The long reach of British Columbia’s replacement worker ban

Employers with unionized operations in British Columbia take note - B.C.'s prohibition on employer use of replacement workers during a strike or lockout has been applied to work taking place in Alberta and Ontario.

British Columbia's prohibition on replacement workers

British Columbia's Labour Relations Code (the Code) prohibits employer use of replacement workers during a lawful strike or lockout. Using replacement workers in contravention of the Code is classified as an unfair labour practice (a ULP) under the Code.

There are only narrow categories of workers who are permitted to carry on the work ordinarily performed by the employees in a striking or locked-out bargaining unit. Otherwise, this prohibition bars several potential categories of replacement workers, including individuals who ordinarily work at another of the employer's places of operations. An employer is generally not permitted to transfer the work of a striking or locked-out bargaining unit to another location to have that work completed.

Extraterritorial application of the replacement worker prohibition

The extent of this bar on transferring bargaining unit work was recently tested in Gate Gourmet Canada Inc. v Unite Here, Local 40, 2024 BCSC 1528.

Gate Gourmet provides catering services to airlines flying out of Vancouver International Airport (YVR). Gate's Vancouver-based employees engaged in a lawful strike. To prevent disruption, one of Gate's airline clients requested that Gate instruct its employees based at airports in Calgary, Edmonton, and Toronto to "double cater" flights destined for YVR. Double catering involves stocking an airplane with enough food and beverages for both an outbound and a return flight. Gate did so.

The bargaining agent of the striking Vancouver workers complained to the British Columbia Labour Relations Board (the Board), alleging a ULP. The Board issued a declaration that Gate had committed a ULP by using prohibited replacement workers and ordered Gate to stop. Gate asked the Board to reconsider, and that request was denied. Gate then made a petition to the British Columbia Supreme Court for judicial review, arguing the Board's decision was flawed and must be set aside.

Among other grounds for its petition, Gate argued the Board's order was constitutionally impermissible because it impacts the rights of parties outside of British Columbia. Normally, the jurisdiction of a provincial legislature is limited to passing laws regarding "property and civil rights" within that province's borders only.

Justice Brongers noted that while a province typically can't legislate extraterritorially, provincial legislative schemes can apply constitutionally to an out-of-province party without offending the extraterritoriality prohibition provided there is a "real and substantial connection" between the scheme and the party. When an employer subject to the Code has operations in British Columbia and elsewhere, there is a sufficient connection to justify having the Code's replacement worker provisions apply to the employer's operations outside British Columbia.

Justice Brongers observed that the extraterritorial application of the replacement worker prohibition is necessary for that prohibition to be effective. Otherwise, a British Columbia employer could circumvent the prohibition by simply transferring the work to its out-of-province employees.

As such, Justice Brongers dismissed Gate's petition.

Gate filed a Notice of Appeal with the Court of Appeal for British Columbia on September 10, 2024. The outcome of this appeal is still pending.

Takeaways

Employers in industries with high union density should generally take note of this decision. There is a move toward replacement worker bans in Canada. At present, replacement worker bans exist in British Columbia and Quebec. A ban for federally regulated workplaces comes into effect on June 20, 2025. Legislation to this effect is currently proposed in Manitoba. If the Gate Gourmet decision is followed elsewhere in Canada, business continuity during work stoppages may become more difficult, as relocation of work out-of-jurisdiction may not be an option.

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