Reasons for decision
British Columbia Maritime Employers Association, on behalf of its member companies, including DP World (Canada) Inc.; Fraser Surrey Docks Limited Partnership; TSI Terminal Systems Inc.; Cerescorp Company,
applicants,
and
International Longshore and Warehouse Union-Canada; International Longshore and Warehouse Union, Local 500; International Longshore and Warehouse Union, Local 502; International Longshore and Warehouse Union Ship & Dock Foremen, Local 514; International Longshore and Warehouse Union, Local 517,
respondents,
and
Attorney General of Canada; Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees; Maritime Employers Association; Vancouver Port Authority,
intervenors.
CITED AS: British Columbia Maritime Employers Association
Board File: 26503-C
Decision No. 397
December 20, 2007
Application for a declaration of unlawful strike under section 91 of the Canada Labour Code, Part I.
Unlawful strike declaration–Section 91 of the Code–Constitutional challenge–Reference to the Federal Court of Appeal–Board’s jurisdiction–Practice and procedure–The dispute has its genesis in the introduction of the Marine Transportation Security Clearance Program (MTSCP), which is contained in Part 5 of the Marine Transportation Security Regulations–In Vancouver, the MTSCP was to be implemented on December 15, 2007–The MTSCP requires certain identified employees who work in safety sensitive positions to obtain a Transportation Security Clearance (TSC) by the implementation date–While these reasons were being finalized, Transport Canada changed the implementation date for Vancouver from December 15, 2007, to February 20, 2008–The International Longshore and Warehouse Union (ILWU) advised the identified employees not to apply for the TSC–This led the British Columbia Maritime Employers Association (BCMEA) to apply for a declaration of unlawful strike under section 91 of the Code, due to an alleged concerted refusal by the identified employees represented by the ILWU to apply for the required security clearance–The ILWU argued that Part 5 of the Regulations, which created the MTSCP process violated, inter alia, the Charter, the Privacy Act, the Canadian Bill of Rights and the Canadian Human Rights Act–The Board refers to this challenge as the validity questions–An application for an unlawful strike declaration invokes the Board’s expedited hearing process–At the start of the hearing, the Attorney General of Canada advised that it would be filing an application that same day in the Federal Court of Appeal (the Reference)–The real issue is what impact the Reference has had on the matters before the Board–The Board is of the view that the validity questions contained in the Attorney General’s Reference have been moved to the Court’s jurisdiction–Until such time as the Court is persuaded to stay the Board’s process, the Board has a continuing statutory duty to decide whether or not an unlawful strike is taking place–This is the first time in the Board’s collective memory that section 18.3(2) of the Federal Courts Act has been raised in one of its hearings–The Board states that a labour board must issue decisions in illegal strike applications expeditiously and deferred to the Court’s expertise regarding appropriate interim measures in the context of the Reference–The Board concludes the validity questions have been moved to another statutory jurisdiction for hearing and determination–The Board continued with the unlawful strike application–The Board also asked the parties to be kept advised of any Court proceedings that might be taking place with regard to the matter.
Unlawful strike declaration–Refusal to work–Definition of strike–Remedy–Practice and procedure–The definition of “strike” in the Code is an objective one–The Board is of the view that the ILWU’s advice to its members not to apply for a TSC has led to a concerted refusal to work–This refusal to work is designed to restrict or limit output due to the fact that the BCMEA members will not have available the legally certified staff it needs for work on the implementation date–The Board finds that the unlawful strike occurred when the ILWU advised the identified employees in writing not to apply for the security clearance, which they would be required to hold by the implementation date, and the employees refused in concert to apply–The Board will be issuing a remedial order confirming that an unlawful strike has occurred and ordering the ILWU’s members to cease and desist from participating in the unlawful strike and to perform all the duties of their employment; however, the order dated December 20, 2007, did not become effective until January 8, 2008, in order to allow the parties to consider their next legal steps.
Dissent–Unlawful strike declaration–On December 1, 2007, Transport Canada informed the marine security stakeholders that the terminal operators in Vancouver would be exempted in regards to the implementation of the Marine Transportation Security Clearance Program (MTSCP) until February 20, 2008, “due to legal issues related to the MTSCP”–The dissenting member believes that there is no valid reason nor labour relations purposes for the Board to issue its final decision in the matter without the benefit of the Federal Court of Appeal’s determination concerning the Attorney General of Canada’s Reference with respect to the validity questions–The union’s advice to its members not to complete the Transportation Security Clearance applications and the members’ refusal to apply for such clearance do not constitute a strike under the Code in the present circumstances–Under the present circumstances, the dissenting member is satisfied that the union members have not ceased or refused to perform their work, especially since we do not yet have the Federal Court of Appeal’s decision - The majority’s decision can potentially interfere with or violate the Charter, the Canadian Bill of Rights, the Canadian Human Rights Act and the Privacy Act - The majority’s order to cease and desist from participating in an unlawful strike was issued without the union’s full defence being heard on the validity questions–The majority’s decision implies that the employees must apply for their Transportation Security Clearance regardless of whether the specific sections of the Regulations violate the above-mentioned legislation–The consequence of the majority’s decision and its cease and desist order is that union members will be forced to act possibly against their rights and provide highly sensitive personal information–The collection, use and disclosure of the personal information could potentially be unconstitutional and in violation of the individuals’ rights since the Federal Court of Appeal has not yet rendered its decision–The harm and prejudice suffered by the employees would be irreparable because, once the union members’ rights have been violated, there will be no meaningful remedy available to those individuals–The dissenting member would have awaited the Federal Court of Appeal’s decision before rendering a final decision in the matter.
The Board was composed of Mr. Graham J. Clarke, Vice-Chairperson, and Messrs. Patrick J. Heinke and Norman Rivard, Members. Hearings were held in Vancouver, British Columbia, from November 5 to 8, 2007.
Appearances
Mr. Thomas A. Roper, Q.C., Mr. Graeme McFarlane, and Ms. Alissa Macpherson, for the British Columbia Maritime Employers Association, on behalf of its member companies, including DP World (Canada) Inc., Fraser Surrey Docks Limited Partnership, TSI Terminal Systems Inc., and Cerescorp Company;
Mr. Larry Kowalchuk, Mr. Craig Bavis, Ms. Marjorie Brown, and Mr. Michael Prokosh, for the International Longshore and Warehouse Union-Canada, International Longshore and Warehouse Union, Local 500, International Longshore and Warehouse Union, Local 502, and International Longshore and Warehouse Union, Local 517;
Ms. Gina Fiorillo, for the International Longshore and Warehouse Union Ship & Dock Foremen, Local 514;
Mr. Lorne D. Lachance, Mr. Robert Danay, Ms. Betty Ann Lobo, for the Attorney General of Canada;
Mr. Jacques Lamoureux, for the Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees;
Mr. Robert Monette, for the Maritime Employers Association;
Messrs. Peter R. Sheen, H. David Edinger, and Ryan Gauthier, for the Vancouver Port Authority.
The reasons for decision of the majority were written by Mr. Graham J. Clarke, Vice-Chairperson. The dissenting reasons were written by Mr. Norman Rivard, Member.
I–Introduction
[1] This case considers whether a blanket refusal by members of multiple bargaining units to apply for legislatively mandated security clearances constitutes an unlawful strike under the Canada Labour Code (Part I–Industrial Relations) (the Code). The respondents took the position that the application for security clearances, and the consequent disclosure of personal information, violated, inter alia, their members’ rights under the Canadian Charter of Rights and Freedoms (the Charter).
[2] The Board accepted interventions from several other interested parties, including the Attorney General of Canada.
[3] The Board held two case management conferences, made certain preliminary procedural decisions on how the hearing would proceed and held a four-day hearing in Vancouver, British Columbia, from November 5 to 8, 2007.
[4] The Board has considered the significant material filed by the parties, as well as the arguments advanced at the four-day hearing. The Board has prepared full, bilingual reasons on an urgent basis in order to allow the parties to consider their options.
II–Background
[5] This dispute has its genesis in the introduction of the Marine Transportation Security Clearance Program (MTSCP), which is contained in Part 5 of the Marine Transportation Security Regulations, SOR/2004-144, May 21, 2004 (the Regulations), passed pursuant to the Marine Transportation Security Act, 1994, c. 40 (the Act). Part 5 of the Regulations was published in the Canada Gazette, Part II (Vol. 140, No. 23) on November 15, 2006. The MTSCP has a different implementation date (Implementation Date), depending on the port. In Vancouver, the MTSCP was to be implemented on December 15, 2007.
[6] The MTSCP requires certain identified employees who work in safety sensitive positions to obtain a Transportation Security Clearance (TSC) by the Implementation Date.
[7] As these reasons were being finalized and translated, Transport Canada changed the Implementation Date for Vancouver from December 15, 2007, to February 20, 2008.
[8] The British Columbia Maritime Employers Association (the BCMEA) is a non-accredited bargaining agent for various employers. The International Longshore and Warehouse Union (the ILWU) and its locals are parties to collective agreements with BCMEA members.
[9] The employer members of the BCMEA requested that the identified employees in safety sensitive positions apply for the TSC. The ILWU advised the identified employees “NOT TO APPLY AT THIS TIME” (emphasis in the ILWU’s original memorandum). The parties did not dispute that the need for TSCs had become a term and condition of employment, thus allowing the ILWU to file a grievance about the matter.
[10] The memorandum led to the BCMEA applying to this Board for a declaration of unlawful strike under section 91 of the Code, due to an alleged concerted refusal by the identified employees represented by the ILWU to apply for the required security clearance.
[11] It is clear from all of the material on file that the ILWU has consistently over the years expressed its legal concerns about the MTSCP and, inter alia, the disclosure and use of the information requested in the security clearance process.
[12] The International Longshore and Warehouse Union Ship & Dock Foremen, Local 514 (ILWU Local 514) and the International Longshore and Warehouse Union-Canada and Locals 500, 502, and 517 (collectively referred to ILWU Canada) responded to the BCMEA’s application through separate legal counsel.
[13] The BCMEA had also applied for an interim order under section 19.1 of the Code. By letter dated October 4, 2007, the Board advised the parties that it would not be awarding interim relief.
[14] In their written submissions, the ILWU Local 514 and the ILWU Canada argued that the facts did not give rise to an unlawful strike under the Code. They further argued that Part 5 of the Regulations, which created the MTSCP process violated, inter alia, the Charter; the Privacy Act, R.S., 1985, c. P-21; the Canadian Bill of Rights, 1960, c. 44; and the Canadian Human Rights Act, R.S. 1985, c. H-6.
[15] These reasons shall refer to these challenges collectively as the “Validity Questions.”
[16] The Board subsequently received requests to intervene from the Maritime Employers Association (the MEA), the Vancouver Port Authority (the VPA), and the Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees (CUPE). The Attorney General of Canada also sought leave to intervene. The Board granted these intervention requests.
[17] The Board held a case management conference with the parties via conference call on October 26, 2007. An application for an unlawful strike declaration invokes the Board’s expedited hearing process under section 14 of the Canada Industrial Relations Board Regulations, 2001. One question raised by a party during the case management conference was whether the Board had jurisdiction to consider the Validity Questions.
[18] The Board advised the parties by letter dated October 29, 2007, that it would hear argument from the parties in Vancouver on two issues:
1. Without considering the Charter, has there been an unlawful strike?
2. Does the Board have the jurisdiction to consider the Charter validity of legislation that is not part of the Canada Labour Code?
[19] The Board confirmed that depending on the results of the initial hearing, it might have to determine how to conduct an expedited hearing while dealing with the Validity Questions.
[20] At the start of the hearing on November 5, 2007, the Attorney General of Canada (AG) advised that it would be filing an application that same day in the Federal Court of Appeal pursuant to sections 18.3(2) and 28(2) of the Federal Courts Act:
18.3(2) The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations made under an Act of Parliament to the Federal Court for hearing and determination.
...
28.(2) Sections 18 to 18.5, except subsection 18.4(2), apply, with any modifications that the circumstances require, in respect of any matter within the jurisdiction of the Federal Court of Appeal under subsection (1) and, when they apply, a reference to the Federal Court shall be read as a reference to the Federal Court of Appeal.
[21] The AG’s application under section 18.3(2) (the Reference) obliged the Board, following submissions from the parties, to change both the questions to be addressed and their order. Argument ultimately took place on the following issues:
A–Does the Board have the jurisdiction to consider the Charter validity of legislation that is not part of the Canada Labour Code?
B–Given the section 18.3 reference, what jurisdiction, if any, did the Board retain with regard to the Validity Questions?
C–Without considering the Validity Questions, did the situation between the parties constitute an unlawful strike under the Board’s jurisprudence?
III–Analysis and Decision
A–Does the Board have the jurisdiction to consider the Charter validity of legislation that is not part of the Code?
[22] During the October 26, 2007 case management conference, one party had requested that the AG take a position regarding this Board’s jurisdiction to deal with the Validity Questions. The Board was interested as well in hearing from the parties, given its mandate to deal with unlawful strike or lockout applications on an expedited basis. This Board and other labour boards across the country may have to issue decisions on such applications within just a few days, if not even a few hours.
[23] Ultimately, given the events that occurred at the start of the hearing, the Board determined during its deliberations that it was not necessary to decide this first question. The parties’ well-researched arguments on an administrative tribunal’s jurisdiction, and their review of Supreme Court of Canada cases, did assist the Board, however, with the next question involving section 18.3(2) of the Federal Courts Act.
B–Given the section 18.3 reference, what jurisdiction, if any, did the Board retain with regard to the Validity Questions?
[24] During the hearing, the ILWU Local 514, the ILWU Canada and CUPE asked the Board to hear argument on the impact of the AG’s reference. When the BCMEA and the other intervenors did not object, the Board agreed to hear argument on this issue before hearing the parties on the issue of whether, excluding the Validity Questions, an unlawful strike was taking place.
[25] The ILWU Local 514, the ILWU Canada and CUPE (collectively the Unions, where required) argued consistently, both in the case management conference and at the hearing, that the Board could not decide whether or not an unlawful strike was taking place without first determining the Validity Questions.
[26] Counsel for the VPA had suggested the Board could decide the unlawful strike application under section 20 of the Code and later decide the validity questions. Section 20 of the Code reads as follows:
20.(1) Where, in order to dispose finally of an application or complaint, it is necessary for the Board to determine two or more issues arising therefrom, the Board may, if it is satisfied that it can do so without prejudice to the rights of any party to the proceeding, issue a decision resolving only one or some of those issues and reserve its jurisdiction to dispose of the remaining issues.
[27] The Unions objected strenuously to this argument on the basis that it would deprive them of an opportunity to put forward their primary defence, that being that they advised their members not to apply for the TSC because they considered Part 5 of the Regulations to contravene the Charter and other statutes.
[28] The Board has decided that section 20 of the Code does not assist in the circumstances of this case. The real issue is what impact the Reference has had on the matters before the Board.
[29] The parties’ views differed significantly about the impact of the AG’s Reference on the handling of this case by the Board.
1–Attorney General of Canada
[30] The AG argued that the Reference to the Federal Court of Appeal removed the Board’s jurisdiction to consider the Validity Questions. The fact that the Validity Questions had been moved to a different statutory jurisdiction, however, did not, according to the AG, prevent the Board from deciding whether there was an unlawful strike under the Code.
[31] The AG argued that a reference did not automatically stay the Board’s proceedings. A party would have to apply to the Federal Court of Appeal (the Court) to obtain a stay of proceedings.
2–The Unions
[32] The ILWU Local 514 argued that it would be unfair for the Board to proceed any further with the application after the AG had preempted and/or removed its defence based on the Validity Questions. It argued a denial of natural justice would occur if the unlawful strike application was determined without its full defence being heard.
[33] The ILWU Local 514 argued the Board would have to wait for the Court’s decision on the reference prior to deciding whether an unlawful strike had taken place.
[34] The intervenor CUPE argued that the Board either had to stop its hearing or continue to consider all issues. In other words, if the Board continued the hearing, it would have to consider the Validity Questions at the same time as the Court. If the Board did not want to proceed concurrently, then it would have to accept that the Reference had imposed a de facto stay.
[35] The ILWU Canada reminded the Board that they had contested the validity of the Regulations in several different fora, including this Board, arbitration and, recently, the courts. A privacy complaint had also been filed.
[36] The ILWU Canada reiterated its concern that the personal information, which would have to be disclosed and disseminated in the course of obtaining a security clearance, would cause their members irreparable harm if they later succeeded with their various legal challenges.
[37] The Unions also requested the Board to adjourn the hearing for two weeks to render its decision on its jurisdiction before hearing argument on the unlawful strike issue. After hearing argument from the other parties, the Board advised it would continue the hearing in the manner already planned.
3–Employers
[38] The BCMEA argued that the Board had to exercise its jurisdiction under the Code and consider the Act and Regulations as the law of the land until advised otherwise.
[39] In the BCMEA’s view, the Reference had given exclusive jurisdiction over the Validity Questions to the Court. That Court also had the ability to stay the Board’s proceedings if the Unions convinced it to do so. It was not up to the Board to stay its own proceedings but up to the Unions to take this issue before the Court as part of the Reference.
[40] The BCMEA reminded the Board that while the Validity Questions had been referred to the Court, the issue of whether or not an unlawful strike was taking place remained squarely with the Board. The BCMEA argued that if employees continued their blanket refusal to apply for their security clearances, then the employer members of the BCMEA would not be in compliance with the Act and Regulations by the Implementation Date. The ILWU had conceded during argument that the BCMEA would not be in compliance on the Implementation Date, but argued that the prejudice would be far greater for its members if they were obliged to apply for security clearances before a determination of the Validity Questions.
[41] The BCMEA referred to the Supreme Court of Canada’s decision in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, for the appropriate test to be met for a court to grant a stay of proceedings where a Charter issue has arisen in a labour board proceeding. The Board understood the BCMEA to be arguing that the Court could grant the Unions’ remedies if they satisfied the applicable legal test. The BCMEA also argued that unless the Unions obtained that stay, the Board was entitled to consider the current Act and Regulations in coming to its decision whether an unlawful strike was occurring.
[42] The intervenor MEA argued that the Board’s core duty was to determine the application before it and that the Unions’ defences were now squarely within the Court’s jurisdiction. The debate on the Validity Questions, and any interim relief, had to be dealt with exclusively before the Court.
[43] The MEA emphasized further, and this will be relevant when the Board deals with the third issue, that subjective motivation is not relevant when considering whether an unlawful strike exists. Because the Validity Questions had been given exclusively to the Court by virtue of the reference, the MEA argued that the ILWU’s motivation in telling its members not to complete the application for their security clearances became irrelevant.
4–Reply of the Attorney General
[44] For the AG, the question became one of simple statutory interpretation. Both the Board and the Court derived their entire jurisdiction exclusively from statute.
[45] The legislature can take away a portion of the Board’s jurisdiction by statute and, according to the AG, section 18.3(2) of the Federal Courts Act has this effect when it was invoked.
[46] The AG argued that the Unions’ ability to raise their defence was not being taken away; rather, it had been moved to a different statutory jurisdiction for determination. Argument on the merits of the Validity Questions, as well as any argument about interim orders impacting the Board, must take place in that new statutory forum.
5–Decision
[47] For ease of reference, we will again reproduce section 18.3(2) of the Federal Courts Act:
18.3(2) The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, refer any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations made under an Act of Parliament to the Federal Court for hearing and determination.
[48] The Board is of the view that the Validity Questions contained in the AG’s Reference have been moved to the Court’s jurisdiction. Until such time as the Court is persuaded to stay the Board’s process, the Board has a continuing statutory duty to decide whether or not an unlawful strike is taking place.
[49] This is the first time in the Board’s collective memory that section 18.3(2) of the Federal Courts Act has been raised in one of its hearings. The parties assisted the Board significantly by presenting argument about the impact of the Reference on the hearing.
[50] The Board asked all parties at the end of the four-day hearing to be kept advised of any Court proceedings that might be taking place with regard to this matter. Other than a letter from the AG about the Reference, which was copied to all parties, the Board has not heard whether any of the parties have sought further assistance from the Court.
[51] The Board has several reasons for concluding that the Reference does not interrupt its consideration of the application for a declaration of unlawful strike.
[52] During argument on the issue of the Board’s jurisdiction, the parties made submissions about an administrative tribunal’s jurisdiction to consider questions of law, including questions about the validity of legislation, whether under the Charter or otherwise. The parties were generally in agreement that the Code authorizes the Board to consider the validity of legislation, whether under the Charter or otherwise, as part of its analysis of any questions of law before it.
[53] The ILWU Canada raised the relatively recent Supreme Court of Canada decision in Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, which dealt with interpreting a legislative provision that explicitly restricted an administrative tribunal’s jurisdiction to consider questions of legislative validity. The decision in Tranchemontagne v. Ontario (Director, Disability Support Program), supra, reminds us that reference must be had to the applicable statute(s) in order to determine whether or not an administrative tribunal is authorized to decide questions of law, including Charter or other validity questions.
[54] We will assume for the sake of argument that the Code gives the Board jurisdiction to decide these questions of law. What then is the impact of section 18.3(2) of the Federal Courts Act? That section seems clear that the AG may refer to the Federal Court “any question or issue of the constitutional validity, applicability or operability of an Act of Parliament or of regulations.” Section 18.3(2) is also clear that the role of the Federal Court in that process is to accept the reference “for hearing and determination.”
[55] In the Board’s view, section 18.3(2) makes it clear that when issues of “constitutional validity, applicability or operability of an Act of Parliament or of regulations” are referred to the Federal Court, that Court has the jurisdiction to hear and determine them. The Board does not see how that wording could be interpreted so as to maintain the Board’s jurisdiction to continue its hearing into those same issues.
[56] There is a certain practicality in Parliament creating a mechanism for such questions to be referred to the Federal Court. A court has more extensive powers than an administrative tribunal when deciding these types of legislative validity questions. While an administrative tribunal could make a limited decision whether a particular provision was inoperable for the purposes of the limited matter before it, a court can go much further and can determine, for all future proceedings, the validity and applicability of the legislation and/or regulations in question.
[57] This seemingly prevents, for example, the same challenge about the legislation being raised on multiple occasions before different administrative tribunals, as was the situation before us prior to the Reference.
[58] There is moreover nothing in the wording of section 18.3(2) to suggest that a reference causes a de facto stay of the administrative tribunal’s process. Such language could have easily been added. The absence of such express language satisfies us that the Court will determine what, if anything, happens to the administrative tribunal’s process. That decision will be based on the parties’ submissions and whether they satisfy the legal threshold required for a stay of proceedings or other interim relief. We respect our dissenting colleague’s view that the Reference must be concluded before the Board renders any decision. However, we prefer the view that a labour board must issue decisions in illegal strike applications expeditiously and defer to the Court’s expertise regarding appropriate interim measures in the context of the Reference.
[59] We conclude the Validity Questions have been moved to another statutory jurisdiction for hearing and determination. This Board will continue with the unlawful strike application, unless and until we are notified otherwise.
C–Without considering the Validity Questions, did the situation between the parties constitute an unlawful strike according to the Board’s case law?
[60] Given the Board’s decision on the impact of the Reference, we will now consider whether an unlawful strike has occurred.
[61] Section 3 of the Code defines a “strike” as follows:
“strike” includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output.
[62] Section 91(1) and (2) establish the Board’s authority, including its remedial authority, on receipt of an application:
91.(1) Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful.
(2) Where an employer applies to the Board under subsection (1) for a declaration that a strike was, is or would be unlawful, the Board may, after affording the trade union or employees referred to in subsection (1) an opportunity to make representations on the application, make such a declaration and, if the employer so requests, may make an order
(a) requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom it was directed;
(b) enjoining any employee from participating in the strike;
(c) requiring any employee who is participating in the strike to perform the duties of their employment; and
(d) requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies.
[63] The parties do not dispute that they have not yet attained the right to strike or lockout under the Code.
[64] The parties at the hearing furnished the Board with helpful authorities on the issue of unlawful strikes and supplemented their previous written arguments with oral argument. As the Board had set out in its October 29, 2007 letter, the parties were granted up to one hour for further oral argument.
[65] CUPE asked whether it could give to the other unions whatever part of its hour it did not use for its argument. After consideration of the other parties’ positions, the Board granted that request, subject to the ability of the employers to make a similar exchange when replying to the unions’ positions.
[66] The Board has considered all of the authorities submitted, the parties’ written argument, as well as their oral argument. We will briefly summarize the parties’ respective positions.
1–Position of the Employers
[67] The BCMEA argued that there does not have to be a refusal to do productive work in order for an unlawful strike to occur. In the instant matter, the BCMEA submitted that its members had to respect certain legal obligations with regard to security clearances. Its members asked identified employees to file applications in order to obtain those security clearances.
[68] There was no dispute that the ILWU advised its members in writing not to apply for the security clearances and that, up to the date of the hearing at least, no applications had been filed.
[69] The BCMEA further argued that the Board did not require extensive evidence to conclude what impact would occur if the BCMEA’s members were not in compliance by the Implementation Date, with the legislative requirements.
[70] The BCMEA urged the Board to infer the predictable effect on its members arising from a concerted refusal to apply for security clearances. The BCMEA referred to cases of other labour boards where a refusal to comply with a process was considered an unlawful strike, even if the effects might not be felt until sometime in the future.
2–Position of the Unions
[71] The Board notes again for the record the Unions’ position that they feel unable to defend themselves if they cannot contest the Validity Questions. They reviewed in their argument the security application form to highlight why they had serious concerns about their members’ rights and privacy concerns.
[72] They also urged the Board to interpret the Code in accordance with Charter values and, despite previous jurisprudence, to interpret the definition of “strike” in section 3 on a subjective, rather than objective, basis. They urged the Board to consider the bona fide concerns of the identified employees who were refusing to complete the security clearance form. The Unions referred, inter alia, to the Supreme Court’s recent decision in Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia (2007), 283 D.L.R. (4th) 40. We note that the Supreme Court of Canada was explicit in that decision that the case did not concern the right to strike.
[73] The Unions also argued that there was insufficient evidence for the Board to determine whether or not there would be any impact on the BCMEA’s members when the MTSCP comes into effect. The Unions urged the Board not to assume that the ports would be shut down and indicated that they had to be allowed to cross-examine anyone who alleged that this type of impact would occur.
[74] The Unions further argued that all the work their members did in the past was currently being done and that this fact, in and of itself, demonstrated that no strike could be taking place.
[75] The Unions also submitted that any finding of an unlawful strike would be premature since the employers could not establish that the identified employees had refused a valid work direction. They submitted the employers could not establish they made a valid work direction unless and until the Validity Questions had been determined. In short, the Unions argued that answers to the Validity Questions constituted a condition precedent to any finding of an unlawful strike.
[76] CUPE maintained that the Regulations violated employees’ vested rights by being retroactive in application and that the Regulations were ultra vires.
[77] If a remedy were to be imposed despite their arguments to the contrary, the Unions argued that the Board should only issue a declaration of unlawful strike, and nothing else.
3–Reply
[78] The AG argued that the fact legislation is being contested on a constitutional basis does not mean that that legislation is somehow not in force. All legislation duly passed by Parliament must be respected until it is struck down.
[79] The AG also argued that there was nothing in the Regulations that could be considered retroactive. The Regulations only applied on a prospective basis.
[80] The AG reminded the Board that the Reference already included CUPE’s issue of the Regulations being, among other things, ultra vires.
[81] The BCMEA argued that the Board must apply the objective definition of a “strike.” Moreover, no evidence was needed about the impact of the blanket refusal to apply for the security clearance. A strike could still occur even if no negative impact on the employers followed.
[82] The BCMEA urged the Board not to consider the subjective reasons for the blanket refusal to apply for a security clearance because to do so would ignore the objective definition of a strike in the Code and would also take into account issues, it argued, which had already been referred exclusively to the Court by the AG’s reference.
[83] The BCMEA argued that the Unions were attempting to obtain a de facto stay of the Board’s process rather than raising the matter with the Court and proving that they met the clear requirements for a stay, as set out in the Supreme Court of Canada’s decision in Manitoba (Attorney General) v. Metropolitan Stores Ltd., supra.
[84] The BCMEA also submitted that not giving a remedy would be tantamount to refusing to decide this case. If the BCMEA was not granted a remedy, then, by the Implementation Date, it would not be in compliance with the many requirements set out in the Act and Regulations. This could expose it to penalties under the Act, above and beyond the impact to its members’ ongoing operations.
4–Decision
[85] The Board is of the view, in the circumstances of this case, that the ILWU’s advice to the identified employees not to complete applications for security clearances, and their resulting concerted refusal to apply, constitute an unlawful strike under the Code.
[86] While it was suggested in argument that significant evidence was needed, including cross-examinations, before the Board would have a factual foundation to determine whether or not there was an unlawful strike, the Board respectfully disagrees. The Board in its October 29, 2007 letter advised the parties that it had enough on file with regard to the factual underpinnings of this case and has not changed its position.
[87] The Board agrees with counsel for the MEA that this case is similar to the Board’s previous decision in Maritime Employers’ Association (1986), 64 di 111 (CLRB no. 559), a decision that involved the same industry.
[88] In that case, the employer had decided to change the time when employees had to log in prior to the beginning of their shift. The login was required in order to assign employees work. The union objected to the policy change.
[89] In that case, the Board reiterated that the definition of “strike” in the Code was an objective one. Even though the union pleaded that its members had been provoked by the employer’s unilateral policy change, the Board found that their subjective intentions were not pertinent.
[90] The Board dealt explicitly with whether a refusal to log in constituted a refusal to work:
... It is the view of the Board that it is too simplistic to say that the refusal to log in did not constitute a refusal to work. Employees were very well aware that their refusal to log in would result in no work being assigned to them. There is a direct causal relationship between their refusing to sign in and their not being assigned work. The Board can reach no conclusion other than that their refusal to log in is effectively, a refusal to work.
(Maritime Employers’ Association, supra, page 116)
[91] In that particular case, a refusal to log in was considered to be no different from a collective refusal to work overtime. In the instant case, if identified employees do not have security clearances, then the employer members of BCMEA are in a situation of non-compliance with the Act and Regulations. The employees cannot be assigned work without the employers knowingly violating the Act and Regulations. The failure to apply for the security clearance is thus a refusal to work.
[92] The union in Maritime Employers’ Association, supra, took a similar position to that of the Unions in the present matter when it stated that the refusal to log in did not restrict or limit output. The Board disagreed with that theory:
... Undoubtedly by their refusing to log in they were not going to be assigned work, and by not being assigned work they were effectively reducing the workforce that would otherwise have been available. And without the normal complement available for work, the amount of work that had to be performed on the docks could not be performed. Thus, the net effect of not being assigned work was to ensure that the employer did not have the proper manpower to perform at the level of work required to do all of the work available on the docks and that, in the view of the Board was to restrict or limit output of what was normally performed on the docks.
(page 116)
[93] We conclude that the BCMEA’s members will have no identified employees with security clearances by the Implementation Date. The Board does not need to hear extensive evidence and cross-examination in order to find that that situation will restrict or limit the BCMEA members’ output.
[94] While the application of the Board’s previous decision in Maritime Employers’ Association, supra, to the facts of the instant case is sufficient for disposition, we also found the decision issued by the Ontario Labour Relations Board (OLRB) in Toronto District School Board, [2003] OLRB Rep. January/February 138, helpful since it dealt with a case where the effects of a concerted refusal would only be experienced at a future time.
[95] In Toronto District School Board, supra, the employer had altered a policy it had regarding Positions of Responsibility (POR). Part of this change would do away with the job title “Department Head.”
[96] The Ontario Secondary School Teachers Federation (OSSTF) objected to the employer’s new model and instructed its members in writing to boycott the process.
[97] The result was that teachers did not apply for the PORs. The employer argued that its programs and its schools would be disrupted as a result.
[98] The OLRB concluded an unlawful strike had occurred:
25. ...The Federation points out that classes will still be taught and programs will continue uninterrupted even if the board is unable to commence its new POR system. That may be so, but the classes will not be taught and the programs will not continue in exactly the manner envisaged by the board. A failure by the board to put in place its new POR system will have some, albeit limited, impact on the manner in which school programs are delivered, and on the manner in which schools are organized. Leaving aside any question of the board’s entitlement to introduce the new POR system in the manner it has, for the purposes of disposing of the limited question I am asked to determine whether, any interference, however partial, with the operation of the school programs is contemplated in the definition of “strike” in the Education Act. By requiring its members not to apply for the new POR positions which have been posted, I find that the Federation intends to limit or interfere with the functioning of the board’s school programs and schools.
(Toronto District School Board, supra, page 144)
[99] The OLRB rejected the argument that the employer’s concerns were at best speculative:
26. ...The impact of the Federation’s boycott is affecting the board’s organizational arrangements now and any relief to which the board may be entitled is warranted forthwith.
(Toronto District School Board, supra, page 145)
[100] It is our view that the ILWU’s advice to members not to complete the application for the security clearance is an identical situation, leaving aside the Validity Questions, to the refusal to log in, in Maritime Employers’ Association, supra, and to the refusal to apply for POR positions in Toronto District School Board, supra.
[101] In summary, we find that the definition of “strike” in the Code is an objective one. While we do not question that the Unions’ beliefs, and those of their members, are honestly held, those beliefs do not impact the definition of strike we must apply.
[102] We are further of the view that the ILWU’s advice to its members not to apply for a TSC has led to a concerted refusal to work. This refusal to work is designed to restrict or limit output due to the fact that the BCMEA’s members will not have available the legally certified staff it needs for work on the Implementation Date.
[103] Accordingly, the Board finds that an unlawful strike occurred when the ILWU advised the identified employees in writing not to apply for the security clearance, which they would be required to hold by the Implementation Date, and the employees refused in concert to apply.
IV–Conclusion
[104] But for the Validity Questions, this case would have been similar to many other unlawful strike cases where this Board had to make a declaration.
[105] However, the Unions’ arguments with regard to their ability to present a full defence, and the impact of the Reference, have raised complex issues for the Board’s determination. Our decision is predicated on being correct about the interpretation of section 18.3(2) of the Federal Courts Act.
[106] Accordingly, the Board will be issuing a remedial order confirming that an unlawful strike has occurred. However, that order will become effective only on January 8, 2008. This will allow the parties time to consider their next legal steps.
[107] The dissenting reasons of Mr. Rivard follow.
Dissent of Mr. Norman Rivard, Member
[108] I have given considerable thought to the majority decision and, with due respect, I do not agree with the decision, therefore I must dissent.
[109] On December 1, 2007, Transport Canada informed the marine security stakeholders that the terminal operators in Vancouver would be exempted in regards to the implementation of the Marine Transportation Security Clearance Program (MTSCP) until February 20, 2008, “due to legal issues related to the MTSCP.” I respectfully believe that there is no valid reason nor labour relations purposes for the Board to issue its final decision in the matter without the benefit of the Federal Court of Appeal’s determination concerning the Attorney General of Canada’s Reference (Court file no. A-497-07) with respect to the Validity Questions. Accordingly, there is no urgency to issue a decision at this stage since the MTSCP comes under constitutional scrutiny and will not be implemented on December 15, 2007.
[110] The facts of this matter are exceptional; consequently, I am of the opinion that the union’s advice to its members not to complete the Transportation Security Clearance applications and the members’ refusal to apply for such clearance do not constitute a strike under the Code in the present circumstances. The BCMEA has failed to establish that a strike has occurred within the meaning of the Code and has only provided the Board with examples of a strike in light of traditional circumstances.
[111] Section 3 of the Code defines a strike in the following manner:
“strike” includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output.
[112] Under the present circumstances, I am satisfied that the union members have not ceased or refused to perform their work, especially since we do not yet have the Federal Court of Appeal’s decision with respect to the Validity Questions. The majority associated the failure to apply for the security clearance as a refusal to work. However, I respectfully disagree with my colleagues because the employees have not refused and are not refusing to work or to work overtime, to cross the picket line or slow down the work.
[113] The risk that exists on December 15, 2007 (now February 20, 2008, due to the Minister’s extension) for the union members if they continue to refuse to apply for the required security clearance, is that they will not be permitted to work. At the present time, the employees are working and there is no indication that they will refuse of their own volition to work. Only the employer can restrict the employees from working by not allotting them any work assignments. In addition, the parties have not submitted any evidence indicating that the ports will shut down on December 15, 2007, if the security clearance is not obtained. In fact, the Attorney General of Canada was asked if such a consequence would ensue if the security clearances were not obtained by the target date; however, no comments were provided on the issue.
[114] I am particularly concerned with the fact that the majority decision can potentially interfere with or violate the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, Part I, enacted as Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter); the Canadian Bill of Rights, 1960, c. 44; the Canadian Human Rights Act, R.S. 1985, c. H-6; and the Privacy Act, R.S.C. 1985, c. P-21, because it has issued a cease and desist order ordering the employees “to cease and desist from participating in concert in the unlawful strike and to perform all the duties of their employment.” This order was issued without the union’s full defence being heard on the Validity Questions. With due respect, the majority should have taken into account the consequences of its decision in the absence of a determination of the Validity Questions. The majority’s decision implies that the employees must apply for their Transportation Security Clearance regardless of whether sections 503, 506, 507, 508, 509, 515 and 517 of Part 5 of the Marine Transportation Security Regulations, SOR/2004-144, May 21, 2004, violate the above-mentioned legislation. In Cyprus Anvil Mining Corporation (1976), 15 di 194; [1976] 2 Can LRBR 360; and 76 CLLC 16,045 (CLRB no. 69), the Board’s predecessor, the Canada Labour Relations Board, indicated that the Board cannot ignore the provisions of particular statutes and regulations when interpreting and applying the Code, failing which a party could be compelled to do something that is illegal under the statutes.
[115] During the hearing, the unions had in fact provided the Board with different options in light of the Attorney General’s Reference to the Federal Court of Appeal. They suggested that the Board ask the Court for direction with respect to the appropriate course of action to take under the present circumstances. They proposed a de facto stay of the Board’s proceedings until the Validity Questions are dealt with by the Court. They also requested that the Board defer its decision until the Federal Court of Appeal renders its decision. Accordingly, they made it clear that the Board could not and should not render a decision without knowing the results of the Federal Court of Appeal’s decision. They submitted that if the Board had to impose a remedy despite their arguments to the contrary, that it declare an unlawful strike but not issue a cease and desist order given the exceptional circumstances of the matter.
[116] The consequence of the majority’s decision and its cease and desist order is that union members will be forced to act possibly against their rights and provide highly sensitive personal information, such as information about their spouse or common-law partner, their fingerprints and facial image for identification purposes, their country of origin, their passport information, their city of birth, their education history, the location of personal residence in the last five years and circumstances of travel. This information will subsequently be provided to the Minister of Transport Canada who will conduct a series of background checks, where the information could possibly be disclosed to governments of foreign states where an applicant has resided or traveled in the last five years. Consequently, the collection, use and disclosure of the personal information could potentially be unconstitutional and in violation of the individuals’ rights since the Federal Court of Appeal has not yet rendered its decision with respect to the Validity Questions.
[117] In the event the Federal Court of Appeal determines that the Transportation Security Clearance application process violates the Charter, the Canadian Bill of Rights, the Canadian Human Rights Act and the Privacy Act, what will happen to the personal information that will have been provided to the employers, Transport Canada or to foreign governments? The majority has not provided any safeguards for the individuals’ personal information in case the security clearance process is determined to contravene the employees’ rights. The harm and prejudice suffered by the employees would be irreparable because once the union members’ rights have been violated, there will be no meaningful remedy available to those individuals.
[118] Based on the foregoing, I would have awaited the Federal Court of Appeal’s decision before rendering a final decision in the matter.
File No. 26503-C
IN THE MATTER OF THE
Canada Labour Code
- and -
British Columbia Maritime Employers Association on behalf of its member companies, including DP World (Canada) Inc.; Fraser Surrey Docks Limited Partnership; TSI Terminal Systems Inc.; Cerescorp Company,
applicants,
- and -
International Longshore and Warehouse Union-Canada; International Longshore and Warehouse Union, Local 500; International Longshore and Warehouse Union, Local 502; International Longshore and Warehouse Union Ship & Dock Foremen, Local 514; International Longshore and Warehouse Union, Local 517,
respondents,
- and -
Attorney General of Canada; Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees; Maritime Employers Association; Vancouver Port Authority,
intervenors.
WHEREAS the Canada Industrial Relations Board (the Board) has received on September 24, 2007, an application from the applicants, pursuant to section 91 of the Canada Labour Code (Part I–Industrial Relations), alleging that the respondents have declared or authorized an unlawful strike and that some of the applicants’ employees, represented by the respondents, had engaged in an unlawful strike;
AND WHEREAS the Board considered the written submissions from all parties and held a hearing in Vancouver, British Columbia, from November 5 to 8, 2007;
AND WHEREAS the Board has decided that an application by the Attorney General of Canada under section 18.3(2) of the Federal Courts Act has removed from the Board’s jurisdiction the consideration of certain issues relating to the validity of the Marine Transportation Security Act, 1994, c. 40, and the Marine Transportation Security Regulations SOR/2004-144, May 21, 2004, as amended;
AND WHEREAS the Board has decided the remaining issues before it;
AND WHEREAS section 3(1) of the Code provides that a strike includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of the employees in relation to their work that is designed to restrict or limit output;
AND WHEREAS the Board is of the view that an unlawful strike occurred when the respondents advised those of their members requiring security clearances to refuse to apply for same and those members in concert did in fact refuse to apply.
NOW THEREFORE, in accordance with section 91(2) of the Code:
(a) The Board declares that the respondents’ request that certain of their members not apply for security clearances, and the concerted refusal by said members to apply for the security clearances, constitute an unlawful strike under the Code;
(b) The Board orders that the respondents immediately revoke the declaration or authorization to strike and advise of such revocation immediately those members to whom it was directed;
(c) The Board orders the respondents to cease and desist from participating in the unlawful strike;
(d) The Board further orders all members of the respondents to cease and desist from participating in concert in the unlawful strike and to perform all the duties of their employment;
(e) The Board orders the British Columbia Maritime Employers Association, via its member companies, to post copies of this order at conspicuous locations in all of its affected and necessary facilities where it can be read by its employees represented by the respondents;
(f) The Board specifically directs that the orders and declarations found herein shall take effect on January 8, 2008;
(g) This order, upon becoming effective, shall remain in full force and effect until the conditions of section 89 of the Code have been met, unless it is continued, modified or revoked pursuant to an application under section 93 of the Code.
ISSUED at Ottawa, this 20th day of December, 2007, by the Canada Industrial Relations Board.
(s) Graham Clarke
Vice-Chairperson