Royal Oak Mines Inc. v. Canada (Labour Relations Board)

Royal Oak Mines Inc. v. Canada (Labour Relations Board)
Collection
Supreme Court Judgments
Date
1996-02-22
Report
[1996] 1 SCR 369
Case number
24169
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Major, John C.
On appeal from
Federal Court of Appeal
Subjects
Labour law
Notes
SCC Case Information: 24169
Decision Content
[1996] 1 S.C.R. Royal Oak Mines Inc. v. Canada (Labour Relations Board) 369
Royal Oak Mines Inc. Appellant
v.
Canada Labour Relations Board and
Canadian Association of Smelter and Allied
Workers (CASAW), Local No. 4 Respondents
Indexed as: Royal Oak Mines Inc. v. Canada (Labour Relations Board)
File No.: 24169. 1995: October 30; 1996: February 22.
Present: Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Major JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Labour law -- Tribunals -- Judicial review -- Jurisdiction -- Remedy -- Labour Board requiring employer to table last offer -- Issues in dispute subject to limited bargaining period before imposition of binding arbitration -- Whether Board's decision going to jurisdiction and so requiring a correct decision -- If decision within Board's jurisdiction, whether remedy patently unreasonable -- Canada Labour Code, R.S.C., 1985, c. L-2, s. 99(2) .
Labour law -- Collective bargaining -- Duty to bargain in good faith -- Employer refusing to consider re-instatement of employees discharged for picket-line violence -- Whether employer failing to bargain in good faith -- Whether Board's finding of failure to bargain in good faith patently unreasonable.
Labour law -- Collective agreements -- Allegation of imposed agreement -- Labour Board requiring employer to table last offer -- Issues in dispute subject to limited bargaining period before imposition of binding arbitration -- Whether Board had jurisdiction to make remedy ordered -- If so, whether remedy patently unreasonable.
The unionized workers of Royal Oak Mines voted overwhelmingly to reject a tentative agreement put forward by the appellant. A bitter and violent 18-month strike, which affected the whole community, occurred. Various attempts to effect a settlement were made during the strike, from the appointment of an industrial commission to the naming of very experienced mediators. The Canada Labour Relations Board, on an application made by the union, unanimously found that the appellant employer had failed to bargain in good faith. The employer refused to bargain until the certification issue had been resolved. Further the employer wished to impose a probationary period on all returning strikers. Despite the employer's position on these issues the Board's finding was based on the employer's refusal to negotiate until the issue of re-instatement and discipline of several employees accused of picket-line violence had been resolved. In light of the long history of intransigence and the bitterness of the parties the Board directed the appellant employer to tender the tentative agreement which it had put forward earlier (and which had been rejected) with the exception of four issues about which the appellant employer had changed its position. The parties were given 30 days of bargaining to settle those issues and, if they remained unresolved, then compulsory mediation was to be imposed. At issue is the jurisdiction of the Board to make this order.
Held (Sopinka, McLachlin and Major JJ. dissenting): The appeal should be dismissed.
Per L'Heureux-Dubé, Gonthier and Cory JJ.: Several factors should be taken into consideration in determining whether the scope of remedial orders should be left to the Board or whether the section went to jurisdiction rendering the Board's decision reviewable by the courts if it was not correct: (a) the wording of the enactment conferring jurisdiction on the tribunal; (b) the purpose of the statute creating the tribunal; (c) the reason for the tribunal's existence; (d) the area of expertise of the tribunal's members; and (e) the nature of the problem before the tribunal. Deference should be accorded by the courts to remedial orders made by the Board. Once it has been established by the provisions of the empowering legislation that the Board does, in fact, have the jurisdiction to order certain remedies, the question of which of these remedies the Board chooses to impose in any given situation is a question within the Board's jurisdiction.
The legislation gave the Board a wide and flexible remedial role. The wording of s. 99(2) of the Canada Labour Code (the "Code ") did not place precise limits on the Board's jurisdiction and the fact that the Board could fashion equitable remedies indicated that Parliament intended the Board to have wide remedial powers. Furthermore, a broad privative clause in s. 22(1) provided that both the Board's decisions and orders were final.
The Board's decision fell within its jurisdiction and must not be interfered with unless it is patently unreasonable. Several factors indicate that the patently unreasonable standard should be followed, as opposed to the correctness standard going to jurisdiction: (a) the presence of a clear and strongly worded privative clause; (b) the provisions of the Code demonstrating the decision to be one falling within the board's jurisdiction; (c) the finding of lack of good faith (essentially a finding of fact to be left to the Board); (d) the Board's expertise and experience in dealing with precisely this type of question; and (e) the courts' high degree of deference to the decisions of labour relations boards.
The duty to bargain in good faith was breached in three ways. First, the appellant refused to bargain with the respondent union, the exclusive bargaining agent of the employees, pending the outcome of a competing employee association's certification application. The employer is obliged to recognize the certified union and bargain exclusively with it. Second, the appellant's demand for a probationary clause for all returning employees breached this duty -- attempts to penalize those who had participated in a lawful union activity undermines the operation and basic principles of the labour relations statute. Third, the appellant failed to bargain in good faith when it refused to agree to a provision for any type of arbitration or consideration of questions arising from its discharge of several employees. This outright refusal to discuss this issue completely blocked the bargaining process.
The duty to enter into bargaining in good faith must be measured on a subjective standard, while the making of a reasonable effort to bargain should be measured by an objective standard which can be ascertained by a Board looking to comparable standards and practices within the particular industry. This latter part of the duty prevents a party from hiding behind an assertion that it is sincerely trying to reach an agreement when, viewed objectively, it can be seen that its proposals are so far from the accepted norms of the industry that they must be unreasonable.
The Code granted the Board jurisdiction to decide whether the appellant failed to bargain in good faith. Its decision should not be set aside by the courts unless patently unreasonable. That decision, given the overwhelming evidence supporting the Board's finding that the appellant breached its duty to bargain in good faith by imposing an unreasonable condition to the collective bargaining process, was not unreasonable.
The remedy directed by the Board was not patently unreasonable; rather, it was eminently sensible and appropriate in the circumstances. A remedial order will be considered patently unreasonable where: (1) the remedy is punitive in nature; (2) the remedy granted infringes the Charter; (3) there is no rational connection between the breach, its consequences, and the remedy; (4) the remedy contradicts the objects and purposes of the Code . A rational connection did indeed exist between the breach, its consequences and the remedy and the remedy affirmed the objects and purposes of the Code .
The Board did not exceed its powers by imposing closure on the parties instead of allowing them to arrive at a settlement themselves. Section 99(2) grants the Board remedial authority for the purpose of ensuring the fulfilment of the objectives of the Code .
Free collective bargaining is fundamental to the Code and labour relations and as a general rule should be permitted to function. Nonetheless, situations will arise when that principle can no longer be permitted to dominate a situation. A Board will be justified in exercising its experience and special skill in order to fashion a remedy where: the dispute has been bitter and lengthy; the parties have been intransigent and their positions intractable; one of the parties has not been bargaining in good faith and this failure has frustrated the formation of a collective bargaining agreement; and a community is suffering as a result of the strike. This will be true even if the consequence of the remedy is to put an end to free collective bargaining. This follows in part because it is the lack of good faith bargaining by a party which is frustrating the bargaining process and in part because of the other principles and factors the Board is required to consider pursuant to the provision of the Code .
In the circumstances, it was appropriate that the Board fashion a remedy. This strike had been bitter and long. The intractable position of appellant that it would not consider some form of due process for dismissed employees put an end to any possibility of true bargaining and was properly found to constitute lack of good faith. The community was obviously suffering. The remedy put forward did not impose a collective agreement. Rather the Board used the tentative agreement drafted and put forward by the appellant as its last offer as a basis for the bulk of its remedy. The four matters on which there was no agreement were left to the parties for a further 30 days' bargaining and became subject to binding arbitration only in the event of failed negotiations. Once the basic statutory ground rules have been broken by a party, the parties can no longer expect to have the same unbridled freedom to bargain. Given the past history of the parties' intransigence, no other solution was feasible. Indeed, the fact that the Board applied its experience and skill to design a remedy that was eminently fair and sensible was beneficial to both parties and the community.
The Board did not impose the tentative agreement or the additional terms and conditions on the parties without first ensuring that all the other options which could realistically be expected to bring an end to the dispute had been exhausted. Given appellant's lack of cooperation and good faith bargaining and the damage to the community which the parties' dispute had caused, the Board properly exercised its discretion to impose a remedy which would put an end to the impasse.
The remedial order directly related to the effect of the failure to bargain in good faith and in so far as was possible complied with the aims and objects of the Code . The remedy struck an appropriate balance between the public interest and the interests of the parties and was beyond reproach. The order made came within the Board's jurisdiction. Therefore applying the appropriate degree of deference, the order was not patently unreasonable and could not be set aside. Had it been necessary to so find, the order would have met the standard of correctness.
Section 80 of the Code , which empowers the Board to impose a first contract, applies to a situation completely different from that addressed by s. 99(2) . Section 99(2) need not be read restrictively as a result of the provisions of s. 80 .
Per Lamer C.J.: The Board's finding that the employer had failed to bargain in good faith as required by s. 50 (a) of the Code fell within its specialized jurisdiction, and this finding was not patently unreasonable under the circumstances. As well, the Board's choice of remedial order, directing the employer to table an offer with a number of imperative terms, fell within its specialized competence given the broad equitable discretion delegated by s. 99(2) . In light of the bitter and intractable nature of this dispute, the Board's affirmative remedial order was not patently unreasonable. Such an extraordinary order, while justified in these circumstances, runs against the established grain of federal and provincial labour codes by overriding the cherished principle of "free collective bargaining" which underlies both federal and provincial labour codes. In the absence of exceptional and compelling circumstances such as those prevailing in this case, it will normally be patently unreasonable for a labour board to impose such an invasive remedial order in light of the core value of free collective bargaining enshrined in the Code .
Per Sopinka, McLachlin and Major JJ. (dissenting): The question of whether a particular party has been guilty of bad faith bargaining is a finding of fact within the particular expertise of the Board and must be upheld unless it is found to be patently unreasonable. Section 50 (a)(i) and (ii) of the Code , taken together with ss. 98 and 99 , clearly clothes the Board with the authority to determine whether a particular party has bargained in good faith and whether a party has made "every reasonable effort to enter into a collective agreement". In addition, the Board is protected by a clear and strongly worded privative clause in s. 22(1) . The Board's decision on this issue can only be set aside if patently unreasonable.
Three considerations, taken collectively, indicate that the Board's finding of bad faith should not be interfered with on a standard of patent unreasonableness: (1) the position characterized as unreasonable by the Board concerned a non-monetary issue; (2) the appellant was insisting on the objectively unreasonable position to the point of impasse; and (3) this finding of bad faith was found in the context of the Board's correct finding that the appellant was bargaining in bad faith by making resolution of the issue a precondition to any further bargaining.
The question of the Board's power to grant a particular form of remedy is a question of jurisdiction. Section 99(2) grants jurisdiction and is the sole source of the Board's authority to order remedies beyond the simple "compliance orders" provided for in s. 99(1). It authorizes the Board to make "equitable" orders to remedy the consequences of breaches of the Code and grants jurisdiction to make orders that the Board would otherwise not have the power to make. The true effect of the Board's order must be determined in deciding whether the Board's order was within the jurisdiction granted under s. 92(2) . The order not only required the appellant to table an offer but also set out in detail many of the specific terms that the offer had to contain. The inclusion of clauses unrelated to the alleged "bad faith" forced the conclusion that the Board's order constituted the imposition of a full collective agreement.
The wording of s. 99(2) clearly imposes at least two limitations on the remedies which can be granted under the authority of this section: (1) a rational connection must exist between the breach of the Code , a consequence which is adverse to the fulfilment of the objectives of the Code , and the remedy; and (2) the remedy must ensure the fulfilment of the objectives of the Code . Even if the "requisite nexus" between the breach, the consequences and the remedy is set as low as "a rational connection", the nexus is missing in this case. The fundamental purpose of the Code is the constructive settlement of labour disputes by the parties to the dispute through the medium of "free collective bargaining". Other important objectives mentioned in the preamble are only to be achieved by the promotion of free collective bargaining.
The breach which caused the Board's intervention was the appellant's bad faith bargaining regarding the claims of dismissed employees. The Board did not hold that this bad faith bargaining caused the parties not to reach a collective agreement. Rather it held that the consequence of the failures of both parties to bargain in good faith over the course of the negotiations was that no collective agreement had been reached. The fact that the historic failures of both parties to bargain in good faith over the long course of negotiations led to the lack of a collective agreement does not justify the imposition of the complete terms of a collective agreement on one of those parties which happens to now be in breach of its good faith bargaining duty in only one particular respect.
Section 99(2) requires that the consequence which the Board seeks to remedy be one adverse to the objects of the Code . The Board incorrectly concluded that the failure to reach a collective agreement was adverse to the objects of the Code . The objects of the Code are the encouragement of free collective bargaining and the constructive settlement of disputes by the parties through the collective bargaining process. The obligations of the bargaining parties under the Code are to bargain in good faith and to "make every reasonable effort". Parties are not required to reach an agreement. It is perfectly consistent with the objects of the Code for parties to negotiate to impasse provided that the good faith obligation is met.
Binding mediation and arbitration may be effective mechanisms for resolving disputes but they are mechanisms to be chosen by the parties as an alternative to free collective bargaining. The Board does not have jurisdiction to impose binding arbitration on the parties where the parties have opted to resolve their dispute through free collective bargaining. The Board's order not only lacked the requisite nexus to the breach of the Code but was also antithetical to the Code 's objects.
The Board's duty, when a party breaches its obligation to bargain in good faith during free collective bargaining, is to ensure that the party properly exercises that obligation. The Board is not to deprive the party of any further opportunity to participate in the bargaining process. The conclusion the parties were not likely to resolve certain issues on their own did not justify the Board's imposing an agreement even where the Board relied on a third party mediator to impose the final terms of that agreement. Parties to free collective bargaining are entitled to continue to bargain to impasse unless Parliament chooses to intervene.
The Board had jurisdiction to impose an effective remedy even if it did not have jurisdiction to impose closure on this labour dispute by dictating the terms of a new collective agreement. It could order the employer (1) to table within a specified time a collective agreement which it was willing to honour, and (2) to cease and desist from its unreasonable position with respect to the dismissed employees (or even impose a specific term to deal with this issue alone). Such a solution would have displayed the necessary "nexus" and would have respected the fundamental objective of the Code of allowing each of the parties to engage in collective bargaining. The Board would once again be entitled to intervene if another impasse were to result because of further instances of "bad faith".
Cases Cited
By Cory J.
Applied: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; distinguished: Canadian Union of Public Employees v. Labour Relations Board (Nova Scotia), [1983] 2 S.C.R. 311; considered: Rogers Cable T.V. (British Columbia) Ltd. (1987), 69 di 17; Eastern Provincial Airways Ltd. v. Canada Labour Relations Board (1984), 65 N.R. 81, aff'g in part Eastern Provincial Airways Ltd. (1983), 54 di 172; Brewster Transport Co. (1986), 66 di 1; referred to: Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Iberia Airlines of Spain (1990), 80 di 165; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Teamsters Union, Local 938 v. Massicotte, [1982] 1 S.C.R. 710; Canada Labour Relations Board v. Halifax Longshoremen's Association, [1983] 1 S.C.R. 245; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Brewster Transport Co. (1986), 66 di 133; Re Tandy Electronics Ltd. and United Steelworkers of America (1980), 115 D.L.R. (3d) 197.
By Major J. (dissenting)
Royal Oak Mines Inc. (1993), 92 di 153; Canadian Union of Public Employees v. Labour Relations Board (Nova Scotia), [1983] 2 S.C.R. 311; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; British Columbia Telephone Co. (1977), 24 di 164; Re Tandy Electronics Ltd. and United Steelworkers of America (1980), 115 D.L.R. (3d) 197; Eastern Provincial Airways Ltd. (1983), 54 di 172; Brewster Transport Co. (1986), 66 di 1; Iberia Airlines of Spain (1990), 80 di 165.
Statutes and Regulations Cited
Canada Labour Code, R.S.C., 1985, c. L-2 , preamble, ss. 22 [am. 1990, c. 8, s. 56], 25, 50, 80, 94(3)(a)(vi), 97(1) [am. 1991, c. 39, s. 2], 98(1), 99 [am. idem, s. 3], 108.
Authors Cited
Adams, George W. "Labour Law Remedies". In Kenneth P. Swan and Katherine E. Swinton, eds., Studies in Labour Law. Toronto: Butterworths, 1983, 55.
APPEAL from a judgment of the Federal Court of Appeal (1994), 167 N.R. 234, [1994] N.W.T.R. 179, dismissing an application for judicial review of a decision of the Canada Labour Relations Board (1993), 93 di 21, 94 C.L.L.C. ¶16,026, allowing respondent union's complaint. Appeal dismissed, Sopinka, McLachlin and Major JJ. dissenting.
Edward C. Chiasson, Q.C., and M. A. Coady, for the appellant.
Leo McGrady and Gina Fiorillo, for the respondent Canadian Association of Smelter and Allied Workers, Local No. 4.
Chris G. Paliare, Andrew K. Lokan and Dominique Launay, for the respondent Canada Labour Relations Board.
The following are the reasons delivered by
I.LAMER C.J. -- I have had the benefit of reading the thoughtful and considered reasons of both my brethren in this appeal. While I share some of the concerns expressed by Justice Major with respect to the dramatic and intrusive nature of the Canada Labour Relations Board's choice of remedy in this instance, I ultimately find myself in agreement with the reasons and conclusions of Justice Cory. More specifically, I agree both that the Board's finding of bad faith bargaining by the employer under s. 50 (a) of the Canada Labour Code, R.S.C., 1985, c. L-2 , fell within the specialized jurisdiction of the Board, and that this finding was not patently unreasonable under the circumstances. Additionally, I share his view that the Board's choice of remedial order in this instance, affirmatively directing the employer to table an offer with a number of imperative terms fashioned by the Board, fell within the specialized competence of the labour tribunal in light of the broad equitable discretion delegated by s. 99(2) of the Code . Given the bitter and intractable nature of this dispute, I agree with the Board's conclusion that a traditional cease-and-desist remedial order would be an "unrealistic and even a cruel waste of time" ((1993), 93 di 21, at p. 28). As such, similar to Cory J., I would find that the affirmative remedial order crafted by the Board was not patently unreasonable.
II.However, I have chosen to write separately because I wish to stress that such an extraordinary order, while justified in these circumstances, runs against the established grain of federal and provincial labour codes by overriding the cherished principle of "free collective bargaining" which animates our labour laws. While Cory J. is correct in emphasizing that the principle of "free collective bargaining" is not the only policy interest advanced by the Code , it is undoubtedly one of the most important and one of the most sacred. Labour movements in Eastern Europe have fought for decades to resist state-imposed collective agreements, and it would be an ironic and tragic development in our labour law if the principle of free collective bargaining were to be regularly subordinated to the societal goal of the "constructive settlement of disputes". With those thoughts in mind, I find that in the absence of exceptional and compelling circumstances such as those prevailing in this case, it will normally be patently unreasonable for a labour board to impose such an invasive remedial order in light of the core value of free collective bargaining enshrined in the Code .
III.Subject to these comments, I concur with the judgment of Cory J. and I would dismiss the appeal.
The judgment of L'Heureux-Dubé, Gonthier and Cory JJ. was delivered by
IV.CORY J. -- In May of 1992, the unionized workers of Royal Oak Mines voted overwhelmingly to reject a tentative agreement put forward by the appellant. A strike of 18 months' duration followed. It was marked by tragic violence, and a cancerous ill will that divided workers from management, workers from workers and indeed the whole community of Yellowknife. The Canada Labour Relations Board unanimously found that the appellant employer had failed to bargain in good faith: (1993), 93 di 21, 94 C.L.L.C. ¶16,026. In light of the long history of intransigence and the bitterness of the parties the Board directed the appellant to tender the tentative agreement which it had put forward earlier with the exception of four issues about which the appellant employer had changed its position. The parties were given 30 days of bargaining to settle those issues. If they remained unresolved then compulsory mediation was to be imposed. At issue is the jurisdiction of the Board to make this order. To understand what impelled the Board to make the order and to determine if it was within its jurisdiction to do so it is necessary to set out the factual background in some detail.
I. Factual Background
V.The Giant Mine is located in Yellowknife, N.W.T., a town of some 15,000 inhabitants. In November 1990, the appellant, Royal Oak Mines Inc., acquired the Giant Mine. This gold mine had been in operation for over 50 years. It has rightly been called one of the most complex mines in Canada. Certainly it magnifies many of the inherent dangers of mining. During the 1940s and 1950s, when the price of gold was high all was well. Thereafter the mine became well known for both its poor productivity and poor labour relations. The appellant ultimately purchased it out of what was termed a soft receivership. In spite of this unhappy history the appellant was determined to turn things around and make the operation viable. Through the introduction of a new management style and a concerted effort to reduce costs wherever possible the appellant managed to reduce losses significantly in the first full year of operation. The company was less successful in improving its labour relations.
VI.The hourly paid employees of Royal Oak employed at the Giant Mine are represented by the respondent Canadian Association of Smelter and Allied Workers, Local No. 4 (the "Union"). The Union has been the certified bargaining agent for some 240 employees at the Giant Mine since 1976. At the time the appellant acquired the mine it voluntarily recognized the Union and that it was bound by the existing collective agreement.
VII.The Union was highly critical of the appellant's new management style and policies. In light of the tense nature of the working relationship the appellant was concerned about the difficult situation that would arise when the existing collective agreement expired in 1992 and hard bargaining would have to take place to reach a new agreement. In February 1992 the parties began the negotiations for a new collective agreement and in March the Federal Government appointed a conciliator to assist them.
VIII.Despite its initial concern, the company was pleasantly surprised by the reasonable approach taken by the union bargaining committee. The result was that, with the assistance of the conciliator, a tentative agreement was reached on April 18, 1992. However, the union membership voted by a margin of 83 percent to reject this agreement. This rejection "shocked and outraged" the appellant, whose management was not experienced in collective bargaining. The outcome of the rejection was that the employees voted to strike and were subsequently given notice of a lock-out. On May 22, 1992, work stopped at the mine and the next day, the appellant hired replacement workers to continue operations. The long and bitter dispute began. It continued for 18 months rancorously dividing the parties and seriously damaged the entire Yellowknife community.
IX.During the course of the strike the appellant employed Pinkerton's of Canada as a private security force to deal with the frequent violence on the picket line which, on one occasion, developed into a full riot. Unfortunately, the sight of these guards in camouflage gear, accompanied by attack dogs, inflamed and maintained the passionate enmity of the strikers. In June 1992, an experienced federal mediation officer was appointed to assist the parties. However, attempts at mediating a resolution of the dispute in June and July were unsuccessful.
X.After it had studied reports and videos of the incidents of violence which occurred between June and September 1992, the appellant decided to terminate the employment of approximately 42 employees for their activities on the picket line. The number of dismissed employees eventually rose to 49. Most of the alleged misconduct occurred on June 14, 1992 when there was a brawl at the mine site. Some 151 charges were laid as a result of that day's events. Yet by November 2, 1993 only eight convictions had been entered, 16 matters remained pending and 127 of the charges had been either stayed, or withdrawn, or the accused persons had been acquitted or had been discharged at the preliminary inquiry.
XI.The appellant took the position that it would not consider a process whereby the dismissed employees could be returned to work, nor was it willing to accept the inclusion of any form of a grievance arbitration clause for these workers in the new collective agreement. As a result, the issue of the dismissed employees became the greatest obstacle to the collective bargaining.
XII.On September 18, 1992, there was an explosion in the mine and nine workers were killed. This act stretched to the limit the sorely tried patience of the people of Yellowknife. The far-reaching effects of the dispute, which extended well beyond just the parties involved, must be understood in the context of the community. Yellowknife, a relatively isolated town, has a population of roughly 15,000. Some of the employment in the area is transient. Yet, there exists a core of residents who have deep roots in the community. Mining comprises a very significant part of the industry and economy of the area and the miners and their families tend to form a close knit social group. The Mayor of Yellowknife, Pat McMahon, described her community as "a community of neighbourhoods". A professor, Dr. Nightingale, who prepared a report on the dispute, concluded that "[m]inor events in the community are felt by many; significant events, such as the strike at Royal Oak touch the lives of everyone". He further observed that the hostile climate which permeated the situation was such that "beatings, murders, death threats and bomb threats have ruptured the life of the mine and the community". The severity of the dispute's impact on the community ultimately led the Mayor to write to the then Prime Minister, requesting her to do whatever it would take to get the dispute settled.
XIII.Following the explosion a striking member of the bargaining unit was charged and convicted of murder. Approximately a week after the explosion, the Minister of Human Resources and Labour suggested that the parties agree to a process of voluntary binding arbitration as a way of resolving the dispute. Despite all the violence and tragedy, the parties remained intransigent and rejected this suggestion. Accordingly, on September 30, 1992, the Minister appointed two special mediators, Messrs. Ready and Munroe, to inquire into the labour dispute and assist the parties in negotiating a settlement of the dispute and the renewal of the collective agreement. The special mediators met with representatives of the parties and, on October 30, 1992, they submitted an interim report to the Minister and the parties.
XIV.On November 25, 1992, these very experienced special mediators submitted a second interim report, identifying six special circumstances which made this the most difficult labour dispute they had ever witnessed. The Union accepted the report and the recommendations of the mediators, but the appellant rejected it. The next strategy adopted by the Minister was to appoint, on December 22, 1992, Messrs. Ready and Munroe as an Industrial Inquiry Commission, pursuant to s. 108 of the Canada Labour Code, R.S.C., 1985, c. L-2 .
XV.Meanwhile, an employee association (the "GMEA"), composed of replacement workers and a small number of members of the respondent Union who had crossed the picket line, had begun an organizing effort in an attempt to displace the respondent Union. On January 11, 1993, the GMEA filed an application for certification with the Canada Labour Relations Board to replace the respondent as the certified bargaining agent. On January 29 and 30, 1993, the Industrial Inquiry Commission held formal hearings. The appellant refused to advance a bargaining position until the Board issued its determination of the employee certification application. Accordingly, the bargaining process led by the Industrial Inquiry Commission was adjourned from February 24, 1993 until May 14, 1993. On May 5, 1993, the Board dismissed the application for certification: 92 di 1. The GMEA later filed a second application for certification, but it too was rejected by the Board on June 30, 1993. On October 26, 1993 the Board issued a third decision explaining that the GMEA's certification application was rejected on the basis that the Board found the association to be employer dominated within the meaning of s. 25 of the Canada Labour Code : 93 di 14. The repeated attempts to have GMEA certified delayed the collective bargaining process and must have further aggravated the rancorous situation.
XVI.On May 25, 1993, with the dispute still continuing, the respondent Union filed a complaint against the appellant pursuant to s. 50 (a) of the Canada Labour Code , alleging that the appellant had failed to bargain in good faith and to make every reasonable effort to enter into a collective agreement. While the complaint was pending, the Industrial Inquiry Commissioners proposed to the parties a process of binding recommendation to facilitate the resolution of the labour dispute. While the Union agreed to the process, the appellant took the position that the only matter it would agree to submit to binding recommendation was the duration of the collective agreement which it hoped would be for five to seven years or for the balance of the life of the mine.
XVII.As a result of the appellant's rejection of the Industrial Inquiry process the Commissioners twice requested the appellant to provide a detailed written statement of its current position on all outstanding issues. The Commissioners indicated that without some submission or position put forward by the appellant they could go no further and that a final report would be forthcoming. The appellant refused to provide the requested statement or submission. As a result, on September 13, 1993, the Industrial Inquiry Commissioners issued their final report to the Minister and the parties. It included comprehensive recommendations for the resolution of the dispute. On September 28, 1993, the Union notified the Minister that it accepted the final report and recommendations. However, the appellant rejected it.
XVIII.On November 11, 1993, the Canada Labour Relations Board found that the appellant had failed to bargain in good faith as required by s. 50 of the Code and therefore, allowed the Union's complaint. This marked the fifth decision of the Board arising from the dispute. As a remedy, the Board directed that the appellant table an offer based on the tentative agreement which the appellant had offered on April 18, 1992, excluding the four issues on which the appellant had changed its position and the issue as to the term of the agreement. As well, the Board added a back-to-work protocol encompassing a standard grievance arbitration procedure for the dismissed employees. With respect to the unresolved issues the parties were given an additional 30 days to bargain with the aim of resolving the issues, following which there would be mediation to finality. The Board ordered the appellant to offer the collective agreement for a term of three years.
XIX.The labour dispute ended when the collective agreement tabled by the appellant was ratified by the Union's membership. In December 1993, the locked out and striking employees, except those who had been dismissed, were recalled to work at the mine site. The grievance arbitration process for the dismissed employees commenced in January 1994 and lasted five months. The result of the hearing was that 44 employees were reinstated and/or awarded severance pay, or were simply awarded severance pay, only three dismissals were upheld and two cases were adjourned indefinitely.
XX.On March 24, 1994, the Federal Court of Appeal dismissed the appellant's application for judicial review of the decision of the Canada Labour Relations Board: (1994), 167 N.R. 234, [1994] N.W.T.R. 179. The appellant brought this appeal from that decision.
II. Decisions Below
Canada Labour Relations Board (1993), 93 di 21
XXI.After eight days of evidence, the panel of the Board hearing the matter unanimously concluded that the employer had failed to fulfil its obligation required by s. 50 of the Canada Labour Code in three ways. Firstly, the appellant, by refusing to agree to any provision for the arbitration of questions arising from the discharge of the 45 employees, and the refusal to permit them to return to work under any circumstances, placed an improper precondition on bargaining. The Board found that the appellant's position on this issue had "blocked bargaining completely" (p. 27). Secondly, the appellant had breached the duty to bargain in good faith by demanding a probationary clause for returning employees. The Board found that this demand was contrary to public policy and offended established labour principles. Finally, the appellant's refusal to negotiate with the respondent Union pending the results of the GMEA certification application was also found to be unlawful and that it had delayed collective bargaining between the parties. The Board chose to intervene on the first violation only. The members concluded (at p. 28) that:
One of the consequences of the parties' failures to comply with section 50 is that no collective agreement has been reached, where one could have been reached, and in our view would have been reached were it not for those failures, and that consequence is, in the instant case, one that is adverse to the fulfilment of the objectives of the Code .
XXII.The Board found that the usual