In my last post, I considered the Ontario Agricultural, Food and Rural Affairs Appeal Tribunal’s (“AFRAAT) and Ontario Divisional Court’s rejection of the United Food and Commercial Workers International Union’s (“UFCW”) constitutional challenge to the Agricultural Employees Protection Act (“AEPA”). Here I argue that the AFRAAT and the Divisional Court have reinforced the distinctions between the AEPA and the Labour Relations Act, 1995 (“LRA”). In doing so, they refused the Supreme Court of Canada’s invitation in Fraser to be flexible in their interpretation of the AEPA.
The UFCW (and individual complainants) brought a complaint against MedReleaf of an unfair labour practice in violation of the AEPA that the AFRAAT dismissed in United Food and Commercial Workers International Union v MedReleaf Corp. (“MedReleaf“). The Divisional Court upheld the AFRAAT’s decision in United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc. (“Aurora“).
As summarized by the AFRAAT, the UFCW and individual complainants alleged that MedReleaf “violated their rights under the APEA by failing to provide an employee’s [sic] association a reasonable opportunity to make representations about the terms of employment, and violated their rights by thwarting their attempts to organize an employees’ association by using threats, intimidation, reprisals and coercion, all contrary to the AEPA.” (AFRAAT, MedReleaf). By the time the AFRAAT released its decision, the individual complainants and MedReleaf had settled the matters between them. Their evidence was considered in general terms, but not in relation to “their individual terminations”.
The UFCW had filed applications for certification to both the Ontario Labour Relations Board (“OLRB”) and the Canadian Industrial Relations Board (“CIRB”). The CIRB held it did not have jurisdiction, since MedReleaf fell under provincial jurisdiction. MedReleaf also challenged the jurisdiction of the OLRB on the basis that the AEPA covers their employees. Nevertheless, the OLRB ordered a representation vote (held on June 1, 2015). The UFCW lost that vote.
Following the vote, the UFCW claimed MedReleaf had engaged in unfair labour practices. In a January 21, 2016 decision, the OLRB held that it did not have jurisdiction: the AEPA, not the LRA covered the MedReleaf workers. In between the vote and the final decision, MedReleaf terminated the employment of several employees.
The AEPA provides limited protections for agricultural workers. The statute is an intentional response to the legislature’s view that several of the protections to workers under the LRA are detrimental to the functioning of employers in agricultural businesses.
The main provisions of the AEPA are as follows:
1 (1) The purpose of this Act is to protect the rights of agricultural employees while having regard to the unique characteristics of agriculture, including, but not limited to, its seasonal nature, its sensitivity to time and climate, the perishability of agricultural products and the need to protect animal and plant life.
(2) The following are the rights of agricultural employees referred to in subsection (1):
1. The right to form or join an employees’ association.
2. The right to participate in the lawful activities of an employees’ association.
3. The right to assemble.
4. The right to make representations to their employers, through an employees’ association, respecting the terms and conditions of their employment.
5. The right to protection against interference, coercion and discrimination in the exercise of their rights.
2 (1) In this Act,
(a) farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation, and
(b) ornamental horticulture;
3 Nothing in this Act authorizes any person or entity to attempt at the place at which an employee works to persuade the employee during the employee’s working hours to become or refrain from becoming or continuing to be a member of an employees’ association.
5 (1) The employer shall give an employees’ association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer.
(2) For greater certainty, an employees’ association may make its representations through a person who is not a member of the association.
(3) For the purposes of subsection (1), the following considerations are relevant to the determination of whether a reasonable opportunity has been given:
1. The timing of the representations relative to planting and harvesting times.
2. The timing of the representations relative to concerns that may arise in running an agricultural operation, including, but not limited to, weather, animal health and safety and plant health.
3. Frequency and repetitiveness of the representations.
(4) Subsection (3) shall not be interpreted as setting out a complete list of relevant considerations.
(5) The employees’ association may make the representations orally or in writing.
(6) The employer shall listen to the representations if made orally, or read them if made in writing.
(7) If the representations are made in writing, the employer shall give the association a written acknowledgment that the employer has read them.
6 An employees’ association shall not act in bad faith or in a manner that is arbitrary or discriminatory in the representation of its members.
8 No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization shall interfere with the formation, selection or administration of an employees’ association, the representation of employees by an employees’ association or the lawful activities of an employees’ association, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
9 No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of an employees’ association or was or is exercising any other right under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of an employees’ association or exercising any other right under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of an employees’ association or to cease to exercise any other right under this Act.
10 No person, employees’ association, employers’ organization or other entity shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of an employees’ association or of an employers’ organization or to refrain from exercising any right under this Act or from performing any obligations under this Act.
15 On an inquiry by the Tribunal into a complaint under section 11 that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person’s employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers’ organization did not act contrary to this Act lies upon the employer or employers’ organization.
18 (1) The Labour Relations Act, 1995 does not apply to employees or employers in agriculture.
Compared to the LRA, the AEPA does not provide for strikes or lockouts. Unlike the LRA, the AEPA does not specify when bargaining can take place relative to the terms of a collective agreement (it does not refer to a collective agreement), but it does identify certain circumstances relevant to the employer when an employee association cannot make representations.
Significantly, it does not provide for certification of a bargaining agent for all employees within a specified bargaining unit based on majority support (except under certain circumstances, such as when the employer has engaged in an unfair labour practice). Rather, there can be more than one employee association representing groups of workers similarly occupied. Representations to an employer may concern only one employee. These provisions undermine the notion of collective representation.
When read literally, the employer’s responsibilities in response to employee association representations are limited: it has to hear the association out and if the representations are in writing, it must acknowledge in writing that it has read them. However, the AEPA does not explicitly require the parties to engage in bargaining.
Although the AEPA prohibits an employee association from acting in bad faith in relation to its members, there is not equivalent bad faith provision in relation to the employer’s dealing with an employee association. In Fraser, which held the AEPA to be constitutional, the majority of the Supreme Court of Canada read in a requirement of good faith bargaining, based on the Court’s holding in Health Services.
The majority in Fraser noted that in the labour context, the guarantee of freedom of association in section 2(d) of the Canadian Charter of Rights and Freedoms “requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith” (Fraser, para. 2). Since “[t]he law here at issue, the AEPA, properly interpreted, meets these requirements, [it] is not unconstitutional” (emphasis added). From the majority’s perspective, then, the only way the AEPA could be constitutional was to read in the obligation to bargain and to bargain in good faith.
The Fraser majority considered “a good faith process of consideration by the employer of employee representations and of discussion with their representatives [as] hardly radical.” (Fraser, para. 43), It said,
It is difficult to imagine a meaningful collective process in pursuit of workplace aims that does not involve the employer at least considering, in good faith, employee representations. The protection for collective bargaining in the sense affirmed in Health Services is quite simply a necessary condition of meaningful association in the workplace context.
However, this does not mean that only a certain model of labour relations (such as under the LRA) will satisfy this requirement. Rather, the inquiry is whether “the legislative scheme … render association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(d) associational right.” (Fraser, para. 48) At a minimum, section 2(d) of the Charter protects collective bargaining which means, “in the minimal sense”, good faith bargaining.
Because sections 5(6) and (7) do not rule out good faith bargaining, “[b]y implication, they include such a requirement”. (Fraser, para. 101) The majority suggests there is an ambiguity in sections 5(6) and (7), which is resolved by reference to three factors. There would be no purpose in the employer’s listening to or reading the representations if the employer did not have to consider them. The legislature is assumed to intend to comply with the Charter. On the one hand, the majority thought the Minister did intend to comply as shown by her comments when she introduced the AEPA, that would make employee protections meaningful. (Fraser, paras. 103-105) On the other hand, the majority dismisses the Minister’s statement that the government did not intend the AEPA to extend collective bargaining to agricultural workers (Fraser, para. 106).
Indeed, one of the principles of constitutional interpretation is to read legislation as constitutional when that is possible. Reading in, when unconstitutionality results from something excluded from legislation, is a remedy that flows from that. However, “the purpose of reading in is to be as faithful as possible within the requirements of the Constitution to the scheme enacted by the Legislature” (Schachter).
The majority in Fraser concluded that the process under the AEPA had not had an opportunity to work. In fact, it believed, the UFCW had not made a real effort to make it work. It remained for another time to see whether the AEPA could be effective. In addition, the majority assumed, “…[AFRAAT] may be expected to interpret its powers, in accordance with its mandate, purposively, in an effective and meaningful way. Labour tribunals enjoy substantial latitude when applying their constituent statutes to the facts of a given case.” AFRAAT has flexibility as long as it respects the purpose of the legislation. (Fraser, para. 112)
And so to MedReleaf. The UFCW alleged that Medreleaf had breached sections 5(1) (the opportunity to make reasonable representations) and 8 (prohibition against employer’s intimidating efforts to form or act as an employee association).
In 2014, MedReleaf started a cannabis business. By 2015, there had been a shakeup of employees, including senior employees, motivating some remaining employees to seek greater stability by reaching out to the UFCW. In May, 2015, the UFCW filed its two applications, one to the CIRB and one to the OLRB.
Although the AEPA does not list the growing of cannabis as a form of agriculture, it does list tobacco. Cannabis was not legal when the legislature enacted the AEPA. The AFRAAT found the growing of cannabis has requirements similar to other plant growing the AEFA identifies as agricultural. In considering its powers under the AEPA, the AFRAAT noted the Supreme Court’s observation that a tribunal has flexibility in applying its governing statute to the facts of a case. It therefore found growing cannabis is a form of agriculture.
Aware of the differences between the LRA and the AEFA, the AFRAAT makes the perhaps unexpected remark that the LRA “is an Act with some gravitas, both in size and in history”. (By this, I do not mean that the LRA is not an Act “with some gravitas”, but that such a comment might be thought to immediately puts those working with the AEPA on the defensive.) The LRA contains many provisions related to labour relations, while “[i]n contrast, the AEPA lacks those attributes as it specifically applies to a specialized working environment”. As the AFRAAT notes, two of the most significant distinctions are that the AEFA permits an employee association (not as in the LRA, a “trade union”) to represent as few as one employee and does not import the exclusive bargaining model underlying the LRA.
Perhaps even more importantly, the AEPA prescribes no rules or processes for determining membership in an employee association. The AFRAAT concludes, therefore, that the UFCW’s efforts to bring evidence relevant to the issues of membership simply confuses matters.
Furthermore, given the distinctions between the LRA and the AEPA, the AFRAAT determined that “the rules and procedures for exclusive bargaining agency under the LRA and CLRA are neither applicable nor helpful in situations involving representation under the AEPA. A new model is required.”
The first issue the AFRAAT addressed was the UFCW’s claim that MedReleaf had engaged in “‘surface bargaining'”. In response, MedReleaf stated that it was prepared to meet as long as the UFCW told the company whom it represented. Not surprisingly, MedReleaf’s request for a membership list and the UFCW’s refusal to provide one constituted a stumbling block to considering any issues. The UFCW rejected MedReleaf’s proposals for addressing the problem: the identification of the number of members and their general positions in an affidavit or a third party to verify the “membership evidence”. However, the UFCW did provide an affidavit when the AFRAAT ordered it to do so.
The UFCW expected to that MedReleaf advise it whether it had considered its representations now that the company had the information it had requested. Now, though, MedReleaf claimed it had no obligation to consider them because when they were submitted, it had no information about membership. As a result, MedReleaf argued, the UFCW had not established its “representational status” at that time. In requesting information about membership over the previous twelve months, interestingly, given the AFRAAT’s emphasis on the need for a “new model”, MedReleaf referred to OLRB jurisprudence, “which seems to be the only guide available to us given the dearth of Tribunal jurisprudence”. (Members signed cards in May 2015 and it was now almost two years later.) The AFRAAT accepted MedReleaf’s appeal to the OLRB in this instance.
As already stated, the AEPA provides that there may be many employee associations representing employees in an agricultural workplace. Indeed, there many be as many associations as there are employees. As a result, the AFRAAT determined that an employer needs to know whom any association represents: “in order for there to be any productive discussions, it is necessary for the employer to know exactly whom the association represents and that the association has the proper authority from the employee to make representations on that employee’s behalf.”
Since the AFRAAT had adopted the OLRB jurisprudence with respect to the twelve month rule, MedReleaf was in a good position, which the AFRAAT subsequently supported, to decline to bargain over compensation in the later years.
To the UFCW’s concern that MedReleaf might retaliate against employees on a membership list, the AFRAAT noted that if MedReleaf did abuse knowledge of the membership, there were legal remedies the UFCW could pursue. In the meantime, the UFCW was to trust MedReleaf, as the company was to trust the union, as a signal of the required good faith:
In order for Section 5 of the AEPA to be able to operate properly and effectively, there must be an implied element of good faith on the parts of both sides. According to Fraser, the duty to consider representations in good faith requires that the parties meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other; an employer must consider the association’s representations with an open mind. Similarly, the Tribunal finds that an employer must accept from an association any employee information in good faith; any use of that information in a punitive or retaliatory fashion would constitute bad faith and be a breach of the employee’s rights under the AEPA, and subject to the remedial provisions of that Act.
The AFRAAT proceeded to identify the requirements of bargaining as part of its “new model” under the AEPA:
Therefore, in order for Section 5 of the AEPA to have any relevance, the following is required of both the employer and the employees’ association:
1. The employees’ association must provide information sufficient, but no more, to allow the employer to know whom the association represents and must provide authorization to speak on an employee’s behalf.
2. This employee information is to remain confidential and not to be used for reprisal of any form.
3. The employees’ association must make representations to the employer that are consistent with the Act’s purposes.
4. The employer must consider the representations with an open mind and beyond mere pro forma listening or reading.
5. The parties must meet and engage in meaningful dialogue where positions are explained.
6. The parties must conduct themselves at all times in good faith.
The AFRAAT concluded that MedReleaf acted reasonably because it “simply sought confirmation of representation and continually offered concessions to allow that to happen”. The UFCW, on the other hand, insisted on acting as if the traditional labour relations model applied, including that under the LRA, it would be representing the majority of employees. In short, it did not act reasonably.
Furthermore, in setting out the terms and conditions of employment it sought, the UFCW identified a number of matters the LRA but not the AEPA encompassed (such as strikes and lockouts and dispute resolution through arbitration). Again, the UFCW acted as if it were operating under the LRA. Thus “MedReleaf never denied UFCW a reasonable opportunity to make representations. Instead, by applying methods more appropriate to a traditional labour first contract negotiation, UFCW derailed the process required by Section 5 of the AEPA.”
The UFCW also maintained that the actions of MedReleaf in discharging particular employees and in one of its managers sending a text that MedReleaf would have to close constituted the kind of unfair labour practices that under the LRA would result in automatic certification. However, the AEPA does not include a similar provision. It does have a “reverse onus” provision that mirrors that under the LRA and in this regard, the AFRAAT stated that it would apply the relevant jurisprudence under the LRA. Accordingly, “MedReleaf is required ‘to establish two fundamental facts’: (1) that the employer’s reasons for the discharge are the ‘only reasons’; and (2) the reasons are not ‘tainted by anti-union motive’.”
Again, the AFRAAT rejected the UFCW’s claim. MedReleaf’s evidence about its coincidently reorganizing its workplace during this period met its reverse onus burden and the UFCW’s evidence did not displace it.
The UFCW filed its applications to the OLRB and the CIRB on May 25, 2015. Apparently, no one at MedReleaf had any idea that there was an organizing campaign underway prior to seeing the applications on May 25th. The AFRAAT accepted this evidence without any discussion and therefore any evidence of MedReleaf’s conduct prior to May 25th was irrelevant.
Following their becoming aware of the certification applications, MedReleaf obtained legal advice, including a list of “what not to say/do”. Among other activities by various members of the management team and external consultants, MedReleaf’s CEO and the company’s human resources consultant each stood at one of the exit doors to distribute a letter that the CEO had written. The CEO’s testimony was that “the letter [conveyed] that MedReleaf would function more effectively and efficiently without a third party intervening between management and employees and that the staff could remain happy without a union.” The AFRAAT found that there was nothing in the letter that was intimidating or unduly influential or in any other way breaching the AEPA’s prohibition against such conduct. It was merely an expression of the company’s freedom of speech and thus did not offend the AEPA. The AFRAAT did not, however, consider whether the appearance of the CEO at the door as employees left, especially employees whose first language was not English (the letter had been translated), was in itself intimidating or unduly influential.
The AFRAAT set out the evidence of MedReleaf’s senior management in some detail and made little reference to the union evidence. The senior management all testified that while they may have had meetings with the employees and expressed their views, they were aware of the legal advice of how to conduct themselves and acted accordingly. As a result, the AFRAAT concluded that while the witnesses might be lying, their evidence was “unequivocal” and unshaken on cross-examination. Internal emails about “a carefully considered and legally advised position of communicating pros and cons associated with unionization” reinforced their evidence by providing independent “documentary corroboration”. (This evidence would support the existence of a plan, but not whether it was adhered to, although the AFRAAT did not address that difference.) Furthermore, there was no direct evidence of intimidation by employees.
If there was a MedReleaf plan or campaign to identify union supporters and then intimidate, threaten, and coerce those supporters and other employees to dissuade them from voting in favour of a union, that plan or campaign would be known among MedReleaf’s senior executives and management. All the senior executive and management witnesses denied the existence of such a plan or campaign.
The AFRAAT also considered whether MedReleaf had used external agents to do what their own management could not do. These individuals did not testify. Although there was some evidence that they had talked about the union with employees, and that one of them had sent a text to casual employees that investors would pull out if the union were successful, the CEO testified that when he learned about it, he wrote telling them to stop. MedReleaf and the AFRAAT treated these individual as “rogue”, individuals who had acted without and outside the company’s direction.
After providing detailed descriptions of evidence and lack of it in relation to several other claims (intimidation against employees, firing of employees and MedReleaf’s decision to outsource some of its labour requirements, for example), the AFRAAT dismissed them.
The UFCW took the AFRAAT’s decision on judicial review. (By then, Aurora Cannabis Enterprises Inc. had acquired MedReleaf.) The Divisional Court dismissed the application. (The Court applied a correctness standard to the AFRAAT’s decision on constitutionality of the AEPA and a reasonableness standard to the AFRAAAT’s decision regarding the unfair labour practices. I discussed the Divisional Court’s upholding of the AFRAAT’s constitutional decision in my last post.)
Before the Divisional Court, the UFCW argued that the AFRAAT erred in applying the obligation to bargain in good faith to the employee association, when Fraser refers to it only in relation to the employer. Not unreasonably, the Divisional Court concluded that the limitation in Fraser resulted from the facts of the case. Furthermore, the majority in Fraser noted that more generally “the duty of good faith in Canadian labour law is a duty of both employers and unions”.
In addition, the UFCW contended that the AFRAAT’s requirements of good faith bargaining under the AEPA (set out above) constituted “appropriate guidance to the parties governed by this legislation”.
Finally, although it seems the Divisional Court may have believed that the AFRAAT’s failure to consider the UFCW’s claim about Aurora’s refusal to discuss 2016 and 2017 compensation when the parties met in April 2017, it nevertheless concludes,
When one reads the Tribunal’s reasons on the s. 5 issue as a whole … the decision is reasonable. Essentially, the Tribunal found that the UFCW never adequately established its current authority to represent employees, and therefore, Aurora had not violated its duty to engage in good faith negotiations – whether for 2016, 2017 or 2018 compensation.
MedReleaf/Aurora is of interest because it is the first opportunity since Fraser to consider the AEPA. Granted, as described by the AFRAAT (in at least some instances, summarily), the UFCW’s evidence did little to counteract it, one may question the extent to which the AFRAAT accepted the employer’s evidence without any real analysis of its own. It did not consider, for example, the impact of the appearance of the CEO at the door as employees left for the day, handing them a letter stating how MedReleaf felt about having to work with the employee association. While the content of the letter may have been within bounds, the role of the CEO was worth some consideration.
Of particular note is how the AFRAAT treated the comparison between the LRA and the AEPA and the ramifications for how to interpret the AEPA. The emphasis is in the significant differences between the two statutes and the recognition that the AEPA does not provide the same degree of protection to employee representation that the LRA does. This is, after all, what the legislature intended when it enacted the AEPA.
Yet the Supreme Court in Fraser salvaged the constitutionality of the AEPA by reading in a provision that did not exist: the duty to bargain in good faith. Given developments since the legislature enacted the AEPA, that may be a reasonable response. However, it is also a significant change to what is a very deliberate limited obligation by the employer to “engage” with the employee association. Reflective of its own reading in, the Supreme Court emphasized that the AFRAAT was to be flexible in interpreting the AEPA.
One way the AFRAAT chose to be flexible was to import the twelve-month rule from the LRA about membership evidence as the employer proposed, because it worked under the LRA. This disadvantaged the UFCW because although the employer refused to consider the compensation issue falling within the twelve months when the UFCW had provided membership evidence, by the time the the 2018 discussions arose, the evidence was two years old, and MedReleaf refused to consider compensation for subsequent years for lack of current membership evidence. And the UFCW argued that it would not consider the subsequent years until the parties had addressed the first year.
Similarly, the AEPA does not have provisions protecting the confidentiality of membership evidence. Under the LRA, the OLRB checks membership evidence and concludes whether it meets the required standard. And when the standard is met, the union will represent all employees in the bargaining unit. In contrast, the AEPA does not give the AFRAAT the power to assess the membership evidence and even if it did, the employee association would be representing only those who were its members. (Having said that, the UFCW did reject the option of a third party seeing the evidence until the AFRAAT ordered it to do so.) The AFRAAT does not exercise flexibility to read in comprehensive implicit “statutory” protections to disclosure of membership evidence except to point out that there are other remedies if the employer abuses the evidence.
In the same way, in its decision addressing the constitutional challenge, the AFRAAT concluded that the lack of protections in the AEPA for striking is irrelevant because the employees at MedReLeaf had considerable economic power and could withdraw their services. It dismisses the UFCW’s argument that that power equates to the “collective right to ‘quit'”. It does not seriously consider the ramifications for employees who walk off the job, collectively or otherwise. For the most part, it blames what it calls the UFCW’s “dogmatism” in trying to obtain the kind of protections available under the LRA for the reaching an impasse with MedReleaf.
In its constitutional decision, the AFRAAT notes “the UFCW and the MedReleaf employees did not seek to engage MedReleaf in mediation, arbitration or threaten withdrawal of services.” Accordingly, in an echo of Fraser, nearly ten years later, the AFRAAT concludes, “the full breadth of the flexibility the AEPA affords employees and employee associations has not been explored in this case.”
One wonders whether it will ever be possible to explore that flexibility. It is correct to say that the legislature never intended the AEPA to provide the same opportunities for unionization that the LRA does. The real question is whether the substitute of “employee associations” who may ultimately find themselves scrambling for members and, depending on the number of associations, with little power vis-a-vis the employer, can offer sufficient protections otherwise.