Winner of the 2019 Labour and Employment Law Section Student Essay Contest

  • June 07, 2019

The Dual Aspect of Canadian Unions: Public and private law issues in the context of internal trade union disputes

Cole Eisen, University of Toronto Faculty of Law


Exclusivity is the organizing principle of the Canadian labour law.[1]  Certified unions acquire a statutory status to exclusively represent a particular group of workers in order to carry out the objective of collective bargaining. While it remains uncertain whether the Canadian Charter of Rights and Freedoms[2] demands a collective bargaining regime based on exclusivity,[3] Canadian legislatures have overwhelmingly relied upon labour relations legislation reflecting this principle to deliver collective bargaining.

In this respect, the Canadian model is a global outlier. In most countries, individual workers in the same workplace can hold membership in different unions and the union or coalition of unions engaged by the employer reflects power dynamics alone. The Canadian model’s emphasis on exclusivity is rooted in the 1935 American Wagner Act.[4]  A centrepiece of Franklin Roosevelt’s New Deal, the Wagner Act sought to lift the United States out of the Great Depression by restoring working class consumption through industrial democracy. This was accomplished through significant statutory intervention that both constrained trade union conduct and provided union security through the instrument of exclusive bargaining rights.

Industrial relations systems exist to metabolise violence by facilitating collective bargaining.[5] What sets the Wagner Act apart is the highly legalized manner in which it accomplishes this task. The Wagner Act model was adopted by Canada in 1944 as a wartime emergency measure. Although the federal government passed PC 1003[6] under the War Measures Act, the legal framework it established continues to define labour relations policy across Canada. Echoing the Wagner Act’s New Deal policy objectives, the Canadian system seeks to:

  • Foster industrial peace;
  • Facilitate free and open collective bargaining;
  • Enhance working class bargaining power;
  • Promote economic development by expanding working class purchasing power; and,
  • Affirm the dignity of working people by subduing capitalism through industrial democracy.[7]

Aspects of the Canadian model also reflect its unique wartime origins. In order to limit economic conflict threatening military production, Canadian workers’ right to strike was more severely constrained than their American brothers and sisters. Seeking to do away with the recognition strikes which burned across Canada after the First World War, the legislature developed a certification process granting unions statutory recognition and imposing a corresponding duty on employers to negotiate with certified actors. This right-duty relationship creates the concept of bargaining rights which confer the exclusive representation of a bargaining unit through the status of certification. The certification status also gives rise to correlative statutory duties including the union’s duty to fairly represent all employees in a bargaining unit.

Bargaining rights are held by a certified union for the duration of a collective agreement. Unless the certified union is dislodged by another during the statutory raiding period, the employer is compelled to engage with that union when negotiating and administrating the collective agreement. While bargaining rights are only a statutory proxy for labour’s power within a particular workplace, they are the legal nexus through which collective bargaining occurs in Canada. Despite their artificiality, bargaining rights are the currency modern Canadian trade unions traffic in.

Although they are private independent associations, Canadian trade unions rely upon their statutory status to perform the role of collective bargaining agent. Trade unions operating within a Wagner Act industrial relations system have distinct private and public law faces. In other words, Canadian trade unions are actually two distinct but overlapping juridical entities. This paper will advance an analytical approach to legal issues engaging both the public and private aspects of Canadian unions emphasizing doctrinal coherence and a deeply purposive understanding of Canadian labour law rooted in first principles.


This paper has two objectives:

  1. To define the dual, public-private aspect of Canadian trade unions, and
  2. To argue that the application of private law tools to the public face of Canadian trade unions undermines the integrity of the Canadian industrial relations system.

After a brief introduction, I review the status of Canadian unions at common law. Specifically, I examine the contractual view of union constitutions and the private law constructs that enable unions to serve their statutory purpose.

After outlining the common law terrain Canadian unions act upon, I look at several Ontario Labour Relations Board (OLRB) decisions attempting to reconcile unions’ public law status with the private law of internal trade unions affairs. Referring to a leading series of decisions involving the United Food and Commercial Workers (UFCW), the United Steelworkers (USW) and the Retail Wholesale and Department Store Union (RWDSU), I will examine how the OLRB worked through the contradictions arising from the dual aspect of Canadian unions. I conclude by considering how these cases can inform current issues in Canadian labour law with specific reference to the ongoing litigation involving UNIFOR and the Amalgamated Transit Union (ATU).


Before looking at what the OLRB has said about bargaining rights in the context of inter-union disputes, it is useful to consider how this type of conflict is managed at common law. The statutory collective bargaining regime has almost entirely displaced the labour relations jurisdiction of common law courts. However, courts still govern internal trade union affairs where the legislation is silent and internal avenues for resolution are exhausted. The public and private jurisdictions are mutually exclusive[8] and each has developed its own proprietary set of

tools to address common issues. When questions of law arise engaging trade unions as both private associations and objects of legislative status, the decision-maker must clearly identify the boundary between these two legal arenas and only deploy the principles native to each area of law. Otherwise, they risk disturbing the careful balance established by the Wagner Act model and hindering its ability to deliver the (now constitutionally mandated) policy objective of effective collective bargaining.

A. The nature of trade unions under the Wagner Act model

In order to fulfill the objective of collective bargaining, Canadian unions must effectively harness solidarity to wield economic power. At the same time, law and custom requires unions be highly democratic institutions. As instantiations of their individual members’ freedom of association, unions must facilitate a high level of internal democracy while presenting a united front to both employers and competing unions. This contradictory impulse defines the organizational character of trade unions. To use a frequently invoked metaphor: trade unions are required to be an army, a town meeting, and a business all at once.[9]

In MPAO, the Supreme Court of Canada described what freedom of association requires within the Canadian industrial relations context. Union members must be able to choose their representatives and have “effective input into the selection of the collective goals to be advanced by their association.”[10] However, union democracy necessarily has a “majoritarian” flavor under the exclusive Wagner Act model and should be assessed globally in accordance with the objective of collective bargaining and the fundamental role of union solidarity in achieving this end.[11] Fulfilling this mandate, Canadian unions have developed highly democratic governance structures to exist alongside and legitimate powerful mechanisms for mobilization and internal discipline.

While internal structures are necessary to provide unions with their independence, freedom of association mandates that individual members be able to switch unions.[12] These contradictory demands are balanced by the legislature through the statutory raiding window which allows bargaining units to change their representative agents at specific times. The statutory constraints on raiding reflect the policy objective of industrial stability, continuity and identification, while also providing for strong, independent trade unions able to fight off raiding efforts and effectively engage employers. In this way, the extent to which unions can constrain individual choice is a function of freedom of association itself.

A functioning labour relations system relies on strong trade unions able to effectively mobilize solidarity. Melvyn Dubofsky warned that “stress[ing] workers' individual rights and to romanticize the heroic rank and file compared to autocratic union leaders is to threaten the survival of trade unionism” itself.[13] In evaluating internal disciplinary actions, the British Colombia Labour Relations Board offered the following frequently cited passage:

Individual members of a trade union must be permitted to pursue their own trade or profession, earn a living, participate in the internal affairs of their union, and not be interfered with in any manner other than a lawful one. Conversely, trade unions find their greatest strength in their collective nature, and this may involve compromises between the interests of individual members and the collective interests. It is the enforcement of these trade-offs and the requirement of a strong and united front that may involve a degree of control or discipline over those who may be seen to threaten that collective good.[14]

Recognizing the contradiction inherent to the Wagner Act model’s delivery of free association, decision-makers must strike a balance in regulating unions’ attempts to prevent raiding activity and otherwise restrict member conduct. While the union can protect itself against raiding, individual sanctions may only be applied where the union can demonstrate that the expulsion is necessary to defend and protect the union's existence.[15] Workers subject to expulsion as a valid punishment for dual unionism cannot lose their jobs.[16] Fines and other corrective or punitive sanctions are not permissible responses to individual worker’s exercising their freedom. Rather, they can only be relied upon to counter legitimate threats.[17] While workers go to the labour board to vindicate their rights, the union enforces its rights through common law courts under their union constitution.

B. The role of union constitutions at common law

Unions mobilize solidarity through mechanisms for internal governance outlined in their union constitutions. Courts interpreting the terms of a union constitution must account for the particular majoritarian flavor of union democracy while also upholding the freedom of individual members. Union constitutions are relational documents infused with established customs and practices governing constitutional formation, amendment and enforcement. Professors Lynk and MacNeil note in Trade Union Law in Canada that:

[union constitution] articles are shaped by a vigorous oral tradition of debate and dissent at conventions and committee meetings. The language in a union constitution is drafted by unionists themselves, informed by their understanding of the decisions made by the delegates or the membership.[18]

The unique democratic character of Canadian unions and the constitutions they produce require Courts strike a balance between the principles of union autonomy and internal fairness when evaluating constitutional terms. This balance must reflect the wider labour relations framework. The general response of Courts has been to restrict the scope of their analysis to the process by which constitutional terms are developed, modified and enforced while leaving concerns about the actual substance of those terms to internal decision-making processes.

Common law courts have derived their jurisdiction over internal trade union affairs through the law of contract. The modern view of union constitutions as contracts emerged in Berry v Pulley.[19] The relationship between a union and its members is “in the nature of a contract” but “greatly determined by the statutory regime affecting unions generally as well as the labour law principles that Courts have fashioned over the years.”[20] In order to conform to these principles and the statutory regime, union constitutions must have a take-it-or-leave-it character to provide equal terms to all union members.

Berry describes the process binding parties to the terms of a union constitution in light of the robust labour law framework that developed over the 20th Century. The pre-Berry conception of union membership relied upon the legal fiction that union members were bound to the union constitution through a complex web of contracts linking each individual member. Because the contemporary statutory regime recognizes the legitimacy of trade unions as legal entities capable of contracting, Justice Iaccobucci disposed of this outdated legal fiction to embrace a new one based on a hub-and-spoke model.

Though membership in a union continues to impose duties vis-à-vis other union members, the legislature has chosen to channel the right to enforce these duties through the union itself. By contracting with the union, “the individual agrees to be bound by the union constitution, the terms of which will almost invariably include internal disciplinary provisions in the event of a breach by the member.”[21] In turn, a union’s ability to contract directly facilitates a mode of governance where each union member can influence the terms and internal processes applied to them through democratic channels.

As private associations, unions are governed by their constitutions. For example, Canadian Union of Public Employees v Deveau[22] addressed clauses of a union constitution calling for assets held by a local union to revert to its parent if the local voted to disaffiliate. When these assets were dispersed among the membership prior to a successful dissolution vote, the parent union brought an action against the local’s officers to recover the assets. The Nova Scotia Supreme Court Appeals Division upheld the parent union’s rights to the assets under the union constitution and also found the local’s officers in breach of trust.

The Courts also defer to union constitutions when defining the status of local unions within national and international labour organizations. Historically, Courts have favoured parent unions in disputes with local affiliates. This tendency reflects the so-called “breath of life” doctrine expressed in Lakeman and Barrett v Bruce:

The national body alone gave the breath of life to and created the union and so when the   charter was revoked, the body giving the breath of life to the union, took the same away and then the union no longer existed. It was dead or defunct.[23]

However, the Supreme Court recently recognized that local unions could be distinct juridical entities.[24] In Pinkerton’s, the Court held that the relationship between a local affiliate and its parent union was not a question of law, but a question of fact determined by the terms of the union constitution.[25] Distinguishing the case from Deveau and other decisions upholding the rights of parent unions to seize local assets,[26] the Court read Berry as permitting unions to devise organizational structures through their constitutional contracts ranging from highly centralized international bodies to loose affiliations.

As private associations imbued with public law status, certified unions have both public and private faces. Each face of the union is governed by different legal principles. At common law, it is the role of union constitutions to define the allocation of assets and other non-statutory rights and duties within these associations. The following cases outline the legal principles which should be deployed to analyze the allocation of a unions’ statutory rights and duties under the legislative framework. I will then consider a recent decision where the wrong legal principles were employed. This decision is under consideration by the Ontario Court of Appeal at the time of writing and may very well proceed to the Supreme Court of Canada.


A. Statutory status and successor union applications

When unions merge, disaffiliate or amalgamate outside the statutory raiding period, the OLRA allows the new entity to inherit the certification status held by its predecessor. Successor union applications in Ontario proceed under s. 68:

68 (1) Where a trade union claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of employees of an employer and any question arises in respect of its rights to act as the successor, the Board, in any proceeding before it or on the application of any person or trade union concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
(2)   Before issuing a declaration under subsection (1), the Board may make such inquiry, require the production of such evidence or hold such representation votes as it considers appropriate.
(3)   Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the employer, the successor and the employees concerned shall recognize such status in all respects.

Applications under s. 68 usually are addressed without complication. The mechanics of trade union mergers, amalgamations or jurisdiction transfers are governed by common law courts who apply private contract law principles to union constitutions. When the party seeking successor status comes to the Board, inter-union issues have usually been resolved through the labour movement’s domestic decision-making bodies. In these circumstances, the Board’s only task is to grant the new entity bargaining rights status. As the following set of cases demonstrates, the Board expects the House of Labour to keep its own affairs in order.

Complications arise when the labour movement is unable to internally resolve representation disputes. In these situations, the Board must augment its public law analysis with private law concerns related to the constitutional contract at play. Specifically, the Board must consider who inherits the status of bargaining agent with reference to a contractual analysis of union constitutions accounting for the unique character of trade unions within the statutory and normative labour law framework.

B. A case study

The following set of decisions relate to a dispute between the UFCW, USW and RWDSU that took place in the early 1990s. Likening the matter to a “child custody battle,” the OLRB was forced to put aside its stated reluctance to resolve internal trade union conflicts and determine which union held the bargaining rights for more than 25 000 workers in some 200 Ontario locals. After reviewing the shared factual backdrop, I will individually examine the following decisions:

  • New Dominion Stores[27]
  • Great Atlantic & Pacific Company of Canada, Limited[28]
  • The Bay – Kingston[29]

i. Factual Background

For historical, economic and geographical reasons, it is common for Canadian trade unions to be headquartered in the United States and be part of a larger international associations. While Canadian affiliates enjoy a certain degree of autonomy and independently affiliate to the Canadian Labour Congress, the New Democratic Party and local district labour councils, organizational decision-making occurs at the international level.

Following the mid-1985 split between the United Autoworkers (UAW) and the Canadian Autoworkers (CAW now UNIFOR), the independence of Canadian unions has been a hot topic of debate in the labour movement. As the neoliberal offensive against organized labour at the end of the 20th Century progressed, unions adopted consolidation as a defensive strategy. The dispute between the UFCW, USW and RWDSU unfolded in this context of these trends.

The RWDSU began contemplating a merger into the more powerful UFCW in 1990. The RWDSU was governed by an International Executive Council made up 34 representatives including 6 Canadian Vice-Presidents representing 25 000 Canadian members. The union also chartered a Canadian District Council which had significant independence within the international organization.

After consultation, the Canadian Vice-Presidents and the Canadian District Council came out against the proposed merger. A rivalry between the RWDSU and UFCW in Southern Ontario’s competitive retail sector had produced bad blood. This acrimony was heightened by past raiding activity and interference in organizing efforts. In the more dispersed American labour relations environment, this bitterness did not exist and the American bodies moved forward with the merger.

Recognizing the distinct position of the Canadian locals, CLC President and CAW founder Bob White helped the RWDSU set up a complex ratification process that would see Canadian locals independently vote on the merger. Locals who voted against the merger would disaffiliate from the RWDSU and become a new organization called RWDSU Canada. Despite the disaffiliation rules contained in the international union’s constitution, the new organization would inherit the assets, bargaining rights and pension obligations of the constituent locales.

In the end, even Bob White’s steady hand could not maintain an orderly process. As the RWDSU’s Canadian leadership moved towards independence and began discussing a merger with the USW, the International union imposed trusteeship on the rogue Southern Ontario locals through a process outlined in the union constitution. The powers of the locals’ officers were placed in the hands of a trustee in New York and the leadership of Northern Ontario locals who supported the UFCW merger. Undeterred, the trusteed locals convened a rouge constitutional convention and founded an independent RWDSU Canada.

Following this declaration of independence, the new union moved immediately to the question of affiliating to USW. It turned out that the political maneuvering had been orchestrated in advance. Leo Gerard – then the President of USW’s Canadian affiliate – was waiting beside the convention podium with a letter accepting the merger. Following some discussion, the delegates of the newly formed RWDSU Canada voted unanimously to merge with USW. As OLRB Chair Judith McCormack recounted, “pandemonium ensued” and the delegates performed a rousing rendition of Solidarity Forever.[30]

After the excitement wore off and concerns moved from political to practical, the legal implications of the schism became apparent. While employers had signed collective agreements with the RWDSU, the union representatives and shop stewards they were accustomed to dealing with were now proud Steelworkers. Grocery clerks and shoe salesmen approached on their coffee breaks were surprised to learn they had become members of an entirely new union. Labour Minister Bob Mackenzie – the first New Democrat to occupy the post in Ontario – was eager to employ his new powers under Bill 40 but uncertain of which of the two unions’ appeals he should respond to. Union dues were held in escrow and grievances stalled.

USW filed some 200 applications with the Board seeking successor status in July 1993. Faced with an avalanche of litigation, Chair McCormack and Alternate Chair Rick McDowell issued the following decisions. These awarded interim bargaining rights to USW and eventually put the dispute to rest while respecting the careful division of labour between unions, the courts and the Board that the Canadian industrial relations system relies upon.

ii. New Dominion 1

The Board issued its first real decision on the dispute in August 1993 through a three-member panel headed by Alternate Chair McDowell. In July, the Board attempted to stay out of the matter and simply directed employers to continue dealing with the individual union representatives they had worked with in the past until the parties could resolve the dispute among themselves. This position proved untenable and an application for interim relief was brought forward to the Board.

Employees at New Dominion Stores, a division of the Great Atlantic and Pacific Company of Canada, had been represented by both RWDSU and UFCW. As a result of the political maneuvering, USW and the UFCW were now claiming to hold overlapping bargaining rights for several Dominion bargaining units. Facing a such a novel set of facts and legal issues, the Board found itself at the boundary of its jurisdiction:

40. The legal and labour relations problems posed by this case [were] quite unusual, […] involving a mixture of public and private law which the Board has seldom been called upon to consider. The Labour Relations Act is primarily concerned about institutional collective bargaining relationships - the trade union in its role as statutory bargaining agent. The Statute does not purport to regulate internal union affairs, nor does it prescribe any general code of "democratic practice”. Indeed, the Statute is exceedingly (and we think intentionally) sparse in respect of such matters, leaving them to be determined, for the most part, in accordance with the union's Constitution. It is the union Constitution which prescribes the rights of members within that organization, eligibility for office, elections, dues levels, property rights and so on; and where the Statute does provide a platform for potential intervention (the duty of fair representation, for example), the Board has been careful not to intrude upon internal union matters not covered by the statutory duty.
41. On the other hand, the "club" or "private-contract model" of trade unionism discussed in Astgen v. Smith, supra, is not a complete answer either, […] a trade union is not a voluntary organization like a club or a church, held together by some notional "common-law contract" between the members. Not untypically (as in this case), membership is not a matter of voluntary contract, but is required as a condition of employment by virtue of a collective agreement whose existence and attributes depend primarily, if not entirely, upon the Statute; moreover, the trade union acquires and retains the status of bargaining agent for employees, who become its members, in accordance with that same Statute.
42. In this sense, the union is not a wholly private organization. It receives statutory support in order to facilitate the statutory objectives spelled out in Article 2.1 of the Act and it has a variety of statutory rights and responsibilities. And, of course, bargaining rights do not depend upon the continuing support of the very employees (members or not) who first established the union's status as bargaining agent, nor does the union exercise those bargaining rights solely in respect of its members, nor does the continuation of its exclusive bargaining agency depend solely on the union's Constitutional arrangements.
43. The problems posed in this case involve a mix of public and private law, as well as a mix of private interests and public policy considerations. And they are not easy questions to answer when "private" Constitutional re-arrangement may have statutory or public law consequences.[31]

Despite a reluctance to interfere in constitutional arrangements, the Board relied on both its interim decision-making power and its statutory mandate to facilitate peaceful industrial relations in order to issue a limited, interim order:

44.[…] we do not have to come to any final conclusion about either the Constitutional correctness of the steps the union parties have taken, or the relationship between those steps and the parties' rights and responsibilities under the Labour Relations Act. […]in a statutory regime which depends upon the identification of an exclusive bargaining agent for a defined group of employees, it is the Board which must ultimately determine who that bargaining agent is, when competing unions make that claim; and for present purposes, this panel need only decide whether some interim order is desirable pending a resolution of these questions.

Refusing to delve into the private law issues, the Board relied upon the policy objectives of the OLRA to order an interim remedy that was least disruptive to the labour relations reality on the ground.[32] At this initial stage, the Board sought to maintain a very clear boundary between the labour relations matters within its jurisdiction and the issues related to internal trade union affairs which were the domain of the labour movement’s internal tribunals or, as a venue of last resort, the courts. Recognizing the decision would have very practical industrial relations implications, the Board ordered that its decision be posted in the workplace and made available to all affected employees.

iii. Great A&P

In September 1993, the Board issued its first final decision on an individual successor union application for Dominion’s largest bargaining unit. Stable and effective labour relations required the Board to move beyond its stated aversion to internal union affairs and evaluate the merits of the disaffiliation and amalgamation process. In deciding which union inherited the bargaining rights, Chair McCormack was careful to point out that the Board was not deciding the issue as a matter of private law:

55. […] section [68] is part of a complex statutory scheme for collective bargaining in Ontario that reflects a marked departure from the common law view of unions as voluntary associations. While common law principles may be helpful in determining applications under section [68], they must be considered in a context which includes both the realities of modern labour relations and the specialized legal structure which regulates them.[33]

Citing the Board’s decision in a previous case Waterloo Mills,[34] she cautioned that:

53. This is not to say, of course, that the constitution of a trade union is irrelevant to the Board. It is obviously an important document and in particular cases or contexts, its terms may be decisive. But it does not have the central role which it plays at common law in resolving disputes among the members over the use or distribution of assets, eligibility for office, the conduction of elections, the pursuit of the organization's objectives, and so on.[35]

The conceptual distinction between the private law contractual dispute and the allocation of status rights under the statutory regime is key. By grounding her decision within the statutory framework and leaving internal trade union affairs aside, Chair McCormack tactfully navigated the dual aspect of trade unions by respecting the boundary of her jurisdiction. While independent trade unions must have control over their own affairs and decision-making processes, employers require the certainty of a clearly identifiable and stable partner who holds an exclusive bargaining agent status. Therefore, the standard of conformance to the union constitution a transfer of bargaining rights required was not the strict conformance standard applied at common law to union decision-making, but a flexible common-sense approach:

63. […] it is fair to say that the Board's approach to constitutional compliance under   section 63 has been flexible, focusing on reasonable notice and common sense in a labour      relations context. The effect is that in this forum, what might be considered significant technical defects in common law terms have not precluded successorship declarations in a number of cases.[36]

After reviewing RWDSU Canada’s founding convention, the Board held that the Steelworker’s were the most appropriate agent to represent the bargaining unit. Even though this was a final decision, the prospect of an upcoming raiding period meant that individual employees would be able to exercise their freedom of association by engaging the union of their choice down the road. The distribution of assets, the composition of the union’s executive and other political concerns were left to the labour movement’s internal conflict resolution tribunals with appeal to the judiciary on a strict conformance standard.

While the disaffiliation process was not perfect, it was sufficiently representative in light of the majoritarian principles underlying exclusive representation to ground the succession of bargaining rights. In this way, the Board distinguished between the public law face of trade unions as certified holders of statutory bargaining rights for the purposes of collective bargaining and private law associations instantiating their individual members’ freedom of association.

The Board was also called upon to decide an unfair labour practice complaint against the UFCW. Chair McCormack declined to make a decision on this matter, suggesting the coercion in question was a matter of internal trade union affairs and suited to resolution through the labour movements’s domestic tribunals.[37] By separating trade union politics from the question of statutory status, the decision identified the precise boundary between the public and private aspects of labour law by refusing to apply statutory tools to private law problems.

iv. Bay-Kingston

In December 1993, the MacDowell panel issued a second interim decision for the roughly 200 locals not covered by the McCormack award. The original order preserving the status quo had proven unsustainable and labour relations between the unions and employer parties were at a standstill because of uncertainty over the identity of the relevant bargaining agent in each workplace. While the matter was “not an exercise in which the Board […] willingly engaged,” labour relations objectives demanded that the Board resolve the acrimonious dispute burning within the House of Labour.[38] These same labour relations objectives required a decision that did more than simply preserve the status quo:

135. We share the reservations of the earlier panels about interfering in internal union affairs. But with considerable reluctance, we have come to the conclusion that we must decide which contender will be the interim exclusive bargaining agent, for all statutory purposes, until the litigation before the Board is completed or otherwise resolved.
136. We do not welcome the "win/lose" character of such Order. Nor are we sanguine about the prospects of avoiding layers of litigation and the continuing collective bargaining disruption contingent upon inter-union rivalry. But as in a child custody case, we do not think that there is a compromise interim solution. We are not Solomon and we cannot divide the baby.[39]

The issue was not a private dispute between the unions and the workers, but a uniquely statutory problem stemming from the Wagner Act model’s insistence on “both the identification and stability of a single exclusive bargaining agent, to exercise the rights and bear the responsibilities created by Statute.”[40]

Recognizing that collective bargaining legislation was not concerned with unions as private organizations, union democracy or property, the Board disaggregated the private law character of trade unions as unique voluntary associations from their public law status as “an instrument, constructed by employees for their mutual protection and advancement” which acquires exclusive statutory bargaining rights through the certification process.[41] Under the statute, bargaining rights are not a piece of property owned by the union. Rather, they are a statutory agency relationship between a union and a group of employees that constrains a particular employer’s freedom of contract. This public face of unions only makes sense in light of the organizing principle of exclusivity that underlies the Canadian labour relations system and the policy reasons responsible for its primacy.[42]

Following the common sense, functional approach of the McCormack award, the Board ordered the UFCW to stand down and granted the Steelworker’s bargaining rights for the 200 locals on an interim basis. The Board also ordered that the decision and a condensed notice addressed directly to employees be posted in each affected workplace. Despite being an interim decision, the award ended the litigation. It had the effect of pushing the representation conflict back to the labour movement where it could be addressed internally and eventually resolved through the appropriate statutory raiding period.

C. Recent s. 68 applications

This set of cases has been followed by the OLRB in subsequent successor union applications resulting from inter-union disputes. In a dispute between the American-based International Union of Bricklayers and Allied Craftworkers (IUBAC) and the Canadian offshoot Brick and Allied Craft Union (BACU) lasting nearly a decade, the labour board was pressed to decide whether a valid disaffiliation had taken place under a union constitution for the purposes of a successorship application. The Board took a global view of “historical reality reflected in the current constitutional documents and practical realities of the parties' relationships” to recognize a succession of bargaining rights through IUBAC’s Ontario regional association to BACU.[43] Similarly, a more recent dispute between the Worker’s United Ontario Council (WUOC) and UNITE HERE saw the Board apply the analytical approach developed in Bay Kingston and Great Atlantic & Pacific to decide a s. 68 application.

D. Missing the mark: Brown v Hanley[44]

While the s. 68 jurisprudence may seem like a legal curiosity, it has important general implications for Canadian labour law. It is instructive where legal issues simultaneously engage both the public and private character of unions because it identifies the precise boundary between the public and private faces of Canadian unions generated by the exclusivity principle. The following discussion examines the danger of ignoring this boundary with reference to a current, high-profile dispute in Canadian labour law.

Because of the perception that common law courts could not fairly evaluate worker’s interests, the legislature relocated most of the labour law jurisdiction to specialized bodies. However, internal trade union affairs are still governed by common law courts with a few exceptions identified in the statute. Misplacing the conceptual boundary between these two forums is dangerous because different legal principles motivate the analysis brought to bear by each decision-making institution. Locating a dispute in the wrong forum risks doing what Chair McCormack and the McDowell panel went to such great lengths to avoid: applying the wrong legal tools to a labour law problem. Justice Perell’s treatment of the ongoing dispute between the ATU and UNIFOR in Brown v Hanley provides an example of the danger this type of imprecision poses to the coherence and effective functioning of our labour law regime.

The case arose after an attempt by UNIFOR to raid the local representing TTC employees, ATU 113.[45] The American-based ATU responded to the raid by attempting to place the Toronto local in trusteeship through a process outlined in the union constitution. ATU 113 officers and some rank and file members who supported the raid sought an injunction against the trusteeship effort. They complained that the ATU Constitution blocked them from exercising their freedom of association by outlining the division of assets on disaffiliation in favour of the international union. They also pointed to constitutional provisions that attached sanctions to the promotion of raiding activity.

One can see the two aspects of the union at work: the public law status of bargaining rights acquired under the OLRA and the private law of internal union affairs governed by the law of contract through the union constitution. Justice Perell issued a stay directing the union members towards private internal remedies to resolve the dispute. However, he also ordered the union not to take preventative action outlined in ATU Constitution on the basis that the members had an arguable case that certain clauses of the union constitution hindered union members’ ability to switch unions under the OLRA and could therefore be void as a matter of the private law of contract. By conflating the public right to switch bargaining agents with the private right to bind oneself to the union through the terms of its constitution, the decision admits a Trojan Horse into our labour law that threatens the careful balance it relies upon to deliver ( constitutionally protected) freedom of association to Canadian workers.

The OLRA exclusively governs the ability to switch unions. The common law of contract governs the allocation of rights and duties among, between and within unions through the union constitution. By using the Court’s jurisdiction over the latter to address concerns related to the former, Brown v Hanley smuggles common law principles into an area of labour law where they have been consciously barred by the legislature. The decision relies on Birch v Union of Taxation Employees, Local 70030,[46] an Ontario Court of Appeal case which analyzed a union constitution clause that imposed fines on union members for crossing a legal picket line under the contract law rubric of unconscionability. While a discussion of the majority opinion in Birch is outside the scope of this paper, it is clear that a decision firmly grounded on contract law side of the equation has no place controlling a dispute firmly within the public jurisdiction of the OLRB.[47]

Coercion and compulsion hindering the exercise of worker’s individual rights fall firmly within s. 76 of the OLRA as an unfair labour practice because they relate to the union’s public face as certified bargaining agent, not its private face as a voluntary association. Despite Justice Perell’s suggestion that “the subject-matter and factual circumstances of a dispute may be within both the court's jurisdiction and also within the jurisdiction of the Labour Relations Board,”[48] the Supreme Court of Canada has repeatedly rejected models of overlapping jurisdiction in the labour relations context.[49] In addition, s. 114 of the OLRA grants the Board “exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it.”

By collapsing the dual status of trade unions as private and public actors, Brown v Hanley makes the fatal error the OLRB sought to carefully to avoid in the RWDSU decisions. Instead of distinguishing between the private face of unions as voluntary associations and the public face of unions as bargaining agents recognized by the Supreme Court in Berry, the decision imposes public law duties on a trade union’s freedom to manage its internal private affairs. This attempt to evaluate the union as exclusive bargaining agent through the lexicon of contract law incentives trade unions to cannibalize each other as private associations through private litigation while undermining their ability to mobilize solidarity and wield economic power and pursue the statutory objective of collective bargaining.

Just as the private law of contract cannot be used to frustrate worker’s attempts to change their bargaining representative, the public law rights which instantiate freedom of association cannot undermine unions’ ability to arrange their internal affairs through the law of contract. This is a problem generated by the foundational principle of exclusivity. If it is not resolved in a way that respects that principle, we risk undermining the whole regime.

The reason common law judges have been removed from adjudicating unfair labour practice complaints is not only because their historic class background rendered them unable to legitimately consider workers’ complaints, it is also because common law rules were unsuitable tools to maintain the careful balance between individual rights and the strong, independent trade unions required by the Wagner Act model. Union members are free to switch bargaining agents through the statutory framework and join new unions. What they may not do is undermine their former union by reneging on their private membership obligations through appeals to their statutory rights. To do so dissolves the careful compromise crafted between the principles of exclusivity and democracy that allow the whole regime to function. This would demand that unions be a town meeting, forgetting that they must also be an army if they are to serve their labour relations purpose.

Rather than private law concepts like unconscionability, a labour board would look at the impugned provisions through the lens of an unfair labour practice with reference to the purposes of the Wagner Act model. This includes the organizing principle of majoritarian exclusivity which requires that unions develop internal protections against raiding in consultation with their membership to effectively pursue collective bargaining. A labour board would be equipped to carefully distinguish between the public and private faces of trade unions and consider how this maps onto the distinction between real property and bargaining rights drawn in Bay-Kingston.

By running the private law unconscionability analysis for a complaint about coercion and freedom of association, Justice Perell failed to uphold the balance between individual and collective rights so carefully crafted by the legislature. Lacking this analytical foundation, the decision in Brown only considered how the constraints on freedom of association impact individual rights and not the fact that constraints are necessary to achieve effective collective bargaining under the Wagner Act model. This is why switching unions for the purposes of bargaining rights is regulated by the statute, not the common law.

Stripping unions of their ability to mobilize solidarity and wield economic power through internal mechanisms for control makes it impossible for unions fulfill their function as agents of collective bargaining in an industrial relations system premised upon exclusivity. This is why the legislature created the statutory raiding period: to allow for individual freedom of association while promoting strong trade unions. This is the balance the Wagner Act model relies upon to deliver collective bargaining. If Canadian workers are unhappy with this balance, they should petition for a model based on a principle other than exclusivity rather than trying to return to a world where the law of contract is used by judges to dissolve the bonds of solidarity forged between working people.

Unconscionability and other private law tools to address unfairness are not suited to weigh the inevitable tensions inherent to the Wagner Act model. Attuned to only one side of the equation, these private law tools threaten the ability of trade unions to perform their statutory role as agents of collective bargaining. By collapsing the distinction between the public and private faces of Canadian unions that was so carefully maintained by the OLRB in the RWDSU decisions and repeatedly emphasized by the Supreme Court of Canada in Berry, the decision in Brown v Hanley reminds us why common law judges have been almost entirely exorcised from the labour law decision-making. If the logic of this decision is upheld on appeal, Canadian workers will find themselves in a labour law climate where common law judges can once again gut the ability of Canadian unions to mobilize solidarity and pursue justice for working people.


The principle of exclusivity guides the way Canadian policymakers have delivered freedom of association to workers. This requires that unions assume statutory rights and duties, ceasing to be purely private associations. Under this system, unions must internally mobilize solidarity to fulfill their collective bargaining function through processes outlined in their union constitution.

At the same time, exclusivity requires that unions conform to democratic norms and adequately represent their membership. When these demands come into conflict, decision makers must carefully distinguish between the distinct public and private faces of Canadian unions generated by the exclusivity principle. Otherwise, they risk employing the wrong legal tools to a particular problem and undermining the ability of the industrial relations system to deliver on its promise to working people.



Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act 1982 (UK), 1982, c. 11.

Labour Relations Act, SO 1995, c 1, Schedule A.

National Labor Relations Act of 1935, 29 USC Labor § 151-169.


The Bay – Kingston, [1994] OLRB Rep August 1127.

Beaudet-Fortin v Canadian Union of Postal Workers, [1997] CLRBD No 23, 98 CLLC.

Berns (Re), 2006 BCLRBD No 184, 126 CLRBR (2d) 215.

Birch v Union of Taxation Employees, Local 70030, 2008 ONCA 809 (CanLII), 93 OR (3d) Brick and Allied Craft Union of Canada, [2000] OLRB Rep September/October 891, [2000] OLRD No 2893.

Brown v. Hanley, 2018 ONSC 1112 (CanLII).

Canadian Union of Public Employees v Deveau, [1976] NSJ 508, 19 NSR (2d) 44.

Fullowka v. Pinkerton's of Canada Ltd, 2010 SCC 5, 1 SCR 132.

Great Atlantic & Pacific Company of Canada, Limited, [1993] OLRB Rep September 885.

Lakeman and Barrett v Bruce, [1950] 3 D.L.R. 146; BCJ No 93.

Lalonde (Re), 2004 CanLII 65627, [2004] SLRBD No 25.

Lee v Showman’s Guild of Great Britain, [1952] 2 QB 329.

Letter Carriers' Union of Canada (LCUC) v. Canadian Union of Postal Workers (CUPW), 1993 CanLII 7218 (AB QB), [1993] AJ 85.

Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, [2015] 1 SCR 3.

New Dominion Stores, [1993] OLRB Rep August 783.

Office and Technical Employees’ Union, Local 378 (1995), BCLRB No B282/95, 28 CLRBR (2d) 1.

Ollesch (Re), [1990] 7 CLRBR (2d) 1, BCLRBD No 72.

Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3.

Saint Anne Nackawic Pulp & Paper v Canadian Paper Workers Union, Local 219, [1986] 1 SCR 704

Services and Support - Facilities Subsector Bargaining Association v British Columbia, 2007 SCC 27, [2007] 2 SCR 39.

Tercon Contractors Ltd v British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 SCR 69

Waterloo Spinning Mills Ltd, [1984] OLRB Rep March 542.

Secondary Material

Dubofsky, Melvyn. “Legal Theory and Workers’ Rights: A Historian’s Critique” (1981), 4:496 Labour Relations LJ 500.

Klare, KE. “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941” (1978), 62 Minn L Rev 265.

Supiot, Alain. The Spirit of Philadelphia: Social Justice vs. Total Market (New York: Verso Books, 2012).

MacNeil, Michael, Michael Lynk and Peter Engelmann. Trade Union Law in Canada (Thompson Reuters: Toronto).

MacNeil, Michael. “Solidarity, Unconscionability, and Enforcement of Union Fines,” (2010) 49 Canadian Business L J 99-112.

Muste, AJ. “American Labor Dynamics in the Light of Post-War Developments: An Inquiry by Thirty-Two Labor Men, Teachers, Editors, and Technicians” in JBS Hardman, American Labor Dynamics in the Light of Post-War Developments (New York: Harcourt, Brace and Co, 1928).

Savage, Larry. “Making Sense of the UNIFOR-CLC Split,” Briarpatch Magazine (18 January 2018). Online: < making-sense-of-the-uniforclc-split>.


[1] Ontario (Attorney General) v Fraser, 2011 SCC 20 at para 345, [2011] 2 SCR 3 Abella J dissenting.

[2] Part 1 of the Constitution Act 1982 (UK), 1982, c. 11 [Charter].

[3] Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 at para 94, [2015] 1 SCR 3 [MPAO].

[4] National Labor Relations Act of 1935, 29 USC Labor § 151-169 [Wagner Act].

[5] Alain Supiot, The Spirit of Philadelphia: Social Justice vs. Total Market (New York: Verso Books, 2012) at 112.

[6] Wartime Labour Relations Regulations, PC 1003, (1944) C Gaz II.

[7] See KE Klare “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941” (1978), 62 Minn L Rev 265, at 281-84 cited with approval in Health Services and Support - Facilities Subsector Bargaining Association v British Columbia, 2007 SCC 27 at para 57, [2007] 2 SCR 391.

[8] Labour Relations Act, SO 1995, c 1, Schedule A, s 114 [OLRA].

[9] For the first articulation idea see AJ Muste, “American Labor Dynamics in the Light of Post- War Developments: An Inquiry by Thirty-Two Labor Men, Teachers, Editors, and Technicians” in JBS Hardman, American Labor Dynamics in the Light of Post-War Developments (New York: Harcourt, Brace and Co, 1928). The metaphor was popularized by Clarke Kerr in a 1957 essay and more recently by Melvyn Dubofsky.

[10] MPAO, supra at 83.

[11] Ibid at para 94.

[12] MPAO at para 86.

[13] Melvyn Dubofsky, “Legal Theory and Workers’ Rights: A Historian’s Critique” (1981), 4:496 Labour Relations LJ 500.

[14] Office and Technical Employees’ Union, Local 378 (1995), BCLRB No B282/95 at para 113, 28 CLRBR (2d) 1.

[15] See for example Lalonde (Re), 2004 CanLII 65627, [2004] SLRBD No 25; Beaudet-Fortin v Canadian Union of Postal Workers, [1997] CLRBD No 23 at para 220-229, 98 CLLC; Berns (Re), 2006 BCLRBD No 184, 126 CLRBR (2d) 215.

[16] See Ollesch (Re), [1990] 7 CLRBR (2d) 1, BCLRBD No 72. This foundational labour law distinction was drawn by LJ Denning in See Lee v Showman’s Guild of Great Britain, [1952] 2 QB 329.

[17] See Graham (Re), [1998] BCLRBD No 302, 44 C.L.R.B.R. (2d) 161.

[18] Michael MacNeil, Michael Lynk and Peter Engelmann, Trade Union Law in Canada (Thompson Reuters: Toronto) at 4-10.

[19] Berry, supra.

[20] Berry at para 48.

[21] Ibid, at para 51.

[22] [1976] NSJ 508, 19 NSR (2d) 44 [Deveau].

[23] Lakeman and Barrett v Bruce, [1950] 3 D.L.R. 146; BCJ No 93.

[24] Fullowka v. Pinkerton's of Canada Ltd, 2010 SCC 5, at para 122 [Pinkerton’s], 1 SCR 132

[25] Pinkerton’s, supra 131-3.

[26] See Letter Carriers' Union of Canada (LCUC) v. Canadian Union of Postal Workers (CUPW), 1993 CanLII 7218 (AB QB), [1993] AJ 85.

[27] [1993] OLRB Rep August 783 [New Dominion 1].

[28] [1993] OLRB Rep September 885 [Great A&P].

[29] [1994] OLRB Rep August 1127 [Bay-Kingston].

[30] New Dominion 1, supra at para 45.

[31] New Dominion 1 at para 40-3.

[32] New Dominion 1 at para 48 and 49.

[33] Great A&P, supra at para 55.

[34] Waterloo Spinning Mills Ltd, [1984] OLRB Rep March 542.

[35] Great A&P, at para 53.

[36] Ibid, para 134.

[37] Great A&P at para 134.

[38] Bay-Kingston, supra at para 16.

[39] Ibid, at para 135-6.

[40] Ibid, at para 113.

[41] Ibid, at para 116-7.

[42] Ibid, at para 119.

[43] Brick and Allied Craft Union of Canada, [2000] OLRB Rep September/October 891 at para 87, [2000] OLRD No 2893.

[44] Brown v. Hanley, 2018 ONSC 1112 (CanLII).

[45] For a good summary, see Professor Larry Savage, “Making Sense of the UNIFOR-CLC Split,” Briarpatch Magazine (18 January 2018). Online: < making-sense-of-the-uniforclc-split>.

[46] 2008 ONCA 809 (CanLII), 93 OR (3d) 1 [Birch].

[47] See Michael MacNeil, “Solidarity, Unconscionability, and Enforcement of Union Fines,” (2010) 49 Canadian Business L J 99-112 for a discussion on the doctrinal errors made by the Armstrong JA.

[48] Brown v Hanley at para 61

[49] See for example Saint Anne Nackawic Pulp & Paper v Canadian Paper Workers Union, Local 219, [1986] 1 SCR 704 at para 23.