Union Democracy and the Law in Canada

16 JUST LABOUR vol. 1 (2002), 16-30 UNION DEMOCRACY AND THE LAW IN CANADA Michael Lynk Faculty of Law, University of Western Ontario, London, Ontario, Canada The modern direction of Canadian Canadian unions have historically labour and employment law has encouraged a culture of democratic been significantly influenced by practices, and they have been able to legal developments in the United give voice to both the employment States and Great Britain. Our heavily and the social aspirations of their regulated system of industrial membership. The 1996 federal Task relations is directly borrowed from Force reviewing the Canada Labour the American Wagner Act. Canadian Code stated that: law on wrongful dismissal has been largely imported from the English ”Canadian trade unions exhibit a common law. Yet, unlike these two high level of internal democracy source countries, Canada has taken a and genuinely represent the distinct path respecting the legal interests and wishes of their regulation of union democracy and membership.” internal trade union affairs. While both the U.S. Congress and the Second, unions in Canada have British Parliament have enacted generally avoided both the stain of stringent legislation governing corruption that has tainted parts of union elections and union officers’ the American labour movement, and duties, the Canadian approach has the specter of unbridled militancy been largely one of statutory that had characterized a number of abstinence. Comparatively speaking, British unions. While incidences of Canadian unions enjoy greater corrupt unionism have occasionally institutional freedom of association appeared in Canada, unions that than their American and British encouraged or tolerated patterns of siblings, although they also suffer, corruption or violence in Canada like their counterparts, from a were generally outside the largely conservative judiciary that mainstream labour congresses, or has commonly misunderstood the were expelled once the mainstream particular culture and social role of leadership was satisfied that the trade unions. patterns were endemic. Four reasons in particular Third, there has never been a explain this particular Canadian sustained political or popular approach towards the law demand in Canada for a significant governing union democracy. First, legislative intrusion into internal Lynk 17 union affairs. The cry for “union statutory abstinence to mean that democracy” from conservative their jurisdiction to oversee the political parties has never acquired democratic life of unions is the influence it has in the United restricted. The prevailing view is States and Britain. As well, expressed in a 1993 Ontario Labour Canadian employers, unlike their Relations Board ruling RWDSU and American counterparts, have New Dominion Stores involving a generally accepted the fundamental complex trusteeship application: premises of collective bargaining, and have not built up a significant “The [Ontario] Labour Relations antiunion consulting industry or Act is primarily concerned about sought as a common strategy to institutional collective bargaining undermine the legitimacy of unions. relationships, the trade union in And fourth, the traditional its role as statutory bargaining British common law concept of agent. The statute does not unions as voluntary organizations, purport to regulate internal union and therefore entitled to self- affairs, nor does it prescribe any government, has long influenced general code of democratic practice. Canadian legislators and courts. The Indeed, the statute is exceedingly English and Canadian courts viewed (and we think, intentionally) the membership relationships of sparse in respect of such matters, these organizations as purely leaving them to be determined, personal and contractual, and they for the most part, in accordance therefore would not review an with the union’s constitution” internal decision of a union except [italics in original]. on narrow procedural grounds. Consequently, the appropriate THE LEGAL REGULATION OF forum for litigating issues of union UNION DEMOCRACY IN democracy in Canada is divided CANADA between labour relations boards and the courts. The division of The legislative intervention into jurisdiction is the residual internal trade union affairs by the consequence of the legislative federal government and the ten reluctance to intervene through provinces has been quite modest. labour relations boards in internal While the certification process union affairs. This has left the courts requires applicant unions to have a to fill the judicial vacuum. If constitution and a set of elected specifically addressed in legislation, officers, Canadian labour legislation then the particular labour relations is silent on the democratic quality by board has the jurisdiction to rule on which union officers are elected. In the matter. If the legislation is silent, turn, labour boards have read this then the common law (or, in Québec, 18 JUST LABOUR vol. 1 (2002), 16-30 the civil law) courts assume the activity in some jurisdictions, the jurisdiction, which has given them supervision of internal union affairs the predominant role in supervising is the Canadian judiciary’s only union constitutions. remaining area of original The primary legal tool for the jurisdiction over Canadian industrial courts to intervene has been a relations. reliance on the contract theory of union constitutions. This theory UNION DEMOCRACY: holds that every member, by joining ELECTIONS AND OFFICERS the union, enters into a contractual relationship through the constitution The statutory regulation of union with every other member. This elections and union officers is almost allows a dissident member to sue the entirely absent in Canadian labour leadership on breach of contract statutes. Québec legislation grounds if he or she can establish a regulates only one discrete violation of a constitutional procedural aspect of the electoral provision. In turn, this has permitted process: it requires that elections for the courts to act as an appellate union office be conducted by secret body, interpreting the contracts and ballot. Manitoba and New providing relief to union members Brunswick forbid a union, or for any violation of the constitution someone acting on behalf of a union, and bylaws. to interfere through intimidation or The irony of this significant coercion with the right of a union residual role of the courts in union member to become, or remain, a democracy issues should not be lost. union officer. Saskatchewan requires The Canadian labour movement that a union give members fought hard during the 1930s and reasonable notice of all meetings 1940s for legislation that would that they are entitled to attend. In remove the courts, whom they saw Ontario, the then-governing New as strongly hostile to unions and Democratic Party in 1993 restricted imbued with a stiffly contractual the ability of the parent leadership approach to decision-making, from of construction unions to remove any involvement in the legal from office, alter the duties of, or regulation of industrial relations. impose a penalty on, an elected or Yet, the labour movement, by also appointed officer without just cause. opposing any statutory regulation of Otherwise, the rules governing such their internal affairs, has unwittingly matters as the rules for elections and sustained a limited but potentially candidate conduct, length of office, potent involvement for the courts. the fiduciary responsibilities of Indeed, aside from judicial review of officers, and removal from office are labour board decisions and the governed almost entirely by union occasional monitoring of picket line constitutions, and supervised Lynk 19 primarily by the courts as a law. The common law dominates the contractual matter. regulation of this area of trade union activities, although again there is The conduct of union elections scant caselaw to draw on. Legislation in Canada has regulated The Canadian common law has the duties of officers in only one stated that the results of an election area: the liability of union leaders for will be upheld if it has been participation in an unlawful strike or conducted in substantial compliance for violating other provisions of the with the union’s constitution and governing labour statute. by-laws. A mere irregularity in The common law in Canada has campaign or voting procedures that commented on two areas of has not materially affected the responsibility resting with union election results will usually not be officers: the scope of presidential sufficient to nullify a union election. authority in relation to the union However, while the Canadian courts executive and the nature of the have expressed this as a principle, fiduciary duty of honesty owed by they have not been shy about an officer to her or his national defining a broad range of procedural union. Both common law duties breaches of an internal election as a speak to the subordination of significant irregularity requiring a individual or local officers to new election. The courts have collective authority in the decision intervened to quash union elections making and the management of where voting secrecy was union assets. inadequate, ballots were distributed The courts have drawn from to ineligible members, ballots were prevailing principles of company tampered with, eligible members law to prefer the primacy of were not given ballots, a voting collective decision-making over the deadline extension was not authority of an

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