Law Times

PAGE 12 FOCUS march 2, 2009 • Law Times cross picket lines during a strike, says the Ontario Court of Appeal in a recent decision. Unions can't turn to courts to enforce fines U BY GRETCHEN DRUMMIE Law Times nions may not turn to the courts to enforce fi nes lev- ied against workers who So, is this a big deal? "It is, and it isn't," says John Craig, partner at Heenan Blaikie LLP. "Th e reason why it is a big deal is because unions have been resort- ing more and more to this kind of strategy to enforce solidarity on picket lines," Craig tells Law Times. But at the same time it's not such a big deal because, "Th ere hasn't yet been a case in Canada in which a union successfully has been able to enforce fi nes in court … In terms of the overall case law the decision that I got from the Court of Appeal is entirely con- sistent with every other case that's been decided on the issue." Canadian Employment Law Also available on CD-ROM or Internet! One of Canada's foremost employment authorities provides an examination of the facts you can count More than 5,500 cases cited! This one-stop reference provides a thorough survey of the law. It clearly analyzes current law and devel- oping trends, suggests potential avenues of attack as well as identifies potential weaknesses in the law. Covering the complete range of employment law in Canada, Canadian Employment Law provides the detailed examination of the facts you can count on. The subject-matter is wide-ranging and addresses issues such as: • • • • • wrongful dismissal fiduciary obligations tort law and vicarious liability issues remedies constitutional issues Easily compare lengths of notice awards and examine pertinent decisions This resource also includes a Table of Reasonable Notice—a chart, which groups together comparable types of positions so you can easily compare length of notice awards. All topics are illustrated with extensive case law and heavily footnoted. Canadian Employment Law has been cited by the Supreme Court of Canada. ORDER your copy today Looseleaf & binders (2) • $297 • Releases invoiced separately (3-4/yr) P/C 0439030000 • Vol. 1 ISBN 0-88804-218-3 • Vol. 2 ISBN 0-88804-362-7 CD-ROM or Internet version available separately • Prices start at $221 • • • occupational health and safety employment contracts duty of good faith and fidelity and human rights Th e decision arises from Birch and Luberti v. Union of Taxation Employees Local 70030 released late in 2008. Th e court decided in favour of Jeff rey Birch and April Luberti, two union mem- bers who exercised their right to work during a strike, says Craig, who represented the workers. Th e members were fi ned and then sued by their union to collect on the fi nes. "Th e problem here is the union decided to sue their members in court to collect the fi nes and at this point they ran into the problem that the courts don't enforce penal- ty clauses. Th at's a general principal that applies to everybody, not just unions, that the courts won't get involved. So if you have a contract that includes a penalty clause the court will not come to your assis- tance," says Craig. "Th e Court of Appeal was clear that the provisions in the union's constitution that authorized the imposition of fi nes in such cir- cumstances were unconscionable and therefore unenforceable by the courts," writes Craig in a fi rm bul- letin. "Birch v. Luberti is consistent with similar decisions from the Al- berta, Manitoba, and Newfound- land courts that have all refused to enforce fi nes levied by trade unions against their members." Craig writes that while the For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. BALL_Canadian Employment Law (LT 1-4x3).indd 1 LT0302 court acknowledged the "impor- tance of solidarity to trade union activities [it] sent a clear message that trade unions should rethink their strategies for promoting soli- darity. Specifi cally, trade unions should resolve these issues inter- nally, whether by internal disci- pline, persuasion, or by providing employees with the fi nancial sup- port they need during a strike." In 2004 the UTE, a com- ponent of the Public Service 2/25/09 2:56:17 PM 'The decision that I got from the Court of Appeal is entirely consistent with every other case that's been decided on the issue,' says John Craig. Alliance of Canada, was engaged in a legal strike at the Canada Rev- enue Agency. Birch and Luberti, CRA employees who were mem- bers of the union, supported the strike for several days but "then for fi nancial reasons couldn't continue on so they crossed," says Craig. Th e union brought disciplin- ary proceedings, which resulted in suspension of their union member- ships for three years, and each was fi ned $476.75, which was equal to the gross wages they earned on the three days they worked during the strike, he said. When they refused to pay the fi ne, the union sued them in Small Claims Court. Birch and Luberti responded by bringing an application in Superior Court seeking a fi nding that the provision of the union's constitution authorizing the fi ne was a penalty clause that could not be enforced in the courts, says Craig, adding the "employees won a decisive victory." Th e union appealed and by a two-to-one margin Ontario's top court upheld the lower court. Th e appeal court found that Enforcing Human Rights in Ontario Katherine Laird, Executive Director, Human Rights Legal Support Centre "while a union constitution is not a typical commercial contract, it is nevertheless contractual in nature. Th ere is no reason to suggest that the law of unconscionability does not apply to these kinds of agree- ments," says Craig in the bulletin. "To suggest otherwise would be to deny the exercise of the equitable jurisdiction of the courts to pro- vide a remedy to individuals who have suff ered an injustice at the hands of their union." Th e majority applied a two- Kim Bernhardt, B.A. (Hons.), LL.B., LL.M. Specializing in equality rights The was recently amended to significantly change how human rights are protected, promoted and enforced in Ontario. Enforcing Human Rights in Ontario is the first book to outline how the new human rights system works, written by lawyers renowned for their experience in the area. Written in a practical, how-to format, it provides: • the history of the reform • the wide-ranging changes from the old to the new system – including the changed roles of the Human Rights Commission, Human Rights Tribunal and an overview of the new Human Rights Legal Support Centre • the new role of the courts in enforcing human rights • the interaction between the Human Rights Tribunal and other administrative tribunals with concurrent jurisdiction • practical information and principled analysis to help those representing complainants, respondents, intervenors and the Commission Benefit from practical tools such as: • the and Human Rights Tribunal • a flow chart of the application process • a list of the Commission's guidelines and policies • information on legal supports … and more. Order your copy today! Hardbound • Approx. 320 pp • March 2009 • Approx. $84 P/C 0301010000 • ISBN 978-0-088804-485-3 For a 30-day, no-risk evaluation call: 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. Prices subject to change without notice, to applicable taxes and shipping & handling. www.lawtimesnews.com Cornish_enforcing Human Rights (LT 1-3x4).indd 1 2/25/09 2:57:09 PM LT0302 part analysis that required a fi nding that "(1) there was an inequality of bargaining power between the parties, and (2) the terms of the agreement had a substantial degree of unfairness." He says the court found an in- equality of bargaining power exist- ed between the employees and the union and likened the union's con- stitution to a contract of adhesion. When the workers joined they had no ability to negotiate or change the constitution and the fact that they could recommend change after becoming members "did not alter the analysis," he writes. With respect to the fairness ele- ment, the court found the penal- ties were excessive and said basing the fi ne on the value of the work to the employer does not make an excessive fi ne justifi able. "Th e Court of Appeal stressed that a See Union, page 15 Stacey Reginald Ball "H uman rights advocates will find this book an excellent and user-friendly their fundamental human rights." guide to enforcing Rules of guide to the human rights system in Ontario. "Practitioners will welcome this much- testament to the authors' H Mary Cornish, Fay Faraday and Jo- to ensuring the protection and advancement of human rights in this province." Anne Pickel expertise and long- needed and comprehensive This book is a strong standing commitment uman Rights Code Procedure H uman Rights Code

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