Saloon Inc)
Common ownership (Re Modern Mold Ltd)
Movement of employees between entities (Re Synform Design Group
Inc)
Sharing or transfer of premises/assets (Re Refac Industiral
Contractors Inc)
Common market or customers served by the two or more entities (Re
Refac Industrial)
(4) intent or effect of the arrangement must be to defeat, either directly or
indirectly, ESA purpose
550551 (Bilt-Rite) Ontario Limited (1991) On Gen Div --->
nature of remedial legislation opens up the ruling from Salomon; BUT cant pursue
owners of a corporation via the ESA (no piercing of corporate veil)

ESA ALTERNATIVES TO UNPAID WAGES

PART XX DIRECTORS LIABILITY (ALSO INCORPORATE STATUTES), S 81
directors and SH jointly and severally liable for unpaid wages under
certain conditions
PART XXV PROSECUTIONS. TO NOT PAY WORKERS IS A VIOLATION OF THE STATUTE. (S
132, 137)
S. 132 contravention of act/failure to comply with order can get you
fine or imprisonment. (problematic if ER has no asset)
S. 137 if corp contravenes act, any director who
authorizes/permits/acquiesces to the contravention is party to &
guilty of the offence liable to fine or imprisonment.
(4) if any individual is convicted under this section, court may in addition
to fine/imprisonment, assess any amount owing to the EES due to
contravention and order payment could include wages as well as
termination or severance pay..

LIEN LAWS attach liability to property that is benefitted by labour. If KER

doesnt pay his/her EES, a lien can be filed against the property. Property owner
holds payment owed to contractor.
HOT CARGO EMBARGOS - IF FINDING GOODS PRODUCED IN VIOLATION OF ESA EQUIVALENT IN
USA, EMBARGO IS PLACED UPON THEM; THEY BECOME ILLEGAL GOODS AND CANNOT BE
PUT INTO CIRCULATION IN MARKETPLACE

BANKRUPTCY - NEW AMENDMENTS TO THE BANKRUPTCY ACT

WAGE EARNER PROTECTION PLAN ALLOWS EMPLOYEES TO CLAIM UP TO $3000 (INDEXED
TO INFLATION) IN UNPAID WAGES, INCLUDING TERMINATION AND SEVERANCE THAT IS OWED.
AMENDMENTS GAVE EES SUPER PRIORITY, MEANING THEY GET PAID BEFORE SECURED
CREDITORS (I.E. BANKS)

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CB CONTEXT

S 1(4) LRA - TO PROTECT TRADE UNION BARGAINING RIGHTS FROM MERE CHANGES IN FORM
RATHER THAN SUBSTANCE, OLRA PROVIDES S THAT ASSOCIATED ERS UNDER COMMON
CONTROL AND DIRECTION MAY BE TREATED AS A SINGLE EMPLOYER FOR COLLECTIVE
BARGAINING PURPOSES
TEST: (1) THE PURPOSE FOR THE ISSUANCE MUST BE A SOUND LABOUR RELATIONS
PURPOSE.

(Ellwall and Sons Construction Ltd., [1978]Board will decline to exercise

its discretion in circumstances where making a declaration would in fact
weaken collective bargaining structures or undermine the scheme of the Act
(Diamond TaxiCab_Board) will properly issue if meaningful CB requires the
consolidation of ER functions performed by different entities, or the
identification of the real locus of economic power.
(Hamilton Health Sciences Corp. (12 July 2012)), Not successful in
context of sub-contracting Efforts to use the related employer in the absence
of common control and direction.

RELATED ERS IN CML DOWNTOWN EATERY (PURPOSES OF

WRONGFUL DISMISSAL)
RATIO: Related entities can be held as single ER for purposes of a wrongful
dismissal claim so long as entities are related and there is an element of
common control & management ; CML should protect against the unfair
deprivation of an EEs wages
TEST: WHAT

CONSTITUTE A SUFFICIENT DEGREE OF RELATIONSHIP DEPENDS ON THE DETAILS (INCL

INDIVIDUAL SHAREHOLDINGS, CORPORATE SHAREHOLDINGS, INTERLOCKING RELATIONSHIPS)

SALE OF A BUSINESS SUCCESSOR EMPLOYERS

CML: Sale of a business or contracting out amounts to a constructive dismissal of EES
triggering right to notice or pay in lieu of notice, enforceable against former ER
UNLESS doctrine of novation applies. New EK protects EE right to notice of
termination

Doctrine of Novation(Major v Phillips)

trilateral arrangement extinguishing existing K & substituting new one that
protects acquired EE rights(re notice of termination)
Polson v. Wulffsohn (1890)TEST: (1) new debtor must assume the
complete liability;
(2) The creditor must accept the new debtor as principal debtor and not
merely as an agent or guarantor; (3) The creditor must accept the K
in full satisfaction & substitution for old K. Courts reluctant to imply
in absence of express agreement

SUCCESSOR EMPLOYER - ESA, S 9 INSTRUMENTAL WORKERS HAVE A

PROPRIETARY INTEREST OVER WORK FUNCTION

(Abbot v Bombardier) s 9 sale includes outsourcing of work WHY ? ESA

is remedial should be given fair, large, liberal construction and
interpretation;
Terms would need to be radically different for s.9 continuity provision
not to apply
Section 9- IF ER sell s business or part of, AND EE is employed by the PU,
the EE of the new ER shall be deemed not to have been terminated or
severed for the purposes of the Act and his/her previous employment will
count towards any subsequent calculation
o If not hired back by PU, EE has CML right to notice against
former EE

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o(2)UNLESS the day on which PU hires the EE is more than 13 weeks after the
earlier of his or her last day of employment with the seller and the day of the
sale.
LIABILITIES: Addressing who will be responsible for existing obligations to
employees when an employer sells its business may be controlled by K bt/w
seller and the buyer. Otherwise subject to the ESA.
S. 10 P ART XIX O R EG 287/01: Provision for contracting in of building
services i.e. cleaning services. Special provs regarding protection of
particular group of workers; contracting in of build services, more liability if
successor doesnt hire existing providers

SUCCESSOR EMPLOYER CB
LRA : instrumental , Transfer of bargaining rights to successor is limited to
circumstances involving sale or disposition of a business , not King out &
does not depend on similarity of work functions being performed;
(Bibeault;Parnelle Foods )
TEST: 1) alienation of undertaking must occur (voluntary transfer of
title) by another; 2) undertaking consisting of self-sustaining
org of resources through which specific activities can be
wholly/partly carried on. (3) the alienation establishes a legal
relationship bt/w successive employers.

FAIRNESS IN EMPLOYMENT
CML
SENECA COLLEGE V. BHADURIA No CML tort of discrimination; existing adjudicative regime
to protect right to vindicate discrimination claims. EEs may pursue discrimination claim of
ER is govt (Charter)

ON SCHEME: COMMISSION (DEALS WITH SYSTEMIC DISCRIMINATION,

HR TRIBUNAL PRIVATIZED INDIVIDUAL COMPLAINT PROCESS,
OHLSC
(O'MALLEY)OHRC PURPOSE
remedial, focused on effects of discrimination, not punitive, not focused on
motivation/knowledge of ER
OHRC PROHIBITS ERS FROM DISCRIMINATING AGAINST ERS ON A LIST OF ENUMERATED GROUNDS
(CML, OHRC s 46.1) Claimant may raise HR complaint as ancillary issue in CML
action (for e.g. wrongful or constructive dismissal OHRC, RSO 1990
s 43 - non-union EE claimant must pursue discrimination claim via HRT if only issue
is discrimination,
S 5(1) - Every person has a right to equal treatment with respect to employment
without discrimination because of race, ancestry, place of origin, colour, ethnic origin,
citizenship, creed, sex, sexual orientation, gender identity, gender expression, age,
record of offences, marital status, family status or disability.
s.6 Unions cant discriminate
PART II defines prohibitive grounds
Exemptions S 14 - Affi rmative action not reverse discrimination, so long as ER
operates in compliance with this section ; s.24 special employment religious
institutions who want to hire only followers - permitted form of discrimination
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(s. 46.3(1)).Principle of vicarious liability does not apply to harassment and sexual
solicitation
s 36: Tribunal empowered to add parties to sexual harassment cases incl ER
s 45.2: If ER joined to proceeding, Tribunal has power to make prospective orders.
s 45.2(1) Remedies - T has power to issue order directing any party to do anything
party ought to do to promote compliance w / act (incl reinstatement which is rare)
Arbitration- union EES Unionized EEs must pursue claim through grievance
arbitration
OLRA, s 48(12)(j)- Arbitrator has the power "to interpret and apply human rights
and other employment-related statutes, despite any conflict between those statutes
and the terms of the CA
s 45.1: HRT cannot refuse to hear a UEE's claim though may defer complaint if being
pursued through grievance arbitration; may dismiss complain if arbitrator has
appropriately dealt w subject matter
s 45.1 - Claimant barred from re-litigating same issue at HRT that was already
decided thru arbitration

Jurisprudence
Parry Sound Admin Board 2003 SCR - ER & Union cannot contract out of HR & other ER
related statutes. (i.e. implied terms of CA) ;
Baylis-Flanery 2003 HRTO: Compounded experiences (of racialized sexim or patriarchal
racism) in WP may warrant higher amt of gen damages. Mixed race female EE
discriminated against b/c of race & sex
Perez-Moreno 2013 HRTO - The protection of HR codes extends to WP related
internet postings
F: EE's makes FB posting called supervisor "a dirty Mexican". etc

MEIORIN AND THE DUTY TO ACCOMMODATE

FACTS Meiorin worked for sev years as forest firefighter, passed testing reqs. She passed 3 but failed 4th passed three
of the tests but failed a fourth - 2.5 KM run up hill to designed to assess whether EE meets gov't aerobic
standard. M was laid off, union bring grievance that standard is discriminatory on basis of sex.

ANALY

research methodology used to formulate test was (1) mostly descriptive by converting average
performance levels into min standards; (2)didn't seem to distinguish bt/w M & F
no evidence prescribed aerobic capacity necessary to M/F performing firefighter work satisfactorily.
Chosen standard should be necessary to safe and efficient performance of job

GLOBAL DISCRIMINATION TEST - QUESTION: WAS DISCRIMINATION

(a)

BEHAVIOUR?

A FACTOR IN

ER'S

Prima facie discrimination test (Moore): claimant must show they:

(1) have a protected characteristic under Code, and
(2) experienced an adverse impact wrp to the service;
(3) Characteristic was a factor in adverse impact .
(b)
onus on (ER or union) to justify standard or practice is a BFOR .
Determine purpose of S/P, is it rationally connected to performance of job;?
Was S/P was adopted by ER in honest/good faith belief that it was necessary
to the fulfillment of that legit work-related purpose;?
S/P is reasonably necessary to accomplishing that legit work-related purpose,
by showing that it would be impossible to accommodate ind EES sharing
characteristics of claimant b/c it would impose undue hardship
(c) Factors to consider: financial cost of accommodation, relative interchangeability of
workforce, prospect of substantial interference w rights of other EEs, diff ways job
can be performed
(d)
(a)Has ER investigated non-discriminatory alternatives, such as more
individually sensitive testing standard; (B) If investigated, why not
implemented? (C) Is S/P properly designed to ensure desired qualification is met

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w/o burden on those to whom S/P applies? (D)Alternatives?

GOHM V. DOMTAR INC. (1990) - Union shared ER's duty to accommodate an EE under
HR legislation (Renaud) Held: PL awarded almost 75K in damages. ER and Union
failed to make substantial efforts to accommodate Ms. G

DUTY TO ACCOMMODATE AND DISABILITY

QUEBEC V. CITY OF MONTREAL,[2000] 1 S.C.R. 665 TEST
WHAT CONSTITUTES A DISABILITY

AS THE BASIS FOR A PROHIBITED GROUND?

Courts must determine, inter alia, IF an actual or perceived ailment causes the
individual to experience the loss or limitation of opportunities to take part in
the life of the community on an equal level with others
excludes ailments (a cold, for e.g.) or personal characteristics (such as eye
colour)
TEST, onus on claimant to establish: (1) the existence of a distinction, exclusion
or preference,(here, dismissal & refusal to hire); (2) D/E/P based on enumerated
ground(3) Effect of D/E/P is to nullify/impair right to full and equal exercise of HRs and
freedoms, (4) onus on ER to demonstrate measure is justified b/c based on
aptitudes/qualifications required for job

MCGILL UNIVERSITY HEALTH CENTRE [2007] SCC 4.: Termination clause requiring an EE to
return to work w/in a fixed period of time after a leave of absence due to
illness/disability is prima facie discriminatory, and not a BFOR (b/c it impacted
people w/ disabilities)Diss Abella J -. The effect of characterizing these policies as
PF discriminatory, (i) less generous policies, (ii) encourages undertaking of
discrimination claims, iii) discourages ERS from incorporating such provs, iv) encourages
litigation, creates uncertainty in the alw, subverts private ordering

HYDRO-QUBEC 2008 SCC 43 OUTER LIMITS OF DTA

ER duty: To arrange the EE's WP/duties to enable EE to do her work, up to UH.
EE does not have duty to change working conds in a fundamental way
UH standard : To meet test, ER must show a) characteristics of an illness are such that the
proper operation of the business is hampered excessively OR b) EE remains unable
to work for the reasonably foreseeable future even though ER has tried to
accommodate EE.
Note: Ct is to assess accommodation globally from beginning of absence. not
from date of dismissal
COUNTY OF OXFORD, WOODINGFORD LODGE DTA MET - Keeping an EE's position open
indefinitely would have stretched DTA too far
T OLKO I NDUSTRIES 2014 ABCA 236 (DTA MET ) - ER must reinstate EE subject participation in
an accommodation program/ achievement of acceptable attendance record in
reasonable period of time; ER's challenges were not successful; FACTS EE
dismissed , missing nearly 650 days of work from 2003 until 2012 termination
KEAYS V. HONDA CANADA INC., 2008 SCC 39 DTA FULFILLFED
Hondas disability program was not discriminatory, provided accommodation for
EEs unable to meet ER's attendance requirements. Ct accepted monitoring
of absences was a bona fide work requirement and a legitimate disability
management tool.
ADGA GROUP CONSULTANTS V. LANE (2008) (DTA NOT MET)
DTA disabilities also extends to newly hired employees
Holding: EE failed to consider whether EE's disabilities could be accommodated,
discrimination was found and T awarded 80K in damages. Decision upheld on
appeal.
F: EE was terminated w/in 30 days of being hired when he began to exhibit manic
behaviour. He did not disclose he suffered from bipolar disorder. ER claimed that he
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was unable to perform the essential duties

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT, 2005

; legalized accountability model to impose policies on orgs for purpose of
reducing systemic discrimination, reducing disability based discrimination
claims
INTEGRATED ACCESSIBILITY STANDARDS REGULATION, O. REG. 191/11 (JULY 1, 2011)
REQUIRES ALL ORGS:
develop accessibility policy (except small bus > 50), train on requirements of
reg, notify of availability of accommodation in recruitment, inform EEs of
supports, document ind accommodation plans (except small bus), compliance
begins Jan 1/2014
Documented individual accommodation plans (except small business)

DRUG/ALCOHOL TESTING & DTA- SUBSTANCE & ALCHOL

ABUSE AS DISABILITY
IRVING PULP & PAPER, LTD., 2013 SCC 34 (WHETHER ERS DRUG POLICY IS JUSTIFIED?
When 1) WP is dangerous, 2) ER may test ind EE If there is reasonable cause to believe
EE was (a)impaired on duty, (b) was involved in WP accident/incident, (c)was
returning to work after treatment for substance abuse
ENTROP V. IOL(2000) (ONCA)
Substance abusers are protected against discrimination on the basis of disability, and policy that
sanctions EEs who test positive is PFD. ER must establishing P is a BFOR, i.e. legitimate business
need ;

F: ER not successful, test showed drug use, not whether EE was impaired.

IOL(2006)
Ratio: Random drug testing (w/o cause) impermissible in a unionized WP in circumstances
where CA contains dignity and respect clause protecting EE privacy. "For cause
testing" allowed pursuant to that clause. F: technology was oral fluid testing
claimed it proved current impairment
KELLOGG BROWN CO. (2007) (ABCA) (UNEQUAL PROTECTION AGAINST DRUG TEST UNION VS
NON UNION EES)
Ratio: A casual drug user, like the claimant, was not a PWD , thus not protected by law;
distinguished Entrop. Ct declined to consider if ER P policy would have been
discriminatory if it had been applied to a drug-addicted individual.

AGE DISCRIMINATION
MANDATORY RETIREMENT SCHEME ABOLISHED IN MOST PROVINCES. ANY SCHEME RE MR - APPLY
MEIORIN TEST
E XCEPTIONS INCL FIREFIGHTERS, PILOTS, JUDGES ETC
POTASH CROP OF SK 2008 SCC 45 (BFOR TEST RE: MR)
ER must show S/P is a legitimate plan, adopted in good faith and not for the
purpose of defeating protected rights (Abella J)(low standard)
Diss McLachlin J (STRICTER) i) purpose of adoptin rationally connected to
operation/sustainability of plan ii) must not impinge on right more than reasonably
necessary for plans O/S
MCCORMICK V FASKEN 2014 SCC 39:
I F HR CODES DO NOT APPLY , SUCH AS

IN A PARTNERSHIP , MANDATORY DISCRIMINATION IS

PERMISSIBLE

RACIAL DISCRIMINATION
RACE TEST - TO ESTABLISH A COMPLAINT OF RACE DISCRIMINATION, CLAIMANT MUST SHOW, ON A BOP,
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THAT RACE WAS A FACTOR IN EXPERIENCING ADVERSE AFFECTS ARISING FROM AN EMPLOYMENT
EXPERIENCE

Recent evidence that labour market discrimination persists, including higher

unemployment (10.5% vs. 7.% in gen ON), occupational segregation, lower
earnings for racialized Canadians (make 16.7% less than non racialized)

Context

(PROCEDURAL MISTAKE WRONG TEST APPLIED)

S MITH 2005 wrong standard applied, adjudicator failed to properly assess evidence
before him like that WP env was poisoned by racism ,misplaced emphasis on
motivation vs. RACE being a factor
QUERESHI V. TO BED 1990 - I NTERVIEWERS UNINTENTIONALLY FAILED TO PROPERLY CONSIDER
CULTURAL DIFFERENCES BT / W SUCCESSFUL COMPLAINANT & APPLICANT WAS
DISCRIMINATION ON PROHIBITED GROUND . C T SAID PL PLEADED DIRECT DISCRIMINATION
AND B OARD ANALYZED ON BASIS OF INDIRECT / ADVERSE DISCRIMINATION , OVERTURNED BY
CA
Dhanju (2007) (OGSBA)
Ratio: There must be a suffi ciently adequate evidentiary basis to sustain a claim.
Subjective belief is not enough
Held : Basis for finding of discrimination contrary CA/Code not made out
F: Claimant grieves he is deprived of MS Access training opp that will provide for career
advancement, MS Access support pos, b/c skills are being questioned due to racial
stereotypes and prejudice
Application : ...Reasoning on the basis of which the ER -- for eg: its decision to accept the
assessment of the consultant and/or Mr. Zehnle, its policy of never questioning the user, and
its decision not to confront the grievor and not allowing him a chance to challenge their
assessment -- that reasoning is not so outrageous to be unbelievable not complete
fabrications (which may have led to different finding); Adjudicator found that ER relied on
some non discriminatory reasoning (though may not have agreed with ER's logic) , finding of
racial discrimination does not arise...Union was very critical of manner in which ER made
decision
Johnson 2013 ONCA 502 (FOLLOWS DHANJU, RECORD DID NOT SUPPORT CLAIM)
[4] An allegation of discriminatory treatment in WP due to racism is a serious
claim...implicating the reputational and employment interests of the claimant & alleged
perpetrators...can also affect the dignity, self-worth and health of both the alleged victim
and those accused of racist conduct ..
F: Johnson is a trainer. His subordinate refused to take training from him. J believed it was b/c
of his race. He though ER failed to take steps to adequately address situation. J took approved
med leave. 2 yrs late, J resigned after refusing alternative assignments.
Conclusion: J genuinely believed he was a victim of racism in WP. I accept that his
perception... led to stress & mental anguish. However, evidence record does not support the
TJ's findings of racism, a work environment poisoned by racism & hence J's constructive
dismissal
PIETERS 2013 ONCA 396
R' S EVIDENCE OFTEN ESSENTIAL

TO ACCURATELY DETERMINING REASONS FOR DECISION / ACTION

LOTS OF EVIDENCE REBUTTING PFD ( LESS LIKELY PL IS SUCCESSFUL ) ; LESS EVIDENCE , CT
MORE LIKELY TO DRAW ADVERSE INFERENCES .

SYSTEMIC RACISM EVIDENCE PERMITTED TO ESTABLISH EVIDENCE OF WP IN RACISM, BOLSTERS

CLAIM

SEXUAL HARASSMENT & PAYMENT EQUITY

OHRC
3 forms of sex discrimination: sexual coercio n, solicitatio n, gender
harassment broadest form
Sexual Coercion: Unwanted Sexual Attention: solicitation
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Gender Harassment: (broadest) acts (comments, posts) in WP creating an env in
which people of a part gender feel degraded/ subordinated

Sexual Harassment
OHRC
PRINCIPLE OF VICARIOUS LIABILITY DOES NOT APPLY TO

SH CLAIMS OHRC S 46.3

Section 10 definition: engaging in a course of vexatious comment or conduct that is
known or ought reasonably to be known as unwelcome.
Section 5(2) right against harassment ; Usually a poisoned work environment sort of
situation.
Section 7: every EE has the right to freedom from sexual harassment in the
workplace by his/her ER, ERs agent or other EE. Right to be free from sexual
solicitations or advances made by a person in a position to confer or deny a
benefit where the person making the sexual advance knows or ought reasonably
to know that it is unwelcome
Robichaud v. Canada (Treasury Board) [1987] 2 SCR 84
pertains to issue of ER's responsibility under the federal Code for sexual harassment
perpetrated by a supervisory EE
Ratio: Canada Labour Code contemplates the imposition of liability, w/o a label, on ERs
for all acts of their EEs "in the course of employment" , to incentivize those in
a position to take effective remedial action to remove undesirable
conditions. Orders include: ER create ER creating accountability schemes that
seek to reduce and prevent discriminatory activities on part of EEs, thereby
reducing claims. (such schemes influence remedies and order issues)
Reasoning: i) Act should be read in light of nature and purpose, ii) central purpose of
Act, is remedial -- to eradicate anti-social conditions w/o regard to motivations/intentions of
those who cause them., iv) considers remedies ss41(2)(3)- "gen necessity for effective
follow-up, incl cessation of a DP
purposively interpreted as related in some way with the employment; under trad theories of
vicarious liability, ERS not liable for acts of EE committed outside fulfilling employment
responsibilities

Dept of National Defence strictly liable for actions of its supervisory

personnel/ Tribunal decision restored

WORK-FAMILY POLICY - LEAVES

ESA PART IXIV, - COMPLAINT DRIVEN SYSTEM FOR ENFORCEMENT OF LEAVE RIGHTS , ESO
INVESTIGATES COMPLAINT

LEAVES - PREGNANCY ,PARENTAL (35 WKS), FAMILY MEDICAL, PERSONAL EMERGENCY, AND OTHERS
RIGHTS OF EE ON LEAVE
Unpaid (EI for those who qualify), continuity of benefits, vacation protection, no
loss of seniority unless on probation, remedies for violations incl
reinstatement though rare
EI - Maternity benefits requisite elements identical to sick leave : 700 hours in the
last 52 weeks
Parental benefits - each of the natural parents of a new-born /adopted child
up to 35 wks of UEI by way of parental leave.
Violations of maternity leave provs: (1) wrongfully forced leave; damages remedy 2)
fi ring due to pregnancy or pregnancy leave; 3) failure to reinstate, without
justifi cation - (2)&3 remedy is reinstatement

OHRC WORK/FAM POLICY & FAM STATUS DISCRIMINATION

(ONHR CommReport) ground includes care relationships bt/w adult children & parents or spouse
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provide care to spouse w disabilities

JOHNSTONE 2014 FCA- FAM STATUS DISCRIMINATION TEST

Family status includes parental obligations engaging the parents legal responsibility
for the child, like childcare obligations (excludes family choices - like dance class or
sports).
HR leg requires an approach that favours a broad participation & inclusion in employment
opportunities for parents who wish/need to pursue such opps
TEST : To establish a PFD claim, claimant must on show BOP
(i) that a child is under his or her care and supervision - parents or individual
assuming legal obligations which a parent would have found at relevant time;
(ii) that the childcare obligation at issue flow from a legal responsibility , not a
personal choice - like duty not to leave child alone
(iii) that she has made reasonable efforts to meet those childcare obligations
through reasonable alternative solutions, and that no such alternative solution is
reasonably accessible fact specific and
(iv) that the impugned workplace rule interferes in a manner that is more than trivial or
insubstantial with the fulfillment of the childcare obligation
Defences? You don't leave child w woman who runs priv daycare down street b/c you're
not comfortable?

ER DUTIES
CML ER Duty to Pay Remuneration
PRINCIPLE To be entitled to Kual duty to pay, claimant must establish, (1) an
express or implied K to provide services for remuneration (EK or IC) (2)The existence of a
mutual obligation depends on (3)whether circumstances indicate an express or implied
understanding on both sides, inferred from conduct of parties .
Reeve v Reeve: Verdict for PL Implied terms of EK inferred from conduct of
parties.
PL hired by nephew to look after his farm for board, lodging and clothing. He brings an
action for unpaid wages. D's pleads there was no mention of wages.
Nickerson: No emplt relationship and duty to pay implied in situation where
daughter was living/caring for father for yrs and expectation to inheritance and estate
was disappointed. (Balfour - relationships of love and affection are not binding K)
Historically, CDN courts were loath to find EMPLT relationship & imply a duty to pay where
one fam member was working for another

QM FOR UR ABSENT A KUAL DUTY TO PAY, A CLAIMANT MAY BE ENTITLED TO RESTITUTIONARY

REMEDY If:
(1) Services provided in circumstances where clear that they were not intended to be
provided gratuitously (2)Conduct of recipient of services was proximate cause for
services being performed
(3) Would be unjust to allow recipient to be enriched by getting services for free
(TIMING) Absent express terms, remuneration is payable in arrears at the end of agreed-upon periods (which
may be implied as having been negotiated.). If a K before such period ended for a reason other than ER
breach, EE could not sue for remuneration for broken period of services rendered (Cutter)

(QUANTUM OF PAYMENT)- NO A WAGE AMOUNT MIN . K ENFORCEABLE SO LONG AS THERE IS (NOMINAL)

CONSIDERATION

(Stilk v. Myrick) - a promise to work harder does not constitute fresh

consideration for a promise to pay. EE has open ended commitment to work

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hard; arguably promise binds to fund. Diff T&C of EK offer

STATUTORY MIN WAGES ESA

ESA, PART V - PROVISIONS FOR TIMING AND MANNER OF PAYMENT
ESA, PART IX. S. 23 ER has a stat duty to pay at least the min prescribed wages (amount set by
regulation, no stat crit)

O. Reg. 285/01 s. 2 & 7 , ESA IX

sets multiple types of wage rates (students, servers etc.), changes min wage amts
Exemptions, Exclusions (for e.g. legal practitioners) - O. Reg. 285/01 s. 2 & 7 ,
ESA IX (ESA permits deductions for live in caregivers;)

ENFORCEMENT OF ESA
Complaint mechanism, MOL - Incidence of complaints doesn't reflect incidence of
violations or industry where there are most violations (vulnerable workers, less access,
not sophisticated)
Proactive mechanism , ENFORCEMENT BLITZES SO MOL targets industries where
most violations are found, for .e.g. blitz against hospitality industry over next three
months.
Prosecution: rarely occurs, ERS are usually prosecuted for failure to comply with issued
orders
UEE - G RIEVANCE A RBITRATION - Union brings a grievance to enforce ESA rights (s
99, ESA). ; NO INDIVIDUAL RIGHTS FOR UEE
N ON -U NIONIZED EE S may enforce ESA rights via: Administrative Process Ministry of
Labour, Employment Standards Branch or Court (usually where claim exceeds $10,000
or class actions)
CONDITIONS FOR MAKING COMPLAINT TO MOL
Complaint must be timely (ss. 111, 96(3), 114)
wage recovery, up to 6 months prior to complaint date s. 111(1)
Vacation pay recovery, 12 months prior to complaint date, s. 111(3.1)
Where repeat contravention of the same provision against EE extended to 12
months, s. 111(4)
Where fraudulent concealment may be extended (policy manual)
Other claims (i.e. not wage recovery or vacation) 2 years (s. 96(3))
SELF-HELP CONDITION REQUISITE TO MAKE COMPLAINTS96.1(2)(3)
Steps required before complaint assigned
96.1 (1) The Director shall not assign a complaint to an ESO for investigation unless the complainant has taken
the steps specified by the Director to facilitate the investigation of the complaint
Exception
Despite subsec (1), the Director may assign a complaint to an ESO for investigation even though C has not take
specified steps.

SITUATIONS WHERE EE MAY NOT BE REQUIRED TO TAKE THE STEPS SPECIFIED:

The employee already tried to contact his or her employer, or is afraid to do so.
The money owed to the employee became due five months ago or more (there are time limits
for recovery).
The workplace has closed down, bankrupt or in receivership
The reason is related to a OHRC ground.
The issue does not involve money.
The employee is or was working as a live-in caregiver, is a young worker, has difficulty
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communicating in lang spoken by ER, has a disability that makes it difficult to contact ER.
OUTCOMES OF COMPLAINTS
Voluntary settlements, ss. 101.1 (ESO assisted), 112
Issue order: (if ER does not agree to settlement)
Wages, s. 103 ($10,000 cap 103(4)) plus admin. costs
Where violation of leave provisions, reprisals, etc., compensation/reinstatement, s. 104 (not
monetary limit) plus admin. costs
Director Liability, s. 105 (not addressing here)
Compliance orders, s. 108
Notice of Contravention (Fines like parking tickets), s. 113 - (only issued where ESO deems
appropriate to sanction ER)
$250 per affected employee for 1st offence ; Can increase for 2nd and subsequent offences.
Tickets (Provincial Offences Act, Par IProsecutions ((Provincial Offences Act, Part )))
Challenging ESO Orders (or failure to issue order) , Apply to OLRB, Part XXIII, s 115.1 et seq.;
Board has same powers as ESO
Courts: EE not required to fulfill conds, like settling, of admin remedy when using courts to
enforce rights

SICK PAY/SICK LEAVE/FRUSTRATION

CML : ABSENT EXPRESS TERMS, EE HAS NO IMPLIED RIGHT TO SICK PAY OR NOTICE
STAT - SICK LEAVE RIGHTS
Unpaid Sick Leave ESA Section 50: [for employers of 50+ EEs]. An EE is entitled
to leave of absence w/o pay b/c of a personal illness, injury or medical emergency
up to 10 days.
CLC S. 239: No ER shall dismiss or discipline an EE because of absence due to illness
BUT subject to requirement
ER STATUTORY DUTY TO PAY / EE ENTITLEMENT TO PAY STATUTORY ENTITLEMENTS TO PAY
EE has stat entitlement to pay, in limited circumstances, such as workmen's comp
(if disability is work related) or sickness benefits under EI Act ; does not guarantee
job security
FRUSTRATION/TERMINATION
CML principle If K has become impossible to perform or frustrated by a fortuitous event
or circumstances, then EE has no right to termination/severance pay.
Stat Duty (ESA O.Reg 288/01, ss2(3)(4)) IF Frustration arises due to illness or
injury suffered by EE , then exclusion does not apply, EE retains right to
termination/severance pay/notice.
HRC: no frustration if EE can be accommodated up to UH
McGill University Health Center - ER has DTA, so an automatic termination clause for
workers who are off sick may violate HR law, but not all illness will trigger a DTA
under HR leg (APPLY QC v MTL at 33)
Ouimette v Lily Cups (1990)- HR disability ground does not protect temporary
illness, like flu, ERs probationary policy prevails in those circumstances
F.EE was absent for 3 days during first 29 days of work b/c of flu, had medical certificate,
terminated pursuant to ER unwritten policy that probationary EEs could be terminated for 3
absences while on probation, regardless of reasons
Decision: HRT found her situation did not fall w/in protected grounds. Flu was not a disability

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under HRC & to stretch the Code to include it as a temporary illness would trivialize the
legislation.
LEGAL REGULATION OF WORK HRS & OT
OT Principl e: OT entitlement triggers at 44 hours / week at 1.5 X wage rate
(provs for averaging over 2 weeks)

CURRENT LAW TIME WORKED IS TIME PAID, EVEN IF K REQUIRES ER AUTH TO WORK - REG 285/01, S 6
S 17(1) Maximum number of hours Up to 8 hours per day
Ss 17/18 Extended Working Day 8-13 hours without consent If you took job with these
terms, with : (1) written consent of EE / union consent , info sheet provided; (2) Director
approval
S 17: Extended Working Week 48 hours, extended to 60 with written approval from
EE, director approval and info sheet given to EE
S 22& 22(6) OT over 44 hours per week requires OT pay. but may agree to OT
averaging over 2 or more weeks unlimited period can be agreed to as long as ER has EE
and director approval, may not be revoked before it expires unless both sides agree
S 22(4)unrepresented, not exceeding 2 yrs; is renewable S 22(4)
Exemption for exceptional circumstances s. 19 - emergency, urgent repair, to
prevent interruption of continuous processes/seasonal operations, to ensure delivery of
public services
Exempt job classes, incl (IT) professionals - Reg 285/01
S. 8(B): EXEMPTION OF MANAGERIAL AND SUPERVISORY EMPLOYEES FROM OT CONDITIONS IN ESA
S.4(1): EXEMPTION OF MANAGERS FROM: S.17 (HRS OF WORK), 18 (HRS FREE FROM WORK) AND 19
(EXCEPTIONAL CIRCUMSTANCES) OF ESA
Eating Periods, s.20
Vacation Pay, s 33(1) minimum two weeks annual vacation every 12 months
Union OT after 44 hrs ; EE may agree to overtime averaging over 2 + weeks S 1(3)requires (1) EE's written consent or agent (union); (2) Director approval
CLASS ACTIONS (NEW ENFORCEMENT TOOL) CERTIFICATION TEST FOR MISAPPLICATION: Is there a
basis in fact for holding, class members perform similar jobs to render inquiry
into individual facts unnecessary?
McCracken 2012 ONCA. Ct did not certify. Supervisor positions at CN were not suffi ciently
similar to determine that individual Front line supervisors were managerial w/o
inquiring into ind facts
BMO Nesbit Burns 2013 ONSC - investment advisors were certified
Bank of NS, 20102 ONCA: Certified. All class members sales workers, so determination of
whether one was managerial would resolve status of all members. Leave to appeal
was denied.
CIBC 2012 ONCA Ceritifed. bank-wide policies & practices prevented EES from receiving
owed OT pay.
CB CONTEXT , ESA APPLIES (UNION AGENT FOR PURPOSES OF GIVING CONSENT), CONFLICTING
VIEWS

Approve OT - long hrs/lucrative rates very valuable to EE (socially undesirable)

Shorten work day - in union's interest, ER hires more workers, #s in BU increase(socially
desirable)

DUTY TO PROVIDE WORK: CML

DEVONALD - ABSENT EXPRESS TERMS OR STAT ENTITLEMENTS, ER MAY NOT HAVE A DUTY TO PROVIDE WORK BUT
HAS AN OBLIGATION TO CONTINUE TO PAY WAGES

Exceptions (Rubel Bronze ) : IF a person's remuneration is to be calculated (1)by

reference to number of things sold, or profit made by the EE, in addition to (2) specified
remuneration , a refusal to provide work, accompanied by payment of the set salary, will
amount to a repudiation of EK, entitling the employee to sue for damages.
Marb: Actress (PL) & D theatre comp enter into K, incl term that if she did not perform,

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she would be entitled to payment. Here D had an express duty to provide
work, & PL was awarded damages for BOK
PRINCIPLE
COURTS WILL READ IN TERMS RAISED FROM PRESUMED INTENTION OF PARTIES, THAT GIVE BUSINESS EFFICACY TO
K AND ARE REASONABLE WHEN LOOKED AT POV OF ER AND EE
Duty to provide work by Custom - must be notorious and reasonable to displace
ER duty to pay

REMEDIES FOR BREACH OF DUTY TO PROVIDE WORK CONSTRUCTIVE DISMISSAL

EE treats refusal to provide work (layoff) as repudiation , then sue for damages for failure to
give notice of termination that should have been given. To enforce this right, EE
forfeits possibility of being called back
TERMINATION FOR PURPOSES OF ESA IS ALSO TERMINATION FOR CML PURPOSES, DAMAGES CLAIM FOR
WRONGFUL DISMISSAL

Elsegood ONCA, 2011 ,

Ratio: s. 56(1) of the ESA operates to terminate an EE's EMPLT in law so EE can claim for CML
wrongful dismissal damages; ER has no CML right to lay off an employee. Absent contrary
express terms in K, a unilateral layoff by an employer is a substantial change in the EE's
employment, and would be a constructive dismissal

. DUTY TO PROVIDE WORK: ESA, PROVISIONS

ER HAS LIMITED STAT RIGHT TO LAYOFF TEMPORARILY WITHOUT PAY ; DUTY TO PROVIDE NOTICE FOR TERMINATION
FUNCTIONS OF STATPROTECTION FOR EMPLOYEES WHO ARE PERMANENTLY LAID OFF (NOTICE, TERMINATION
AND SEVERANCE PAY)
No protection for employees temporarily laid-off without pay
Patrols boundary between permanent and temporary lay-off to protect against abuse
Also, some protection against avoidance of notice obligations through reduction in work
week
S 56 1 WHAT CONSTITUTES A TERMINATION

56. (1) - What constitutes a termination: An employer terminates the employment of an

employee for purposes of section 54 if,
(a) the employer dismisses the employee or otherwise refuses or is unable to continue
employing him or her;
(b) the employer constructively dismisses the employee and the employee resigns from his or
her employment in response to that within a reasonable period; or
(c) the employer lays the employee off for a period longer than the period of a temporary layoff.
SECTION 56(2) DEFINES TEMPORARY LAY-OFF (FOR PURPOSES OF S 56(1)(C)

(a)a lay-off of up to 13 weeks in any period of 20 consecutive wks

(b)a lay-off of more than 13 weeks in any period of 20 consecutive weeks, so long as under
35 wks in any period of 52 consecutive weeks, and
(i) the employee continues to receive substantial payments from the employer,
(ii) the employer continues to make payments for the benefit of the employee under a
legitimate retirement or pension plan or a legitimate group or employee insurance
plan,
(iii) the employee receives supplementary unemployment benefits,
(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive
supplementary unemployment benefits if that were not so,
(v) the employer recalls the employee within the time approved by the Director, or
(vi) in case of non UEE ER recall EE within the time set out in an agreement between the
employer and the employee; or
(c)If EE represented by a trade union, a lay-off longer than a lay-off described in clause (b)
where the employer recalls the employee within the time set out in an agreement
between the employer and the trade union.

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An employee is considered to be laid off for a week if:

(3.1) s/he has a regular work week and s/he earns less then the amount s/he would
earn at his or her reg. rate AND the weeks is not an excluded week

(3.3) s/he does not have a regular work week but for more than 13 weeks of the 20
week time he is paid less than the average he would get paid in the 12 weeks
that preceded the 20 week period.
(3) excluded week means a week during which, for one or more days, the employee is not
able to work, is not available for work, is subject to a disciplinary suspension or is not
provided with work because of a strike or lock-out occurring at his or her place of
employment or elsewhere
Section 57: minimum periods of notice increase with the length of time a worker has been
employed
Section 58: Despite s.57, ER shall give notice of termination in the prescribed manner and
for the prescribed period if the ER terminates the employment of 50+ EEs at ERs
establishment in same 4-week period
Section 63: In addition to notice or pay in lieu thereof, the increasing incidence of plant
closures led to the provision of severance pay.
All of these protections are aimed at the situation where the K is terminated, not
suspended (temporary layoff).

DUTY TO PROVIDE WORK: COLLECTIVE BARGAINING

What is a layoff for purposes of triggering CA protections?(No analogy
in CB context)

JAMES HOWDEN & PARSONS, 1974

Ratio: Mgmt rights permit unilateral reduction of WH subject to CA. In CA , there is no
implied restriction on temporary layoffs, a guarantee of WH requires express lang
like
(there shall be no layoffs during life of CA")
NORTHERN ELECTRIC 1971
F: union grieves that some EES of office BU were told not to report to work for a few weeks due
to reduced workload
Ratio: Any period during which ER requires EE to cease working constitutes a lay-off and
attract the protections of the bargaining agreement
AIR-CARE 1974 SCC
Ratio: Management has a right to reduce work week during temporary work shortage
rather than impose lay-offs unless express terms to the contrary in CA
CANADA SAFEWAY; BATTLEFORD 1998 SCR
Ratio: Layoff is a specific type of disruption resulting from a cessation of work; is not
simply a disruption of ER-EE relationship. There must be a cessation of work to
constitute layoff, and therefore trigger CA protections. If EE substantially continues
to work same # of hours, then it is not a layoff
PARTIAL

ER DUTY OF GOOD FAITH

Duty to treat EE with a min level of decency ; abusive and unfair treatment is
Constructive dismissal abusive treatment (damages issue)
Duty to act in good faith and fairly in dismissa l (damages issue) (mental injury
damages for this BOD); does not extend to course of employment relationship
(Piresferreira)

MINIMUM STANDARDS, STATUTORY GOOD FAITH DUTIES (RESTRICTIONS ON MISTREATMENT EES CAN
SUFFER)
OHRC harassment on prohibited grounds (race, sex, gender). Liability for HR claim
OHSA WP violence & harassment. Remedy can be sought through arbitration WP
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has no policy
FACTS : P worked as Bell Mobility account manager for 10 yrs, began to receive
negative performance reviews from A (her supervisor), became increasingly abusive,
particularly towards P. A pushed her during a dispute. A required that M subsequently
report her daily activities. M lodged formal complaint, went on sick leave & never
returned. She experiences mental distress before dismissal, while employed
Analysis , No DOC held due to policy considerations
(i) legislature should create such a tort, (ii) resolution of tort would be an unnecessary
& undesirable intrusion by crts into WP, iii) double recovery concern, damages already
available for reasonable notice, iv) DOC so broad that it could apply indeterminately,
unduly restrict ER to maximize on purchase of their labour power
Ratio: There is no freestanding CML tort for negligent infliction of mental suffering. ER
does not have a duty to take care to shield an EE during course of her EMPLT from
acts in WP that may cause mental suffering. Good faith duy does not extend to
mistreatment during the employment relation

TORT LIABILITY - MENTAL INJURY CASE LAW , ROLE TO PLAY: ASSAULT, INTENTIONAL INFLICTION
OF MENTAL DISTRESS

Prinzo (2002) ONCA : Test for intentional tort of infliction of mental distress: 1) flagrant
or outrageous conduct; 2) calculated to produce harms; and 3) resulting in a visible
and provable illness. In Pieresfierra TJ overturned that 1 st element had been
met
Colwell (2008)ONS C: ER held liable for secretly placing camera in EE's offi ce, could not
provide valid explanation, and amounted to breach of implied ER GF duty/Courts
implied term in mutual duty of good faith/fair treatment through existence of K, as
well as during termination.
Jones v Tsige 2012 ONCA: recognizes tort for violation of privacy that amount to
intrusion upon seclusion. Elements: an intentional invasion, without
lawful justification, of the PL's private affairs, where a RP would regard
the invasion as highly offensive causing distress, humiliation or anguish
R v Cole 2012 ONSC: A teacher had a reasonable expectation to privacy, though PC
was ppty of school. Admin was informed that teacher's laptop had inappropriate
photos of one of the students. Case was decided on basis that admin had a stat
duty to report.

CB & DUTY

OF

FAIRNESS

limited to 3 circumstances (Palmer & Snyder): (1) ER has duty not to exercise
discretionary powers in an arbitrary/discriminatory bad faith manner . (2)ER duty to
act reasonably when adopting rules with disciplinary consequences. (3) ER has duty
to must exercise their discretion reasonably when to do so unreasonably would
undermine rights conferred by another prov of CA
Duty of fair K administration : most arbitrators reluctant to find this gen duty
Some CA impose duty on managerial auth to act reasonably & in good faith. (In
MB, imposed by stat)
Individual grievances for mistreatmentcrts will limit broad arbitral
interpretations

METROPOLITAN TORONTO (1990) ONCA

Ratio :Arbitrator may impose an implied duty on mgmt to exercise its managerial
discretion or rights fairly if to do so unreasonably would be to undermine the rights
conferred by some other provs in CA
FACTS : 6 EES grieve unilaterally imposed ER rule that amb drivers must use certain
emergency warning lights & sirens while responding to emergency calls . This was a
change from past practice where EEs could exercise discretion about the use of
lights/sirens in certain emergencies. No discipline had been imposed. CA provided
EE could grieve discipline/discipline imposed w/o reasonable cause. Claim is on
judicial rev
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Stelco Inc 1994 17 OR: Management decision made in good faith can be struck down as
unreasonable simply b/c it has the effect of undermining some other right in CA
St Joseph's Hospital 1997 ONCA :
No ER duty to provide clear reasons when exercising mgmt rights to alter long standing
practices

GENERAL EMPLOYEE DUTIES (IMPLIED TERMS OF EMPLT K)

STATUTORY CONSEQUENCES FOR BREACH OF DUTY
ESA, O.REG. 288/01, S 21(3) SUMMARY DISMISSAL FOR BREACH OF DUTY BY
WILFUL MISCONDUCT

An employee who has been guilty of wilful misconduct, disobedience or

wilful neglect of duty that is not trivial and has not been
condoned by the employee

CML DUTY TO OBEY

SUBSIST DURING EK ONLY, NO POST CONTRACTUAL SCOPE
LIMITS ON DUTY DOES NOT EXTEND TO UNSAFE WORK, UNLAWFUL WORDERS,
UNREASONABLE ORDERS

unsafe work - take a gun to a client's head

unlawful orders - dubious acts in securities trading
unreasonable orders - summer student asked to clean offi ce

BREACH OF DUTY TO OBEY & ENFORCEMENT PRINCIPLE / TEST

What constitutes a breach of duty? - acts of wilful and intentional defiance
not mistaken good faith attempts ;
Test to determine if ER was justified, ER must show act giving rise to
breach was
(a) of sufficient seriousness, wilful disobedience or misconduct to the lawful
and reasonable order of the master, (b) nature of the act amounts to repudiation
of K or an essential cond, justifies summary dismissal". If established, it's a
rebuttable presumption of prima facie disobedience. (c) Onus on EE to rebut
(Courts will consider (i) EE's, (ii) If ER took steps to resolve concern, (iii) EE's level
of personal liability in doing act)
Duty enforced through power of summary dismissal ;
EE can challenge as wrongful dismissal
DR MECHANISMS - STAT & CML
CML - Wrongful dismissal suits pursued to resolve disputes over whether order in
question is lawful & reasonable (includes questions on extent of EE's exposure
to personal liability)
OHSA , if 1 party as not terminated relationship-mechanism of internal
investigation of work refusals to resolve disputes of legality over unsafe work order
allegations
LONDON CHRONICLE 1959 2 ALL ER 285 (ACT WAS NOT WILFUL DISOBEDIENCE,MIS
FIRED ATTEMPT)
London Chronicles: EK terminable by 1 month notice. Ad manager is called into
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general meeting, is a bit intoxicated, and begins a dispute w general manager. EE,
despite being given order to say, refuses by leaves meeting with AM that hired her.
Next day, EE terminated w/o notice 3 weeks after starting for act of disobedience.
EE sues for wrongful dismissal
Application: (Misfired attempt) She followed her immediate superior who walked
out and asked her to follow. Conduct did not amount to deliberate disregard for
conds of service amounting to a repudiation. Order not related to her duties as an
ad rep
WALKER V BOOTH FISHERIES 1922
Holding : EE's conduct did not amount to wilful disobedience / He was obeying
the spirit of his instruction. He cashed a client's bad cheque after
consulting with person that ER sent to assist him. ER suffered no losses
b/c client eventually paid for goods ER company shipped.
BOUZOUROU/CHAKARIAN 1930 PC 9 (ACT OF DISOBEDIENCE DID NOT AFFECT EES SAFETY)
Ratio: EE may refuse an order to work where it affects his or her safety
Bouzourou: ER's order threatened physical safety of EE; Chakarian, Court held
that EE's excuse for refusing to go to Mersina did not involve eminent
danger, i.e. unfavourable attitude of Turkish auths

CB DUTY TO OBE Y
GENERAL PRINCIPLE - EE HAS A DUTY TO CARRY OUT AN ER'S ORDER, & SHOULD
GRIEVE ORDERS THAT SHE BELIEVES VIOLATES THE CA.
EXCEPTIONS IF NOT EXCEPTION , REFUSAL TO OBEY = SUBORDINATION SUBJECT TO
DISCIPLINE

(affects health & safety), (incl a reasonable belief)

unlawful, (incl a reasonable belief)
order given to union offi cial who determines refusal is necessary to
attend to union matters & avoid the irreparably harming EEs they
represent,
or violates privacy, like refusing a personal search unless established
as implied term of EMPLT (Comco Metal Products)
about personal appearance (unless situation easily remedied by EE by
tying hair back or purchasing article of clothing) (UBC Health Sciences;
Pavaco Plastics)
Reasonable excuses - ER provoking EE or "reasonable religious
beliefs" (Douglas AirCraft; Hayes-Dana)

BREACH OF DUTY & ENFORCEMENT

EE may be subject to discipline or discharge (Union can grieve discipline or
discharge)
DR Mechanism - adjudicatory parties can invoke to have neutral TP to
determine whether ER had a duty to obey order given

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Ford Motor Co 1976 (Work now, grieve later)
INDUSTRIAL PLANT IS NOT A DEBATING SOCIETY. ITS OBJECT ITS PRODUCTION. WHEN CONTROVERSY
ARISES, PRODUCTION MUST GO ON AND SHOULD NOT BE STOPPED UNTIL CONTROVERSY IS
SETTLED. AUTH IS VESTED IN SUPERVISION
General Motors Kimberly- EES NOT LIABLE FOR INSUBORDINATION REFUSAL
TO WORK OT , UNLAWFUL ORDER TO WORK OT W / O PERMIT
F: ER instituted longer working hours, and EEs walked off during extended shift,
and ER disciplined EES through suspension for disobeying a lawful instruction.
Union argues EEs entitled to refuse immediately. ER had no permit
Rules: (1)If CA is silent on requiring that EEs work OT, the company has
an implied right assign compulsory OT, which is consistent with the OT
references and rates of pay for such work as set out in the CA.
Decision: EES were not liable for insubordination b/c ER was acting unlawfully by
instituting OT hours w/o a permit under ESA

CML DUTY TO EXERCISE SKILL & CARE

PRINCIPLE : WORKER IS UNDER AN IMPLIED DUTY TO EXERCISE SKILL THAT DOES
POSSESS & CARE, BUT
ER DOES NOT HAVE AN IMPLIED WARRANTY THAT WORKER HAS REQUISITE SKILL,
PROBATIONARY PERIOD TOOL ER USES THIS PERIOD TO MAKE BONA FIDE DETERMINATION THAT
EE HAS REQUISITE SKILL TO PERFORM JOB
ER'S REMEDIES FOR BREACH OF DUTY - DISMISSAL, SUMMARY OR WITH NOTICE
Summary dismissal (breach is wilful OR if non-wilful neglect resulting
in damages)
Dismissal with notice (breach is non-wilful; if EE summarily dismissed ,
then entitlement to damages for failure to give reasonable
notice)
ROLE OF TORT IN EMPLT LAW
Lister v Romford Ice & Cold Storage (1957)
EEs liable to EER for neg acts causing damage & ordinary neg for whom ER
was vicariously liable(UK)
(Canada - liability restricted to skilled workers)
Douglas Kinger (2008) ONCA
FACTS : Insurance comp of homeowner, indemnifies HO & against client's
instructions, brings abrogated action against a 13 year old that HO hired to
perform cottage chores incl a gas powered lawn mower. He lit a match when
fuelling the lawn more w/o adult supervision, & HO's boathouse was
destroyed.
Ratio: EEs are not liable to indemnify employers for ordinary
negligence absent express K terms regarding indemnity

CB DUTY TO EXERCISE SKILL & CARE

PRINCIPLE EE HAS DUTY TO EXERCISE OF SKILL & CARE (COMPETENCE)
CONSEQUENCES OF BREACH
Discharge / discipline (for wilful neglect of duty or unsatisfactory performance)
Discharge - generally for very graduated forms of breach by wilful neglect.
Adjudicator may substitute lesser sanction if appropriate

UNSATISFACTORY PERFORMANCE ACT OF BREACH, TEST TO ASSESS APPROPRIATENESS

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OF SANCTION

If act giving rise to breach by wilful neglect is unsatisfactory;

(1) Does ER have right to establish stand,
(2) Is standard reasonable,
(3) What CA / stat protections apply to consequence faced by EE?
Is managements practice subject to OHRC, OHSA (implied limits of CA)
Aro Performance standards must be reasonable ; otherwise discipline
or discharge not justified. EE can an only be expected to perform job
at level of a reasonably able, skilful and effi cient worker of the same
classification (Aro) ; If standard reasonable, then EE is subject to
discharge/discipline according to statutory & bargaining right
protections;
includes statutory notice entitlement or seniority rights
A RO C ANADA L TD . (1975 ) TEST WHETHER MANAGEMENT PRACTICE
REASONABLE; EE CONDUCT
Facts: Female EE was a store-keeper helper. She was laid off & then
recalled. ER sets performance standard that she must independently
carry 85 lb box climbing down a ladder. She was dismissed for being
no longer able to do job. Previously, there were male workers to
assist with this task
Ratio(s ) "Unless CA provides otherwise, management has a presumptive
right to determine the qualifications, and in doing so they
must act (1) reasonably, (2) and not in a manner that interferes
with seniority rights nor is arbitrary, discriminatory or in bad faith.
Test : To assess qualification/capability of an EE to perform a
particular job is that of the ability of a reasonably able, skilful &
effi cient workman of the same classification; (excludes a standard
only a minority of workers can achieve)
Decision ERS determination of EE ability not reasonable; ER did not have just cause to
discharge EE. EE awarded reinstatement w full seniority, compensation for lost
wages less severance pay.

ARO CANADA LTD. (1988) COULD ALLEGATIONS OF INCOMPETENCE BE ALLEGED BY ERS

UP OTHER REASONS FOR REASSIGNING OR DISMISSING

TO COVER

EES?

RATIO: LABOUR BOARD MAY EXERCISE DISCRETION TO SUBSTITUTE AN IMPUGNED

DISCIPLINARY PENALTY FOR A LESSER SANCTION IN PRESENCE OF MITIGATING
CIRCUMSTANCES WHERE ACT OF MISCONDUCT ON PART OF EE WAS PROVOKED.

FACTS: EE needed assistance removing a heavy package from shelf while

climbing down ladder. She had diffi culty lifting package from floor.
Supervisor said you see what I mean about needing a man. She cursed
at EE and was disciplined A TP EE corroborated EE's response.
Supervisor denied and then partially admitted in cross examination.
Rule: Absent exceptional circumstances, use of foul language towards a
supervisor merits discipline. Mitigating circumstances to
displace use of discipline?
Conclusion: Discipline substituted when taking into account gravity of
misconduct in light of supervisor's utterances provoking abusive
language, & weight to EE's disciplinary record to insofar as relevant,
which is the subject of this grievance.

DUTY OF GOOD FAITH AND FIDELITY (VERY MUCH SAME IN CB)

PRINCIPLE - IMPLIED DUTY OF GOOD FAITH/FIDELITY OF EK, THAT EE NOT TO ENGAGE IN
CONDUCT THAT HARMS ER'S (FINANCIAL) INTERESTS
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WHAT CONSTITUTES A BREACH?
Dishonesty (eg. theft, fraud, etc) ; Solicitation of ER's clients (during work or
leisure time) (Wessex - milkman soliciting ER's clients on paid time)
Post - employment
Disclosure of confidential business info -(excl publicly accessible info)
(Faccenda)
Manager organizing mass departure of EEs (RBC v Dominion)
Working for a competitor during time off depends, ER must demonstrate
act gives rise suffi cient to constitute as a breach
(if ER is a monopoly; If competitor is a startup; technology/innovation, EE's
level of skill/expertise, access to confidential information) (Hivac)
Limits
Not breaches post-employment use of knowledge & skill acquired while in
service to ER
OR Lesser forms of dishonesty (depends)
Post-Employment? : (following are not within scope of GF duty, not breaches)
(1) Taking list of clients upon departure, unless client data or files (RBC)
(2) Acceptance of other EMPLT offers while employed OR informing ER of offer
terms,subject to K expiration OR duty to give notice .
(3) Establishment of same business as ER unless clients solicited before
depature
(4) TO compete or not to solicit clients post-employment (RBC)

REMEDIES ; DAMAGES OR DISMISSAL FOR BREACH OF DUTY OF GOOD FAITH AND FIDELITY

CASES
Hivac [1946] ER CA
F: P made midget valves for hearing aids, believe they had monopoly on prod.5
manual workers of Hivac work for D comp in their spare time. P seek injunction
against EEs working against comp. TJ refused .
Ratio : Scope of duty of fidelity is a factual determination and depends on
the nature of the employment (like law clerk working for another
lawyer) and the timing of impugned acts (leisure time or spare
time)
Decision: Injunction granted (1) Conduct of EES morally reprehensible & did not
disclose (2) very skilled manual labour that assisted D comp in business
start-up (3) D benefiting from technology improvements that PL comp
uses through EEs (4) EEs will not experience hardship if cannot work for
D comp

CONFIDENTIAL INFO TEST (TRIVIAL, TRADE SECRET, OR TRADE

SECRET NEVER TO USE)
Contextual approach to determine if info in question is confidential :(Faccenda
Chicken)
a) higher duty if EE habitually handles confidential information
b) nature of the information - trade secret or equivalent? Publicly accessible?
c) whether the employer impressed upon the employee the nature of the
information
d) whether relevant information can easily be isolated from other disclosable
information

Barton Insurance Brokers, 1999 BCCA Absent express non solicitation clause
or EE is a manager or senior director in a situation of manifest
unfairness, an investment advisor owed no duty to refrain from doing.
Public interest in FOC required that courts are careful to impose duty.
RBC Dominion 2007, BCCA v Merrill Lynch Canada ; Held There was a
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limited breach of confidence due to removing of various documents,
excluding communication w clients
F: ML and its local manager induced sev RBC EES to leave ER to joint ML and take client info. RBC man
orchestrated departure. RBC sued ML/former EES & partially successful.

DUTIES OF DEPARTING FIDUCIARY EES

Subject to reasonable notice, Fiduciaries are not prohibited from establishing
competing business w ER, had not solicited A's clients, had not appropriated
A's business opps for themselves while A's EEs. (Aquafor)
FACTS : 3 prof engineers, partners at Aquaford, started their own firm. While employed,
set up their firm, leased space, prepared business plan, on their own time, informed
some clients they were leaving. After leaving, they sent out notice, announcing new
business using list obtained from public sources. Aquafor sued.
POST-EMPLT DUTY BREACH TEST
Breach of post-employment GF duty if breach causes damage to the ER
after K has terminated
EXTENDING GOOD FAITH DUTY TO ER ? ORGANIZING PRINCIPLE OF GOOD FAITH
Bhasin Hrynew 2014 SCC : organizing principle of good faith that parties
generally must perform their contractual duties honestly and
reasonably and not capriciously or arbitrarily. (para 63 )
Application EMPLT context? ERS have a duty of good faith in manner of
termination, , could extend to performance of EK over course of emplt
relationship?

RESTRICTIVE COVENANTS

& (ELSEY 1978 2 SCR)

ANALYSIS TEST TO APPLY

Courts recognize reasonable protection of trade secrets, confidential
information and trade connections to ER . First ask, whether it is reasonable
between the parties and with reference to the public interest ?(Elsley)
Apply Nordenfeldt Rule: Unenforceable unless, the following critieria
met:
1) Protecting a legitimate proprietary interest of ER?
2) Being reasonable in terms of a) temporal length, b) spatial area covered,
c) nature of activities prohibited d) overall fairness.
3) being clear, certain & not vague, not overly broad
4) being reasonable in terms of the public interest
IF non-compete clause is UNENFORCEABLE absent exceptional
circumstance s
WARRANTED IF effect of establishing own business/ working for a
competitor would be likely to appropriate ER's trade connection
through EE's acquaintance w custs
IF ENFORCEABLE BUT FOR BROAD LANG OF PROV, courts will not save
it (Staebler)
Staebler (2008) ONCA RC was a non-solicitation & non compete clause . S did
have a ppty interest to protect its book of bus, but RC was overbroad in
geo scope (limitless) & space (years), so invalid & not enforced

KRG Insurance Brokers, [2009] SCR - : Courts may allow "blue-penci l, but
not notiona l severance to save a RC for policy reasons (LOOK to right if
necessary)
(Globex Forein Exchange 2011 ABCA) RC may be unenforceable if

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ambiguous, lacks additional consideration for RCs signed by existing
EES, or enforced against wrongfully dismissed EE
Creston Veterinary Clinic Ltd., 2014 BCCA - RC characterized as
unenforceable as an unenforceable RC b/c language "setting up a
veterinary practice was ambigious", . RC held EE liable for liquidated
damages if breach
Facts : Dr entered into K w/ vet clinic after graduating from vet college &
obtaining license to practice; also agreed that if she set up a practice
w/in a 25 mile radius of the clinics place of business she would pay
$150k w/in 1 year of termination of K, 2 yrs - 120K, 3 yrs - 90K

REMEDIES : DAMAGES AND INJUNCTIONS

Poleyresins Ltd . INJUNCTION RULE
Rule: To grant an interlocutory injunction
(1)PL must establish prima facie that EE has breach GF and fidelity duty.
(2) Court: Is injunction necessary to prevent irreparable harm, not
compensable through damages?
Conclusion: PL established strong PF case. IIJ necessary b/c PL will suffer
irreparable harm if secret not protected now as much as possible.
Once competitive advantage is lost re products involved, it may
never be regained.
Inventions
Comstock Canada1998 - There is presumption that the invention belongs to the EE except 1) where
there is an express Kto the contrary; 2) where the individual was hired for the purpose of inventing

WHISTLEBLOWING - JUSTIFIED BREACH OF DUTY OF GOOD

FAITH & FIDELITY
CB vs. IEK
IEK: ER may not terminate w/o notice, or deprive advancement
opportunities for whistleblower
CB: protects against discipline OR discharge w/o just cause through
grievance process for whistleblower

ANALYSIS: (1) IS ACT IN QUESTION A BREACH OF DUTY OF GOOD FAITH AND FIDELITY?
(2) IF YES, WHAT IS THE CONSEQUENCE OR LIABILITY THAT ATTACHES TO THE
IMPUGNED ACT?
MERK 2005 SCC - PRIVATE SECTOR)
Rati o: EE may be justified in breaching duty of loyalty by publicly exposing
ER's wrongdoing IF (1) they first try to resolve the matter internally ,
"up the ladder" approach
Facts: Respondent trade union seeking to narrow EE protection given to EEs under by whistleblower leg
in s 74 of Labour Standards Act. Merk blew whistle on financial abuses committed by by superior U
members. Bus manager was double charging expenses to his ER credit card despite having already
received advances. M terminated, and wrote to president directly of union.

FRASER , 1985 SCC PUBLIC EES TEST FOR WHETHER BREACH IS JUSTIFIED
A public servant's duty of loyalty trumps FOE right unless statements were
(1) a public interest exception (health & safety dangers)or (2) do not hinder
ability of EE to perform duties (like damaging relations with superior by
revealing impartial policy implementation )
DUTY OF GOOD FAITH AND FIDELITY CB CONTEXT
(CB Context) Test for determining whether discipline for breach of a rule was
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warranted?
Whether the imposition of discipline for a breach of rule must be reasonable/for
just causer; (2) Rule relied upon must be consistent w CA, clear, known
to EE, and reasonable
Re Gray's Department Stores
Retail EE who sold men's clothing was dismissed for setting up a competing
business b/c he was in conflict with obligation to sell for ER.
Arbitrator found breach warranted discipline not dismissal. No
defence he that he had not solicited ER's customers.
Tolko 2013 BCLA - A union official's breach of duty of good faith is not justified
when act of insubordination committed in relation to pursuing a conflict issue
F: EE, union official was suspended for 1 day for saying "This is bullshit" during a heated discussion
about ER's unilateral adoption of a new drug policy and UO contesting the implementation process.
Held: Union offi cial had been insubordinate to order not to pursue further.
the appropriate forum for pursuing ER-EE conflicts was through CB
or a policy grievance, rather than at an information meeting

TERMINATION OF EMPLOYMENT RELATIONSHIP

IS EE ENTITLED TO NOTICE FOR TERMINATION

DID ER BREACH REQUIREMENT TO GIVE NOTICE OR PAY
IN LIEU OF NOTICE
DAMAGES COMPENSATORY (USE BARDAL ABSENT
EXCEPTIONS); AGGRAVATED (INDEPENDENT TORT;
MENTAL INFLICTIONS? PUNITIVE?

FAULTLESS TERMINATIONS WITHOUT NOTICE

BY TERM OF K FIXED OR INDEFINITE?
If fixed term contract, there is no need to give notice (CML & ESA).
O. Reg 288/01 s. 2(1)1.: ESA says EEs hired for definite term are
not entitled to statutory notice periods
Ceccol v. Ont. Gymnastic Federation: concern about evasion of common law
and ESA notice obligations
Ratio : Where K of fixed duration or recurring renewals, the K must contain
express clear and unequivocal language to enforce such a K . Any
ambiguities will be strictly interpreted against ER
interests(deviating from the norm)
FRUSTRATION OF K (CML): A K will be terminated due to frustration where it
has become impossible to perform due to a supervening unforeseeable event,
its terminated at the time the K becomes impossible to perform, no notice is
required.
If RISK foreseeable, then ER bears the risk, duty to pay applies
(Devonald).
Temporary illness does not frustrate the K (Storey); perm disability
does (Marks)
OHRC, DTA reduces the scope of frustration argument in health, illness
disability
No EE entitlement sue for wrongful dismissal where risk is foreseeable.
Managerial EE was terminated by ER who ceased operations due to
strike, could not claim damages b/c event was NOT foreseeable. (O
Connell)
BY

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FRUSTRATION ESA
O. Reg 288/01 s. 2(1)4: EEs whose employment Ks are frustrated by
fortuitous or unforeseen events are not entitled to minimum notice
periods . This exemption does not apply in mass terminations (50 or more
EEs)
Also, s. 2(3) provides that the doctrine of frustration does not apply
where illness or injury prevents an EE from working temporarily
[illness = notice]

BY

BY

BANKRUPTCY DOES NOT TERMINATE EK PER SE ;DOES EXTINGUISH ENTITLEMENT TO

NOTICE FOR TERMINATION (RULES GOVERN EE PRIORITY AS A CREDITOR)

BY

DEATH OF EITHER PARTY TERMINATES THE K BUT DOES NOT EXTINGUISH PARTIES RIGHTS
WHICH HAD VESTED TO THAT POINT (E.G. ACCRUED WAGES)

BY RETIREMENT - NOTICE IS REQUIRED WHERE MANDATORY RETIREMENT DATE ENDS EMPLOYMENT

OHRC restriction - age is not a ground for termination without notice

TERMINATION BY NOTICE (BY EITHER PARY GIVING

APPROPRIATE NOTICE)

DISCHARGE OF EE W/O WITHOUT NOTICE OR JUST CAUSE IS A BREAK OF EK GIVING RISE TO A

CLAIM IN DAMAGES

EXCEPTIONS
(reasonable) customary practices operating in lieu of giving notice
for termination (Scapillati ), like construction workers, also excluded
from ESA
Parties may specify the notice period, not less than ESA, or will be
of no force and effect - Machtinger

No duty to have regard to other partys interests, court will

enforce notice entitlement of express termination clause, unless
below ESA Cornell Engineering
Principle of unconscionability applies
SPECIFIC FACTORS IN CALCULATING NOTICE PERIODS
Upper limit for notice period: 24months (Macpherson)
ABSENT EXCEPTIONS ABOVE, COURTS USE

BARDAL FACTORS FOR CALCULATING

(level of care, skill,

position of individual)
LENGTH OF SERVICE , - not primary factor (Cronk), bears some weight
(Honda)
AGE OF EMPLOYEE ,
AVAILABILITY OF SIMILAR EMPLOYMENT relates to economic downturn
APPROPRIATE NOTICE CHARACTER OF EMPLOYMENT

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Courts used balance approach, interpret economic downturn from ER

& EE perspective - Bohemier v Storwal International Inc (198 2)

CONSIDER:
Ballpark justice largely rejected as ground for penalizing workers in costs;
EE is penalized for costs of he rejects a settlement offer w/in range of
reasonableness
Near cause not a considered factor in calculating (reduced) notice periods

DAMAGES (NO CLAIM FOR MENTAL DISTRESS OR OTHER

FORESEEABLE LOSS_
(1) EXPECTANCY/ COMPENSATORY DAMAGES FOR BREACH OF OBLIGATION GIVE
REASONABLE NOTICE;

MEASURE OF DAMAGES: WHAT EE WOULD HAVE EARNED DURING NOTICE PERIOD

(VORVIS)
(2)AGGRAVATED DAMAGES FOR BREACH OF ER DUTY OF GOOD FAITH IN MANNER OF
DISMISSAL OR FOR AN INDEPENDENT ACTIONABLE WRONG(VORVIS ;ADDIS)
freestanding tort. Statutory tort of discrimination? open
intentional infliction of mental suffering subject to discharging onus on
BOP (Keays)

RECALL Hadle y, ER may be liable for injury within the contemplation of

the parties
In principle, ER is liable for damages breach of GF duty (Keays)
BREACH OF REASONABLE EXPECTATION OF FAIR TREATMENT IN MANNER OF DISMISSAL
PRINCIPLE (TO ESTABLISH INFLICTION OF MENTAL SUFFERING) (WALLACE)

a) The EE must demonstrate a breach of these reasonable expectations :

attacking the EEs reputation by declarations made at the time of dismissal;

misrepresentation regarding the reason for the decision, dismissal meant to
deprive the EE of a pension benefit, etc. it doesnt have to be intentional.
b) Look for: unfair / bad faith/ misleading / unduly insensitive
c) HOW TO RECOVER: The EE need to prove that the manner of dismissal
[the breach of reasonable expectations] caused mental distress that was in
the contemplation of the parties, like harm to reputation. Hurt feelings,
distress doesnt count

PUNITIVE DAMAGES , CLAIMANT MUST PROVE ACTIONABLE WRONG INVOLVING TORTIOUS

BEHAVIOUR ON PART OF ER (KEAYS)
Criteria : Impugned action must the following

Standard of behaviour is morally reprehensible (Whiten);

outrageous acts deserving of punishment on their own (Keays)
independent actionable wrong or breach of K (Vorvi s)
note breach of good faith duty in manner of dismissal qualifies.
Are punitive damages rationally required to achieve goal of
punishment, retribution, deterrence ? (a) is the deterrent impact of
compensatory (expected and aggravated damages) suffi cient? (b) If no,
what is the quantum? In Walmart, conduct of Pinnock especially bad.

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REQUIREMENT TO PAY FOR DAMAGES IN LIEU OF NOTICE SUBJECT TO CML
DUTY TO MITIGATE (EVANS)
applies to both constructively dismissed and wrongfully

dismissed EEs who are to make reasonable effort to mitigate the

damages by considering the new job.
Reasonable efforts test - in not pursuing an employment option
that was available: What would the reasonable person have done in
these circumstances? [subjective factors considered: work
atmosphere, stigma, loss of dignity & tangible elements]. ; history &
nature of employment, timing of offer
Mifsud v. MacMillian Bathurst RP should mitigate with old ER IF:
the salary offered is the same,
the working conditions are not substantially different
the work is not demeaning
personal relationships involved are not acrimonious

CONTRACTUALL FIXED NOTICE & ESA - NO DUTY TO MITIGATE

EI not considered in calculating notice entitlement ; may be duty

of EI recipient to report pay received in lieu of notice

MIN. TERMINATION NOTICE PROVISIONS - ESA:

s. 57 (termination) - From 1 (min) to 8 (max) weeks, based on length of

employment
Note exemptions in O.Reg. 288/01 s. 2
s. 58 (mass termination)
50 EEs or more in 4 weeks
S.58 & O.Reg. 288/01, s. 3
Extended notice periods for affected workers
Duty to provide information to MOL
Unions will often try to negotiate something in addition to min
requirements, something that will benefit the community and ease the
transition that will occur as a result of that significant change
s. 64(1) (severance in addition to notice; separate entitlement)
Requires:
Five years job tenure and either :
Permanent discontinuance resulting in 50 or more EEs being terminated
in 6 months OR (B) Payroll of 2.5 million
Equivalent to 1 week for each year up to 26 weeks

ENFORCEMENT OF ESA CLAIM

NON-UNION ESB OR COURT
($10 K MAX, NOW REMOVED OR NO LIMIT, DUTY TO MITIGATE RESPECTIVELY)
NON-UNION GRIEVANCE ARBITRATION (OLDER CASE LAW - EES COULD PURSUE EE
VIOLATIONS IN CRT)

TERMINATION BY ACTION OF EE
VOLUNTARY QUIT NOT ENTITLED TO NOTICE BUT MUST GENERALLY PROVIDE ER W
REASONABLE NOTICE , OTHERWISE LIABLE IN LAW, CUSTOMARILY IS 2 WEEKS ,
REQUIRES SUBJECTIVE INTENT & CLEAR UNEQUIVOCAL BEHAVIOUR
Dowling Red & White - ambiguous resignation, conduct like walking out in
the heat of the moment is not usually suffi cient evidence to
demonstrate intent
CONSTRUCTIVE DISMISSAL OR QUITTING FOR CAUSE
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Basic principle: Where one party to a K demonstrates an intention, like

an objectionable act, no longer to be bound by it, that party commits
a fundamental breach resulting in its termination. The EE decides
whether they want to accept that repudiation . (Farber v. Royal Trust)
What kind of actions on part of ER constitute such a fundamental
breach?
Changes to job content/status - like demotion
Changes to compensation structure
Changes to job location
Changes to notice entitlement -If ER wants to introduce new notice
prov that will be reduced notice entitlement or change existing Kual
notice entitlement to a short one, can constitute a repudiation
Employee options: accept change (not binding in absence of fresh
consideration),
Reject change in cond, treat as CT; OR reject and stay Wronko
Reject and stay change in notice entitlement, EE rejects, sues
on original K

Duty to mitigate by staying with ER, failure to do so, deduction of

what EE would have earned had they stayed from notice award.
(Lohl)RARE court would reasonable way to mitigate is to stay under
changed conds
.
O. Reg. 288/01 s. 2(1)5: EE who is terminated after refusing a
reasonable offer of alternative employment is not entitled to
notice.

TERMINATION FOR CAUSE CML PRINCIPLE ( DISENTITLES

APPLICABLE EES FROM ESA NOTICE ENTITLEMENTS)
Just Cause includes: dishonesty, insolence and insubordination,
disobedience, lateness and absenteeism, incompetence,
improper conduct outside the workplace, permanent illness
or disability, disruption of corporate culture, alcohol/drug
abuse, conflict of interest, or sexually harassing behavior

ER CAN TERMINATE EMPLOYMENT RELATIONSHIP WITHOUT NOTICE FOR JUST

CAUSE. EE COMMENCES WRONGFUL DISMISSAL CLAIM, ESTABLISHES PRIMA FACIE
DISMISSED WITHOUT NOTICE; ONUS SHIFTS TO ER TO SHOW TERMINATION WAS
FOR CAUSE
ER ESTABLISHES ON BOP (1) BREACH OF EE DUTY; (2) BREACH OF SUFFICIENT
SERIOUSNESS (COURT CONSIDERS RECORD OF EMPLOYMENT )

(Laws) Not every act of disobedience constitutes grounds for summary

dismissal .
Mckinley: same scenario, but case of dishonesty. EE suffered a medical

condition and wanted to return at modified work. In trying to get ER to

agree, EE failed to fully disclose information that was provided to him
(Callen) At CML, can ER disciplinary suspend EE w/pay courts
reluctant
CB

WOULD INCLUDE DISCIPLINARY AND NON-DISCIPLINARY LAYOFFS FOR REASONS THAT ARE ACCEPTED IN
THE SCHEME

ESA - WHERE THERE IS DISMISSAL FOR JUST CAUSE, THIS DISQUALIFIES EES FROM
STATUTORY ENTITLEMENT REG 288/01 LIST OF EES NOT ENTITLED TO NOTICE
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UNLAWFUL TERMINATION TAKE PLACE IN CONTRAVENTION OF STATUTE FOR E.G.
REPRISAL CONTRARY TO STAT DUTIES OF ER; COMPENSATORY DAMAGES OR
REINSTATEMENT CAN BE ORDERED BUT RARE

DUTY TO BARGAIN IN GOOD FAITH

STAT BASIS FOR DUTY TO BARGAIN IN GOOD FAITH - SECTION
17/18

LRA: MEET WITHIN 15 DAYS OF GIVING NOTICE UNLESS PARTIES AGREE TO A DIFFERENT
TIME

PURPOSE : GIVES EFFECT TO RECOGNITION OF UNION AS EXCLUSIVE BARGAINING AGENT &

PROMOTE DISPUTE SETTLEMENT

Good faith and make every reasonable effort: NOT A DUTY TO AGREE
No obligation to compromise each party can pursue its own
vision of what is best for themselves.
CB is a procedural, not substantive right. Each party can pursue
their vision in a hard-headed manner. Failure to agree
conciliation process.

SURFACE BARGAINING AND HARD-HEADED BARGAINING

Surface bargaining go through negotations w/o intent to reach CA; hard

bargaining firmly held and well explained position

DE VILBISS [1976] OLRB DETAILS OF SURFACE BARGAINING. BOARD CAN ORDER ER

TO ACT IN GOOD FAITH, BUT WILL BE RELUCTANT TO POSE AGREEMENT
Was it diffi cult to obtain ER cooperatio n in the certification process?
Is the ER prepared: did the ER bring the union the information they
need (and should now have access to) in order to come to an agreement
[i.e. wage rates]
If no provision of this basic info , ER is undermining the process (and
it can be a breach)
How quickly did the ER want to apply for conciliation? [here, after only
30 mins]
The ERs attitude towards other members of the negotiating committee
Independently dealing with the EEs [once the union is the certified agent,
the ER has to engage with the union]
If unilaterally changing terms/conditions which werent put on
bargaining table, clearly trying to bypass the union which is inconsistent
with the duty to bargain in good faith
REMEDIES: UNION WANTS BOARD TO IMPOSE K ON ER; BOARD REFUSES
Note s. 86 : Where no CA is in operation, no ER shall alter rates of wages or
any term/condition of employment until Minister has appointed a
conciliation offi cer or a mediator and seven days have elapsed after the
day the Minister released the conciliation boards report (No Board
report) or 14 days have passed after the day the Minister has expressed
it does not consider advisable to appoint a conciliation board.
As interpreted in Vilbiss: this section is designed to provide ER with
freedom to alter terms and conditions when negotiations
have reached an impasse or where there is a bona fide
business reason for such immediate action.

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LEGISLATIVE RESPONSES TO CHALLENGES IN NEGOTIATING

FIRST AGREEMENTS:
MANDATED TERMS - S. 45-52 LRA , MUST PRE SENT, ESTABLISHES FRAMEWORK OF
CB RELATIONSHIP
Every CA provides
S. 45(1): Recognition Clause; TU as exclusive bargaining agent &
S. 46: Strikes/Lockout Clause: prohibited during life of CA
MANDATORY RAND - S. 47(1): except in construction / s. 52, where trade
union requests, mandatory deduction of dues from wages whether or not EE is a
TU member
Strongest form is that to be hired, you must become union member.
MANDATORY ARBITRATION - S. 48(1): In event of dispute, application,
violation or interpretation of CA; - binding settlement by arbitration w/o
stoppage of work
MANDATORY JUST CAUSE self-explanatory; brought in by NDP in 1993,
repealed by Conservative govt in 1995
FIRST CONTRACT ARBITRATION (1986)
GROWING RATE OF FAILURE IN 1980S FOR TUS TO REACH FIRST CA; SO 1ST K ARB INTRODUCED
Didnt allow 1 st K arb in EVERY case, but did allow for unions to
apply and get 1 st K arb in particular circumstances s.43: 4
elements
a) where ER has refused to recognize union, can apply;
b) where there has been uncompromising nature of any bargaining
position adopted without justification (hard bargaining without
rationalization);
c) the failure of the respondent to make reasonable or expeditious
efforts to conclude a collective agreement; OR
d) any other reason board considers relevant
Under NDP, extended 1 st K arb; made it available in every 1 st CB
situation; no longer the case
Availability has a significant impact; during NDP, % of new BUs
obtaining CA MUCH higher (78%) than under the subsequent
Conservative govt (53.4%)
Hard bargaining much more successful/viable without 1 st K
Under Liberals, restored, BUT restricted to s. 43 elements
After a number of bitter 1 st K battles (RWDSU v Eatons (1985)) ON
government overcame objections to compulsory arbitration in private
enterprises and amended the LRA. ON did not require ERs acts be ILP
as 1 st arbitration cond

ROYAL OAK MINES - SCC ON MINIMUM STANDARDS FOR THE

DUTY TO BARGAIN IN GOOD FAITH
remedy is not to go back and bargain more but it is to impose certain
terms into the CA

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(i.e. sometimes voluntarism breaks down).

Steps to the duty to bargain (DTB) in good faith: DTB in GF

(subjective);
Duty to make reasonable effort to enter into a CA objective
standard
Test: : If the standard term is widely accepted within the CB area in the industry;
it has become a minimum standard term and then the employer is either 1)
unreasonable or 2) gives a very strong presumption that the position is
objectively unreasonable in refusing to negotiate
Para 45: deny EE a fundamental right in refusal to negotiate with respect to a
form of due process for dismissal
Para 98: voluntarism vs compulsion 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 when a lack of GF bargaining by a party is frustrating the bargaining
process

STATUTORY CONTROLS ON STRIKES AND LOCKOUTS

CONCEPTUALLY: DISTINCTION BETWEEN FREEDOM TO STRIKE (LIBERAL VOLUNTARISM)
AND RIGHT TO STRIKE (RIGHT TO STRIKE) (COLLECTIVE QUIT)
WAM: Severe restrictions on freedom; (i) modest right Substitutes for freedom
to strike: (ii) administrative recognition; (iii)grievance arbitration
UNTIL 1907: Under liberal voluntarism, free to engage in negotiations;
implied freedom to strike act of collectively withdrawing labour
POST 1907: Industrial Dispute Act
Can only strike following a process of compulsory conciliation
Freedom kept in place, still no right; no obligation to be taken back
o In an unsuccessful strike, many EEs would not get their jobs back as a
result
INDUSTRIAL PLURALISM LRA
SEVERE LIMITS ON FREEDOM TO STRIKE; ALSO, FOR FIRST TIME A LIMITED RIGHT TO
STRIKE

s.1(2) of LRA: stipulates that emp relationship not ended simply

by virtue that an EE has gone on a lawful strike, or has been
locked out, or has been dismissed in contravention of this Act or CA.
Employment status continues while on strike under the LRA
Preservation of a right; ERs cannot discriminate by firing workers
simple due to a lawful strike
S.80: Window of opportunity to abandon strike in 6 months

S. 1(1) Definitions in the LRA

STRIKE: includes a cessation of work, a refusal to work or to continue to

work by employees in combination or in concert or in accordance w/ a
common understanding, or a slow-down or other concerted activity on the
part of employees designed to restrict or limit output. [broad captures
stopping working and slowing down input]

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Purpose is irrelevant to the definition [they are going to get caught as a
strike even if for pol. Purpose; could be directed towards
government ].
Unions in Ontario attempted to persuade OLRB that work stoppages called
to protest against Con. Government of Mike Harris in 1995 and
1996 were protected (Days of Action, not strikes). They were
unsuccessful (GM Canada and TTC)
LOCKOUT: includes the closing of a place of employment, a suspension of
work or a refusal by an employer to continue to employ a number of
employees, with a view to compel or induce the employees ,OR to aid
another employer to compel or induce that employers employees,
to refrain from exercising any rights or privileges under this Act OR
to agree to provisions or changes in provisions respecting terms or
conditions of employment or the rights, privileges or duties of the employer,
an employers organization
Purpose is critical it is only a lockout if the aim is to compel or
induce an EE to agree to a term / condition. Means that ERs
could easily engage in capital strikes for the purpose of
influencing government policy because this is not included in
the def'n of a lockout.

WHY THE DIFFERENCE IN TREATMENT?

EMPLOYERS HAVE TO BE ALLOWED TO SHUT DOWN FOR ECONOMIC REASONS W/O IT
BEING A LOCKOUT. LRA DOES NOT RESTRICT EMPLOYERS FROM USING ITS CAPITAL
PROFITABLY.
POLICY: WE NEVER THINK OF A CORPORATION AS A COMBINATION THAT NEEDS TO BE
CONTROLLED IN THE WAY THAT COMBINATIONS OF WORKERS NEED TO BE
CONTROLLED [CORP. = SINGLE ENTITY? TUCKER IS CRITICAL OF THIS]. COVERT
FORM OF CONTROL OF CA TO ACHIEVE OBJECTS, HISTORIYLL CONFINED OR
PROHIBITED HISTORICALLY

Policy informing statutes: emphasizes the union's responsibility to

stabilize industrial relations ; quid pro quo bar in strike
action in exchange for compelled duty to bargain imposed on
ER
WHEN IS IT LEGAL FOR WORKERS TO GO ON STRIKE? (APPLICABLE TO
NEGOTIATION OF 1ST K)
NO STRIKES DURING THE COLLECTIVE BARGAINING AGREEMENT SS (46, 97(1)
Must first go through process of bargaining and conciliation , s. 79(2)
(implication for recognition strike)
Strike vote must be taken s. 79(3)
Note also prohibitions on authorizing, threatening, counselling, procuring,
or doing anything that reasonably know will cause unlawful
(untimely) strikes or lockouts.
ss. 81-83

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POLICY : stopping unlawful strike activity is a very high priority, this
was always a goal of post WWII CB regime
REMEDIES FOR UNTIMELY STRIKES
Grievance Arbitration:
Individuals can be disciplined
Union can be held responsible offi cials under strict obligation to
prevent untimely strikes
Compensatory damages available
Statutory Remedies
Declaration of unlawful strike/lockout, s. 100
Declaration can have status of court order: defiance=contempt, s.
102
Damages, s. 103
Provincial offence, s. 104 (consent of OLRB required, s. 109)
SECTION 78: REGULATING EMPLOYER TACTICS
a) Prohibition on the use of professional strikebreakers : a person
who is not involved in a dispute whose primary object, in the Boards
opinion, is to interfere with, obstruct, prevent, restrain, or disrupt the
exercise of any right under this Act in anticipation of, or during a
lawful strike /lockout
b) this goes back to the common practice where ERs would hire ppl to
come in and break strikes up
c) Prohibition on strike-related misconduct: means a course of
conduct of incitement, intimidation, coercion, undue influence,
provocation, infiltration, surveillance, or any other like course of
conduct intended to interfere with, obstruct, prevent, restrain or
disrupt the exercise of any right under this Act in anticipation of, or
during a lawful strike or lock-out
d) Cruder tactics
e) Replacement workers permitted in most jurisdictions: Some
jurisdictions will allow employers to hire replacement workers while
their workers are on strike or locked-out. Quebec and BC have a ban
on the use of replacement workers. It is allowed in ON.

COMMON LAW CONTROLS (DECISION TO REGULAT STRIKE

TRACTS CML VS REGULATION ABOUT WHEN STRIKE
TACTICS ARE ALLOWED IN THE LRA)
What about EE rights? LRA defines lawful conduct, but does not
define content of that proper conductpicketing is not, in and of
itself, unlawful (Pepsicriminal and tort law may still apply.
REGULATING TACTICS PICKETING CAN BE TORTIOUS
LRA does not deal with strike activity by workers
General Criminal Law - Watching and besetting
Torts
Trespass unlawful entry onto premises w/o permission,
permission revoked
Nuisance -obstruction
Intimidation, Battery
Economic Torts
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Direct inducement of BOK Requirements

1.Intent to injure plaintiff

2.Knowledge of the existence of a contract between plaintiff and third
party
3.Use of lawful means to induce breach by third party
4.Breach of contract results
5.Economic injury to plaintiff results
ECONOMIC TORTS
invented by CL courts in the 19 th century for the purposes of restricting
picketing activities: designed to provide redress against losses
resulting from hostile use of collective strength of economic
adversaries, especially collective EE strength exerted thru strikes and
boycotts.
CANADA not applied rigorously, but rules bent to provide remedies
to ERS
Conspiracy to Injure Unlawful Purpos e
Combination
Intent to cause injury and injury results
Predominant motive is one that court does not recognize as
legitimate
Conspiracy to Injure by Unlawful Means
Combination
Intent to cause injury and injury results
Use of unlawful means

LABOUR INJUNCTIONS

POLICY: THESE REFORMS LIMITED JUDICIAL INTERVENTION IN PICKETING SITUATIONS COULDNT IMPOSE AN INJUNCTION JUST FOR THE TORT OF SECONDARY
PICKETING.
COURTS DEVELOPED A REPUTATION FOR GRANTING INJUNCTIONS IN LABOUR DISPUTES AT
THE DROP OF A HAT - THIS GOT SO BAD THAT A COMMISSION INQUIRY LED BY
IVAN RAND IN THE 60S CALLED FOR A RESTRICTION ON JUDGES ABILITY TO
GRANT INJUNCTIONS IN LABOUR DISPUTES SO LAW AMENDED UNDER COURTS OF
JUSTICE ACT.
COURTS OF JUSTICE ACT S 102, CONDITIONS FOR GRANTING

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MUST BE SATISFIED THAT REASONABLE EFFORTS TO OBTAIN POLICE ASSISTANCE TO
PREVENT DAMAGE TO PROPERTY, INJURY TO PERSONS OR OBSTRUCTION HAVE BEEN
UNSUCCESSFUL S. 102(3)
AFFIDAVIT EVIDENCE RESTRICTED TO FACTS WITHIN PERSONAL KNOWLEDGE S. 102(4)
TIMELY NOTICE OF MOTION (2 DAYS UNLESS EMERGENCY , EX PARTE IF IRREPARABLE
DAMAGE ETC.) MUST BE GIVEN IN SPECIFIED FORM, UNLESS EMERGENCY S. 102 (6-8)

DOMTAR WHETHER OR NOT S 102 APPLIES TO LABOUR DISPUTE IN QUESTION, DOESNT

IF 2NDARY PICKETING, AND APPLICANT IF :
a) not the ER
b) the 3 rd party is not the alter ego of the ER
c) where the 3 rd partys premises are not a place of business of the
struck ER
S. 102(3) When have reasonable efforts to obtain police assistance been
unsuccessful?

Industrial Hardwood 1996 ONCA

---> Distinction b/w damage versus

obstruction; more likely to grant injunction if damage is occurring; factors re:
duration/degree must be considered

Ratio

Onus on applicant to satisfy court that it has made reasonable efforts to

obtain police assistance and those efforts have not resulted in an
acceptable degree of control of the situation. Relevant considerations will
include: the degree of the obstruction, its duration on each occasion and
how many days it has gone on.

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CHARTER AND LEGAL REGULATION OF CONFLICT

CHARTER HAS BEEN USED IN 2 WAYS:
TO CHALLENGE THE RESTRAINTS THAT PRIMARILY COMMON LAW COURTS HAVE IMPOSED
ON PICKETING; AND LEGISLATION THAT HAS TAKEN AWAY THE RIGHT/PROHIBITS
WORKERS FROM GOING ON STRIKE

STRIKE SITUATION:
In the 1987 Labour Trilogy protects the right to form associations, not
the form of activities the associations were engaged in
BC Health Services SCC overruled this Trilogy and held that Freedom
of Association protects right to CB BUT not the right to strike
Ex: the decision to legislate Canada Post workers back to work in the
summer is now subject to a Charter challenge
i) The right to picket?
DOLPHIN DELIVERY (1986) SCC ---> Charter doesnt apply to private
litigation between parties relying on CL; courts are seen as neutral
arbitrators, not a part of the govt
Facts
BCSC granted injunction to prevent union from seeking declaration that
Dolphin Delivery was an ally of primary ER in dispute. Union challenges
as a violation to FOE.
-Union appealed the granting of injunction, calling it an unjust
interference with its freedom of expression
Analysi Picketing is expressive, important, but restraints are demonstrably
s
justified
HOWEVER, the judiciary ought to apply and develop common law principles in
manner that is consistent with Charter values.

Policy : floodgates would open if Charter applied to every court action:

it would "widen the scope of Charter application to virtually all private
litigation" because all cases must end with an enforcement order.

Notes : peaceful picketing may be a form of expressive activity protected under

s. 2(b). g. Picketing is permitted but it is destructiv e we only allow it
because we have to allow it in the context of collective bargaining. Restraints on
picketing (especially secondary picketing) are demonstrably justified.
BCGEU V AG(BC) (1988) SCC ---> TORT OF SECONDARY PICKETING IS AN
UNJUSTIFIED INFRINGEMENT OF FOE, UNLESS IT IS CRIMINAL IN NATURE; IT IS
ESSENTIAL COMPONENT OF LR REGIME
Decision: Upheld trial judges injunction but recognized that picketing is a
crucial form of collective action in the area of labour relations: designed to
publicize the labour dispute, mount a show of solidarity of the workers, it is an
essential component of a labour relations regime founded on the right to
bargain collectively and to take collective action , it represents a
constitutionally recognized form of expression in all contemporary labour
relations. BUT the intent of a picket line is to discourage individuals from
entering the premises, in this case it impeded access to justice.

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Pepsi 2002 SCC

---> individual expression can supersede 3rd party economic

interests; disallowing secondary picketing = unjustified infringement of FoE;
restricting FoE in this way would go way too far, only tortious where theres a
nominate (other) tort occurring (including economic torts)

Held - Secondary picketing is legal so long as it is not tortious (on some other
basis, for example where threats were being made, or blocking is
evidenced) or criminal in nature)
Ratio
Begin with the proposition that secondary picketing is prima facie
legal, then impose such limitation as may be justified in the interests
of protecting third parties all picketing is allowed, whether primary
or secondary, unless it involves tortious or criminal conduct
(25)our society has come to see it as justified by the higher goal
of achieving resolution of employer-employee disputes and the
maintenance of economic and social peace. The legally limited use
of economic pressure and the infliction of economic harm in a labour
dispute has come to be accepted as a legitimate price to pay to
encourage the parties to resolve their differences in a way that both can
live with

(32)Picketing, however defined, always involves expressive

action. As such, it
engages one of the highest constitutional values: freedom of
expression, enshrined insection 2(b) of the Charte r. This Court's
jurisprudence establishes that both primaryand secondary picketing are
forms of expression

(34)As part of the free flow of ideas which is an integral part of

any democracy, the free flow of expression by unions and their
members in a labour dispute brings the debate on labour conditions into
the public realm

(35)Working conditions, like the duration and location of work,

parental leave, health benefits, severance and retirement
schemes , may impact on the personal lives of workers even
outside their working hours. free expression in the labour
context thus plays a significant role in redressing or
alleviating this imbalance.

ALBERTA INFO PRIVACY COMM (2013 SCC 62) ---> SCCS MOST

RECENT
ITERATION; AFFIRMS LANGUAGE OF PEPSI CASE IN THE CONTEXT OF PRIVACY/FOE
BALANCE

DECISION: STATUTE STRUCK DOWN; MUST BE RECREATED (12 MONTH SUSPENSION TO

GIVE LEGISLATURE TIME TO ENACT NEW ONE); PIPAS (SUBSTANTIAL) RESTRICTIONS
ON UNION COLLECTION, USE AND DISCLOSURE FOR LEGITIMATE LABOUR RELATIONS
PURPOSE IS OVERLY BROAD

COMMON LAW:

WORKERS ENJOY BROAD FREEDOM TO STRIKE, SUBJECT TO LEGAL DUTY NOT TO ENGAGE
IN TORTIOUS OR CRIMINAL BEHAVIOUR, BUT NO RIGHT TO STRIKE

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POST WWII STATUTORY COLLECTIVE BARGAINING SCHEMES:

For most workers, dual movement:
Severe restrictions on freedom to strike
Substitution of certification & arbitration; limited strike rights
Public and Para-Public sector statutory collective bargaining comes later
and often substitutes interest arbitration for strikes as dispute
resolution mechanism
BINDING INTEREST ARBITRATION: - SUBSTITUTE FOR STRIKE
In late 1970s; one vehicle of imposing fiscal restraint, limit CB regime
Ad hoc basis: Temp wage/price controls that imposed restrictions on CB,
blocked strikes, ending strikes by enacting Back to Work legislation,
etc.
Charter Labour Trilogy : FOA doesnt protect activities workers
are free to form; right to picket protected (Pepsi)
BC Health: protects activities that workers form for purposes of making
representations; created space for litigation on whether right to strike is
protected
SASKATCHEWAN FEDERATION OF LABOUR 2013 (SKCA)
Facts: Saskatchewan passes Trade Union Act which restricts how many workers
in public sector can withdraw their services.
Decision: SCC invited by COA to determine whether s 2(d) extends to protect
freedom of right to strike; TJ yes subject to s 1
Issues :Does international law right protect right to strike? ILO says YES. Crisis at
ILO, Communist countries object to the interpretation; UN Covenant on Economic,
Social and Cultural Rights protect right to strike ; Western ERs are claiming ILO has
no jurisdiction to interpret conventions,

What about the status of RtS in Canadian labour history? YES.

Tucker provided affi davit: freedom to strike was deeply entrenched in Cda
and only became restricted with modern labour legislation
3) Does RtS promote Charter values?
o Uncertain
o Tucker: probably wont happen; doubt RtS will be recognized here
CONTEXT: STRIKES ARE DISAPPEARING FROM CDN LABOUR SCENE

Not primarily because of state restrictions; rather, because TUs

are in decline
In private sector, density down, and whether in private or public
sector, losing bargaining leverage
They dont believe they can press ERs to make significant gains, a
strike would not necessarily further their interests
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Meanwhile, lockouts are becoming more frequent; power

imbalance?
This could be why courts seem to be looking favourably on
picketing

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