Strikes by International Longshore and Warehouse Union – Canada members shut down BC ports in 2023
A union representing longshore workers in British Columbia violated federal labour law when it gave maritime employers only an hour and a half’s notice before resuming a workers’ strike, the Federal Court of Appeal ruled.
The court’s ruling on Friday affirmed an order by the Canada Industrial Relations Board. The board got involved in the high-profile dispute after workers with the International Longshore and Warehouse Union - Canada went on strike last July, effectively shutting down operations at all West Coast ports.
The FCA added that the CIRB did not breach ILWU Canada’s rights to procedural fairness by giving the union only a few hours to prepare for a hearing.
“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,” Justice Mary Gleason wrote for the FCA.
“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.”
Justices Monica Biringer and Elizabeth Walker concurred.
ILWU Canada began striking in July 2023, after the union was unable to reach an agreement with the British Columbia Maritime Employers Association, the bargaining agent for employers involved in marine transportation on Canada’s West Coast, for a new collective agreement. ILWU represents more than 7,000 longshore workers, and all bargaining unit members stopped working apart from employees servicing cruise ships and grain shipments.
The strike lasted nearly two weeks until the federal Minister of Labour, noting that “the strike was paralyzing Canadian imports and exports,” asked the unions to review proposed contract terms recommended by a mediator. The unions agreed to recommend the proposed terms to their membership, and longshore employees resumed working on June 13. The BCMEA sent out an industry-wide notice that operations would resume, and the federal ministers of labour and transport issued tweets stating the strike was over.
However, ILWU Canada considered the strike to be ongoing but did not inform BCMEA, the mediators, or the Minister of Labour of their stance. On July 18th, the workers’ union issued a news release stating that a caucus within the organization had rejected the proposed contract terms and that workers would begin picketing again the same day.
The same day, BCMEA filed an illegal strike application with the CIRB, alleging the workers’ union was required by federal labour law to give BCMEA a strike notice 72 hours in advance.
The CIRB held a hearing that night and issued an order the next morning. The board determined the July 18 strike activity was distinct from the strike that took place earlier that month since “there was no evidence that any strike activity continued between July 14th and 18th, 2023. On the contrary, the ports were in full operation, and the jobs dispatched were at levels comparable to those prior to the strike.”
“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,” the CIRB said. ILWU Canada appealed, challenging the order and arguing CIRB violated the union’s rights to procedural fairness when it gave the union only a few hours to prepare for the July 18th hearing.
The FCA disagreed. While parties generally have more notice and time to prepare for a hearing, it is not unusual for the labour board to proceed quickly with hearings involving illegal strike applications, the FCA said. Moreover, after receiving notice of the hearing, ILWU Canada’s counsel asked if the hearing could take place the next day but did not explicitly object to it taking place that same night.
By not explicitly objecting, the union “cannot now successfully argue that, in proceeding as it did, the CIRB violated its procedural fairness rights,” Gleason wrote.
The FCA rejected ILWU Canada’s argument that the CIRB’s order was flawed because it stated that the strike both “ended” and was “suspended” on July 13th, calling the allegation a “treasure hunt for error.”
The appeals court also dismissed ILWU Canada’s claims that the CIRB’s order was unreasonable and wrongly interpreted s. 87.2 of the Canada Labour Code to mean that the union should have provided the BCMEA with a strike notice 72 hours before its July 18 strike. According to the FCA, ILWU Canada argued that “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.”
Gleason rejected this argument, writing that “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.”
Finally, the FCA tossed out ILWU Canada’s claims that the CIRB’s order interfered with the union’s right to collectively bargain under the Charter of Rights and Freedoms.
“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,” Gleason wrote. “Indeed, ILWU Canada cites no case making such a finding.”
Counsel for the parties did not respond to requests for comment. 
