[2002] 1 F.C. 468
A-552-00
2001 FCA 255
Jeanette Black and 512 Co-workers Who Have Agreed to be Bound by the Result (Applicants)
v.
Canada Employment Insurance Commission, and The Attorney General of Canada (Respondent)
Indexed as: Black v. Canada (Employment Insurance Commission) (C.A.)
Court of Appeal, Rothstein, Sexton and Evans JJ.A. —Vancouver, June 28; Ottawa, August 30, 2001.
Employment Insurance — Judicial review of Umpire’s decision applicant, co-workers not entitled to employment insurance benefits because not within re-entitlement provision in EIA, s. 36(4) — S. 36(4) providing claimants, unemployed as result of labour dispute, eligible for benefits if proving not “participating in, financing or directly interested in” labour dispute that caused work stoppage — Applicant, “inside employee” of City of Vancouver, member of Local 15 — “Outside employees”, members of Local 1004, striking — Applicant neither attempting to cross, nor crossing picket line — Alleging prevented from working by Essential Services Order (ESO) of B.C. Labour Relations Board, providing City could not allow union member to work unless performing essential service — Application dismissed — (1) Meaning of “participated in” — Conduct of claimant, bargaining agent preceding issue of ESO, relevant — If union actively involved in labour relations events leading up to ESO, members cannot later claim entitled to EI benefits because not personally participating in labour dispute — In all circumstances, including Local 15’s interest in Local 1004’s labour dispute with common employer, co-ordinated bargaining strategies of, ongoing communications between two Locals of national union, opportunity applicant had to disassociate herself prior to City’s application for ESO, Umpire correctly holding applicant not demonstrating not participating in labour dispute — (2) Meaning of “directly interested in” — Absence of direct interest not decided solely by reference to agreements in force — Not necessarily incompatible with existence of direct interest that negotiations may be required before union obtains as part of collective agreement same packages as other union — In absence of formal agreement, established past practice may establish direct interest — In light of purpose of Act, liberal approach to interpretation mandated by S.C.C., use of “directly” to qualify “interested”, no reason to depart from Presho v. Insurance Officer, holding only “directly interested” when outcome of trade dispute applied automatically across board as result of collective agreement, binding or not, or industrial custom, practice — Based on evidence, Umpire correctly holding applicant not establishing not directly interested in labour dispute before Local 15 concluded collective agreement with City — But erred in upholding Board of Referee’s implicit conclusion applicant “directly interested” in outcome of Local 1004’s dispute after Local 15 voted to ratify tentative agreement — Uncontradicted evidence not City’s practice to amend agreements already made because of agreement subsequently negotiated with another bargaining unit — Such error immaterial as applicant not establishing not participating in labour dispute.
This was an application for judicial review brought by Jeanette Black on her own behalf and on behalf of 512 co-workers to set aside a decision of an Umpire holding that she was not entitled to employment insurance benefits because her unemployment arose from a work stoppage resulting from a labour dispute at her place of employment. The applicant was employed by the City of Vancouver as an “inside employee” and was a member of Canadian Union of Public Employees (CUPE), Local 15. The City’s “outside employees” belonged to a separate bargaining unit and were represented by CUPE, Local 1004. After the collective agreements expired, Local 1004 voted to strike. The employer and both Locals reached an agreement on which jobs were necessary to enable the City to provide essential services, the terms of which were incorporated into an order of the British Columbia Labour Relations Board (the ESO). Both unions signed tentative agreements, subject to ratification by their members, but the membership of Local 1004 voted to reject the tentative agreement and set up picket lines on August 6, 1997. Members of Local 15 neither attempted to cross, nor crossed, the picket lines. Local 15 postponed the ratification vote on its tentative agreement until the result of the Local 1004’s vote on its amended agreement was known. Local 1004 rejected the amended agreement and also the recommendations of a mediator. Local 15 subsequently voted on August 26 to accept the July 27 tentative agreement. The applicant did not work during the strike by Local 1004, which lasted until September 17. Her claim for employment insurance benefits was refused by the Canada Employment Insurance Commission, which further held that she had not brought herself within the re-entitlement provisions by satisfying the Commission that she had neither participated in the dispute, nor was directly interested in it. Employment Insurance Act (EIA), subsection 36(4) provides that claimants who are unemployed as a result of a labour dispute are nonetheless eligible for benefits if they prove that they were not “participating in, financing or directly interested in the labour dispute that caused the stoppage of work”. A Board of Referees upheld the Commission’s decision. An Umpire dismissed the appeal from the Board of Referees, holding that the fact that the employer was bound by the ESO not to allow any union members to work, except in the jobs necessary to maintain the designated essential services, was insufficient to establish that the applicant had not voluntarily participated in the strike. The Umpire drew this inference from Local 15’s participation in the negotiation of the ESO, an order that would not have been needed had members of Local 15 indicated that they intended to cross the picket lines. Finally, the Umpire concluded that the applicant had failed to demonstrate that she was not directly interested in Local 1004’s strike.
The issue was whether the applicant had established that she neither “participated in” nor was “directly interested” in the labour dispute, within subsection 36(4).
Held, the application should be dismissed.
In Hills v. Canada (Attorney General), the Supreme Court of Canada indicated that since the purpose of the EIA is to make benefits available to the unemployed, the re-entitlement provisions should be liberally interpreted. In addition, the word “participating” requires that the employee be actually involved in the labour dispute; “directly interested” means that he has something to gain or fear from it. The applicant submitted that her participation in the labour dispute was involuntary because she was prevented from working by the ESO. In order to determine whether a claimant is entitled to the benefit of subsection 36(4), it is relevant to consider the conduct of the claimant and her bargaining agent in the period preceding the issue of the ESO. If a union has been actively involved in the labour relations events leading up to the ESO, its members cannot later claim that they are entitled to employment benefits because they were not personally participating in the dispute, regardless of the degree of the union’s involvement or its interest in the dispute, and of all the other surrounding circumstances. Whether the applicant had demonstrated that she was not personally and actively participating in the labour dispute was largely a question of fact to be decided by the Board of Referees in light of all the circumstances of the case, subject to appeal for patent unreasonableness. On the evidence before it, it was open to the Board of Referees to conclude that the applicant had failed to discharge the statutory burden of proving that, for the purpose of subsection 36(4), she was not participating in the labour dispute. Members of Local 15 were clearly interested in the outcome of Local 1004’s labour dispute with their common employer; the two Locals had co-ordinated bargaining strategies, and ongoing communications; and the applicant had the opportunity to disassociate herself from her union by indicating a willingness to work during a strike by Local 1004 prior to the City’s application for an ESO. In addition, it was relevant that the City applied for the order that prevented the applicant from working because it had anticipated that, in the event of a strike, members of Local 15 would not report for work if, to do so, they had to cross Local 1004’s picket lines. This was a reasonable view for the City to take in the circumstances. Some weight was also given to the fact that the terms of the ESO, other than the standard terms of the global order, were the subject of negotiation between the two Locals and the City. However, since the Labour Relations Board had jurisdiction to impose an ESO unilaterally, the “voluntary” participation by Local 15 in the process before the Board was but one of the facts that the Board of Referees was entitled to take into account in making its ultimate finding. The Umpire did not err in holding that the applicant had not demonstrated that she had not participated in the labour dispute that had caused the work stoppage.
The applicant submitted that she was not “directly interested” in the outcome of the labour dispute because the terms on which Local 1004 settled with the employer would not necessarily have applied to Local 15. She relied on Presho v. Insurance Officer, in which case the House of Lords stated that one group of workers is only “directly interested” in a dispute between another group of workers and a common employer when the outcome will be applied automatically “across the board” as a result of a collective agreement legally binding or not, or industrial custom or practice. The Presho test was adopted by an umpire as the definition of “directly interested”, but in Légaré v. Canada (Employment Insurance Commission) this Court stated, without referring to Presho, that, whether one group is directly interested in another’s labour dispute is not “automatic”, but is a more complex question that must be determined on the basis of the particular facts. There is no inconsistency between these statements and Presho, in that the absence of a direct interest cannot be decided solely by reference to agreements in force. In addition, it is not necessarily incompatible with the existence of a direct interest that negotiations may be required before the claimant’s union obtains as part of its collective agreement the same package as the other union. Further, in the absence of a formal agreement, an established past practice may be necessary to establish a direct interest. However, it will not necessarily be sufficient if, for example, there is evidence that the employer did not intend to follow it in the dispute in question. In light of the purpose of the Act, the approach to its interpretation mandated in Hills and the use of the adverb “directly” to qualify “interested”, there was no reason to depart from the Presho test. A person’s entitlement to benefits should not be determined on the basis of speculation as to whether another group’s settlement might or might not have benefited the claimant’s group. There must be an “actual link” between the claimant and the dispute.
There is no direct interest in a labour dispute simply because, when it ends, an employee would be able to resume paid employment. If this were so, then all employees who are put out of work by a labour dispute would be ineligible to receive benefits. This would narrow the scope of subsection 36(4) almost to the point of elimination and would be inconsistent both with the requirement that the claimant’s interest be “direct” and with Hills. It was not alleged that the City was obliged by an agreement, whether legally binding or not, to incorporate into a future collective agreement with Local 15 the terms of a collective agreement concluded with Local 1004. Nor was there any evidence of an “established practice” whereby the employer would extend to Local 15 the benefit of any terms that it had agreed to with Local 1004. But there was evidence that Local 15 might well have expected to receive whatever benefits were negotiated by Local 1004. A letter from a City official that it was not the City’s practice to adjust an agreement with one group of employees, simply because another union achieved a larger wage increase or better benefits did not prove on the balance of probability that there was no established practice whereby, if Local 1004 had accepted the amended tentative agreement before Local 15 settled, Local 15 would obtain from the City the same benefits for its members when it concluded its collective agreement. Thus, on the basis of the evidence before the Board, the Umpire did not err when he upheld the Board’s largely factual finding that the applicant had failed to establish that she was not directly interested in the labour dispute before Local 15 concluded its collective agreement with the City.
However, the Umpire did err when he upheld the Board’s implicit conclusion that the applicant continued to be “directly interested” in the outcome of Local 1004’s dispute with the City after Local 15 had voted to ratify the tentative agreement, and thereby entered into a collective agreement with the City. The uncontradicted evidence was that it was not the practice of the City to amend agreements already made because of an agreement subsequently negotiated with another bargaining unit. The Board’s finding that the applicant remained directly interested in the labour dispute after her union had concluded a collective agreement was made without regard for the material before it, and the Umpire ought not to have upheld the Board decision on this point. The Umpire’s error was, however, immaterial in light of the conclusion that he did not err in holding that the applicant had failed to establish that she was not participating in the labour dispute.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Employment Insurance Act, S.C. 1996, c. 23, ss. 36(1),(4), 115(2)(c).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18.1(4)(d) (as enacted by S.C. 1990, c. 8, s. 5), 28(1)(m) (as am. idem, s. 8), (2) (as am. idem).
Labour Relations Code, R.S.B.C. 1996, c. 244, ss. 72, 73.
CASES JUDICIALLY CONSIDERED
applied:
Presho v. Insurance Officer, [1984] A.C. 310 (H.L.); revg [1983] I.C.R. 595 (C.A.).
distinguished:
Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513; (1988), 48 D.L.R. (4th) 193; 30 Admin. L.R. 187; 88 CLLC 14,011; 84 N.R. 86.
considered:
Knox (In re) (1989), CUB 16770; Légaré v. Canada (Employment Insurance Commission), [1998] F.C.J. No. 216 (C.A.) (QL).
referred to:
Minister of Employment and Immigration v. Carrozzella, [1983] 1 F.C. 909 (1982), 83 CLLC 14,013; 45 N.R. 541 (C.A.); CUB 3443; Shea (In re) (1990), CUB 19034; Fraser (In re) (1999), CUB 48815.
AUTHORS CITED
Canada. Human Resources Development. Digest of Benefit Entitlement Principles. Ottawa: Human Resources Development Canada, looseleaf.
APPLICATION for judicial review of an Umpire’s decision that the applicant was not entitled to employment insurance benefits because her unemployment arose from a work stoppage resulting from a labour dispute at her place of employment (Black (In re) (2000), CUB 48786). Application dismissed.
APPEARANCES:
Paul Tétrault for applicants.
Curtis S. Workun and Edward Burnet for respondent.
SOLICITORS OF RECORD:
Canadian Union of Public Employees, Burnaby, British Columbia, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
Evans J.A.:
A. INTRODUCTION
[1] This is an application for judicial review by Jeanette Black to set aside a decision of an Umpire (Black (In re) (2000), CUB 48786) holding that she was not entitled to employment insurance benefits because her unemployment arose from a work stoppage resulting from a labour dispute at her place of employment: Employment Insurance Act, S.C. 1996, c. 23, subsection 36(1). Ms. Black has also made this application on behalf of 512 co-workers who have agreed to be bound by the result.
[2] The issue to be decided is whether the Umpire committed a reviewable error when he rejected the applicant’s contention that, despite falling within the general disqualification of those unemployed as a result of a labour dispute, she was re-entitled to benefits by virtue of subsection 36(4) of the Act. This provides that claimants who are unemployed as a result of a labour dispute are nonetheless eligible for benefits if they prove that they were not “participating in, financing or directly interested in the labour dispute that caused the stoppage of work” [underlining added].
B. FACTUAL BACKGROUND
[3] The applicant was employed by the City of Vancouver as an “inside employee” and was a member of Canadian Union of Public Employees (CUPE), Local 15 (Local 15). The City’s “outside employees” belonged to a separate bargaining unit and were represented by CUPE, Local 1004 (Local 1004). Each bargaining unit’s collective agreement expired on December 31, 1996, and on February 5, 1997, both Locals commenced negotiations with the employer for new agreements.
[4] On May 4, 1997, Local 1004 voted in favour of a strike and on June 16 served a strike notice on the City. The City was concerned to ensure that, in the event of a strike, essential services would continue to be provided. Consequently, it applied to the British Columbia Labour Relations Board for an essential services order (ESO). With the help of a mediator from the Board, the employer and both Locals reached an agreement on essential services on June 25, the terms of which were incorporated two days later into an order of the Board.
[5] The order applied to employees belonging to each of the locals. The first part of the order, the “global order”, contained standard terms found in most such orders and had not been the subject of negotiation. Among other things, the global order stipulated that employees performing the jobs identified in the specific part of the order were to work, but that other members of the unions were not permitted to work at the struck locations. The specific part of the order, which had been the subject of negotiation, identified the jobs necessary to enable the City to provide the services that were designated in the order as essential.
[6] On July 16, 1997, Local 1004 served another strike notice, stating that its members intended to strike on July 21. On July 24, members of Local 15 also voted to strike. Nonetheless, mediation continued and, on July 27, both Locals signed tentative agreements with the City that were subject to ratification by the members of the respective bargaining units. On July 30, members of Local 1004 voted to reject the tentative agreement reached between their Local and the City.
[7] On August 6, members of Local 1004 set up picket lines at two City work sites, before the union had officially called a strike. Next day, however, the strike received official union sanction and members of Local 1004 picketed City hall and other work locations. Members of Local 15 employed at these locations were affected, because the ESO precluded most of them from working there during the strike. No member of Local 15 crossed, or attempted to cross, Local 1004’s picket lines on August 6, or at any time thereafter.
[8] Meanwhile, on August 6, the City and Local 1004 agreed to certain amendments to their tentative agreement, again subject to ratification by the membership. When Local 15 learned of this development, it decided to await the result of Local 1004’ s vote on August 10 on its amended agreement. It therefore postponed until August 26 the ratification vote on its tentative agreement that it had originally scheduled for August 7. However, on August 10, Local 1004 rejected the amended agreement and, on August 25, voted also to reject the recommendations of a mediator appointed by the Ministry of Labour.
[9] Nonetheless, on August 26, 1997, Local 15 voted by a simple majority to accept the July 27 tentative agreement, which thereby became the new collective agreement. The strike by Local 1004 was not finally settled until September 16.
[10] The applicant had not worked during the strike by Local 1004, which lasted from August 7 until the return to work on September 17. Her claim for employment insurance benefits for this period was refused by the Canada Employment Insurance Commission, on the ground that her unemployment was the result of a labour dispute. Furthermore, she had not brought herself within the re-entitlement provisions by satisfying the Commission that she had neither participated in the dispute, nor was directly interested in it.
[11] On behalf of herself and the 512 employees who had agreed to be bound by the result, Ms. Black appealed against this refusal to a Board of Referees, which upheld the Commission. In a majority decision, the Board held that Ms. Black could not rely on the ESO to justify her unemployment, because her union, Local 15, had been in communication with, and had worked with Local 1004 during the contract negotiations, up until July 27, 1997, when the Locals reached tentative agreements with the City. Further, as a signatory to the ESO, Local 15 was directly interested in the dispute.
C. DECISION OF THE UMPIRE
[12] The Umpire dismissed the appeal from the Board of Referees. He held that Ms. Black had not brought herself within either of the re-entitlement provisions in subsection 36(4) relevant in this case. The fact that the employer was bound by the ESO not to allow any union members to work, except in the jobs necessary to maintain the designated essential services, was insufficient to establish that she had not voluntarily participated in the strike.
[13] The Umpire drew this inference from Local 15’s participation in the negotiation of the ESO, an order that the City would not have needed if members of Local 15 had indicated that they intended to cross Local 1004’s picket lines. He also reasoned that, while Locals 15 and 1004 were in law separate trade unions, in fact they had worked closely together during most of the negotiations and, as affiliates of CUPE National, subscribed to the principle of solidarity. Thus, for example, CUPE National’s constitution and Local 15’s by-laws made it an offence for members to cross union picket lines. In the absence of any attempt by Ms. Black and the 512 other applicants to disassociate themselves from their Local’s actions, they were bound by their union’s involvement in the labour dispute.
[14] Finally, the Umpire concluded that Ms. Black had failed to demonstrate that she was not directly interested in Local 1004’s strike. He noted, in particular, that Local 15 had postponed its ratification vote until after Local 1004 had voted on the amended tentative agreement, anticipating that the City would offer to Local 15 whatever additional wages or benefits the City had agreed with Local 1004.
D. LEGISLATIVE FRAMEWORK
[15] Only the following provisions of the employment insurance legislation are relevant to this application.
Employment Insurance Act, S.C. 1996, c. 23
36. (1) Subject to the regulations, if a claimant loses an employment, or is unable to resume an employment, because of a work stoppage attributable to a labour dispute at the factory, workshop or other premises at which the claimant was employed, the claimant is not entitled to receive benefits until the earlier of
(a) the end of the work stoppage, and
(b) the day on which the claimant becomes regularly engaged elsewhere in insurable employment.
…
(4) This section does not apply if a claimant proves that the claimant is not participating in, financing or directly interested in the labour dispute that caused the stoppage of work.
[16] In order to provide some legislative background to the grant of essential services orders in British Columbia, I set out below the relevant provisions of the provincial statute.
Labour Relations Code, R.S.B.C. 1996, c. 244
72 (1) If a dispute arises after collective bargaining has commenced, either of the parties to the dispute may apply to the chair to investigate, or the chair on his or her own motion may
(a) investigate whether or not the dispute poses a threat to the health, safety or welfare of the residents of British Columbia, and
(b) report the results of the investigation to the minister.
(2) If the minister
(a) after receiving a report of the chair respecting a dispute, or
(b) on the minister’s own initiative
considers that a dispute poses a threat to the health, safety or welfare of the residents of British Columbia, the minister may direct the board to designate as essential services those facilities, productions and services that the board considers necessary or essential to prevent immediate and serious danger to the health, safety or welfare of the residents of British Columbia.
(3) When the minister makes a direction under subsection (2) the associate chair of the Mediation Division may appoint one or more mediators to assist the parties to reach an agreement on essential services designations.
(4) A mediator appointed under subsection (3) must report to the associate chair of the Mediation Division within 15 days of his or her appointment or within any additional period agreed on by the parties.
(5) The board
(a) must within 30 days of receiving the report of a mediator, designate facilities, productions and services as essential services under subsection (2), and
(b) may, in its discretion, incorporate any recommendations made by the mediator into the designation under that subsection.
(6) If the minister makes a direction under subsection (2) before a strike or lockout has commenced, the parties must not strike or lock out until the designation of essential services is made by the board.
(7) If the minister makes a direction under subsection (2) after a strike or lockout has commenced, the parties may continue the strike or lockout subject to any designation of essential services by the board.
(8) If the board designates facilities, productions and services as essential services, the employer and the trade union must supply, provide or maintain in full measure those facilities, productions and services and must not restrict or limit a facility, production or service so designated.
(9) A designation made under this section may be amended, varied or revoked and another made in its place, and despite section 135 the board may, in its discretion, on application or on its own motion, decline to file its order in a Supreme Court registry.
73 (1) Every employer, trade union or employee affected by a direction or designation made under section 72 with respect to the dispute must comply with the direction or designation.
(2) If a designation is made under section 72, the relationship between the employer and his or her employees, while the designation remains in effect, must be governed by the terms and conditions of the collective agreement last in force between the employer and the trade union except as that collective agreement is amended by the board to the extent necessary to implement the designation of essential services.
(3) The board may under section 72 designate facilities, productions and services supplied, provided or maintained by employees of the employer who are represented by another trade union that is not involved in a collective bargaining dispute with the employer.
E. ANALYSIS
[17] The submissions of counsel for Ms. Black on the issues of participation and direct interest drew heavily on Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513. Accordingly, I shall examine at the outset the implications of that decision for the case at bar.
[18] Hills, supra, was concerned with the provision in subsection 36(4) that is not at issue in this appeal, namely, whether the appellant had established that he had not financed the labour dispute that had led to the work stoppage at his place of employment that caused his unemployment. The decision is therefore not directly on point, since the present case concerns the other re-entitlement provisions, namely, non-participation and no direct interest in the dispute. Nonetheless, the reasons of L’Heureux-Dubé J., writing for the majority, are clearly relevant to the determination of issues raised in this application.
[19] First, L’Heureux-Dubé J. set out, at page 537, the approach to be taken to the interpretation of the Employment Insurance Act in general and, in particular, to what is now section 36:
Since the purpose of the Act is to make benefits available to the unemployed, a liberal interpretation of the re-entitlement provisions is warranted, given that the Act was not designed to deprive innocent victims of a labour dispute of the benefits of the Act and also given that employees do contribute to the unemployment insurance fund.
[20] In addition, addressing the provisions of subsection 36(4) relevant to this application, she said, at page 552:
The word “participating” requires that the employee be actually involved in the labour dispute, “directly interested” that he has something to gain or fear from it, … .
In a dissenting judgment, Lamer J. [as he then was] expressed, at page 561, the same view on this point as L’Heureux-Dubé J.:
The verb “participate” inevitably implies an active and personal role in the ongoing labour dispute; the adverb “directly”, which qualifies the nature of the claimant’s interest, establishes an actual link between him and the dispute.
However, unlike the majority, Lamer J. concluded, at page 563, that active and personal involvement was not required with respect to “financing”.
[21] Accordingly, the questions to be decided in this case ultimately depend on whether, for the purpose of subsection 36(4), the conduct of the applicant during the dispute should have been characterized by the Umpire as being other than voluntary and active participation in the labour dispute, and on whether she did not stand to gain or lose by the outcome of the dispute in a way that precluded her from being “directly interested” in it.
[22] Whether a claimant has established that she neither participated in, nor was directly interested in, a labour dispute is a question that contains elements of both law and fact. This an important distinction, since, on an appeal the Umpire may interfere with the findings of fact by a Board of Referees, only if they were made in an arbitrary or capricious manner, or without regard for the material before it: Employment Insurance Act, paragraph 115(2)(c). And, on an application for judicial review of an Umpire’s decision under the Federal Court Act, R.S.C., 1985, c. F-7, paragraph 28(1)(m) [as am. by S.C. 1990, c. 8, s. 8], this Court is similarly limited in its review of the findings of fact on which the decision is based: subsection 28(2) [as am. idem] and paragraph 18.1(4)(d) [as enacted idem, s. 5].
|
Issue 1 |
Did the Umpire commit a reviewable error when he held that the claimant had failed to establish that she was not participating in the work stoppage by the members of Local 1004 and, hence, did not become re-entitled to benefits by virtue of subsection 36(4), even though an ESO was in effect that prevented her from working? |
[23] Counsel for Ms. Black conceded that employees who do not report for work because their place of employment is being picketed by members of another union are normally disqualified from receiving benefits by virtue of subsection 36(1). A refusal to cross, or a failure to attempt to cross a picket line presumptively constitutes voluntary and active participation in a labour dispute so as to preclude re-entitlement under subsection 36(4): Minister of Employment and Immigration v. Carrozzella, [1983] 1 F.C. 909 (C.A.).
[24] However, counsel argued, there was clear evidence in the case at bar that the applicant was not at work during the strike by Local 1004 because she was not performing a job identified in the ESO negotiated with the City by Locals 1004 and 15 as necessary for the maintenance of a designated essential service. In order to comply with the order, the City could not allow into work those members of Local 15 who were not employed in the prescribed jobs, including the applicant. Accordingly, the applicant’s participation in the labour dispute had been involuntary.
[25] Further, he submitted, it was not open to the Board of Referees to speculate on whether the applicant would have crossed Local 1004’s picket line if the ESO had not been in force. In counsel’s submission, the present case was analogous to those in which picket lines had gone up, but claimants had not crossed them because the employer had stated that there would be no work for them until the dispute was over. In such cases, employees have been held not to have participated in a labour dispute for the purpose of subsection 36(4), and umpires have refused to speculate on whether individual claimants would have crossed the picket line if work had been available for them at their place of employment: CUB 3443; Shea (In re) (1999), CUB 19034.
[26] Counsel was thus advancing the proposition that a person who was prevented by an ESO from going to work is not participating in a labour dispute for the purposes of subsection 36(4) because her failure to report for work did not constitute personal and active involvement in the dispute. The Board and the Umpire therefore erred in law by having regard to events prior to the issue of the ESO, in particular, to the relationship between Local 1004 and Local 15 during the bargaining period and to Local 15’s role in the negotiation of the ESO.
[27] Whether the existence of an ESO that prevented the claimant from working proves that the claimant was not participating in a labour dispute is a sufficiently general question that it is properly characterized as a question of law involving the interpretation of the Act. When decided by an umpire, such questions are subject to review on a standard of correctness.
[28] In my opinion, however, the interpretation of the word “participating” urged on behalf of Ms. Black is too narrow. In order to determine whether a claimant is entitled to the benefit of subsection 36(4) as an innocent bystander swept up in another’s dispute, it seems to me relevant to consider the conduct of the claimant and her bargaining agent in the period preceding the issue of the ESO. If a union has been actively involved in the labour relations events leading up to the ESO, its members cannot later claim that they are entitled to employment insurance benefits because they were not personally participating in the dispute, regardless of the degree of the union’s involvement or its interest in the dispute, and of all the other surrounding circumstances.
[29] I do not understand Hills, supra, to have decided that union members are never bound by the actions of their union, but only that, on the facts of that case, it was not open to conclude that the appellant was participating in the labour dispute for the purpose of subsection 36(4). In that case, the president of the international union to which the claimant’s union was affiliated had made a contribution to another affiliated union while the members of that union, who were also employees of the claimants’ employer, were on strike. The contribution came from the international union’s strike fund, which was controlled by the president. In accordance with the international union’s constitution, affiliated local unions remitted to the international union the portion of their members’ dues that was automatically diverted to the union’s strike fund.
[30] Even though the union president’s payment clearly financed the labour dispute that had caused the claimant’s unemployment, L’Heureux-Dubé J. held that the president’s payment was not attributable to the members so as to preclude them from the benefit of the re-entitlement provision in what is now subsection 36(4). She noted that a union is not the agent of its members and the actions of its officials therefore do not automatically bind the members. A union enters into a collective agreement as an independent contracting party and, in its capacity as the certified bargaining agent of the members, collects and disburses union dues as a legal entity separate from the members.
[31] In my opinion, however, the facts of Hills, supra, are materially different from those of the case before us. First, in Hills, supra, the members’ contributions to the union strike fund were not directed to any particular labour dispute, and certainly not to the strike by other employees against their common employer. After the strike funds were remitted to the international union, their disbursement was not within the control either of the members, or their local. Mr. Hills’ union, the local, could thus be said to have contributed only very indirectly to the labour dispute at his place of employment.
[32] In contrast, in the case at bar, Local 15 and the striking union, Local 1004, had actively collaborated during their separate but parallel negotiations with the common employer; Mr. Gorman, a CUPE National official, who represented Ms. Black in the appeals before both the Board and the Umpire, kept both Locals abreast of developments in the dispute after July 27, and was a signatory of Local 15’s tentative agreement and of Local 1004’s final agreement; and both Locals were parties to the negotiation of the terms of the ESO that identified which of the jobs performed by their members were necessary for the continued provision of designated essential services. Local 15 was thus immediately involved in the events leading up to the labour dispute that interrupted Ms. Black’s employment.
[33] Second, in Hills, supra, the claimant had no interest of any kind in the outcome of the labour dispute that had occasioned his unemployment. In the instant case, on the other hand, whether or not Ms. Black was “directly interested” within the meaning of that phrase in subsection 36(4), the conduct of the two Locals strongly suggests that Local 15 and its members were far from being disinterested bystanders in the dispute between Local 1004 and the City of Vancouver.
[34] Thus, before negotiations with the City started, the two Locals had unsuccessfully applied to bargain together. Their collective agreements had ended on the same date, they started to negotiate new agreements at the same time and they collaborated during the parallel collective bargaining. Finally, Local 15 postponed its vote on its tentative agreement with the employer until Local 1004 had held its vote on the amended offer that had been made to it. Members of Local 15 were clearly interested in the outcome of Local 1004’s dispute with their common employer.
[35] Third, if the claimant in Hills, supra, had disapproved of the use of his union dues to establish a strike fund, his only immediate option seems to have been to leave his employment. Not surprisingly, the Supreme Court of Canada concluded that, in the context of an employment insurance benefit claim, this was not a realistic option. In theory, he could have had resort also to the democratic process of his union, and attempted to bring about a change in its constitution, or to secure the election of different officials. However, this was not a course of action of much practical relevance to Mr. Hills’ more immediate problem.
[36] There is no evidence whether all or any of the applicants in the case at bar understood, before the City applied for an ESO, that, if there were a strike and an ESO came into effect, they would not be paid by their employer and would be presumptively disentitled from employment insurance benefits by virtue of subsection 36(1). Nonetheless, it was not as unrealistic to expect the applicants to disassociate themselves from their union by indicating their willingness to work during a strike by Local 1004, as it was to expect Mr. Hills to quit his job at a time of high unemployment. After all, claimants are normally expected to cross, or to try to cross, a picket line when no ESO is in force in order to obtain employment insurance benefits, even though they may be disciplined by their union for not respecting another union’s picket.
[37] In my opinion, therefore, Hills, supra, does not stand for the proposition that, in no circumstances, may actions taken by a union in the course of a labour dispute be attributed to a union member so as to prevent her from establishing that she did not participate in the dispute that led to the interruption of her employment. Thus, whether the applicant had demonstrated that she was not personally and actively participating in the labour dispute is largely a question of fact to be decided by the Board of Referees in light of all the circumstances of the case, subject to appeal for patent unreasonableness.
[38] On the evidence before it, it was open to the Board of Referees, in my view, to conclude that Ms. Black had failed to discharge the statutory burden of proving the negative proposition that, for the purpose of subsection 36(4), she was not participating in the labour dispute. I have already mentioned the interest that Local 15 and its members had in Local 1004’s labour dispute with the common employer, the coordinated bargaining strategies of and the ongoing communications between the two Locals of a national union, and the opportunity that the applicant had to disassociate herself prior to the City’s application for an ESO.
[39] In addition, it is relevant that the City applied for the order that prevented Ms. Black from working because it had anticipated that, in the event of a strike, members of Local 15 would not report for work if, to do so, they had to cross Local 1004’s picket lines.
[40] This was a very reasonable view for the City to take. As I have already indicated, both Locals were affiliated to CUPE National and Local 15 made it an offence for a member to cross another union’s picket line; from the time that their contracts expired up until July 27, Local 15 had collaborated and coordinated with Local 1004 during the bargaining process; and no member of Local 15 had crossed any of the limited picket lines put up by members of Local 1004 before the strike became official. Further, the Locals regarded their interests as closely connected, as evidenced by their attempt to bargain together, which the City had successfully resisted.
[41] Some weight may also be given to the fact that the terms of the ESO, other than the standard terms of the global order, were the subject of negotiation between the two Locals on the one hand, and the City on the other. However, since the Labour Relations Board had the jurisdiction to impose an ESO unilaterally, the “voluntary” participation by Local 15 in the process before the Board was no more than one of the facts that the Board of Referees was entitled to take into account in making its ultimate finding.
[42] In all the circumstances of this case, and acknowledging the liberal interpretation to be given to the re-entitlement provisions of the Act, I am of the opinion that the Umpire made no reviewable error when he upheld the decision of the Board of Referees that Ms. Black was not entitled to employment insurance benefits because she had failed to demonstrate that she had not participated in the labour dispute that had caused the stoppage of work.
[43] This is sufficient to dispose of the application. However, in case I am wrong on the issue of participation, and because it was fully argued, I shall consider briefly the second issue.
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Issue 2 |
Did the Umpire commit a reviewable error when he concluded that Ms. Black had failed to establish that she was not “directly interested in the dispute” for the purpose of subsection 36(4)? |
[44] Counsel for Ms. Black made two submissions on this issue. First, the applicant was not “directly interested” in the outcome of Local 1004’s labour dispute with the City because the terms on which Local 1004 ultimately settled with the employer would not necessarily have applied to Local 15. In the alternative, the Umpire committed a reviewable error when he concluded that Ms. Black remained directly interested in the dispute after August 26, 1997, when, by ratifying the tentative agreement of July 27, Local 15 entered into a new collective agreement with the City.
[45] As authority for his first proposition, counsel relied on Presho v. Insurance Officer, [1984] A.C. 310 (H.L.), where, in the course of interpreting statutory provisions identical to those before us, Lord Brandon said, at page 318, that one group of workers is only “directly interested” in a dispute between another group of workers and a common employer when the following two conditions are met:
The first condition is that, whatever may be the outcome of the trade dispute, it will be applied by the common employers not only to the group of workers belonging to the one union participating in the dispute, but also to the other groups of workers belonging to the other unions concerned. The second condition is that this application of the outcome of the dispute “across the board”, as it has been aptly described, should come about automatically as a result of one or other of three things: first, a collective agreement which is legally binding; or, second, a collective agreement which is not legally binding; or third, established industrial custom and practice at the place of work concerned.
[46] Finding for Ms. Presho, the House of Lords reversed the Court of Appeal ([1983] I.C.R. 595), which had held that the claimant was only indirectly interested because there might have to be formal negotiations between the claimant’s union and management before the benefit of the outcome of the dispute with the other union was extended to the claimant’s union. This, Lord Brandon said, at page 319, was “too restricted a meaning” to give to the phrase in this context.
[47] The Presho test was adopted by the Umpire in Knox (In re) (1989), CUB 16770 as the comprehensive definition of “directly interested” in a labour dispute for the purpose of subsection 36(4) of the Employment Insurance Act. In addition, although not expressly identified as such, the Presho test is included as part of the explanatory text of the Commission’s publication on employment insurance, Digest of Benefit Entitlement Principles, at paragraph 8.8.1.
[48] However, in Légaré v. Canada (Employment Insurance Commission), [1998] F.C.J. No. 216 (C.A.) (QL), this Court stated in very short reasons that do not refer to Presho, supra, that, whether one group is directly interested in another’s labour dispute, is not “automatic”, but is a more complex question that must be determined on the basis of the particular facts of the case.
[49] In my view, there is no inconsistency between these statements and Presho, supra, in that the absence of a direct interest in the labour dispute cannot be decided solely by reference to agreements in force. In addition, it is not necessarily incompatible with the existence of a direct interest that negotiations may be required before the claimant’s union obtains as part of its collective agreement the same package as the other union. Further, in the absence of a formal agreement, an established past practice may be necessary to establish a direct interest. However, it will not necessarily be sufficient if, for example, there is evidence that the employer did not intend to follow it in the dispute in question: see, for example, Fraser (In re) (1999), CUB 48815.
[50] In light of the purpose of the Act, the approach to its interpretation mandated in Hills, supra, and the use of the adverb “directly” to qualify “interested”, I see no reason to depart from the Presho test. A person’s entitlement to benefits should not be determined on the basis of speculation as to whether another group’s settlement might or might not have benefited the claimant’s group. This is what I understand Lamer J. to have meant in Hills, supra, when he stated that there must be an “actual link” between the claimant and the dispute.
[51] I cannot accept the Commission’s argument that Ms. Black was directly interested in the labour dispute because, when it ended, she would be able to resume paid employment. If this proposition were correct, then all employees who are put out of work by a labour dispute would be ineligible to receive benefits. This would narrow the scope of subsection 36(4) almost to the point of elimination, and would be inconsistent both with the requirement that the claimant’s interest be “direct”, and with Hills, supra.
[52] It is not alleged in the present case that the City was obliged by the terms of an agreement, whether legally enforceable or not, to incorporate into a future collective agreement with Local 15 the terms of any collective agreement that it had concluded with Local 1004. The Commission produced no evidence that directly proved that there was an “established practice” whereby the City of Vancouver would extend to Local 15 the benefit of any terms that it had agreed with Local 1004.
[53] However, there was evidence, which I have already considered, indicating that Local 15 might well have expected to receive whatever benefits were negotiated by Local 1004. Not only had the two locals coordinated their bargaining, but Local 15 decided to postpone its ratification vote pending Local 1004’s vote on its tentative agreement, no doubt in the expectation that, if Local 1004 accepted the City’s improved offer, its members would be offered similar terms. It will also be recalled that the locals had considered their interests, and their issues with the employer, sufficiently similar that they had wanted to bargain together.
[54] It is important to emphasize that, once disqualified from receiving benefits by subsection 36(1), claimants have the burden of proving that they are re-entitled under subsection 36(4). In an attempt to discharge the burden of proving the absence of a direct interest, counsel for Ms. Black pointed to evidence contained in a letter to the Commission from a City official, Ms. Marilyn Clark, in which she had stated that it was not the City’s practice to adjust an agreement with one group of employees, simply because another union achieved a larger wage increase or better benefits. Indeed, counsel pointed out, members of Local 15 were not given the $700 return-to-work payment that Local 1004 negotiated as part of its collective agreement.
[55] In my view, however, given the other evidence before the Board indicating the strong possibility of benefit, this evidence does not prove on the balance of probability that there was no established practice whereby, if Local 1004 had accepted the amended tentative agreement before Local 15 settled, Local 15 would obtain from the City the same benefits for its members when it concluded its collective agreement.
[56] Thus, on the basis of the evidence before the Board in this case, the Umpire did not err when he upheld the Board’s largely factual finding that Ms. Black had failed to establish that she was not directly interested in the labour dispute before Local 15 concluded its collective agreement with the City. The fact that neither the Board, nor the Umpire, expressly addressed the definition of “directly interested” as elaborated by Presho, supra, would not have been a ground for quashing the Umpire’s decision and remitting the matter to the Board.
[57] However, even though claimants bear the burden of proving the facts necessary to establish re-entitlement under subsection 36(4), the Umpire was, in my view, in error when he upheld the Board’s implicit conclusion that Ms. Black continued to be “directly interested” in the outcome of Local 1004’s dispute with the City, after Local 15 had voted on August 26 to ratify the tentative agreement, and thereby entered into a collective agreement with the City.
[58] The uncontradicted evidence before the Board was that it was not the practice of the City to amend agreements already made because of an agreement subsequently negotiated with another bargaining unit. This evidence is supported by the fact that Local 15 did not receive the $700 return-to-work payment that the City had agreed to pay to members of Local 1004 as part of that unit’s settlement. Hence, the Board’s finding that Ms. Black remained directly interested in the labour dispute after her union had concluded a collective agreement was made without regard for the material before it and the Umpire ought not to have upheld the Board on this point.
[59] However, the Umpire’s error is immaterial in light of my conclusion that he did not err when he upheld the Board’s decision that Ms. Black had failed to establish that she was not participating in the labour dispute.
F. CONCLUSIONS
[60] For these reasons, and despite the submissions ably made by counsel for the applicant, I would dismiss the application for judicial review with costs.
Rothstein J.A.: I agree.
Sexton J.A.: I agree.