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Labour (Fed) - Strikes (2). Canada (Attorney General) v. Federal Government Dockyards, Trades and Labour Council
In Canada (Attorney General) v. Federal Government Dockyards, Trades and Labour Council (Fed CA, 2026) the Federal Court of Appeal allowed a federal Crown-brought labour JR, here brought against a Federal Public Sector Labour Relations and Employment Board (FPSLREB) ruling that denied an employer's application "for a declaration that the Council had violated" subsection 194(1) ['Prohibitions Relating to Strikes - Declaration or authorization of strike prohibited'] of the FPSLRA.
The court considered the federal labour law of strike, here in an FPSLRA context:[1] Federal labour legislation in both the public and private sectors prohibits employees from engaging in illegal strikes and trade unions from authorizing or declaring illegal strikes. In the federal public sector, subsection 194(1) of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 [the FPSLRA] also specifies that officials and representatives of employee organizations (as trade unions are termed in the FPSLRA) are prohibited from counselling or procuring the declaration or authorization of an illegal strike or the participation of employees in such a strike.
[2] In multi-union workplaces, strikes and lockouts pose challenges when employees in one bargaining unit engage in a legal strike or are locked out when, at the same time, other employees are not in a legal strike position. When this occurs, employees who are striking or locked out will typically set up picket lines at the employer’s place of business. However, at the same time, employers generally expect other employees to report to work, and the employees who do not have the right to strike may be put in the position of being asked to cross or to attempt to cross a picket line to get to work. When these other employees are unionized, challenges may arise as trade unions generally do not condone crossing picket lines.
[3] The case law has long recognized that a collective refusal of employees who are not in a legal strike position to cross another union’s picket line, in solidarity with the striking employees, constitutes an illegal strike: see, for example, International Longshoremen’s Association, Locals 273, 1039, 1764 v. Maritime Employers’ Association et al., 1978 CanLII 158 (SCC), [1979] 1 S.C.R. 120 at pp. 138–139; International Longshore and Warehouse Union, Canada v. British Columbia Terminal Elevator Operators’ Assn., 2001 FCA 78 at paras. 18–19; Port of Saint John Employers Association, Inc., 2011 CIRB 609 at para. 10; David J. Corry, Collective Bargaining and Agreement (Toronto: Thomson Reuters, 2024) [Corry] at § 9:18. And, union officials and representatives cannot authorize or declare an illegal strike or, under the FPSLRA, counsel employees to refuse to cross another union’s picket lines in solidarity with striking employees. Indeed, if an illegal strike is occurring, union representatives are obliged to counsel employees to return to work: see, for example, Donald J.M. Brown, David M. Beatty & Adam J. Beatty, Canadian Labour Arbitration, 5th ed (Toronto: Thompson Reuters Canada, 2019) at § 9:20; Corry at § 9:18; Canadian Broadcasting Corporation, 1999 CIRB 11 [CBC] at para. 36; Canada Post Corp. and CUPW (CPC-10-002), Re, 2014 CarswellNat 351, 242 L.A.C. (4th) 379 [Canada Post] at para. 2. However, individual decisions made by non-striking employees to decline to cross a picket line, especially if made because doing so might expose them to risk of violence, have been found not to constitute illegal strikes: see, for example, George W. Adams, Canadian Labour Law, 2nd ed (Toronto: Thompson Reuters, 2024) at § 11.3; MacMillan Bloedel (Alberni) Ltd. v. Swanson (1972), 1972 CanLII 1070 (BC SC), 1972 CarswellBC 374, 26 D.L.R. (3d) 641 at paras. 16–20.
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[45] As the applicant rightly notes, the issue before the Board in the instant case was whether representatives of the Council counselled ship repair employees to engage in an illegal strike, not whether such a strike occurred. The Board’s case law establishes that it is not essential for an illegal strike to have occurred for a union representative to have violated subsection 194(1) of the FPSLRA through counselling employees to engage in such a strike: King PSLRB at para. 215, aff’d King v. Canada (Attorney General), 2012 FC 488 at paras. 133–135; King v. Canada (Attorney General), 2013 FCA 131 at para. 4; application for leave refused, John King v. Attorney General of Canada, 2014 CanLII 3503 (SCC).
[46] The decisions in Letter Carriers’ Union and Windsor Branch, on which the Council relies, are not relevant as they were decided under a much different statutory provision, which did not prohibit union representatives from counselling employees to engage in an illegal strike when no strike occurred.
[47] Paragraph 194(1)(e) of the FPSLRA provides:Declaration or authorization of strike prohibited
Déclaration ou autorisation de grève
194 (1) No employee organization shall declare or authorize a strike in respect of a bargaining unit, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike in respect of a bargaining unit or the participation of employees in such a strike, if
194 (1) Il est interdit à toute organisation syndicale de déclarer ou d’autoriser une grève à l’égard d’une unité de négociation donnée, et à tout dirigeant ou représentant de l’organisation de conseiller ou susciter la déclaration ou l’autorisation d’une telle grève, ou encore la participation de fonctionnaires à une telle grève :
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[…]
(e) the process for resolution of a dispute applicable to the bargaining unit is arbitration;
e) si le mode de règlement des différends applicable à l’égard de l’unité de négociation est l’arbitrage; [48] In contrast, section 102 of the former Public Service Staff Relations Act, S.C. 1966-67, c. 72 provided:"Declaration or authorization of strike"
"Déclaration ou autorisation de la grève"
"102 No employee organization shall declare or authorize a strike of employees, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike of employees or the participation of employees in a strike, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 101. "
"102"" Une association d’employés ne doit ni déclarer ni autoriser une grève des employés, ni aucun dirigeant ou représentant d’une association d’employés ne doit recommander ni provoquer la déclaration ou l’autorisation d’une grève des employés, ni leur participation à une telle grève, qui a ou aurait pour effet d’entraîner la participation d’un employé à une grève en contravention de l’article 101." [49] Given the differently worded provisions in force when the Letter Carriers’ Union and Windsor Branch cases were decided, they are inapplicable and irrelevant to the issue that was before the Board in the present case. Here, the central issue was whether the Council representatives counselled the ship repair employees to engage in an illegal strike and not whether such a strike occurred.
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[53] In this regard, the Board’s case law under section 194 of the FPSLRA considering the type of conduct that may amount to counselling an illegal strike, and that of other labour relations boards considering the type of conduct that may amount to authorizing an illegal strike, recognizes that in assessing whether union officials counselled or authorized an illegal strike, what is relevant is what they said or did and not solely what they may have intended: King PSLRB at paras. 189–191; CBC at paras. 33–36. Union representatives’ conduct is thus assessed, at least in part, on an objective basis.
[54] The Board’s prior case law, as noted, has also held that "“counselling”" an illegal strike is not synonymous with directing employees to engage in such a strike and includes a much wider range of conduct: King PSLRB at para. 188, citing Canada (Treasury Board) v. International Brotherhood of Electrical Workers, Local 2228, PSSRB Files Nos. 194-02-15 and 16 (19720914) at para. 24 and Goyette v. Treasury Board (Unemployment Insurance Commission), PSSRB File No. 166-02-3057 (19771027) at pp. 20–21. . International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal dismissed (as moot) a federal labour JR, here against a ruling of the Canada Industrial Relations Board (CIRB) that held that "ILWU Canada [had] engaged in an unlawful strike".
Here the court dismisses an inadequate notice argument in an urgent strike context:[69] I agree with ILWU Canada that, generally speaking, ensuring parties have adequate notice of and time to prepare for a hearing is relevant to both a party’s ability to adequately present its case and to the rule of law, which depends at least to a certain extent on parties presenting the relevant evidence and authorities to the decision-maker. To those unfamiliar with the context of illegal strike applications, the few hours notice provided by the CIRB in the instant case might seem inadequate. However, labour boards invariably proceed on very short notice in illegal strike applications, given the nature of the issues and the need for effective remedies. This is especially so for the CIRB, which has jurisdiction over undertakings that form the backbone of the Canadian economy, like railways, airlines, air traffic control, airport security screening, and the ports. In such industries, it is not unusual for the CIRB to schedule hearings very rapidly in illegal strike applications.
[70] The Board’s ability to proceed in rapid fashion in illegal strike applications is contemplated by both the Code and the CIRB Regulations. The Board is empowered to abridge all time limits, by virtue of paragraph 16(m) of the Code, and paragraph 14(e) and subsection 15(2) of the CIRB Regulations provide that hearings in illegal strike applications may be held "“forthwith”" following service of the application on the respondent union. In addition, by virtue of section 16.1 of the Code, the CIRB need not hold a hearing at all. This Court has recognized the right of the CIRB, absent a compelling reason otherwise, to decide cases without holding a hearing: Nadeau v. United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at paras. 3–6; Ducharme v. Air Transat A.T. Inc., 2021 FCA 34 at paras. 19–21; Kiame c. Syndicat des employées et employés nationaux (Alliance de la fonction publique du Canada), 2024 CAF 103 at para. 13.
[71] The foregoing statutory and regulatory provisions authorize the Board to proceed in the manner it did. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 [Ocean Port], the Supreme Court of Canada confirmed that, "“… absent a constitutional challenge, a statutory regime prevails over common law principles of natural justice”" (at para. 19). While Ocean Port dealt with the independence of an administrative decision-maker, the foregoing principle applies equally to other aspects of procedural fairness, including the requisite notice of hearing: see Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022) (QL) at §2.05; Halsbury’s Laws of Canada (online), Administrative Law (2022 Reissue), "“Judicial Review: Requirement of Procedural Fairness: Specific Rights: Right to be Heard”" (V.3.(4).(b)) at HAD-93 "“Nature of right”"; Shephard v. Fortin, 2004 FCA 254, 325 N.R. 158 at para. 27. Given the authority of the Board, in particular, to hold hearings in illegal strike applications "“forthwith”" after service of an application made under section 91 of the Code, the CIRB was entitled to schedule the hearing on very short notice.
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