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Canadian Law of Work Forum (CLWF)
Law of Work Archive

Can Cadillac Fairview Terminate Striking Parking Lot Workers?

by David Doorey November 16, 2009
written by David Doorey November 16, 2009

This past summer, Cadillac Fairview, which owns the TD Centre in Toronto, locked out its unionized workers and contracted out their work to a third party contractor.  A month or so after that, it decided to terminate the locked out workers and use the contractor instead.  The background facts are described in this OLRB decision that involved a variety of preliminary issues surrounding the union’s complaint that the employer has violated the Labour Relations Act.  Here is the letter that Cadillac Fairview sent to the terminated workers.
The Labour Relations Act protects workers from discrimination and termination of their employment because they have exercised rights under the Act, such as joining a union and engaging in collective bargaining.  The key provisions in this regard are Section 70, 72, and 76.  You might think it is pretty straightforward that contracting out the work of unionized workers and firing them all would be discrimination on the basis of union activity.  But this is one of those grey areas in the law.
Labour law students in Canada read an OLRB case called Kennedy Lodge, in which the OLRB ruled an employer had not breached the Act by contracting out bargaining unit jobs and dismissing the workers.  The Board ruled that an employer can do this as long as its motivation is to avoid the costs associated with a union, and not to punish workers for joining a union and bargaining a collective agreement.   The Board found:

The facts of this case do not disclose any desire on the part of the employer to rid itself of union representation of its employees.  Rather a legitimate business decision was made which resulted in an annual saving of around $50,000.  The fact that the union and the employees were adversely affected does not of itself taint the legitimacy of that decision.

 You can imagine that the labour movement thinks that distinction is ridiculous–a decision to fire all of the unionized workers to save costs is a decision to avoid the union.  
In this case, Cadillac Fairview is arguing that it sought revisions to the bargaining structure, and other changes, but the union would not budge.  It then contracted out the work and found that the new contractor was working out very well, and therefore a decision was made to make the contacting out permanent.
Do you think that Cadillac Fairview should be able to permanently replace the lockout out union members?  We will keep an eye out for the decision…

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David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

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RSandillRicha Sandill@RSandill·
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@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

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TheLawofWorkDavid J. Doorey@TheLawofWork·
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Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

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CanLawWorkForumCLWF@CanLawWorkForum·
22h

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
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