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Supreme Court of Canada

Labour law—Lock-out in a public service—Eight days’ notice not given to Minister by union—Acquisition of right to strike and legality of its exercise—Labour Code, R.S.Q. 1964, c. 141, ss. 42, 43, 97, 99, 124.

Appellant, which operates a public service, ordered a lock-out after the sixty-day time period specified in s. 46 of the Labour Code had expired, but before respondent had given the Minister the eight days’ prior notice prescribed by s. 99. Appellant was charged before the Labour Court with committing an offence under s. 124 for having declared a lock-out contrary to s. 97, according to which “any lock-out is prohibited except in the case where an association of employees has acquired the right to strike.” The Labour Court and the Superior Court (Criminal Division) dismissed the information, but a majority of the Court of Appeal set aside these decisions and ordered appellant to pay a fine of $100 for each day the lock-out lasted. Hence the appeal to this Court.

Held: The appeal should be allowed.

Even if, as a rule, the acquisition of the right to strike implies that such right may lawfully be exercised, this is not so in the case of employees of a public service. When the latter wish to go on strike, they must comply with an additional obligation imposed on them by the legislator, that of giving the Minister eight days’ prior notice. On the other hand, the legislator has not made the right of lock-out subject to the same conditions. It follows that a lock-out ceases to be prohibited under s. 97 when the association of employees has acquired the right to strike under s. 46, even if this association has not yet given the eight days’ notice provided for in s. 99.

Commission scolaire régionale de Chambly v. Marier et al., [1976] R.D.T. 129, disapproved.

[Page 477]

APPEAL against a decision of the Court of Appeal of Quebec[1] setting aside a judgment of the Superior Court[2] which affirmed a decision of the Labour Court.[3]

Jean-Paul Legault and Michel Dupuy, for the appellant.

Jean-François Munn, for the respondent.

The judgment of the Court was delivered by

PRATTE J.—This is an appeal from the majority judgment of the Court of Appeal of the province of Quebec (Lajoie and Bélanger JJ.A.; Owen J.A. dissenting) setting aside the judgments of the Superior Court (Criminal Division) of the district of Hull (Jacques Boucher J.) and of the Labour Court (Victor Melançon J.) whereby appellant had been found guilty of an offence under s. 124 of the Labour Code for having declared a lock-out contrary to the provisions of s. 97 of that Code and had been sentenced to a fine of $100 for each day of the lock-out.

The facts are not in dispute.

Appellant was a public service within the meaning of the Labour Code and respondent, which was an association certified under that Code, represented a group of appellant’s employees.

During the summer of 1974 the parties began negotiations for the renewal of their previous collective agreement, which had expired on April 30, 1974; they did not reach agreement.

On September 4, 1974, appellant gave to the Minister of Labour and respondent a notice of disagreement as provided in s. 42 of the Code; pursuant to s. 43, the Minister appointed a conciliation officer and instructed him to endeavour to effect an agreement. The latter’s efforts were not successful; the parties did not submit their dispute to arbitration.

On November 9, 1974, which was more than sixty days after the notice of disagreement had been given to the Minister (s. 46), appellant declared a lock-out which lasted until December 4.

[Page 478]

The only issue raised by this appeal is as to whether this lock-out was legal.

Contrary to the Labour Court and the Superior Court, a majority of the Court of Appeal held that this lock-out was prohibited by s. 97 of the Code:

97. Any lock-out is prohibited except in the case where an association of employees has acquired the right to strike.

According to a majority of the Court, the lockout was illegal because it was declared while respondent was prohibited from striking by virtue of the first paragraph of s. 99; it is a fact that when the lock-out started, respondent had not given the eight days’ notice required under such paragraph:

99. Strikes are prohibited to the employees of a public service unless the association of employees concerned has acquired the right to strike under section 46 and has given at least eight days’ prior written notice to the Minister of the time when it intends to have recourse to a strike.

The majority judgment of the Court of Appeal was based essentially on its earlier decision in Commission scolaire régionale de Chambly v. Marier and Association des enseignants de Chambly et al.[4], where Lajoie J.A., speaking for the Court, said the following:

[TRANSLATION] I cannot make the distinction advanced by appellant between the conditions precedent to the acquisition of the right to strike and those necessary for its exercise. In my view, s. 99, notwithstanding ss. 46 and 47, suspends the acquisition of the right to strike by an association of employees of a public service until the association has complied with its provisions. It would be useless to have the right to strike if it cannot be exercised. When the statute says that strikes are prohibited, there is no right to strike.

The Court of Appeal interpreted s. 97 as though the prohibition therein contained applied where a strike is prohibited, rather than “where an association has not yet acquired the right to strike”.

This view is erroneous. Firstly, it is contrary to the actual wording of s. 97, which imposes the

[Page 479]

prohibition “except in the case where an association of employees has acquired the right to strike”, and not “where strikes are prohibited”. Secondly, it ignores the distinction made by the legislator between the acquisition of the right to strike and the conditions relating to its exercise. I readily admit that, as a rule, the acquisition of the right to strike implies that such right may lawfully be exercised; this is not so however, in the case of employees of a public service. The legislator has imposed an additional obligation on the employees of a public service who wish to go on strike; it is not sufficient for them to have the right to strike, they must also give the Minister at least eight days’ written notice of the time when they intend to exercise their right. Section 99 indicates that, in the case of employees of a public service, the acquisition of the right to strike is not the only condition necessary for its lawful exercise. The language of the section shows clearly that in the case of employees of a public service the Legislature made a distinction between the acquisition of the right to strike on the one hand and the exercise of that right on the other hand. It follows that the acquisition of the right to strike does not always carry with it the right to exercise it; there is no necessary corrolation between the acquisition of the right to strike and the cessation of the prohibition against strikes.

While the Legislature has enacted special rules governing the right to strike in public services, there are no similar special rules that regulate the right of lock-out in public services; in the case of a lock-out, there are no special conditions attaching to the exercise of the right; contrary to what it did in the case of strikes, the Legislature made no distinction between the acquisition of the right to lock-out and its exercise. No other interpretation can be placed on ss. 97 and 46.

It was argued that the right to lock-out in a public service should be subjected to the same conditions as the right to strike, so as to maintain between employers and employees in public services the same balance that has been established by the legislator in the private sector. This may be so, but it is obvious that the legislator, for its own reasons, has preferred a system where in public

[Page 480]

services the right to strike and the right to lock-out are regulated differently. It would be difficult to argue, for instance, that the wording of the other provisions of s. 99 concerning injunctions could also apply in the case of a lock-out. We must not, under the guise of interpreting, completely distort the meaning of a provision in order to achieve an objective that is perhaps laudable but is contrary to what the legislator clearly intended. I agree with Owen J.A. when he says in his dissenting reasons:

It can be argued that it would have been more compatible with the spirit of labour legislation in general if the legislator had provided that in public services no strike can be declared and no lock-out can be declared unless both a sixty days’ notice and the eight days’ notice have been given. Employers and employees would then be on an equal footing. Also it is clear that from the point of view of the public it is immaterial whether it is deprived of a public service by reason of a strike or by reason of a lock-out. However this does not, in my opinion, justify the distortion of clear and unambiguous provisions of the Labour Code under the guise of “interpretation”.

In my view, a lock-out ceases to be prohibited under s. 97 when the association of employees has acquired the right to strike under s. 46, even if this association has not yet given the eight days’ written notice provided for in the last part of the first paragraph of s. 99.

I am of the opinion that the appeal should be allowed, the decision of the Court of Appeal set aside and the judgments of the Superior Court and the Labour Court restored with costs throughout.

Appeal dismissed with costs.

Solicitors for the appellant: Viau, Bélanger, Hébert, Mailloux, Pinard, Denault & Legault, Montreal.

Solicitors for the respondent: Doyon, Laplante & Munn, Montreal.

 



[1] [1977] C.A. 342.

[2] [1976] R.D.T. 150.

[3] [1975] T.T. 111.

[4] [1976] R.D.T. 129.

 

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