Background
The unionized employees of the New Brunswick Liquor Corporation, represented by the Canadian Union of Public Employees, went on strike. During the strike the Liquor Corporation brought in the managers to do the work of the strikers. The union brought a suit against the employers claiming that their actions violated section 102(3) of the Public Service Labour Relations Act. At the same time, the employer also claimed that the union was in breach of the Act due to their picketing. The relevant section of the Act stated:
- (a) the employer shall not replace the striking employees or fill their position with any other employee, and
- (b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer.
The New Brunswick Public Service Labour Relations Board found that the Liquor Corporation had violated section 102(3), and at the same time found that the union had also violated the Act by picketing. The Board ordered both sides to cease their actions.
The Labour Board came to this decision after noting that the Legislature intended to restrict the possibility of picket-line violence by prohibiting both strikebreaking on one hand and picketing on the other.
The Liquor Corp appealed the Board's decision. Difficulties arose because of the privative clause in s. 101 of the Act, which declared that every "award, direction, decision, declaration, or ruling of the Board ... is final and shall not be questioned or reviewed in any court." Nevertheless, the Court of Appeal of New Brunswick overturned the decision on reinterpreting the Act's provision. CUPE then appealed to the Supreme Court.
The issue before the Supreme Court was whether Board's decision was sufficiently incorrect to warrant overturning in the presence of the privative clause.
The Liquor Corporation argued that the Act should be interpreted as only preventing the replacement of employees "with any other employee". Under the Act, the definition of "employee" excluded managers, and their acts were therefore justified.
CUPE argued that the Act should be read so that replacement "with any other employee" applied only to permanent arrangements, and that temporary replacements were forbidden entirely even by non-employees.
Read more about this topic: CUPE V. New Brunswick Liquor Corp.
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