NHLPA Loses Injunction in Quebec
It is a dark time for hockey fans in in North America. The entire season is being threatened by a lockout, imposed by the NHL over their inability to negotiate a new collective agreement with the NHL Players Association (NHLPA). In an effort to stop the lockout, the NHLPA has resorted to some creative legal tactics. Indeed, a few weeks ago, the NHLPA filed for an injunction before the Quebec Labour Relations Board (LRB), arguing that the lockout was a violation of the Quebec Labour Code. Essentially, their argument was that since the NHLPA was not a “certified” union and that the parties hadn’t gone through all the steps required by the Code to have a legal work stoppage, the lockout was illegal. Similar injunctions have been filed in other provinces.
Not surprisingly, the NHLPA lost the initial battle before the LRB (though there is still a hearing on the merits to be scheduled). Without even delving into the issue of whether or not the NHLPA – an association that spans two countries – can be certified in Quebec, I am perplexed by how the LRB could even issue an effective order. Technically, I could see how the LRB could order the Montreal Canadiens to open their doors and allow the players to practice and train. However, I don’t see how the LRB could order the NHL to play hockey in Montreal, or anywhere else. While I appreciate the creative nature of the motions filed, the legal realities don’t seem very helpful. I don’t see the LRB effectively being able to order the Leafs to play in Montreal! On the bright side, if the Canadiens are ordered to play but can’t find an NHL team to play against, perhaps they’ll win the Stanley Cup this year…
For those interested in reading the LRB’s decision, read on here.
I’m wondering if this is not a form of moral suasion: attempt to demonstrate that an action is unlawful in one jurisdiction, and suggest to the parties that they are acting at least unethically, if not illegally everywhere.
Of course, this then raises the question of whether this is an appropriate use of the courts. For human rights, it arguably is: the decision has a real effect within the jurisdiction. For issues where one cannot raise rights, it’s less clear. For less universal cases, it can be little more than jurisdiction-shopping.
Where, I wonder, does this case lie?
–dave
Its an interesting question and one that’s not addressed in the media or (as far as I can tell) in the injunction application – what is the legal status of the NHLPA in Canada? Is it a certified federal or provincial bargaining unit in Canada?
Also, the lockout is a good chance to get out and see some great junior hockey action for about 1/10 the price of an NHL ticket.
Thanks for the comments. The NHLPA is not certified in Canada as a bargaining union in any jurisdiction…. That’s the issue..
Gabriel, nice note. I was wondering, you said “The NHLPA is not certified in Canada as a bargaining union in any jurisdiction….” Are the Certified in Canada Federally? Or can you not even do that, can you only be certified in each provincial Jurisdiction?
Thank you.
There seems to be a lot more press in the last day or two about a move for ‘decertification’ – from players. Is this a continuation of the theory behind the Quebec application, in that if the Players’ Association is not a certified union, then the owners can’t lock them out? Why would that be the result? If the association is not a union, have the employers any duty to bargain in good faith, or allow the players on the ice at any time?
I would have thought decertification would serve the ends of the owners, by allowing them to divide and conquer, or at least try to do so more than they can if they have to deal with the association.