Two cases, one in Ontario and the other in Alberta, have recently addressed the question of whether a trade union may invoke the jurisdiction of the courts to enforce fines that it has imposed against its members for crossing a picket line.

In Ontario, in the Birch case, the Union of Taxation Employees, Local 70030 brought disciplinary proceedings against two members for allegedly violating the union’s constitution by working during a legal strike. The union suspended these members for three years (one year for each day that they had crossed the picket line), and fined each the equivalent of their gross salary ($476.75) for the three days they crossed the picket line. When the members refused to pay their fines, the union sought to enforce payment in the Small Claims Division of the Ontario Superior Court of Justice.

The parties later agreed that the matter should proceed as a test case by way of application in the Superior Court itself on an agreed statement of facts. Justice Robert Smith held that a provision in the union’s constitution authorizing the fines was an unenforceable penalty clause. The case then proceeded to the Ontario Court of Appeal, which affirmed the earlier result. For the majority, Armstrong J. A. wrote:

In my view, the application judge applied the correct test for unconscionability to the agreed facts and to the inferences which he drew from those facts. I can see no basis upon which this [appellate] court could or should interfere with his conclusion that the penalty clause in the constitution is unconscionable and therefore unenforceable.

Not finding this acceptable, the union sought leave to appeal, but its application in the Supreme Court of Canada was dismissed with costs.

In the MacMillan case, decided in Alberta, three union members crossed their union’s picket lines during a legal strike and were “charged” with violating the union’s constitution. The Telecommunications Workers Union, Local 202 convened a trial board though none of the three attended to answer the charges. Following hearings, the union members were found “guilty” and fined for cause detrimental to the welfare of the union and for crossing or working behind a picket line.

None of the union members paid the fines and two were suspended. The union then sued them in provincial court, civil division, seeking a judgment in debt or, alternatively, damages to enforce the trial board’s fines, together with interest.

The Alberta Provincial Court decided that, while the federal Trade Unions Act, which applies to federally-regulated workers such as the three fined employees, did not preclude the union from advancing its claims in provincial court, there was no basis to sue because: (1) the union’s claims were not an action in either debt or damages; (2) no cause of action arose at common law or by statute authorizing the unions enforcing its disciplinary penalties in a court of law, and (3) neither the union’s constitution nor by-laws authorized it to seek redress in the courts for an internal disciplinary matter. Erb J., on appeal in the Alberta Court of Queen’s Bench, dismissed the appeal from that judgment. In the Supreme Court of Canada, the union’s application for leave to appeal was dismissed with costs.

Employers and management may be quietly gleeful with the outcome of these recent cases. But hidden beneath the surface and outside of their specific facts, there be some hidden ramifications. This point may best be made with a stark analogy. If an invasion and occupation is inevitable, it is often better to be occupied by a unified and disciplined army than an unruly one, particularly if its leadership is even somewhat reasonable. In these fact situations, it may be said that management may have benefited from the actions of individual members. However, in future confrontations and, while admittedly, likely on matters peripheral to the main battle, it is now open to union leaders to periodically and legitimately assert that they cannot harness the extreme and unreasonable acts of its members. And so, misconduct during labour disputes may become increasingly more contentious and less easy to control without union power to administer internal discipline of its members.