Annual Report 2023–24

Encouraging Fair and Productive Workplaces

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Message from the Chairperson

I am pleased to share the achievements of the Canada Industrial Relations Board (CIRB or the Board) for the 2023–24 fiscal year.

Since 2019, the Board has dealt with a wide range of labour and employment issues in the federal sector. This includes resolving complex labour disputes between unions and federally regulated employers, handling complaints from employees about reprisals or unjust dismissals and reviewing appeals related to unpaid wages and health and safety issues.

The Board’s main goal is to provide expert support to resolve these matters fairly and efficiently. It focuses not only on making decisions but also on helping parties settle their disputes amicably. In fact, many cases brought to the Board are resolved through these efforts. For instance, in the 2023–24 fiscal year:

• 78% of unjust dismissal complaints were settled during mediation; and
• 88% of unfair labour practice complaints (excluding duty of fair representation complaints) were resolved without requiring a decision from the Board.

This past fiscal year, the number of overall matters filed has stabilized, but the proportion of matters filed under Part I of the Canada Labour Code (the Code) has increased and represents more than half of the Board’s caseload. These types of matters tend to be more complex and require the Board’s more immediate attention.

This report provides an overview of the Board’s workload and the results it has achieved over the past year. I hope you will find it informative and helpful in understanding the Board’s important work.

Ginette Brazeau,
Chairperson,
Canada Industrial Relations Board

Volume of Matters

In the 2023–24 fiscal year, the Board disposed of slightly fewer cases than the year before, but this was still a significant increase compared to earlier years. The number of new cases was about the same as the previous year, indicating that the Board’s workload has stabilized since its responsibilities expanded in 2019.

The number of cases filed under Part I of the Code has risen for the second consecutive year, now making up over half of the Board’s new cases. In total, 966 applications and complaints were received, with 486 (over 50%) under Part I, 12% under Part II and 37% under Part III.

Chart 1–Volume of Matters by Fiscal Year

Chart 1 illustrates the volume of matters by fiscal year.

• In 2019–20, 670 matters were received and 505 were disposed.
• In 2020–21, 906 matters were received and 588 were disposed.
• In 2021–22, 1,149 matters were received and 792 were disposed.
• In 2022–23, 960 matters were received and 910 were disposed.
• In 2023–24, 966 matters were received and 894 were disposed.

 

Chart 2–Matters Received by Statute

Chart 2 illustrates the matters received by statute in fiscal year 2023–24.

• Under Part I of the Canada Labour Code, 486 matters were received.
• Under Part II of the Canada Labour Code, 114 matters were received. 
• Under Part III of the Canada Labour Code, 359 matters were received.
• Under the Status of the Artist Act, 5 matters were received. 
• Under the Wage Earner Protection Program Act, 2 matters were received.
• The total number of matters received is 966. 

Main Types of Applications and Complaints Filed Under Parts I, II and III of the Code

Chart 3–Types of Matters Filed Under Part I (Industrial Relations)

Chart 3 illustrates the number of matters filed under Part I (Industrial Relations) by type. 

• 15 revocation matters were filed.
• 18 sale of business matters were filed.
• 22 maintenance of activities matters were filed.
• 37 Other category matters were filed.
• 43 reconsideration matters were filed.
• 54 certification matters were filed.
• 54 review matters were filed.
• 73 Other category unfair labour practice matters were filed.
• 170 unfair labour practice (duty of fair representation) matters were filed.
• The total number of matters filed under Part I is 486.

Duty of fair representation (DFR) complaints represent the largest number of cases filed under Part I of the Code. In addition to offering dispute settlement options to the parties in these matters, the Board disposed of approximately two thirds of these complaints through a preliminary assessment of the complaints (either through a prima facie case analysis or a timeliness analysis). This process allows the Board to triage the DFR complaints it receives and respond to them as efficiently as possible.

Chart 4–Types of Matters Filed Under Part II (Occupational Health and Safety)

Chart 4 illustrates the number of matters filed under Part II (Occupational Health and Safety) by type.

• 9 applications for a stay of direction were filed.
• 10 appeals of a decision of no danger were filed.
• 14 appeals of a direction were filed.
• 81 reprisal complaints were filed.
• The total number of matters filed under Part II is 114.

Health and safety reprisal complaints are the most common type of matter filed under Part II of the Code.

Chart 5–Types of Matters Filed Under Part III (Standard Hours, Wages, Vacations and Holidays)

Chart 5 illustrates the number of matters filed under Part III (Standard Hours, Wages, Vacations and Holidays) by type.

• 31 reprisal complaints were filed.
• 35 wage recovery appeals were filed.
• 293 unjust dismissal complaints were filed.
• The total number of matters filed under Part III is 359.

Unjust dismissal complaints represent the largest proportion of matters filed under Part III of the Code. The Board assisted parties in resolving 229 of these types of cases during the fiscal year.

Matters Disposed in Fiscal Year 2023–24

Under Part I of the Code, 88% of unfair labour practice complaints (excluding DFR complaints) were settled. DFR complaints are not included in this statistic because the vast majority of them are dismissed through a preliminary assessment.

Although Part II matters may not seem conducive to mediated settlements, the Board has been instrumental in helping parties find a resolution in 47% of these matters.

The Board settled 78% of unjust dismissal matters, just over half of which were resolved before they were assigned to an adjudicator.

Chart 6–Matters Disposed by Statute and Outcome

Chart 6 illustrates the number of matters disposed by statute and outcome.

• Under Part I of the Canada Labour Code, 126 matters were granted, 192 matters were dismissed, and 123 matters were withdrawn.
• Under Part II of the Canada Labour Code, 4 matters were granted, 35 matters were dismissed, and 34 matters were withdrawn.
• Under Part III of the Canada Labour Code, 24 matters were granted, 72 matters were dismissed, and 254 matters were withdrawn.
• Under the Status of the Artist Act, 1 matter was granted and 2 matters withdrawn.
• Under the Wage Earner Protection Program Act, 1 matter was granted and 26 matters dismissed.

Processing Times

Processing time includes all the steps involved in processing a matter, such as gathering the written submissions of the parties, offering mediation, holding an oral hearing if necessary and issuing a written decision. In fiscal year 2023–24, the Board’s case files were processed, on average, within 385 days, which is a 26% increase over the previous year as the Board continues to adjust to its new and diverse mandates.

The processing time is more significant in matters that would normally be assigned to external adjudicators (i.e., matters under Parts II and III of the Code and matters under the Wage Earner Protection Program Act). The longer processing times are due to a rise in labour relations disputes under Part I of the Code, which needed the Board’s more immediate attention, along with budget constraints that limited its ability to assign cases to external adjudicators.

Chart 7–Average Processing Time (Days)

Chart 7 illustrates the average processing time in days. 

• In 2019–20, the average processing time was 174 days.
• In 2020–21, the average processing time was 212 days.
• In 2021–22, the average processing time was 239 days.
• In 2022–23, the average processing time was 306 days. 
• In 2023–24, the average processing time was 385 days.

 

 

Chart 8–Average Processing Time (Days) by Statute

Chart 8 illustrates the average processing time in days by statute. 

• The average processing time for matters under Part I of the Canada Labour Code was 296 days.
• The average processing time for matters under Part II of the Canada Labour Code was 450 days.
• The average processing time for matters under Part III of the Canada Labour Code was 456 days.
• The average processing time for matters under the Status of the Artist Act was 278 days.
• The average processing time for matters under the Wage Earner Protection Program Act was 739 days.

Hearings

A panel may decide a case without an oral hearing based on the written and documentary evidence on file, such as investigation reports and written submissions. In the 2023–24 fiscal year, most matters (over 91%) were resolved without an oral hearing. In total, hearings were held in 76 matters, with 80% of these hearings being conducted virtually.

Applications for Judicial Review

Another indicator of the Board’s performance, as well as an indicator of the quality and soundness of its decisions, is the number of applications for judicial review of Board decisions and the percentage of decisions upheld after these reviews. In this regard, the Board continues to perform very well.

During the 2023–24 fiscal year, 16 applications for judicial review of Board decisions were filed with the Federal Court of Appeal. Five of these applications were dismissed, one was withdrawn and the remaining ten were ongoing. In addition, all the applications that remained pending from previous fiscal years were dismissed. Therefore, 100% of the Board’s decisions subject to judicial review in the 2023–24 fiscal year were upheld.

Chart 9–Case Matters Disposed

Chart 9 illustrates the number of case matters disposed with and without an oral hearing.

• In 2019–20, 433 matters were disposed of without a hearing, and 72 with a hearing.
• In 2020–21, 517 matters were disposed of without a hearing, and 71 with a hearing.
• In 2021–22, 735 matters were disposed of without a hearing, and 57 with a hearing.
• In 2022–23, 828 matters were disposed of without a hearing, and 82 with a hearing.
• In 2023–24, 818 matters were disposed of without a hearing, and 76 with a hearing.

The CIRB is an independent, representational and quasi-judicial tribunal. Its mandate is to contribute to, and promote, a harmonious industrial relations climate in the federally regulated sector. It also ensures that federal workplaces comply with health and safety legislation and minimum employment standards.

The CIRB is responsible for interpreting and administering Part I (Industrial Relations) and certain sections of Part II (Occupational Health and Safety), Part III (Standard Hours, Wages, Vacations and Holidays) and Part IV (Administrative Monetary Penalties) of the Code.

The CIRB is also responsible for interpreting and administering Part II (Professional Relations) of the Status of the Artist Act and dealing with appeals under the Wage Earner Protection Program Act.

Sectors or Industries That Fall Under the Board’s Jurisdiction

The CIRB has jurisdiction in all provinces and territories with respect to federal works, undertakings or businesses. These normally include the following sectors:

• Broadcasting (radio and television
• Chartered banks
• Postal services
• Airports and air transportation
• Marine shipping and navigation
• Canals, pipelines, tunnels and bridges (crossing provincial borders)
• Railways and road transportation that involves crossing a provincial or international border
• Telecommunications
• Grain handling and uranium mining and processing
• Most public and private sector activities in Yukon, Nunavut and the Northwest Territories
• Some First Nations undertakings
• Federal Crown corporations (for example, the national museums)

This vast jurisdiction includes businesses that have a major economic, social and cultural impact on Canadians.

The variety of activities that take place in the federally regulated private sector, as well as the geographical scope and national significance of this sector, contribute to the uniqueness of the federal jurisdiction and the Board’s role.

Aside from the sectors described above, the Board also has jurisdiction over the federal public service to decide appeals of certain decisions and directions made by the Head of Compliance and Enforcement of Employment and Social Development Canada (the Head). Specifically, when the Head makes a decision about a refusal to perform dangerous work or issues a direction under health and safety legislation, the decision or direction can be appealed to the Board.

Status of the Artist Act

The Board is also responsible for interpreting and administering Part II (Professional Relations) of the Status of the Artist Act, which, in addition to broadcasters and Crown corporations, applies to federal government departments and agencies.

Wage Earner Protection Program Act

The Wage Earner Protection Program provides for the payment of eligible wages owing to workers whose employer is insolvent. Service Canada processes the claims made under this program.

The Board decides all applications to appeal the final decisions made by the Minister of Labour (or the delegate) under the Wage Earner Protection Program Act, regardless of whether the former employer was provincially or federally regulated for labour and employment purposes.

The Code provides for the Board to be composed of:

•  one full-time neutral Chairperson;
• two or more full-time neutral Vice-Chairpersons; and
• a maximum of six full-time Members representing employers and employees in equal numbers.

Part-time Vice-Chairpersons and Members may also be appointed to the CIRB. The Chairperson and Vice-Chairpersons of the CIRB must have experience and expertise in labour relations.

The Code allows members whose terms expire to complete the duties that were assigned to them during their active terms (section 12(2)).

The Chairperson can also appoint external adjudicators to determine matters under Parts II, III or IV of the Code, subject to available resources.

Visit the Board’s website to access the list of current Board members and their backgrounds as well as the list of qualified external adjudicators.

Seaspan ULC, 2023 CIRB 1094

Key Issues: Unlawful Strike–Refusal to Cross Picket Line–Common Understanding–Charter Values–Preserving Labour Relations Stability and Work Stoppage Predictability

In the context of two applications filed by the employer seeking a declaration that the union and its members were engaging in an unlawful strike when they refused to cross a picket line established by members of the Canadian Merchant Service Guild (the Guild), the Board had to determine whether the refusal by union members to cross the Guild’s picket lines constituted a strike within the meaning of the Code. These two applications concerned two groups of employees: barge operators and tug operators.

The Board’s jurisprudence regarding refusals to cross picket lines has been consistent. The refusal to cross a picket line by employees who are not themselves in a legal strike position constitutes an unlawful strike within the meaning of the Code, even if the collective agreement contains a clause allowing employees to refuse to cross picket lines.

Here, the employees were not asked to perform overtime work. They were asked to report to work during their normal hours of work to perform certain duties related to training and cleanup for barge operators and inventory work for tug operators. These employees would have performed this work as part of their ongoing duties had there not been a lawful picket line. The employer was asking employees to attend work for the purpose of training, cleanup and inventory work, which these employees sometimes performed on board barges and tugboats.

Given that the barges and tugboats were not operating, the employees were asked to perform these duties at the employer’s campus. The employer explained that this work would have allowed it to immediately resume operations once the Guild’s strike ended. In these circumstances, refusing to perform this work was not a valid means of contesting the assignment of that work, and this resulted in a work stoppage within the definition of “strike.”

Regarding the “common understanding” element of the definition, the Board found that it was present in this case as the employees refused to work because of the Guild’s picket line. Though the union had not instructed its members to refuse to cross the picket line, the refusal to do so by each individual member was derived from a jointly held concept of union solidarity. The strike was unlawful.

With respect to the union’s arguments relating to the Canadian Charter of Rights and Freedoms (the Charter) and the Board’s duty to exercise its discretion in a manner consistent with Charter values, the Board noted that there are two contexts in which Charter values are taken into consideration.

First, Charter values are considered when genuine ambiguity exists between differing but equally plausible statutory interpretations. The Board noted that the definition of “strike” has been consistently interpreted in an objective manner and that there is no ambiguity regarding the interpretation of “work” in the definition of “strike.” 

Second, when an administrative decisionmaker is exercising its statutory discretion, it must act consistently with Charter values by balancing the relevant Charter protections with the objectives of their enabling statutes. This applies not only to statutory interpretation but also to any decision that engages a Charter protection.

Here, the union asked the Board to consider Charter values and to refuse to declare an unlawful strike. It argued that the Charter values favoured giving more weight to the freely negotiated collective agreement clause that allowed employees to refuse to cross a picket line.

Having considered the statutory objectives of the prohibition against mid-contract strikes with the Charter rights and the values at play, the Board found that the balance favoured upholding the broader public interest in maintaining labour relations stability. Carving out an exception to the prohibition against mid-contract strikes or the requirement to comply with section 89 of the Code in the circumstances of this case risked jeopardizing the Code’s statutory objectives of preserving labour relations stability and the predictability of work stoppages.

Regarding remedies, the Board noted that if the illegal action in question has been corrected, it would be less inclined to issue an order because there would be little labour relations value in doing so. The Board’s approach in determining the appropriate remedy seeks to promote the statutory objective of maintaining labour relations stability during the term of the collective agreement while recognizing the circumstances that led to the unlawful strike.

The Board determined that the declaration of an unlawful strike, and not ordering any additional remedies, would best serve labour relations purposes in this case.

British Columbia Maritime Employers Association, 2023 CIRB 1088

Key Issues: Unlawful Strike Declaration–Strike Suspended by Union–Requirement for New Strike Notice

This was an application for a declaration of unlawful strike filed by the British Columbia Maritime Employers Association (BCMEA) on July 18, 2023. The BCMEA alleged that the International Longshore and Warehouse Union (ILWU) had not given strike notice as required under section 87.2(1) of the Code when its members commenced strike activity on July 18, 2023. The BCMEA asserted that after suspending the strike on July 13, 2023, following the agreement to recommend the senior mediator’s proposal for ratification, the ILWU was obligated to serve a new strike notice prior to resuming its strike activities on July 18, 2023, and reneging on its agreement to recommend the proposal. The ILWU submitted that it was not required to give a new notice under section 87.2(1). It argued that the initial strike notice was sufficient as the strike had not ended and there is no requirement that the job action be continuous for a strike to be considered ongoing.

The Board conducted a hearing by teleconference on July 18, 2023, and issued order no. 1460-NB on the morning of July 19, 2023, finding that the strike was unlawful and that a 72-hour notice of the strike was required prior to commencing strike activity on July 18, 2023.

The Board provided reasons for the decision on August 10, 2023. It noted that in the agreement to recommend the mediator’s proposal for ratification, the parties had agreed to suspend the strike but had not turned their minds to the consequences of non-ratification. The Board also noted that following the agreement, the employer had resumed full operations and the union had remained silent in the face of statements by the Minister of Labour about the end of the strike.

The Board then examined the purposes of section 87.2(1) and the relevant jurisprudence. The Board stated that the Code requires that a notice be given “indicating the date on which a strike will occur” and also requires a new notice when a strike does not occur on the date originally set. For the Board, requiring the new notice is meant to provide clarity and allow the employer to put appropriate measures in place for the shutdown of operations. The Board stated that similarly, in the circumstances of this case—where strike activities had stopped, the employer had resumed full operations and there was no agreement or clarity between the parties on the status of the strike—a new notice was required.

The Federal Court of Appeal recently upheld the Board’s decision in International Longshore and Warehouse Union – Canada v. British Columbia Maritime Employers Association, 2024 FCA 142.

Rogers Communications Canada Inc., 2024 CIRB 1106

Key Issues: Application to Appeal a Direction–Duty to Develop a Fall-Protection Plan–Climbing Activities Undertaken by a Specialized Subcontractor–Direction Rescinded

This decision dealt with an application by Rogers Communications Canada Inc. (Rogers) to appeal a health and safety direction.

The Head of Compliance and Enforcement (the Head) issued several directions to Rogers further to an incident where an employee of a subcontractor specialized in climbing activities fell from a Rogers-owned telecommunications tower. This decision dealt with Rogers’ appeal of the Head’s direction finding that it had contravened sections 125(1)(z.04) and (z.13) of the Code and section 12.06 of the Canada Occupational Health and Safety Regulations (COHSRs) by failing to develop a fall-protection plan in consultation with the work place committee. It was undisputed that Rogers had control over the work place and that none of its employees climbed the tower.

The Board concluded that Rogers had not contravened sections 125(1)(z.04) and (z.13) of the Code given that it did not have authority over the specialized climbing activities carried out by the specialized contractor’s employees.

The Board also found that Rogers had not contravened section 12.06(1)(a) of the COHSRs by not developing a fall-protection plan before the climbing activities began given that the specialized contractor was the one that had the expertise required to develop the fall-protection plan. Although Rogers possessed some information that would be useful or necessary for the preparation of a fall-protection plan, that did not mean that it was responsible for preparing the entire plan, including rescue procedures to be followed by the contractor in the event of a fall.

The Board therefore granted the application and rescinded the direction.

Gurney, 2024 CIRB 1107

Key Issues: Complaint of Genetic Testing–Section 247.99–Requirement to Attest to Vaccination Status–Definition of “Genetic Test”–Vaccination Is Not a “Genetic Test”

The complainant had been put on an unpaid leave of absence because she had not complied with the mandatory vaccination practice of the Canada Post Corporation (Canada Post or the employer). She filed a complaint of genetic testing alleging that the employer’s policy requiring her to attest to her vaccination status amounted to her having to take a genetic test and disclose the results of that test, two practices prohibited by section 247.98(4) of the Code.

In October 2021, Canada Post introduced a vaccination policy requiring all employees to be vaccinated against COVID-19 and to attest to their vaccination status by mid-November 2021. Employees who failed to attest to being vaccinated were put on administrative leave without pay as of November 26, 2021, unless they were granted an exemption on a human rights ground. The complainant requested and was denied an exemption on a human rights ground, and, on April 22, 2022, she was put on leave without pay.

The complainant’s union grieved the policy. On April 27, 2022, an arbitrator found that the policy was reasonable.

The Board first rejected the complaint on the basis that its subject matter had been adequately dealt with through recourse obtained before an arbitrator (one of the circumstances where the Board may reject a complaint on a preliminary basis as provided in section 247.99(6.5) of the Code). The Board found that the essence of the grievance and the essence of the complaint were the same: whether the employer was entitled to place employees who refused to be vaccinated or who refused to attest to their vaccination status on administrative leave.

Further, the Board dismissed the complaint because COVID-19 vaccinations are not a “genetic test” as the term is used in the Code. In Reference re Genetic Non-Discrimination Act, 2020 SCC 17, the Supreme Court of Canada commented on the definition of “genetic test” found in the Genetic Non-Discrimination Act. That definition is nearly identical to the one that the Genetic Non-Discrimination Act added to the Code. The Board found that the Code prohibits tests that conduct the analysis of the employee’s genetic material, which includes an employee’s DNA, RNA or chromosomes. The purpose of those tests includes the prediction of disease and vertical transmission risks and monitoring, diagnosis and prognosis.

The Board found that COVID-19 vaccinations are not tests, that they do not involve the analysis of anyone’s DNA, RNA or chromosomes for any purpose and that they are not used to predict disease or vertical transmission risks or monitoring, diagnosis or prognosis. Even if the Board were to accept that the vaccines are “experimental gene therapy platform injections,” as the complainant argued, they would still not meet the definition of “genetic test.” The Board concluded that section 247.98 of the Code was never intended to prohibit vaccinations or mandatory vaccination policies but was instead intended to combat discrimination or adverse treatment based on information disclosed by genetic tests.

Totten, 2024 CIRB 1110

Key Issues: Reconsideration–Timeliness of Application–New Approach to Applications for Reconsideration–Preliminary Review Process

In this decision, the Board noted the growing number of reconsideration applications that were untimely or that did not raise sufficient grounds. Such applications require the Board to devote resources to a process where it must simply re-explain the law and justify the original decision. This is not an effective use of the Board’s limited resources. As a result, the Board stated that it would implement a new preliminary review process, similar to an application for leave to appeal, as an exercise of its discretion authorized by section 18 of the Code.

As part of the preliminary review process, a panel of the Board will first examine the application for reconsideration to determine whether it will proceed with the application. If the Board finds that the application for reconsideration is untimely or does not, on its face, properly or persuasively raise any of the three main grounds for reconsideration, the Board will not entertain the application and will summarily dismiss it with a brief letter decision. The three main grounds were summarized as follows:

• a new fact that could not have been provided to the Board at the time of the original proceeding with reasonable diligence on the applicant’s part and that fact would likely have changed the decision;
• a significant legal or policy error that raises serious concerns regarding the interpretation or application of the Code; or
• a breach of the principles of natural justice that compromised the applicant’s rights to procedural fairness.

By dismissing the application, the Board will in effect be declining to depart from the reasoning it provided in its original decision and giving full effect to the finality of decisions as set out in the Code. The Board emphasized that a party who is dissatisfied with its decision can proceed directly with an application for judicial review at the Federal Court of Appeal.