Counsel for employers often stay well away from disputes between unions and their members about employee conduct during labour disputes. A recent decision from the Ontario Court of Appeal is helpful, however, in confirming that the courts may not be used as a tool where the union is seeking to enforce fines or to discipline members who have crossed picket lines.

In Birch v. Union Of Taxation Employees, Local 70030, the Ontario Court of Appeal dismissed an appeal by the union which had imposed a fine on two Revenue Canada employees, Jeffrey Birch and April Luberti, because they crossed the picket line on three separate days during a labour dispute.

The union attempted to suspend each of the employees from union membership for three years and imposed a fine of $476 each (that amount being three days gross wages) for agreeing to work during three days of the 2004 strike at Revenue Canada.

The Ontario Court of Appeal’s decision confirms that the union’s penalty was unconscionable because it constituted a penalty clause. In finding support for this position, the Court focused on the inequality of bargaining power between the union members and the union that enforced the constitution by way of levying the fines. While this decision may only apply to a narrow range of circumstances, this must certainly be seen as yet another example of the trend towards courts reducing the latitude for membership or union remedies being upheld outside of the arbitral or labour board arenas.