By Barry Chivers

On March 31, 1998 members of the Canadian Health Care Guild commenced strike action at the Vernon Fanning Centre, a facility operated by Carewest in Calgary. At the same time Bethany Care Centre in Calgary was also struck by the members of the Guild. Carewest and Bethany Care responded by applying to the Labour Board for a cease and desist order. The Bethany Care application also included as a requested remedy an Order under Section 112 of the Code suspending the deduction and remittance of union dues. The Carewest application was subsequently amended to include a request for the same relief.

At the conclusion of initial hearings into the applications of the Board ruled that the Guild and certain employees had engaged in illegal strikes contrary to Section 69 and 94 (2) of the Code. The Board issued a cease and desist directives. The Board’s findings and directives were filed in Court of queen’s Bench. Both Bethany and Carewest filed applications in the Court of Queen’s Bench seeking Orders holding the Guild and its members in contempt. However, prior to those applications being heard the Guild members returned to work. The contempt applications were adjourned and later withdrawn.

Subsequently the hearing into the application dealing with the requested remedy for an Order under Section 112 suspending the deduction and remittance of union dues reconvened Counsel for Carewest advised that he wished to tender additional evidence concerning settlement discussions between the Guild and Carewest including certain "off the record discussions with a Guild representative". These discussions had taken place while the strike was ongoing. The Labour Board adjourned the Section 112 proceedings to permit the parties to submit written argument concerning the admissibility of evidence of the off the record discussions.

At this point, at the request of the Guild, the Federation instructed legal counsel to apply to the Board for leave to intervene in the proceedings to address the power of the Board to suspend the deduction and remittance of union dues. The Federation decided to seek intervenor status in view of the wider implications of these matters to the trade union movement at large. The Board granted the application of the Federation ruling that the AFL had a legitimate interest in the issue of admissibility and in the larger implications of an adjudication of the Section 112 application. In its decision on the application of the AFL for intervenor status the Board noted that although it normally took a restrictive view of such requests the AFL had a broader interest in the application of the Code both in how it operates to encourage collective bargaining and in the use of the Code’s provisions dealing with illegal strikes or lockouts. The Board noted that neither or these issues had been previously addressed by the Board and that the AFL’s input would assist the Board in determining the implications of the broader policy issues at stake.

The Federation submitted written argument on admissibility of evidence concerning the off the record settlement discussions. In ruling on this aspect of the matter, the Board declined to receive the proposed evidence holding that such discussion are critical (even in the context of illegal strikes) to the resolution of disputes and to the future relationships of the parties. The Board concluded "preserving confidentiality in such circumstances is crucial as to assisting the parties to develop and maintain trust and is especially useful and significant in crisis situations."

The Federation proceeded to prepare and file its submissions on the application and interpretation of Section 112 of the Labour Relations Code. The Board will hear that argument at hearings in Calgary on April 14 & 15, 1999. In a nutshell the position of the Federation is that Section 112 of the Labour Code violates both the Alberta Bill of Rights guarantee of due enjoyment of property and the charter guarantee of freedom of association. The Federation will rely upon case law which identifies four aspects to freedom of association: namely, the right to establish, to belong to and maintain organizations and the right to participate in their activity. The Federation will submit that paying union dues falls within the Charter guarantee of freedom of association since dues are used to further the objects of the trade union and are a part of maintaining and participating in the activities of the trade union. The Federation will submit that Section 112 is a form governmental action which infringes the guarantee of freedom of association and that this constitutes a limitation on freedom of association which is not a reasonable limitation in a free and democratic society and that therefore Section 112 is unconstitutional and of no force and effect.

Having raised a Charter argument, the Board directed that the Attorney General’s of Canada and Alberta be given notice. The Federation has been advised by counsel on behalf of the Attorney General of Canada that they will not intervene in or participate in the proceedings before the Labour Relations Board. Counsel for the Attorney General of Alberta has indicated that he expects to receive instructions to intervene in the proceedings but has not yet confirmed that he has received instructions to do so.

As noted earlier, the hearings will resume before the Board in Calgary on April 14 & 15, 1999.