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JS380 (30)
Lecture

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Department
Justice Studies
Course
JS380
Professor
Stefan Idziak
Semester
Winter

Description
Lecture 6: Test of Injunction  Serious issue to be tried  possibility of irreperable harm (for interlocutory injunctions)  balance of convenience favoring the injunction  these injunctions are equitable, and remain available in the labour context. United Nurses of Alberta v. Alberta (A.G.) [1992] SCC  Criminal contempt proceeding to enforce order prohibiting illegal strie by nurses  labour board made cease-and-desist order which had been registered as an order of the court.  SCC o Civil contempt only turns into criminal contempt where the public act of defiance occurs where the accused knew, intended or was reckless to the fact that the act would bring the court into contempt.  Dissent o Criminal contempt only appropriate where there is a circusmstance of violence or threat of violence. Injunctions: BC  Labour code abolishes injunctions in favor of regulation by labour boardradio o injunctions still possible where the plaintiff claims immediate danger of serious injury, or causes actual obstructino or physical damange to property.  Labour arbitrators generally cannot make interim orders, so teh court retains the disctrion to grant an injuction to avoid irreperable harm. St. Anne Nackawic Pulp & Paper Co. Ltd. v. canadian Paper Workers Union [1986] SCC Facts  union represented 2 bargaining unit: mill workers and office workers at the D's mill.  Office workers went on strike, picketed mill  mill workers sympathy strike  company got interjunction, mill workers did not return to work, so contempt order made  still wouldn't come back until office workers strike settled, which it was  company claimed damages against union.  NB court awarded damages because of the illegal strike, fined the union for contempt o union says no jursidiction Analysis-Estey  can a court give damages for illegal strike under the code which was also a breach of contract o in past, courts have awarded injunctions and damages in this kind of case.  if the cllective bargain is silent, there is an implied arbitration clause o here there was an express arbitration clause  so could the employer take the dispute to court rather than to arbitration?  collective agreement defines the relationship between management and union, and this relationship is properly regulated through arbitration.  it would offend legilsative intent of the Labour code to allow parties to turn to the courts instead.  so code and collective bargain both allow for arbtriation, and there is no room for the courts to interfere without violating legislative intent.  what about historical use of injunctions and damages in the labour context?  if courts have no jurisdiction to deal with matters of collective agreements, how can they have the power to issue injunctions during strikes?  The Labour Code does not have an express privative clause that would oust the courts entirely. o statute instead establsihes a preference for arbitration over other means of dispute settlement. o but there is no requirement that arbitration be used. o act recognizes concurrent jurisdiction  The whole point of the act is to allow greivances to be settled without stoppages of work, so it would be weird to allow the union to defend it's work stoppage by pointing to the failure to use arbitrator, when the whole point of arbitration is that greivance can be settled without strike.  So while injunctions cannot settle the dispute or enforce the terms of the agreement, they can enforce the general law of the statute, which includes an express prohibition on illegal strikes.  So injunctions are OK, but not damages at contracts. Ratio  Arbitration clauses in statute leave little room for the courts to enforce the collective bargain  courts do not have jurisdiction to issue damages and order performance - this is for arbitrators and boards  courts do have the power to issue injunctions terminiating illegal strikes, since this is the whole point of those statutes. Strikes Under the Charter: 2(b)  many cases came out of the removal of the "purposive language" in the definition of strike o unions wanted it back in  this demonstrates a tension between freedom of expression and the regulation of strikes.  since there is no "purposive language", political strikes an dprotest strikes are also illegal o unions attempted to have 2(b) read back into the statute over a series of cases.  in BC, under Campbell there hae been a lot of these days of protest, called for by the BC federation of labour o often in response to public workers who have had their ability to strike restricted or removed.  Unoins say ban on political strikes as a result of the removal of purposive language impacts their freedom of speech  Employer says the attempt to protect strikes via 2(b) is simply an attempt to sneak in a right to strike. BC Public School Employers' Association v. British Columbia Teachers' Federation 2005 BCCA Facts  P in colective bargain with D  during bargaining period, BC planned to go on strike  instead, legislature imposed new collective bargain by statute and removed class size and class composition from the permissibel scope of future bargaining  BCTF had a plan to have teachers pass out class size info sheets during parent teacher interviews o also fliers that were put on bulletin boards o some disctricts tried to rpvent teachers from writing to trustees, parents, or th emedia o or making a poster that showed loss of services  BCTF says that this is contrary to s. 2(b) o Employer says no, and even if so, s. 1 Analysis  are school boards subject to Charter ? o yep, definitely a branch of government  is 29B0 violated o employer says 2(b) not nidtend to apply on gov. property and during employer time  Irwin toy- restriction as to forum of expression has its purpose the control of content rather than of effect, then it doesn't matter whether the restriction accords with the value us under the charter  Here the content being restricted was not effect-based, but particularly pro-union content o so we shoud go stright t
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