Does a union's failure to react to an illegal strike by its members give rise to a class action against it? In a recent decision of the Court of Appeal on July 13, 2022, the Court of Appeal confirms that, in the event of passiveness, a union can indeed be held liable for damages resulting from its non-reactivity, including with respect to employers who were deprived of work performance and with respect to workers who wanted to execute their work but were prevented from doing so because of the strike[1].

Facts

This matter dates back to October 2011, following the introduction in the National Assembly of Bill 33, an Act to eliminate union placement and improve the operation of the construction industry. Following the introduction of the bill, the Fédération des travailleurs et travailleuses du Québec- Construction (“FTQ” or the “appellant”) immediately launched a campaign to inform its members about the impact of the bill on their working conditions. The FTQ and the Conseil provincial du Québec des professions de la construction international ("Inter") did not agree with the legislative proposals and promoted their position against the bill to their members. Among other actions, they visited construction sites and distributed leaflets to workers.

On Friday, October 21, 2011, disruptions began on construction sites. FTQ and Inter rented rooms to accommodate workers who left the construction sites. These rooms served as a rallying point for those who came to the construction sites to force their closure.

On Monday October 24, walkouts and acts of intimidation and violence were reported on several construction sites in Québec, with nearly half of the work sites on the region shut down. Several employees who did not participate in the events were prohibited from entering or were forced to leave their workplace. The FTQ and Inter were aware of the situation, but did nothing to resolve it.

On Tuesday October 25, the situation was the same. It was only at the end of the day that FTQ and Inter sent press releases asking their members to return to work. The following day, all the workers were back on the work site without any further issues.

A class action was then brought against FTQ by (1) workers who had been deprived of work and wages and (2) employers who had paid wages to workers on strike but did not receive a work performance in return.

In June 2020, the Superior Court concluded that FTQ was at fault by omission and ordered FTQ to pay close to $9.9 million, which amounted to the impact of the disruptions on the industry on the days mentioned above, in addition to moral damages and loss of profit and additional costs[2].

The Decision of the Court of Appeal

The Court of Appeal had to answer the following questions:

• whether a strike existed within the meaning of the Labour Code (the "Code");
• the protection offered by freedom of expression in such circumstances;
• the fault of action and/or omission committed by FTQ and its consequences on the quantum of the condemnation;
• the collective recovery of compensatory damages related to wages;
• the individual recovery of moral damages as well as damages for loss of profits and additional costs; and
• punitive damages.

To begin, the Court of Appeal questioned the characterization of the events that occurred in October 2011 and whether they constitute a strike within the meaning of the Code. The judges confirm that even if the workers’ action was directed against a bill and not against an employer, it is a professional demand within the meaning of the Code. The Court reiterates that the legal definition of a strike ignores its purpose and that even a political strike is a strike. In addition, the strike movement coincided with the consultations led by union leaders. The workers decided, in mass, to refuse to work in protest against the bill, convinced that the proposed bill was changing their working conditions to their detriment. There was therefore a collective consensus and an intention to stop working. In light of these considerations, the Court concludes that there was indeed an illegal strike.

The Court then examined whether the right to freedom of expression protects the strikes. The Court points out that freedom of expression does not allow a worker to strike to express his opposition, including with regards to a bill, unless the work stoppage is permitted by law. Since the workers had been involved in an illegal strike, their work stoppages are not protected by freedom of expression.

The Court then considered whether FTQ had a duty to stop the strike activities. The trial judge had concluded that the appellant had committed a fault by failing to act in a timely manner to stop the illegal work stoppages. The Court of Appeal notes that it would not have been reasonable to require the appellant to communicate with its members on October 21, when it did not know the extent to which the events would unfold. However, given the escalation and scale of the movement on October 24, including the closure of several construction sites, FTQ should have acted promptly to try to stop the actions of its members, as it did effectively on the following day. The passiveness of the FTQ is therefore a fault by omission.

The Court then had to determine what damages resulted from the FTQ's fault by omission. The trial judge ordered the collective recovery of compensatory damages resulting from the hours paid by employers without compensation and the loss of wages of workers due to the closure of the work sites. The Court of Appeal points out that workers who have participated in an illegal strike cannot claim wages for services they have not rendered. Only those who have been forced to leave their work site and who have been prevented from providing their work performance are entitled to be remunerated. The Court of Appeal points out that the trial judge made an error by not distinguishing between the employees. In addition, it is not possible to get an idea of the proportion of employers who paid wages without receiving work benefits. Instead, the Court of Appeal orders the individual recovery of compensatory damages, and therefore strikes out the amount of $9,891,715 previously determined by the trial judge.

The Court then considered whether the worker plaintiffs were entitled to moral damages and whether the employer plaintiffs were entitled to compensation for lost profits. As for moral damages, the Court rejects this claim because there was no evidence as to the moral prejudice suffered by the worker members of the group. The feeling of powerlessness and humiliation that they would have felt during the illegal strike had to be supported by evidence, and this evidence was absent. However, the Court recognizes that employers may have suffered losses of profits and confirms that the amount thereof is likely to vary from one contractor to another. Recovery will therefore have to be made on an individual basis for these amounts.

Finally, the Court questioned if there are grounds for ordering the payment of punitive damages, but did not consider that the fault of the appellant resulted in the infringement of the Charter rights of the groups’ members, which is a prerequisite for the payment of punitive damages in such circumstances. This part of the claim was therefore dismissed.

What actors in unionized environments need to retain

The Court of Appeal confirms that a union has a duty to promptly enact measures to put an end to an illegal strike and that a breach of this obligation may result in its liability for any injury caused as a result of the work stoppages. Employers deprived of work performance and workers prevented from providing such work may be compensated for resulting losses. However, proof of moral prejudice or loss of profits must be established by preponderance of proof, and the mere violation by the union of its duty to act will not result in the payment of punitive damages.

It should also be remembered that the Court of Appeal reiterates that a strike against a bill can still constitute an illegal work stoppage within the meaning of the Code and that the right to freedom of expression will be of no help in these circumstances.

If you have any questions about this subject, do not hesitate to contact a lawyer from our National Labor and Employment Group.

[1]FTQ-Construction v. N. Turenne Brique et pierre inc., 2022 QCCA 1014.

[2]N. Turenne Brique et pierre inc.v. FTQ-Construction, 2020 QCCS 1794.