Is the NBA Lockout Illegal in Canada?

By Professor David Doorey, July 1, 2011

HAPPY CANADA DAY!  The NBA may find Canada to be a big pain in the ass.

Here’s an issue that occasionally arises in the pro sports leagues that have Canadian franchises.  Like the NBA.  Today, the NBA “locked out” its players. That lockout is no doubt legal under American labor law.  But the Toronto Raptors franchise is governed not by American labor law, but by Ontario labour law.  The rules are difficult.   Is the lockout of the Toronto Raptors legal under Ontario law?

The pro leagues have not fared well on that issue so far.  Consider this case from 1995 involving the lockout of NBA referees. This was before the Raptors’ had a franchise, but the NBA played regular exhibition games in Toronto.   The Ontario Labour Relations Board ruled that the NBA had not complied with Ontario laws governing when a lockout is lawful.  Since the NBA was employing workers in Ontario during the exhibition games, it was not entitled to lockout them out without first complying with Ontario laws.  Therefore, the lockout of referees, although legal in America, was illegal in Ontario.  A similar ruling was made in regards to the lockout of major league umpires also in 1995–the lockout was legal in the U.S., but umpires could not be locked out for Blue Jay home games.

The key section under Ontario law is 74 of the Labour Relations Act:

74.       (2) Where no collective agreement is in operation, no employee shall strike and no employer shall lock out an employee until the Minister has appointed a conciliation officer or a mediator under this Act and,
(a)        seven days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties the report of a conciliation board or mediator; or
(b)        fourteen days have elapsed after the day the Minister has released or is deemed pursuant to subsection 115 (3) to have released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board.

I don’t know for sure, but I suspect that these conditions have not been satisfied by the NBA in this case.  Has the NBA met with Ontario conciliators, and received a “no board” (what we call the section 74(2)(a) report), and then waited 14 days?  If not, then the NBA lockout is probably unlawful in Toronto.

The Ontario Board has discretion in terms of remedies for unlawful lockouts (in section 101).  In the earlier umpire case, Major League Baseball argued that the Board should not do anything about the violation.  The Board responded:

17.       In any event, we do not think that we should decline to apply Ontario law simply because it is novel to do so, or because there may be collective bargaining consequences, or because one side may reap a temporary tactical advantage – any more than we would be inclined to exempt a local branch plant from the application of Ontario law where the same arguments might be made. It may be that the inability to strike, lock-out, or use replacement umpires in Ontario at this time has an effect on the ongoing collective bargaining, or introduces a new “wrinkle” into the collective bargaining process. However, we see no obvious reason why this should be an impediment to settlement, nor should it create an obstacle that cannot be overcome by bargaining in good faith – an obligation that the parties have in all jurisdictions. Certainly it is no reason not to apply the law at all.

In the old umpires’ case, the OLRB allowed a replacement ref for one game, but then made the decision active for the next Blue Jays home series in order to give the parties time to consider the impact of the decision.

In the current NBA lockout, as I understand it, players don’t usually get paid until the fall.   If true, then the Raptors aren’t losing any pay through the summer as a result of the lockout.   In theory, once the Raptors’ lose a pay cheque due to an unlawful lockout, they could seek a remedy from the OLRB, were the Board to rule that the Raptors cannot be locked out.
What do you labour lawyers/sports lawyers think?  Do you think the union will bring an unlawful lockout application to the OLRB?  If so, what do you think the OLRB would do about it?