Trouble is that the NBA has one Canadian franchise–the Toronto Raptors–who fall under the provincial jurisdiction of Ontario for the purposes of labour law. Ontario law states very clearly that an employer cannot ‘lock out’ workers and use replacement workers until they have first jumped through a bunch of procedural hurdles, including exhausting a conciliation process run by the Ministry of Labour. (See section 79(2)) Therefore, if the NBA and the union have not utilized the Ontario conciliation process, it would seem to follow that the NBA could not lock out the unionized refs in Toronto Raptors home games.
The same issue arose in the mid-1990s, but that was before Toronto had been awarded a franchise. In 1995, the NBA locked out the refs (they apparently like this strategy) and attempted to use replacement refs for exhibition games played in Toronto. The union filed an unlawful lockout application before the Ontario Labour Relations Board. The NBA argued that it did not employ any refs in Canada because it did not have any teams in Canada and only visited occasionally to play exhibition games. Even then, the OLRB ruled that Ontario laws applied and that the NBA could not lockout its unionized refs in games played in Ontario. Here is the 1995 decision.
Now that a permanent franchise is in Toronto, the union’s case would seem even stronger. The OLRB also rejected league arguments that the union was not a ‘union’ under Ontario law, and that it should not exercise its discretion to order a remedy, since Toronto is only a very small part of the larger collective bargaining relationship governed by U.S. laws. In other words, if you play regularly in Toronto, you are bound by Ontario employment laws. A similar ruling was made by the OLRB in the case of the professional baseball referees also in 1995.
Presumably, the NBA is aware of the problem now, since it lost the 1995 decision. The question is whether any thing has been done about it. I’m not sure if the parties made any attempt this time to address the situation, perhaps by sending the bargaining parties to Ontario to meet with a conciliator. I doubt they did. Does anyone know if the situation has changed so that the 1995 decision would not govern?
This could make for an interesting scenario if no deal is reached. Would it mean that NBA refs are refereeing only Raptor home games, while every other game is refereed by replacement workers? Looks that way, doesn’t it. But what would their terms of employment be given that the collective agreement has already expired? The most likely answer is that they would be govered by the terms of the expired agreement pursuant to the ‘statutory freeze’ provisions in the Labour Relations Act (Section 86(1))
That section ‘freezes’ the terms of an expired collective agreement during the bargaining process until the parties are in a legal strike or lockout position. Since the NBA is not in a legal lockout position in Ontario, the freeze would still apply, I think. Does anyone have a different take on how this would play out?
Can the NBA Use Replacement Refs in Toronto?
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