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Lecture

JS380 Lecture Notes - Arbitration Clause, Solidarity Action, Concurrent Jurisdiction


Department
Justice Studies
Course Code
JS380
Professor
Stefan Idziak

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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?
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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
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