Date: 20240913

Docket: A-186-23

Citation: 2024 FCA 142

CORAM:		GLEASON J.A. BIRINGER J.A. WALKER J.A.
	BETWEEN:
	INTERNATIONAL LONGSHORE AND WAREHOUSE UNION – CANADA
	Applicant
	and
	BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION
	Respondent

Heard at Vancouver, British Columbia, on March 13, 2024.

Judgment delivered at Ottawa, Ontario, on September 13, 2024.

REASONS FOR JUDGMENT BY:	GLEASON J.A.
CONCURRED IN BY:	BIRINGER J.A. WALKER J.A.

 

Date: 20240913

Docket: A-186-23

Citation: 2024 FCA 142

CORAM:		GLEASON J.A. BIRINGER J.A. WALKER J.A.
	BETWEEN:
	INTERNATIONAL LONGSHORE AND WAREHOUSE UNION – CANADA
	Applicant
	and
	BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION
	Respondent

REASONS FOR JUDGMENT

GLEASON J.A.

[1] The applicant, International Longshore and Warehouse Union–Canada (ILWU Canada), is the bargaining agent for approximately 7400 longshore employees who work in various ports in British Columbia, including the Port of Vancouver. The respondent, British Columbia Maritime Employers Association (the BCMEA), is the non-accredited bargaining agent for employers involved in national and international marine transportation on Canada’s west coast. ILWU Canada and the BCMEA bargain collectively with each other, primarily under long–standing voluntary recognition agreements, to settle the terms and conditions of employment for almost all of the longshore employees who work in various ports in British Columbia. A single industry–wide collective agreement applies to the employees for whom the BCMEA and ILWU Canada collectively bargain.

[2] ILWU Canada applied to this Court to set aside Order No.: 1460-NB of the Canada Industrial Relations Board (the CIRB or the Board), issued on July 19, 2023 (the Order). The Board delivered reasons for the Order on August 10, 2023, in British Columbia Maritime Employers Association v. International Longshore and Warehouse Union-Canada, 2023 CIRB 1088.

[3] In the Order, the CIRB declared that ILWU Canada engaged in an unlawful strike when it resumed its strike activities on July 18, 2023. The strike activities resumed shortly after ILWU Canada’s Longshore Contract Caucus (an internal union committee) rejected a recommendation for settlement of the renewal collective agreement between the parties (the Terms of Settlement). Both parties’ bargaining committees had agreed to present the Terms of Settlement for ratification. At the request of the Federal Minister of Labour, ILWU Canada stopped strike activities while considering the Terms of Settlement. When the Longshore Contract Caucus rejected the Terms of Settlement, ILWU Canada and its members raised their picket lines and recommenced strike activities on July 18, 2023, providing approximately an hour and a half notice of their intention to do so.

[4] The CIRB determined that, in the particular circumstances at issue, ILWU Canada was required to give the BCMEA a new 72–hour strike notice, under paragraph 89(1)(f) and subsection 87.2(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 [Code] before resuming strike activities. Because no such notice was given, the Board declared the strike illegal and, among other things, ordered that all strike activities cease until a new 72–hour strike notice was given to the BCMEA.

[5] Not long after this application for judicial review was filed, ILWU Canada and the BCMEA settled their collective agreement.

[6] The Court sent a Direction to the parties, requesting that they be prepared to address at the outset of the hearing whether this application was moot due to the settlement of the collective agreement, and, if so, whether the Court should nonetheless exercise its discretion to hear this application. During the hearing before this Court, the panel heard the parties’ submissions on mootness and took the mootness issues under reserve. We then proceeded to hear the parties’ submissions on the merits of the application.

[7] The following reasons deal with both the mootness issues and the merits of the application.

[8] For the reasons that follow, I would find that this application is moot because the substratum of the litigation disappeared once ILWU Canada members returned to work. Despite this finding, I would nonetheless exercise the Court’s discretion to decide this application because its determination may well have a practical effect on outstanding or contemplated litigation between the parties, as both parties submitted. On the merits, I would find that the CIRB did not violate ILWU Canada’s right to procedural fairness and that the Board’s decision is reasonable. I would therefore dismiss this application. I would make no order regarding costs because the parties have settled the issue of costs between them and have agreed that a costs order is not required.

I. The Relevant Provisions in the Canada Labour Code

[9] I commence by outlining the statutory and regulatory provisions that are relevant to this application.

[10] Part I of the Code, among other things, provides for the acquisition of unions’ representational rights in the federal private sector and regulates collective bargaining in that sector. Like all labour legislation in Canada, Part I of the Code is modelled on the American National Labor Relations Act, 29 USC §151-169 (1935) [Wagner Act]. Under the Wagner Act model, a compromise regarding industrial conflict exists: strikes and lockouts are prohibited during the currency of a collective agreement but are allowed when a collective agreement is not in force and certain pre-conditions to the exercise of the right to strike or lockout are met.

[11] Section 3 of the Code defines strike and lockout in the following non-limiting terms:

[12] Section 91 of the Code provides for applications to the Board for illegal strike declarations and ancillary orders. It reads as follows:

[13] Section 88.1 of the Code prohibits strikes or lockouts until the requirements of subsection 89(1) of the Code are met. Section 89 of the Code provides as follows:

[14] The provisions referred to in subsection 89(1) of the Code that govern conciliation (which is one of the pre-conditions to acquisition of the right to strike or lockout) are set out in the Appendix to these reasons. Also included in the Appendix are sections 105 and 107 of the Code, which provide the Federal Minister of Labour certain powers to promote industrial peace, and section 87.7 of the Code, which, among other things, prohibits strike action for those servicing grain vessels.

[15] Section 87.2 of the Code, which is referred to in paragraph 89(1)(f), contains requirements for a 72–hour notice to an employer of an impending strike and for a similar notice to a union of an impending lockout. In accordance with paragraph 89(1)(f) of the Code, compliance with the notice provisions in section 87.2 of the Code is a pre-condition for acquisition of the right to strike or lockout under the Code. Section 87.2 of the Code is of central importance to this application. It reads as follows:

[16] The Canada Industrial Relations Regulations, SOR/2002-54 [CIR Regulations] prescribe the requirements for the contents of notices under section 87.2 of the Code. Section 7 of the CIR Regulations states:

[17] Another pre-condition to acquisition of the right to engage in a legal strike or legal lockout by an employer organization like the BCMEA, also prescribed by paragraph 89(1)(f) of the Code, is set out in section 87.3 of the Code. That provision requires the holding of a secret ballot vote to authorize the strike or lockout within 60 days before the commencement of the strike or lockout. Subsections 87.3(1) and (2) provide as follows:

[18] Another pre-condition for acquisition of the right to strike or lockout, set out in paragraph 89(1)(e) of the Code, requires that the Board have decided any maintenance of activities applications or referrals under section 87.4 of the Code. That provision requires the maintenance during a legal strike or lockout of certain essential services, namely, those services, facilities, or production of goods required “to prevent an immediate and serious danger to the safety or health of the public”. The parties may refer unresolved questions about maintenance of activities to the Board for settlement, and the federal Minister of Labour may also refer issues regarding maintenance of activities to the Board after a notice of dispute (which commences the conciliation process) has been filed.

[19] The statutory freeze provisions contained in paragraph 50(b) and section 87.5 of the Code are also relevant to this application. Paragraph 50(b) provides, among other things, for the continuation of the terms and conditions of employment contained in a collective agreement after the expiry date of the previous collective agreement when the parties bargain beyond that date. The provision often comes into play because bargaining for a renewal agreement often extends past the expiry date of the previous collective agreement. Paragraph 50(b) of the Code provides that the statutory freeze of terms and conditions of employment extends until some (but not all) of the conditions in subsection 89(1) of the Code are met. Paragraph 50(b) of the Code reads as follows:

[20] Section 87.5 of the Code provides for continuation of the freeze while the Board considers a maintenance of activities application if that consideration extends beyond the date the requirements of paragraphs 89(1)(a) to (d) of the Code are met. Section 87.5 states as follows:

[21] ILWU Canada relies on subsection 87.5(3) of the Code, which provides that where a question involving maintenance of activities is referred to the CIRB during a legal strike or lockout, the referral “… does not suspend the strike or lockout”.

[22] The provision limiting the right of a competing union to file a displacement (or raid) application during a strike or lockout is also relevant to this application for judicial review. Subsection 24(3) of the Code governs this issue and provides as follows:

[23] Provisions giving the CIRB authority to hold hearings via teleconference (or other electronic means) and on short notice are also relevant. Paragraphs 16(a.2) and (m) of the Code state:

[24] In addition, under section 16.1 of the Code, the CIRB is empowered to decide any matter before it without holding a hearing. It reads as follows:

[25] Paragraph 14(e) and section 15 of the Canada Industrial Relations Board Regulations, 2012, SOR/2001-520 [CIRB Regulations] provide for an expedited process for illegal strike or lockout applications. Of particular relevance to this application, subsection 15(2) of the CIRB Regulations states as follows:

II. The Factual Background

[26] I move now to outline the relevant factual background to this application.

[27] In late 2022, the BCMEA gave notice to bargain for the renewal of the collective agreement between the parties, which was set to expire on March 31, 2023. The parties met and bargained, but were unable to reach an agreement. In March 2023, ILWU Canada filed a notice of dispute to commence conciliation, which, as noted, is one of the required pre-conditions for acquisition of the right to strike under paragraph 89(1)(c) of the Code. The federal Minister of Labour appointed two conciliation officers from the Federal Mediation and Conciliation Service (FMCS) to assist the parties and later extended the conciliation period to May 30, 2023, but no agreement was achieved. On June 1, 2023, the Minister of Labour appointed two FMCS mediators under section 105 of the Code to provide further assistance to the parties. On the same date, the 21-day cooling off period provided under paragraph 89(1)(d) of the Code commenced.

[28] On June 9 and 10, 2023, ILWU Canada held a strike vote and received overwhelming support for a strike, with 99.24 % of those who voted favouring a strike. On June 28, 2023, ILWU Canada gave the BCMEA strike notice under section 87.2 of the Code, advising that a strike would commence on July 1, 2023. On July 1^st, ILWU Canada and its members commenced legal strike action. They established picket lines at the terminals of the BCMEA’s members and dispatch halls, and all bargaining unit members, except those servicing grain shipments and cruise ships, withdrew their labour. (As noted, under section 87.7 of the Code, services normally provided to ensure tie-up, let-go and loading of grain vessels at licenced terminals and transfer elevators and the movement of grain vessels must be continued during a legal strike. In addition, the parties have an understanding to continue servicing cruise ships in the event of a legal strike).

[29] ILWU Canada’s strike garnered national attention and effectively shut down operations at all west coast ports. While the strike was ongoing, the two FMCS mediators appointed by the Minister of Labour continued to work with the parties in an effort to settle the collective agreement.

[30] On July 11, 2023, the Minister of Labour wrote to the Director of FMCS and requested that the senior mediator working with the parties make a recommendation within 24 hours for Terms of Settlement under subsection 105(2) of the Code. On the same date, the Minister of Labour wrote to the parties, advising of the request for recommended Terms of Settlement. In his letter, the Minster of Labour noted that the strike was paralyzing Canadian imports and exports. The Minister of Labour also stated in his letter that the parties would have 24 hours from receipt of the Terms of Settlement to advise whether they were willing to recommend them for ratification.

[31] On July 12, 2023, the Minister of Labour forwarded the Terms of Settlement to the parties, underlining that they had 24 hours to confirm if they would recommend them to their respective principals for ratification. In addition, the Minister requested in his letter that, if the Terms of Settlement were acceptable to both parties, “as a sign of good faith”, ILWU Canada “suspend its strike while the voting process unfolds, and further that [the BCMEA] agree that no lockout will be imposed”.

[32] On July 12, the BCMEA responded to the Minister and advised that the BCMEA bargaining committee was recommending ratification of the Terms of Settlement. On July 13, 2023, the BCMEA ratified the Terms of Settlement.

[33] On July 13, 2023, ILWU Canada wrote to the Minister of Labour, stating that the ILWU Canada bargaining committee would “recommend to our [Longshore Contract Caucus] to send [the Terms of Settlement] to the membership”. On the same day, ILWU Canada began to take down its picket lines and its members began to return to work.

[34] The BCMEA issued an industry-wide notice that it was resuming operations on July 13, 2023. In collaboration with ILWU Canada, the BCMEA issued a notice of dispatch to employees on the same date, advising that operations would be up and running as of 4:30 p.m. and inviting employees to report to the hiring hall to resume work as of 4:30 p.m. on July 13, 2023. The employees largely did so, and the CIRB found that the strike ceased on July 13, 2023, as there was no evidence that any strike activity continued past that date. Operations in the ports on the west coast then returned to normal levels. The federal Ministers of Labour and Transport issued a joint statement on July 13, 2023, stating that the parties had reached a tentative agreement, and, on the same day, sent out Tweets, stating that the strike in the ports on the west coast was over.

[35] ILWU Canada never told the BCMEA, the mediators, the Minister of Labour, or the public that it considered a state of strike to be ongoing or that it reserved the right to recommence strike activities, without a further 72–hour notice to the BCMEA, if the Terms of Settlement were not ratified by an internal union committee. During the afternoon of July 18, ILWU Canada issued a news release, stating that its Longshore Contract Caucus had rejected the Terms of Settlement and that its members would be back on the picket lines a few hours later that same day. The longshore employees had no opportunity to vote on the Terms of Settlement before strike activities resumed.

[36] The ILWU Canada Constitution provides for contract caucuses “to develop a programme for collective bargaining as well as be a forum for strategy development in contract discussions”, to quote from Article 10 of the Constitution. In the present case, the Longshore Contract Caucus was comprised of five ILWU Canada officers and approximately 75 member delegates elected by the Longshore Locals. One of ILWU Canada’s affiants deposed that the ILWU Canada bargaining committee with whom the BCMEA bargaining committee and the FMCS mediators had been dealing was prohibited from recommending the Terms of Settlement to the membership and that it was the role of the Longshore Contract Caucus to do so. However, this requirement is not explicitly outlined in the ILWU Canada Constitution.

[37] ILWU Canada advised the BCMEA at approximately 3:00 p.m. on July 18, 2023 that its picket lines would be going up again at 4:30 p.m. that same day. At approximately 3:19 p.m. on July 18, 2023, counsel for the BCMEA called the ILWU Canada President and told him that the BCMEA considered the resumption of strike activities to be illegal due to the failure to provide a new 72–hour notice of strike. Shortly thereafter, counsel for ILWU Canada emailed the BCMEA to say that ILWU Canada counsel were authorized to accept service of an illegal strike application to the CIRB.

[38] By 4:30 p.m. on July 18, 2023, ILWU Canada and its members had fully withdrawn labour and re-established their picket lines. Certain vessels in port were left in a condition where they could not depart because they were only partially loaded or unloaded, and certain machines were left running when employees walked off the job.

[39] At approximately 5:15 p.m. on July 18, 2023, counsel for the BCMEA filed an illegal strike application with the CIRB and at the same time served counsel for ILWU Canada with a copy of the application.

[40] The Chairperson of the Board held a conference call with counsel for the parties at approximately 6:00 p.m. on July 18, 2023, which lasted for a little over 55 minutes. During the call, counsel for the BCMEA urged the Board to convene a hearing as soon as possible, stating that it was necessary for the CIRB to hear the parties that evening given the urgency of the situation. Counsel for ILWU Canada submitted that he needed more time and expressed the preference for proceeding the next morning. The Chairperson of the Board remarked that there were “many eyes on this” and indicated that the Board was “not delaying the urgency”. Counsel for ILWU Canada responded that he “was in [the Chairperson’s] hands”.

[41] At the conclusion of the call, the Chairperson of the CIRB determined that the hearing would proceed that evening at 9:30 p.m. by teleconference. She directed the parties to have witnesses available to be questioned and to submit any documents they relied on. The parties did so. All the documents filed by the BCMEA were either public ones or ones that were already in ILWU Canada’s possession. However, there are additional documents that ILWU Canada says that it would have put before the Board with more time to prepare. These are excerpts from Hansard, when section 87.2 of the Code was debated in the House of Commons, excerpts from Andrew C.L. Sims, Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Minister of Public Works and Government Services Canada, 1995) [Sims Report], and the decision of the Alberta Labour Relations Board in V.S. Services Ltd. v. Health Care Employees Union of Alberta, [1990] Alta L.R.B.R. 523 [V.S. Services].

[42] The hearing took place between approximately 9:30 p.m. on July 18, 2023 and 1:30 a.m. the next morning. Both parties called witnesses and made submissions. At no time did ILWU Canada indicate that it needed more time to prepare or state that the union was taken by surprise by the BCMEA’s evidence or arguments. ILWU Canada was represented by experienced labour counsel during the hearing before the Board. At the conclusion of the hearing, the Board took the matter under reserve. At approximately 7:30 a.m. the next morning, the CIRB issued the Order. As already noted, reasons for the Order followed approximately three weeks later.

[43] ILWU Canada issued a new strike notice on July 19, 2023, but withdrew it after the Prime Minister convened the Incident Response Group. During the week of July 21, 2023, the ILWU Canada membership voted on and rejected the Terms of Settlement. The parties thereafter continued to bargain and ultimately reached an agreement on the terms of a renewal collective agreement, which was ratified by the ILWU Canada membership on August 4, 2023.

III. The CIRB’s Reasons

[44] I turn next to outline the salient points made by the Board in its Reasons for the Order.

[45] After identifying the parties and the application, the CIRB stated at paragraph 4 of its Reasons that the key issue in the dispute “…require[d] an interpretation of section 87.2(1) of the Code and a determination of whether the union suspended or ended the strike when it agreed to present a recommended settlement through its ratification process”. It then proceeded to review the relevant facts, most of which are set out above. Importantly, for purposes of this application, the Board found that, “… there was no evidence that any strike activity continued between July 14 and 18, 2023. On the contrary, the ports were in full operation, and the jobs dispatched were at levels comparable to those prior to the strike” (Reasons at para. 30).

[46] After reviewing the facts, the Board summarized the parties’ arguments and then moved on to its analysis. At the commencement of its analysis, the CIRB once again highlighted the issue in dispute in paragraph 52 of its Reasons, stating that:

The key issue is whether, after suspending the strike on July 13, 2023, following the agreement to recommend the senior mediator’s proposal for ratification, there was an obligation on the union to serve a new notice as required under section 89(1)(f) of the Code prior to resuming its strike activities on July 18, 2023.

[47] The CIRB then stated that it recognized that the right to strike is a protected right under the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 [Charter] and that substantial interference with that right could be found to be unconstitutional. It continued, noting that, “[t]o a large extent, these constitutional values are already recognized in the Preamble to the Code” and that the Board’s interpretation of the Code was “… guided by its Preamble and Parliament’s desire to encourage free collective bargaining and the constructive settlement of disputes” (Reasons at para. 56). It went on to state that ILWU Canada had the right to strike and had exercised that right. It continued, stating that, “[h]owever, the Code establishes certain parameters on the exercise of that right that seek to balance the employees’ rights with the public’s interest. Those parameters are found at section 89 of the Code and include a 72-hour strike notice” (Reasons at para. 57).

[48] The Board then turned to analyze the relevant statutory provisions, and mentioned that section 87.2 was added to the Code in 1999 following the comprehensive review that culminated in the Sims Report. The Board noted that the authors of that Report stated at pages 116–17 that employers require a strike notice to ensure the orderly shutdown of operations. The CIRB continued by stating that such notice “is particularly critical for industries in the federally regulated sectors that involve key infrastructure, such as ports, airports and airlines, railways and nuclear reactors” (Reasons at para. 59).

[49] The CIRB then highlighted that subsection 87.2(3) of the Code requires a new 72–hour notice be given if the strike does not commence on the date set out in a previous notice. The Board referred to its prior decision in Canada Steamship Lines Inc., 2002 CIRB 201, where it canvassed why a new notice was required when a strike had not commenced on the date given in the previous notice. It then stated that:

[61] The Code requires that a notice be given “indicating the date on which a strike will occur” (section 87.2(1)). It also requires a new notice when a strike does not occur on the date originally set. This new notice is required presumably to provide clarity and allow the employer to put appropriate measures in place for the shutdown of operations. For the same reasons, it is the Board’s view that, in this case, where strike activities have ceased and full operations have resumed, with no agreement or clarity between the parties on the status of the strike, a new notice is required. This is consistent with the purpose of the notice and aligns with the requirement to give a new notice when the strike does not commence on the set date.

[62] The Board is also cognizant of the potential consequences of not requiring a new strike notice in those circumstances. As indicated by the BCMEA’s counsel, employers could defensively implement a lockout to avoid the consequences of a potential abrupt resumption of strike activity. This is a compelling reason to adopt an interpretation that requires advance notice when a strike resumes after it had, for all intents and purposes, ended. [Emphasis added.]

[50] The CIRB proceeded to distinguish many of the cases relied on by ILWU Canada.

[51] The Board first discussed its prior decision in Canadian National Railway Company, 2007 CIRB 398 [CN 2007]. That case involved a competing union that sought to displace an incumbent union at a time when back-to-work legislation was pending before Parliament and the employees had returned to work and were voting on a tentative agreement. However, unlike the present case, the incumbent union in CN 2007 had made its intention clear to the employer that it would resume strike activities if the ratification vote failed.

[52] In CN 2007, the CIRB held that the displacement application of the competing union had been made “during a strike” within the meaning of subsection 24(3) of the Code, and thus could not proceed without the consent of the Board, which it granted in the unusual circumstances that arose in that case. In so ruling, the CIRB stated in CN 2007 at paragraph 81 that, it “was of the view that for the purposes of section 24(3) of the Code, the words ‘during a strike’ must be given a liberal and broad interpretation rather than a narrow restrictive one” [emphasis added]. This interpretation, according to the CIRB, was consistent with the purpose of the provision. The Board also held, with reference to its earlier decided case law, that “…the term ‘strike’ [in subsection 24(3) of the Code] refers to a ‘state of economic warfare’ that occurs over a certain period of time and not to the ‘weapons available to one party or the other’” (CN 2007 at para. 83). In other words, in CN 2007, the CIRB held that what was relevant to assessing whether a strike was ongoing for purposes of subsection 24(3) of the Code was the time period when the displacement application was filed and not whether strike activities were ongoing at that date.

[53] In CN 2007, the Board also highlighted the particularly vulnerable state an incumbent union is in when a raiding union files a displacement application when strike activities have ceased and employees are voting on a tentative agreement. It wrote at paragraph 102 as follows:

As stated in the Sims Report and as confirmed in [other previous CIRB decisions], the requirement for consent in a section 24(3) situation “simply provides a check [by the Board], during a difficult period, on those applications that may destabilize bargaining and lack the necessary voluntary support” [citation omitted]. In other words, it allows the Board to balance the competing labour relations issues involved between an employer and a union during a challenge to the union’s representation and bars unnecessary labour disruptions in the workplace during a volatile time. It prevents undue interference with the collective bargaining process at a time when the incumbent union is particularly vulnerable. During that time, the Board will normally only interfere with the collective bargaining process and grant consent when compelling circumstances exist and when a proper labour relations purpose is to be served.

[54] In the present case, the CIRB distinguished CN 2007 on two bases. First, it held that the fact that CN 2007 arose under an entirely different provision in the Code meant that the case did not settle the issue of whether a new strike notice was required under section 87.2 of the Code in the circumstances before it. The Board wrote at paragraph 68 of its Reasons as follows:

The purpose of section 24(3) of the Code is very different than the purpose of a strike notice required at section 87.2 of the Code. In the case of a displacement application during the period of a strike, the Board concluded that the phrase “during a strike” encompasses that period during which a union and an employer are in a state of economic warfare. That period during which either party can exercise its economic leverage to obtain a collective agreement is a critical period for the union, one during which the union’s challenge is to maintain the commitment of its members. It is with these policy considerations in mind that the Board gave a broad interpretation to the phrase “during a strike” for the purpose of a displacement application.

[55] Second, the CIRB distinguished CN 2007 on a factual basis because the union in that case, unlike ILWU Canada, had made its intentions clear to the employer that it intended to resume strike activities if the ratification vote failed.

[56] The CIRB also distinguished two cases from British Columbia that ILWU Canada relied on, namely Re Weyerhaeuser Canada Ltd. and PPWC, Local 10, (1983) 5 C.L.R.B.R. (N.S.) 268, [1983] N.B.P.S.L.R.D. No. 5 (QL) [Weyerhaeuser] and Re Sunlover Holding Co. and COOWA, Local 2001 (2014), 250 C.L.R.B.R. (2d) 123 [Sunlover] (upheld on reconsideration in Re Sunlover Holding Co. and COOWA, Local 2001 (2014), 250 C.L.R.B.R. (2d) 133). The Board distinguished these cases due to the differences between the strike notice provisions contained in the British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244 and the Code. The Board also highlighted factual differences in the two cases. More specifically, it noted that in Sunlover, unlike in the case at bar, the union had made its intention to resume its strike activities known to the employer and, like CN 2007, involved a displacement application. The Board also stated that the fact pattern was entirely different in Weyerhaeuser and involved consideration of whether an employer lockout removed the need for a strike notice.

[57] The CIRB held that the factual context before it in the instant case was “… in stark contrast to the facts in CN 2007 and Sunlover” because, in the instant case, ILWU Canada gave no indication of the possibility that strike activities might resume. The Board concluded that it could not “… accept that the union’s silence on the issue in the highly charged context in which the events unfolded meant that it was maintaining its immediate threat to resume strike activity” (Reasons at para. 79). Given this silence, in the face of the communications made by the Ministers and the BCMEA, as well as the fact that all strike activities had ceased as of July 13, 2023, the CIRB determined that no strike was ongoing on July 18, 2023, when strike activities resumed. The Board accordingly held that a new 72–hour strike notice was required. It concluded in paragraphs 93 and 94 of its Reasons as follows:

Based on the evidence presented, the Board was satisfied that there was no ongoing strike activity between July 13 to 18, 2023, and that the strike had ceased. In this context, the Board found that the union was required to serve a new notice that a strike would occur to allow for the appropriate shutdown of operations.

Given that the requirement to give a 72-hour notice pursuant to section 87.2(1) of the Code had not been met, the Board concluded that the strike that occurred on July 18, 2023, was unlawful.

IV. Mootness

[58] With the foregoing background in mind, I turn now to consider the first set of questions that arise in this application, namely, the issue of whether the application is moot and, if so, whether this Court should nonetheless exercise its discretion to decide the application as both parties have urged us to do.

[59] Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, 1989 CanLII 123 [Borowski] is the seminal case governing mootness. There, the Supreme Court of Canada held that a case is moot if, subsequent to the commencement of the proceeding, events occur such that there is no longer a live controversy between the parties. In Borowski, the Supreme Court held that the substratum of the appeal in that case had disappeared because the provision the appellant was challenging had been struck down in a previous case.

[60] In the present case, there is likewise no longer a live controversy between the parties because the strike that gave rise to the Order has ended and the parties have entered into a new collective agreement. Like in Borowski, the substratum of the litigation has disappeared in this application because there is no longer any possibility of an ongoing strike.

[61] A court has discretion to hear an otherwise moot case. In Borowski, the Supreme Court of Canada held that factors relevant to the exercise of such discretion include: the ongoing presence of an adversarial context between the parties; consideration of whether deciding the case accords with the proper role of the court; and any special circumstances that warrant hearing of an otherwise moot case. The Supreme Court noted that special circumstances would include where : (1) the case will have a practical effect on the rights of the parties; (2) the case raises reoccurring issues that are dealt with quickly and therefore seldom have an opportunity for review; or (3) hearing the case is in the public interest or raises an issue of public importance: Borowski at 358–62.

[62] Here, an adversarial context remains, and it is consistent with the role of this Court to decide this application. This Court routinely hears judicial review applications from decisions of the CIRB pursuant to paragraph 28(1)(h) of the Federal Courts Act, R.S.C., 1985, c. F-7. In addition, I am of the view that there are special circumstances that warrant our deciding the case. As both parties argued, the validity of the Order and the determination as to the illegality of the strike action taken on July 18, 2023 may be of relevance to outstanding or contemplated litigation between the parties, where the legality of the strike would be a key issue.

[63] More specifically, the BCMEA has filed a grievance seeking damages from ILWU Canada for the strike. That grievance is slated to be heard in February 2025. Damages for illegal strikes are not generally awarded by labour boards. The CIRB’s remedial authority in the illegal strike context is limited to the remedies set out in subsection 91(2) of the Code, which do not include awarding monetary damages: see Graham J. Clarke & Sara Bennett, Clarke’s Canada Industrial Relations Board, vol. 1 (Toronto: Thomson Reuters, 1999) (loose-leaf revision March 2024) [Clarke] at §3:565. Instead, damages may be sought by way of grievance, and may be awarded by a labour arbitrator when a strike occurs that violates the provisions of a collective agreement: see Donald J.M. Brown, David M. Beatty & Adam J. Beatty, Canadian Labour Arbitration, vol. 1A, 5th ed. (Toronto: Carswell, 2019) (loose-leaf revision 2, 3/2024) at §9:21; Imbleau v. Laskin, [1962] S.C.R. 338, 1962 CanLII 3; Shell Canada Ltd. v. United Oil Workers of Canada, [1980] 2 S.C.R. 181, 1980 CanLII 200 at 187.

[64] In the present case, it is possible that the BCMEA’s grievance, seeking damages, would be found to be inarbitrable as no collective agreement was in force when the strike occurred. However, that is a matter for determination by the arbitrator seized with the grievance.

[65] If the arbitrator were to find the BCMEA’s grievance inarbitrable, counsel for the BCMEA advised the panel that his client intends to commence a civil action, seeking damages from ILWU Canada for the strike. In such an action, the legality of the strike would be a central issue, and the validity of the Order bears directly on this issue. Thus, the outcome of this application could well have a practical impact on the rights of the parties in existing or contemplated litigation. This factor militates strongly in favour of this Court deciding this application.

[66] In addition, the parties fully argued the case and filed detailed memoranda of fact and law. As such, this Court has all the input necessary to decide the case, and concerns of judicial economy or economy to the parties do not militate against deciding the case.

[67] In the circumstances, I would exercise our discretion and would decide this application on its merits.

V. Procedural Fairness

[68] I move to now consider the first of ILWU Canada’s arguments on the merits, namely its contention that the CIRB violated its procedural fairness rights in holding the hearing in an expedited fashion. ILWU Canada submits that the few hours it had to prepare for the hearing meant that it was unable to bring forward all the evidence and case law that it would have submitted with more time to prepare. As noted, it points in particular to excerpts from Hansard and the Sims Report, as well as the V.S. Services decision of the Alberta Labour Relations Board, which it did not file with the CIRB.

[69] I agree with ILWU Canada that, generally speaking, ensuring parties have adequate notice of and time to prepare for a hearing is relevant to both a party’s ability to adequately present its case and to the rule of law, which depends at least to a certain extent on parties presenting the relevant evidence and authorities to the decision-maker. To those unfamiliar with the context of illegal strike applications, the few hours notice provided by the CIRB in the instant case might seem inadequate. However, labour boards invariably proceed on very short notice in illegal strike applications, given the nature of the issues and the need for effective remedies. This is especially so for the CIRB, which has jurisdiction over undertakings that form the backbone of the Canadian economy, like railways, airlines, air traffic control, airport security screening, and the ports. In such industries, it is not unusual for the CIRB to schedule hearings very rapidly in illegal strike applications.

[70] The Board’s ability to proceed in rapid fashion in illegal strike applications is contemplated by both the Code and the CIRB Regulations. The Board is empowered to abridge all time limits, by virtue of paragraph 16(m) of the Code, and paragraph 14(e) and subsection 15(2) of the CIRB Regulations provide that hearings in illegal strike applications may be held “forthwith” following service of the application on the respondent union. In addition, by virtue of section 16.1 of the Code, the CIRB need not hold a hearing at all. This Court has recognized the right of the CIRB, absent a compelling reason otherwise, to decide cases without holding a hearing: Nadeau v. United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at paras. 3–6; Ducharme v. Air Transat A.T. Inc., 2021 FCA 34 at paras. 19–21; Kiame c. Syndicat des employées et employés nationaux (Alliance de la fonction publique du Canada), 2024 CAF 103 at para. 13.

[71] The foregoing statutory and regulatory provisions authorize the Board to proceed in the manner it did. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 [Ocean Port], the Supreme Court of Canada confirmed that, “… absent a constitutional challenge, a statutory regime prevails over common law principles of natural justice” (at para. 19). While Ocean Port dealt with the independence of an administrative decision-maker, the foregoing principle applies equally to other aspects of procedural fairness, including the requisite notice of hearing: see Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022) (QL) at §2.05; Halsbury’s Laws of Canada (online), Administrative Law (2022 Reissue), “Judicial Review: Requirement of Procedural Fairness: Specific Rights: Right to be Heard” (V.3.(4).(b)) at HAD-93 “Nature of right”; Shephard v. Fortin, 2004 FCA 254, 325 N.R. 158 at para. 27. Given the authority of the Board, in particular, to hold hearings in illegal strike applications “forthwith” after service of an application made under section 91 of the Code, the CIRB was entitled to schedule the hearing on very short notice.

[72] Perhaps more importantly, ILWU Canada’s procedural fairness arguments must be dismissed based on what occurred during the pre-hearing teleconference with the Board’s Chairperson during the evening of July 18, 2023.

[73] It is well settled that parties must pursue procedural fairness concerns at the first available opportunity when it is reasonable to do so, and that their failure to object will disentitle them from raising procedural fairness issues in a subsequent judicial review application: see Halton (Regional Municipality) v. Canada (Transportation Agency), 2024 FCA 122 at para. 38; Maritime Broadcasting System Ltd. v. Canadian Media Guild, 2014 FCA 59, 455 N.R. 115 at para. 67; Taseko Mines Ltd v. Canada (Minister of the Environment), 2019 FCA 320, 32 C.E.L.R. (4th) 18 at paras. 45–47, leave to appeal to SCC refused, 39066 (14 May 2020). Thus, objections to a proposed course of proceeding must be raised and not abandoned before an administrative decision-maker if the party wishes to pursue them as alleged violations of procedural fairness on judicial review. Within the confines of appropriate decorum (see e.g. Chaudhry v. Canada (Minister of Citizenship & Immigration), 2006 FC 1015, 56 Admin. L.R. (4th) 114 at para. 16), it should be “…evident from the circumstances as a whole that one was not agreeing to or accepting the conduct in question” (Lorne Sossin, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Reuters, 2021) (loose-leaf revision 2024-07) (WL) [Sossin] at §16:131). If put forward unsuccessfully, a best practice may be to advise the decision-maker that the objection is maintained for the purposes of judicial review, although its mere raising is likely sufficient for that purpose: Sossin at §16:133.

[74] In the matter at hand, ILWU Canada’s counsel said he preferred proceeding the next morning but did not press the issue or claim that his client could not proceed that evening. This falls short of objecting to proceeding that evening. Thereafter, ILWU Canada effectively abandoned whatever concerns about scheduling it might have had when counsel stated that he was in the Chairperson’s hands when the schedule was further discussed. Given this, ILWU Canada cannot now successfully argue that, in proceeding as it did, the CIRB violated its procedural fairness rights.

[75] Thus, I find that the CIRB did not violate ILWU Canada’s rights to procedural fairness in the present case.

VI. Reasonableness

[76] ILWU Canada next submits that the Order should be set aside because it is unreasonable for two different reasons. ILWU Canada first claims that there was a failure of rationality in the reasons the Board gave for the Order because the Board reached contradictory conclusions and held both that the strike had been suspended and ended on July 13, 2023. Second, ILWU Canada argues that the CIRB reached an unreasonable result because the Board’s interpretation of section 87.2 of the Code is inconsistent with other provisions in the Code and the legislative history of section 87.2 of the Code. It adds that the CIRB’s conclusion conflicts with the weight of authority from other labour boards, which does not require provision of a fresh strike notice to an employer in circumstances similar to those in the present case. It also submits that the CIRB’s interpretation fails to recognize the constitutionally protected nature of the right to strike.

[77] I agree with the parties that the CIRB’s Order (and reasons for it) are reviewable under the reasonableness standard: Watson v. Canadian Union of Public Employees, 2023 FCA 48 at para. 16.

[78] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the Supreme Court of Canada confirmed that two types of defects may result in an unreasonable decision, namely, either a failure of rationality in the reasoning process of the administrative decision-maker or where the result reached by the administrative decision-maker is untenable in light of the relevant factual and legal constraints that bear upon the decision.

[79] In respect of the first type of defect involving a failure of rationality in the reasoning process, the majority in Vavilov held that a reasonable decision must be based on internally coherent reasoning that is both rational and logical (at para. 102). That said, “reasonableness review is not a ‘line-by-line treasure hunt for error’” (at para. 102, quoting Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458 at para. 54, citing Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at para. 14). Thus, shortcomings in a decision must be more than peripheral to the merits of a decision to justify a court’s overturning the decision due to a failure of rationality in the reasoning process (Vavilov at para. 100).

[80] As concerns the second type of defect, focussed on the nature of the result reached by the decision-maker, the majority noted in Vavilov that several contextual factors may constrain a decision-maker. Those mentioned in Vavilov that are alleged to be relevant to the instant case are the governing statutory scheme and its legislative history, previous case law from the CIRB and other labour relations boards that interprets similar or related provisions, and jurisprudence on the right to strike and freedom of association as guaranteed by section 2(d) of the Charter.

[81] In terms of the statutory scheme, the majority in Vavilov held that, while administrative decision-makers are not required to engage in a formalistic statutory interpretation exercise similar to the one undertaken by courts, administrative decision-makers’ interpretations must nonetheless be consistent with the text, context, and purpose of the statutory provisions that bear upon their decisions. In addition, according to the majority in Vavilov, in some cases, it may be clear that “the interplay of text, context and purpose leaves room for [only] a single interpretation” (at para. 124). In its subsequent decision in Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, 485 D.L.R. (4th) 583, the Supreme Court applied this reasoning and held that the statutory provisions in question in that case could only be interpreted in the way the Supreme Court held they were to be read. It therefore overturned the decision of the administrative decision-maker that had interpreted the statutory provisions differently. As will soon be seen, ILWU Canada urges us to adopt a similar approach in this case.

[82] In terms of the impact of previous case law, as noted by the majority in Vavilov at paragraphs 131–32 and by this Court in Canada (Attorney General) v. National Police Federation, 2022 FCA 80, 107 C.L.R.B.R. (3d) 1 [National Police] at para. 48, administrative decision-makers are not bound by their own precedents and may depart from them if adequate reasons are provided. Nor are they bound by precedents from other similar administrative decision-makers. The principle of stare decisis, which applies to courts and requires them to follow binding judicial authority, is inapplicable to administrative decision-makers like the CIRB: see Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, 1993 CanLII 106 at 800–01. Thus, the CIRB was not bound to follow its own case law or cases from other labour relations boards.

[83] Likewise, administrative decision-makers need not follow judicial precedents, provided adequate reasons for departing from them are given. Nor are they required to apply common law principles in the same way a court would: Vavilov at paras. 112–13; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616 at para. 5; National Police at para. 49.

[84] I turn now more specifically to ILWU Canada’s arguments.

A. Was there a failure in rationality in the CIRB’s reasoning process?

[85] As noted, ILWU Canada first submits that the CIRB’s reasons are internally inconsistent because the Board held both that the strike was suspended and that it had ended. ILWU Canada points in particular to the comments made in paragraph 52 of the Reasons, where the Board stated that the strike had been suspended, which it says contradicts the Board’s conclusion that the strike ended. In making this argument, ILWU Canada infers that the word “suspended” is synonymous with a finding that the strike was ongoing.

[86] I disagree and find, with respect, that this argument is precisely the sort of treasure hunt for error that the Supreme Court cautioned against in Vavilov. When the Board’s reasons are read fairly in their entirety, it is clear that the CIRB was focussed on the question of whether a fresh 72–hour strike notice was required in circumstances where the strike had ceased on July 13, 2023 and ILWU Canada was mum on its intentions to resume strike activity without a further 72–hour notice if its internal union committee declined to put the Terms of Settlement to a vote. The conclusion that the strike had ceased as of July 13, 2023 is a factual determination that was open to the Board to make on the facts before it. Indeed, determinations of whether a strike has occurred or is ongoing are largely factual in nature: see e.g., International Longshore and Warehouse Union, Canada v. British Columbia Terminal Elevator Operators' Assn., 2001 FCA 78, 273 N.R. 160 at para. 18; Canada (Attorney General) v. Simoneau, [1982] 1 F.C. 469 (F.C.A.D.) at 470; Otis Elevator Co (Re), [1984] B.C.L.R.B.D. No. 5 (QL) at para. 37.

[87] The Board’s finding that the ILWU Canada strike had ended as of July 13, 2023 is not changed by the fact that it used the word “suspended” in paragraph 52 of its Reasons or that the Minister of Labour had asked ILWU Canada to suspend the strike. The word “suspend” cannot be read to mean that the CIRB held that the strike was ongoing. In making this argument, ILWU Canada has tried to elevate one word to mean something that it does not, which is the very essence of a treasure hunt for error. Thus, its first argument fails.

B. Is the CIRB’s decision unreasonable?

[88] ILWU Canada’s second argument has several prongs.

[89] In terms of statutory interpretation, ILWU Canada argues that, when read in context, the only possible interpretation of section 87.2 of the Code is that only one 72–hour strike notice is required provided the strike commences on the date given in the notice. In support of this argument, ILWU Canada notes several other provisions in the Code and the CIR Regulations.

[90] ILWU Canada first relies on the non-restrictive definition of “strike” in section 3 of the Code, which it claims supports the conclusion that a strike may be ongoing in the absence of activities falling within the statutory definition. Second, it relies on the overall architecture of the Code, claiming that once the hurdles to acquiring the right to strike are met, the right to strike persists. It submits that paragraphs 89(1)(a) to (f) of the Code are not ongoing requirements that can be revisited throughout the strike. Rather, the statutory freeze would expire at the same time as the right to strike or lockout accrues, such that the parties are then in a state of economic warfare. It further states this is consistent with its interpretation of section 87.2 of the Code. Third, ILWU Canada notes that the Code contemplates the suspension of strikes in subsection 87.5(3), which means that a strike may be suspended without its ending. Fourth, ILWU Canada submits that the requirements for a new notice in subsection 87.2(3) (when a strike does not start on the date given in the notice) must be understood as being the only situation where a fresh 72–hour strike notice may be required. It also notes that paragraph 7(1)(d) of the CIR Regulations contemplates only two types of strike notices, namely, “a first notice under subsection 87.2(1)” or “new notice under subsection 87.2(3)” of the Code. The absence of a mention of a subsequent fresh notice, according to ILWU Canada, means that no such notice is required. Fifth, ILWU Canada submits that the removal of the obligation to provide a strike or lockout notice in subsections 87.2(1) and (2), where the opposite party has commenced a strike or lockout, demonstrates the intention that only one notice need be given. In sum, it says that “the wording and structure of the statutory scheme … make clear that the relevant notice is intended to be of the state of economic warfare, whether commenced by lockout or by strike, and not of any varying level or changes in the weapons used” (at para. 68 of ILWU Canada’s Memorandum of Fact and Law [emphasis in original]).

[91] ILWU Canada further relies on the Sims Report and statements from Hansard as part of the relevant context. As noted by the CIRB in its Reasons, the Sims Report was the comprehensive study that led to the suite of amendments to the Code that included section 87.2. In addition to the passages from the Sims Report relied on by the CIRB regarding the purpose behind the notice provisions in subsection 87.2(1) of the Code, ILWU Canada points to the passage stating that “[n]o new notice should be required for each variation in conduct during the strike or lockout” (Sims Report at 117). ILWU Canada also relies on the following statement made in the House of Commons by the Parliamentary Secretary to the Minster of Labour during the debate over section 87.2 of the Code:

To those unions which feel that this new requirement will frustrate the right to strike, it is important to point out that Bill C-19 will not require that a new notice be given once a strike or lockout action has commenced, even if it is temporarily suspended... [Emphasis added.]

Canada, Parliament, House of Commons Debates, 36th Parl., 1st Sess., Vol. 35, No. 104 (May 12, 1998) at 1215.

[92] The next constraint that renders the Order unreasonable according to ILWU Canada involves case law from the CIRB and other labour boards. It points to the CN 2007 decision of the CIRB and other CIRB case law interpreting subsection 24(3) of the Code, which stand for the proposition that, for purposes of determining whether a raid is timely, a strike is ongoing whenever the parties are in legal strike position and the state of economic warfare exists. ILWU Canada says that these authorities are inconsistent with the Board’s Order, which allows for a strike to cease even though the state of economic warfare is ongoing. ILWU Canada also points to several authorities from the British Columbia Labour Relations Board, including Weyerhaeuser and Sunlover, and from other labour boards, namely, V.S. Services from the Alberta Labour Relations Board and RWDSU, Local 454 v. Bi-Rite Drugs Ltd., [1987] S.L.R.B.D. No. 51 [Bi-Rite Drugs], from the Saskatchewan Labour Relations Board. ILWU Canada argues that these cases provide that a fresh notice of strike is not required in circumstances like the present and that the CIRB is the only Board that has adopted the opposite approach, suggesting that this leads to the conclusion that the CIRB’s approach is unreasonable.

[93] Finally, ILWU Canada submits that the CIRB failed to conduct any meaningful analysis of the overall purpose of the Code of encouraging free collective bargaining or of the values and rights at stake. It notes that the Supreme Court of Canada confirmed in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245 [Saskatchewan Federation of Labour] that the right to strike is an indispensable component of the right to collective bargaining, which is guaranteed under section 2(d) of the Charter. ILWU Canada asserts that the requirement to give an additional 72–hour strike notice was a restriction on its constitutionally-protected right to strike. It further submits that the Board failed to follow the approach taken in other cases where it recognized that the presumption in favour of free collective bargaining and the use of economic sanctions is strong when interpreting provisions in the Code and exercising its discretion. It cites the CIRB’s decisions in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. G4S Secure Solutions (Canada) Ltd., 2012 CIRB 625, Unifor v. Enbridge Pipelines Inc., 2018 CIRB 871, and Amalgamated Transit Union, Local 0591 v. Société de transport de l’Outaouais, 2017 CIRB 849.

[94] ILWU Canada adds that the CIRB failed to follow the case law on Charter values, which would have required the Board to engage in a proportionate balancing of the Charter interests at play. It alleges that the CIRB failed to undertake any such balancing and that its Order and Reasons are inconsistent with the constructive settlement of disputes that the Code is meant to foster. It also says that the CIRB’s decision in the present case will discourage unions from taking down their picket lines while settlement proposals are being considered. In turn, this would allegedly decrease the likelihood of ratification in future cases, thereby undermining successful collective bargaining.

[95] Despite the able submissions of counsel for ILWU Canada, who delivered the foregoing points in their oral and written submissions in a very eloquent manner, I cannot agree that the CIRB’s decision was unreasonable.

[96] Before examining each of ILWU Canada’s arguments, it is worth underscoring that reasonableness review must be appropriately deferential and does not permit this Court to substitute its views for those of an administrative decision-maker. This is particularly true of the CIRB, which is charged with applying the complex provisions in the Code to bargaining relationships that form the backbone of the Canadian economy and which, in so doing, has acquired considerable labour relations expertise and knowledge of those relationships. The need for significant deference to decisions made by labour relations boards has been recognized for over 50 years, going back to the seminal decisions in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, 1973 CanLII 191, and C.U.P.E. v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 1979 CanLII 23. The need for deference is also recognized in the strongly-worded privative clause set out in subsection 22(1) of the Code. It provides as follows:

[97] Commenting on a very similar provision contained in the federal public sector labour legislation (section 34 of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365), this Court stated in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41 at paragraph 34 that the privative clause:

… has a vital impact, namely, to indicate that the applicable standard of review is reasonableness and to underscore the considerable deference to be accorded to the Board in respect of decisions of this nature: see Dunsmuir [v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190] at para. 52. This Court and the Supreme Court of Canada have often commented that [section 34’s] predecessors have precisely this impact. For example, in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at p. 962, 150 N.R. 161, the Supreme Court underlined that the privative clause is a reason “why the decisions of the Board made within its jurisdiction should be treated with deference by the court”. Put into modern terms, the Board’s decisions are to be reviewed on a reasonableness standard due in part to its being protected by this strict privative clause: Exeter v. Canada (Attorney General), 2014 FCA 251, 465 N.R. 346; Boshra [v. Canadian Association of Professional Employees, 2011 FCA 98, 415 N.R. 77] at para. 44; McConnell [v. Professional Institute of the Public Service of Canada, 2007 FCA 142, 362 N.R. 30] at para. 14.

[98] With this caution in mind, I next discuss ILWU Canada’s statutory interpretation arguments. Contrary to what ILWU Canada submits, I do not believe there is only one way of reading the provisions at issue in the Code and find they were reasonably interpreted by the CIRB in the present case.

[99] The fact that the statutory definition of a strike is cast in non-restrictive terms does not foreclose the CIRB’s conclusion that ILWU Canada’s strike ended as of July 13, 2023. It does not mean that no new strike notice could be required, nor does it equate a strike to being in a state of economic warfare. The CIRB has held that a strike occurs when there is a cessation of work or restriction in output by employees in combination or with a common understanding and may include a wide range of activities, ranging from full work stoppages, to overtime bans, slowdowns, sick-outs, study sessions, or other similar activities taken in combination or concert to restrict output: British Columbia Maritime Employers Association, 2010 CIRB 518 at paras. 33–35; International Longshoremen’s Association, Locals 273, 1039, 1764 v. Maritime Employers’ Association et al., [1979] 1 S.C.R. 120, 1978 CanLII 158 at 121; Clarke at §3:38–40. As noted, the requisite inquiry as to whether a strike is occurring is largely factual in nature. The breadth of the statutory definition of a strike allows the term to encompass the full range of activities employees may engage in with a common purpose that limit their normal output for the employer. The breadth of the definition does not lead to the conclusion sought by ILWU Canada and indeed begs the questions that the CIRB asked and answered in the present case, namely, whether a strike was ongoing on July 18, 2023, such that no new strike notice was required.

[100] Nor does the overall architecture of the Code function in the way ILWU Canada suggests. It is true that, prior to the amendments to the Code that enacted the requirements for strike and lockout notices and strike votes, once parties acquired the right to legally strike or lockout, they maintained that right until the new agreement was settled (or back-to-work legislation was passed or some other order was imposed that required the cessation of a strike). However, the 1999 amendments to the Code that enacted the requirements for strike and lockout notices and strike votes, in section 87.2 and 87.3 of the Code, changed this. The requirements for such notices and votes are temporal in nature. If the strike or lockout does not occur within the requisite time frame, the right to strike or lockout is lost. Thus, it is no longer true that acquisition of the right to strike is “one and done” as ILWU Canada alleges.

[101] I do not see the provisions in subsections 87.5(3) and 87.2(3) of the Code or paragraph 7(1)(d) of the CIR Regulations as having the effect ILWU Canada alleges. None of these provisions prevents the CIRB from determining that a second notice of strike must be issued in circumstances like the present and do not address the issue at all.

[102] Contrary to what ILWU Canada submits, I find that the removal of the obligation to provide a strike or lockout notice in subsections 87.2(1) and (2) of the Code, where the opposite party has commenced a strike or lockout, actually supports the ability of the CIRB to require a fresh notice of strike in circumstances like the present. The two subsections are contingent on the opposite party undertaking activities and not on their potential right to engage in a legal strike or lockout. In the instant case, it was the cessation of all strike activities, without any indication that the strike might resume with minimal warning, that led the CIRB to conclude that a fresh strike notice was required.

[103] Perhaps more importantly, I find it was reasonable for the Board to have relied on subsection 87.2(3) of the Code that requires that a new 72–hour notice be given if the strike or lockout does not commence on the date set out in a previous notice. The Board held that these requirements were enacted to provide clarity and allow appropriate measures to be put in place prior to the cessation of operations. It was entirely reasonable for the CIRB to conclude that similar concerns required the issuance of a second notice in this case, when all strike activities had ceased, ILWU Canada was mum about its intentions in the face of very public announcements that the strike had ended, and, when strike activity resumed, the cessation of work was so precipitous that vessels were left partially unloaded.

[104] Nor do I find the passages from the Sims Report or Hansard, which ILWU Canada relies on, to be instructive. Neither says anything about the circumstances that arose in this case. Rather, they speak to the situation when a strike is ongoing and there is either a variation in conduct by the striking workers or the strike is only temporarily suspended. The Board in the present case found, as a matter of fact, that neither had occurred and that the strike had ceased.

[105] As for the case law that ILWU Canada relies on, the CIRB reasonably distinguished the cases that were cited to it. The other cases that ILWU Canada now raises are not binding on the CIRB. In any event, they can also be distinguished.

[106] As concerns case law from British Columbia, there are significant differences between the federal and British Columbia strike notice provisions. As noted by the Board in its Reasons, in the British Columbia Labour Relations Code, there is no requirement like that in subsection 87.2(3) of the Code, to require a fresh notice when the strike does not occur on a date set out in the notice. In addition, there were important factual differences between the circumstances in Sunlover and Weyerhaeuser and the present case as the CIRB noted in its Reasons. The CIRB therefore provided more than adequate reasons for distinguishing Sunlover and Weyerhaeuser.

[107] While the labour legislation in Alberta and Saskatchewan more closely resembles the Code, there are factual distinctions between the cases relied on by ILWU Canada and the present case. More specifically, Bi-Rite Drugs considered whether a union was required to provide a fresh notice when it changes the form of its strike activity. The Saskatchewan Labour Relations Board was not faced with a situation like the present where all strike activity had ceased. Similarly, in V.S. Services, the issue involved whether the union must give multiple strike notices in the case of rotating strike activities in the construction industry, where employees strike for a brief period and return to work. The striking employees in V.S. Services, unlike ILWU Canada members, also maintained an overtime ban when they returned to work. Further, both cases concerned entirely different industries. It was not unreasonable for the CIRB to reach a different result in the context of different facts and a critical industry that is depended on by many other employers and employees and that is central to a supply chain involving many moving parts.

[108] The CIRB also reasonably distinguished its prior decision in CN 2007. On a factual basis, the trade union in that case, unlike ILWU Canada, had made clear to the employer the possibility that it might resume strike activities without further notice if the settlement proposal were voted down. In addition, it was open to the CIRB to find that a different approach to whether a strike is ongoing needed to be taken to the facts before it in the present case as compared to assessing the timeliness of a displacement application under subsection 24(3) of the Code given the very different labour relations considerations at play in the two situations.

[109] Finally, as concerns the Charter right to freedom of association, the CIRB’s Reasons demonstrate that it was acutely aware of the constitutional protection afforded to the right to strike, the need to minimize interference with that right, and the overarching purpose of the Code of fostering free collective bargaining. It reasonably explained why these principles are enshrined in the Code and were protected by its decision, following which, in very short order, a new collective agreement was successfully negotiated by the parties.

[110] In addition, while at least some aspects of the right to strike do receive protection under section 2(d) of the Charter, in accordance with the decision of the Supreme Court of Canada in Saskatchewan Federation of Labour at para. 77, the case law has not constitutionalized every facet of how the right to strike is acquired or regulated. Moreover, in Saskatchewan Federation of Labour, the majority of the Supreme Court of Canada held that the test for whether there has been a breach of section 2(d) of the Charter is whether “…interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining” (at para. 78. See also Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13, 491 D.L.R. (4th) 385 [Société des casinos] at para. 50). In Société des casinos at paragraphs 51–52, Justice Jamal, writing for the majority, noted factors refuting that a substantial interference occurred, such as the purpose of the legislation and the parties’ ability to collectively bargain as demonstrated by the factual record.

[111] Here, the Code delineates and creates the right to strike and is not aimed at interfering with it. In addition, as the Board recognized, the notice provision in section 87.2 promotes clarity and allows employers to organize an orderly shutdown, which is important in many federally-regulated industries: Reasons at paras. 59–62.

[112] Further, ILWU Canada has failed to show, on the record before this Court, a substantial interference with its right to collectively bargain. ILWU Canada participated fully in the collective bargaining process, which eventually led to the successful negotiation of a new collective agreement. And, as noted by the Board, ILWU Canada exercised its right to strike before it agreed to cease its strike activities: Reasons at para. 57. I fail to see how delaying the resumption of the strike activity by 72 hours to allow for a fresh notice of strike could ever amount to substantial interference with the right to strike. Indeed, ILWU Canada cites no case making such a finding.

[113] I therefore conclude that the CIRB’s Order and Reasons were reasonable. In closing, I think it worth underscoring that, in essence, ILWU Canada has asked this Court to engage in something akin to correctness review and to interpret for itself the provisions in the Code. I stress that such is not our role. Conducting interpretations of the provisions in the Code is the very heartland of the CIRB’s expertise and at the centre of the task Parliament has remitted to it. It is not a task that has been left to the courts.

VII. Proposed Disposition

[114] Thus, I would dismiss this application. The parties have agreed on the issue of costs and have advised the Court that no order is required to address costs. I would accordingly dismiss this application and make no order as to costs.

“Mary J.L. Gleason”

“I agree.

Monica Biringer J.A.”

“I agree.

Elizabeth Walker J.A.”

APPENDIX

Canada Labour Code, R.S.C. 1985, c. L-1

 

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:	A-186-23
STYLE OF CAUSE:	INTERNATIONAL LONGSHORE AND WAREHOUSE UNION – CANADA v. BRITISH COLUMBIA MARITIME EMPLOYERS ASSOCIATION
PLACE OF HEARING:		Vancouver, British Columbia
DATE OF HEARING:		March 13, 2024
REASONS FOR JUDGMENT BY:		GLEASON J.A.
CONCURRED IN BY:		BIRINGER J.A. WALKER J.A.
DATED:		SEPTEMBER 13, 2024

APPEARANCES:

Steven Rogers Rebecca Kantwerg	For The Applicant
Ryan Copeland Andrew Nicholl Gabrielle Berron-Styan	For The Respondent

SOLICITORS OF RECORD:

Victory Square Law Office LLP Vancouver, British Columbia	For The Applicant
Roper Greyell LLP Vancouver, British Columbia	For The Respondent