Lecture 12: Remedies for violating the Duty to Bargain
Remedies are not penalties
o can only award compensation to the injured union, not punish the employer.
Labour Board must stay within the parameters of statute
o however purely monetary wards may not secure the objectives of legislation
typical award is a cease and desist order
notice sent to employees stating that the duty to bargain has been violated
perhaps some costs.
Novel remedies may be possible, but there are 4 situations where a remedial order
will be invalid
o remedy may not be punitive
o remedy may not violate charter
o remedy must have some rational connection to the breach
o remedy must be consistent with the objectives of the labour Code
Royal Oak Mines v. canada (LRB)  1 S.C.R. 369
did the labour board go to far in ordering an employer to put back on the table an
offer it had made previously
o critically including greivance arbitration for employees discharged by
employer during strike.
Wording of stautte does not put limits on power of board, allows anything that is
Aim of the Code and the board to resolve labour dispute, and this is exactly the thing
that Parliament inteended to resolve.
Remedy must be rationally connected with the breach
o so remedies must be rationally connected with breach and consistent with the
underlying policy of the code.
Here the decision was reasonable, especially considering the extraordinary violence
involved in the strike.
Board had to take into account this long history of violence
o a simple "cease and desist" order would have done nothing but waste time.
o no agreement between parties would be forthcoming.
Statute gives board a lot of flexibility in terms of awards.
Here the board did NOT impose a collective bargain, which may be outside its
o this is what the Ontario board found in RadioShack
o board used a prior tentative agreement as a baseline for negotiations.
o if the parties couldn't agree after that point, they would be subject to binding
There are four times when a remedial order will be found patently unreasonable
o remedy punitive in nature
o remedy infringes Charter
o No rational connection between breach, consequence of breach, and remedy
o remedy contradicts purpose of Code. Rational connection.
o board must be addressing a particular breach of the code
o breach here the employers intractability on the point of greivances
o remedy gets around this by making greivance part of the baseline of
o also intrasigence thwardted agreement.
Union agreed to Inquiry Commission's proposals, the employer
rejected them out of hand because the dismissed employees would be
back at work.
o the result of the order is to put the parties back in the position they would
have been in had the breach not occured
o so connection clear
Policy consistent with Statute?
o part of the purpose is free collective bargaining
o however, this is not the only consideration.
o Where there is no progress being made and the party is not in good fiath, the
Board is justified in fashioning a remedy.
o The position of the employer here put an agreement out of the picture.
o no other solution possible here
Remedies must not be punitive
remedies must be in accordance with the Charter
There must be a rational connection between the breach, the consequence of the
breach, and the remedy,
And the remedy must be in accordance with the purpose of the statute.
novel remedies possible
o in this case, putting an old offer back on the table, due to the history and
intractibility of the dispute.
o not truly imposition of agreement, since at one point parties agreed on this,
and other positions still up for dispute
the employer breached the duty to bargain which led to a long strike
remedy was to compenate each employee for the lost wages and benefits had the
strike not occured.
Millions of dollars.
possible for first-contact arbi