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Contempt - Enforcement. Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333)
In Viterra Canada Inc. v. Grain Workers' Union (International Longshoreman’s Warehousemen’s Union, Local 333) (Fed CA, 2026) the Federal Court of Appeal considered seven appeals, all relating to "a dispute between the parties that dates from 2017 when Grain Workers’ Union Local 333 ILWU (the Union) filed two policy grievances alleging violation by Viterra Canada Inc. (Viterra) of the maximum work hours provisions of the Canada Labour Code".
Here the court considers the clarity and specificity required in order for orders to be enforceable in contempt proceedings, particularly the issue of timing:[38] The parties agree that, to be enforceable in contempt proceedings, an order must be clear, precise and unambiguous on its face, and cannot be merely declaratory: Canadian Union of Postal Workers v. Canada Post Corporation, 2015 FC 355 at para. 11 (Canada Post), relying on Telecommunications Workers Union v. Telus Mobility, 2004 FCA 59 at para. 4. What is required for compliance must be clear from the face of the order.
[39] In the Preliminary Order, the Federal Court correctly stated that an award must compel performance of specific actions to be enforceable; it cannot only set out an existing legal situation. The Federal Court found that:[46] In this case, the Award details the sections of the Code that establishes maximum weekly hours of work and overtime. Arbitrator Sullivan concludes “the Employer was in contravention of the statutory overtime hours of work per week,” that the “Canada Labour Code has been violated,” and then orders that the “Employer cease and desist from violating the Code.” Specific findings have been made based on the evidence and specific future conduct has been ordered. Whether the Respondent’s future conduct is consistent with the Order is readily ascertainable by reference to the Code. [40] The Federal Court concluded that the Award, when read with the arbitrator’s decision as a whole, was clear, precise and specific, citing Canada (Human Rights Commission) v. Warman, 2011 FCA 297 at para. 57 (Warman), leave to appeal to SCC refused, 34542 (April 26, 2012). The Court stated that it would not be necessary to look beyond the Award to consider the alleged contempt. Further, neither the fact the Union would be required to present evidence to establish contempt nor the absence of a specific timeline for compliance rendered the Award unenforceable. In light of the unusual bifurcation of the contempt hearing in this case, concerns relating to (a) evidence to establish contempt, and (b) the impact of the absence of a definitive date for compliance (other than on the enforceability of the Award), were reserved to the evidentiary portion of the hearing.
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[67] Viterra characterizes a deadline for compliance as an essential detail of an enforceable order, "“without which an order may be found to be unclear”". Viterra argues that the Federal Court erred in relying on the reference in Telus to a "“reasonable time”" for compliance because the court in Telus recognized that the term "“reasonable time”" may lead to conflicting interpretations: Telus at para. 43.
[68] In Telus, the arbitral order at issue did not specify a time for compliance by Telus with a letter agreement that precluded the company from using cell phone activation technology in a way that excluded certain bargaining unit employees. The Federal Court found that the order suffered from a number of deficiencies, including the absence of mandatory directions to Telus to take specific steps to cure the underlying breach of agreement, and concluded that the order was declaratory in nature. The Federal Court also addressed the absence from the order of a deadline for compliance:[43] Further, courts have consistently held that an order of contempt will not issue where time for compliance has not been specified: […]. In the case at bar, there was no specific direction in the order as to the time period for compliance. No one could instruct Mr. Salvadori or the Employer as to specific time for compliance failing which it would be in contempt. Without setting a time frame, there arises two possible interpretations of the order. [69] The Federal Court went on to find that an interpretation that the order was immediately applicable would render compliance impossible but a second and more plausible interpretation was that "“the Arbitrator intended that the order be complied with within a ‘reasonable period of time’”": Telus at para. 43. In the same paragraph, the Court cautioned that the parties’ understanding of what is a reasonable time may differ and that the parties before it had contrary positions regarding what would be a reasonable time. The Federal Court in Telus predicated its conclusion on its review of the evidence:[48] Telus Mobility intended to comply with the Arbitrator's order and in good faith spent considerable time, care and money to remedy the breach. Its rationale in the interpretation of the order was reasonable. To say the least, the Arbitrator's order could give rise to ambiguity and as a result, this gives rise to a reasonable doubt which should be resolved in favour of the company and Mr. Wells. [70] The Federal Court in the present case found that the Court in Telus did not conclude that the omission of a time for compliance by itself renders an order unenforceable: see also Sound Contracting Ltd. v. Regional District of Comox-Strathcona, 2005 BCCA 167 at paras. 9, 11 (Sound Contracting) and Gabriola Island Local Trust Committee v. Fonseca, 2022 BCCA 402 at paras. 6, 9-10, and 52-72 (Gabriola Trust). I agree. I find instructive the BCCA’s analysis in Gabriola Trust of the contextual interpretation of a reasonable time for compliance:[66] While it may have been preferable to include in this Court’s order a date by which removal of the seawalls must be completed, I do not consider that the absence of a compliance date in the order necessarily defeats this application.
[67] Instead, what is required is a contextual interpretation of the temporal requirements of the order. As in Sound Contracting, it may fairly be read into the order that the Fonsecas were required to remove the seawalls within a reasonable period of time. What amounts to a reasonable time is a case-specific inquiry. It is, however, one that must be informed by the well-established proposition that the Fonsecas are entitled to the most favourable interpretation of the order. [71] I agree with the Federal Court that the absence of a date for compliance does not automatically render an order unenforceable in a contempt proceeding, although the absence of a fixed compliance date may well increase the significant evidentiary burden borne by the party seeking to enforce the order.
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[72] Finally, Viterra submits that the Federal Court usurped the role of the arbitrator and violated section 58 of the Code by making a finding that Viterra had a reasonable time to comply with the Award, effectively amending or supplementing the order made: I.B.E.W. Local #529 v. Central Broadcasting Co., [1977] 2 F.C. 78 at para. 5, 1976 CanLII 2343 (FC) (Central Broadcasting).
[73] Subsection 58(1) of the Code provides that an order of an arbitrator is final and "“shall not be questioned or reviewed in any Court”".
[74] I acknowledge the concerns expressed in Central Broadcasting that in fixing a time for compliance, the court would be tampering with the order in question. Here, however, I find that the Federal Court did not amend or vary the Award. I am not persuaded that the Court questioned or usurped the arbitrator’s authority or role in determining that Viterra was required to comply with the terms of the Award within a reasonable time. Upon registration under section 66 of the Code, the Award became an order of the court. The interpretation of the Award was central to the Federal Court’s role and is consistent with the approach taken in Telus. It is also consistent with the recent jurisprudence cited above that states an order is not unenforceable by way of contempt if it does not fix a compliance date; it is open to a court to interpret the order in question as requiring compliance within a reasonable time.
[75] In summary, I find no error of law or palpable and overriding error in the Federal Court’s conclusion that the Award was sufficiently clear, precise and specific to allow enforcement and was not merely declaratory.
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