Labour Injunctions & Cease and Desist Orders in Ontario

More documents

Recommendations

Info

[14] employees ‘in concert, in combination, or in accordance with a common understanding’. Those words have been held to encompass a broad range of collective activity including: slowdowns, ‘hot cargo arrangements’, ‘sympathy strikes’and a concerted refusal to cross picket lines as an expression of solidarity with the actions of another trade union. The definition is intentionally cast in very broad terms, and has been so construed by both the Boards and the Courts. 30 Thus, a strike is a work refusal by a group of employees acting in concert, in combination or in accordance with a common understanding. This definition has been interpreted broadly and, consequently, may be applicable in a wide variety of circumstances. As already discussed, generally speaking, strikes are unlawful unless the applicable collective agreement is no longer in force and the parties to the employment relationship have completed the conciliation process mandated by section 79 of the LRA. Where unlawful strike activity is occurring, the OLRB has the jurisdiction to exercise its discretion to issue declarations, directions and orders under sections 100 and 101 of the LRA. The remedy commonly sought from the Board in section 100 and/or 101 cases is the issuance of a cease and desist order. The Board in Monarch Fine Foods Company Limited 31 affirmed that employers could seek a cease and desist order in the event of an unlawful strike. Cease and desist orders prohibit a person or persons from continuing a particular course of conduct – like an unlawful strike. Any cease and desist order issued by the Board may be filed in the Superior Court of Justice. Upon doing so, the order becomes enforceable as an order of that court pursuant to section 102 of the LRA. 30 Benteler Automotive Canada Corporation, supra note 29 at para 5. 31 Monarch Fine Foods Company Limited, [1986] OLRB Rep May 661.
[15] The declarations, directions and orders available under sections 100 and 101 of the LRA are discretionary in nature. In Bechtel Canada Ltd. 32 the OLRB stated that any declarations, directions and/or orders made under sections 100 or 101 of the LRA are not available as of right and will usually not be issued in circumstances where the work stoppage at issue ends before the Board hearing. The OLRB in Bechtel Canada Ltd. did, however, outline three exceptions to this general approach, as follows: The Board has consistently stated, however, that it will depart from this general practice of refusing to grant either a declaration or a direction in the face of the existence of any one or more of the following three circumstances: firstly, where the evidence establishes a past practice of unlawful strike activity, secondly, where the evidence indicates that the unlawful activity is likely to recur or thirdly, where the unlawful strike upon which the application is based has implications which extend beyond the immediate parties. 33 While Bechtel Canada Ltd. is an older decision, the approach set out in that decision was affirmed by the OLRB relatively recently in the Board’s 2008 decision in Enwin Utilities Ltd. 34 Similar to the courts’approach in issuing injunctions, the OLRB jurisprudence shows that the Board attempts to exercise its discretion in section 100 or 101 cases in such a way so as to ensure any declarations, directions and/or orders are construed as narrowly as possible since the matters at issue typically engage the Charter right of freedom of expression and possibly freedom of association as well. This point was emphasized by the OLRB in Toronto Transit Commission, when the Board stated: … significant Charter Rights are at issue in the circumstances. Even though the Board is satisfied that there must be some limits 32 Bechtel Canada Ltd., [1977] OLRB Rep May 269. 33 Bechtel Canada Ltd., supra note 32 at para 20. 34 Enwin Utilities Ltd., [2008] CanLII 20885 (ON LRB).
Page 1 and 2: [1] Labour Injunctions & Cease and
Page 3 and 4: [3] It is through free expression t
Page 5 and 6: [5] Section 102(3) then provides th
Page 7 and 8: [7] The Court of Appeal specificall
Page 9 and 10: [9] Therefore, while section 102(3)
Page 11 and 12: [11] approach is evident in the cou
Page 13: [13] leaving the employer’s facil
Page 17 and 18: [17] SCC in a Canada Labour Code ca
Page 19: [19] 102(3) of the Courts of Justic

Labour Injunctions & Cease and Desist Orders in Ontario

Create successful ePaper yourself

Delete template?

Save as template?