In a dispute involving Canada Post, the Canada Industrial Relations Board (CIRB) made a finding that an illegal strike had occurred on two dates in November of 2010. Following that ruling, Canada Post sought damages from the union. The issue went before an arbitrator.
The arbitrator found that:
- union officials were present at the activities which were determined to constitute illegal strikes;
- they must be presumed to have had knowledge that an illegal strike was occurring; and
- they had failed to take any steps, or turned a blind eye to what was occurring.
Reviewing the case law, the arbitrator noted that a union is liable in damages resulting from an illegal work stoppage when union officials or those in a union leadership role are found to be involved in causing the illegal work stoppage. Unions can also be liable for failing to take prompt and appropriate action to bring the illegal work stoppage to an end.
The arbitrator followed the rulings in an earlier arbitration award between these parties, noting that:
- under this collective agreement, given the parties' history, it must be taken as agreed that the union is liable in damages for its involvement in an illegal work stoppage;
- punitive damages can be warranted if the union disregards its primary obligations under the terms of the collective agreement; and
- an arbitrator has the authority to award punitive damages, even though the collective agreement only mentions declaratory relief.
The arbitrator ordered the union to pay Canada Post $35,000 in punitive damages. He noted that such damages would be more substantial if future illegal strikes occurred in circumstances where the union either failed to take prompt action to stop such action, or precipitated the action itself.
The arbitrator also ordered that the Union pay the legal fees of Canada Post. They were an expense incurred in responding to the illegal actions of the Union, including the actual fees incurred in making the application to the CIRB, to the point where the CIRB's ultimate decision was issued. The union was ordered to pay just over $29,000 to Canada Post in this regard.
Takeaway for Employers
In pursuing damages resulting from an illegal strike, employers should consider pursuing punitive damages and legal fees through arbitration. This may assist employers in recovering as much as possible of the expenses and losses incurred. This should be considered where the labour board which has jurisdiction over an application regarding an illegal strike has no authority to make such an order.