Defending and Advancing the Interests of Our Members
Legal Department Report 2022-2025
The Legal Department of the Canadian National Office (CNO) continues successfully to advance and defend the interests of the union and its members across the country. The union has always recognized that Quebec’s legal system is distinct and so most legal services in District 5 are provided by a trusted law firm.
The USW legal team provides important legal advice and support to staff representatives and elected officers as they negotiate and enforce collective agreements and defend members’ statutory and other rights.
The Legal Department has seen some significant personnel changes. Cathy Braker retired in 2024 after 25 years of dedicated service to the union. Daniela Borchardt, our fantastic support staff, also retired after 10 years with the union. Daniel Daigle also left our union last year after five years of excellent work in the department. Two new lawyers joined our team in 2024: Vinidhra (Vini) Vaitheeswaran, who started in March, and Brittany Ross-Fitchner, who started in September. In addition to Vini and Brittany, the legal department is currently staffed by lawyers including Canadian Counsel Shaheen Hirani, Debra Burton, Erin Epp, Kristina Adhikari and articling student Hourshad Abedian, as well as our outstanding legal assistants Stephanie Buongiorno and Mia Velasco, the latter who started in December.
The CNO Legal Department is the union’s front line for responding to any legal issue that arises in the life of the union, including:
- Litigation before administrative tribunals including grievance arbitrators, provincial and federal labour relations tribunals, human rights tribunals, pension-related tribunals, workers’ compensation tribunals, international labour rights agencies and under international trade agreements such as the CUMSA.
- Assisting staff in preparing to appear before grievance arbitrators and other administrative tribunals by providing research, legal opinions, training and summary advice.
- Litigation before all levels of court, dealing with civil, criminal, insolvency and appellate matters including applications for injunctions, applications for judicial review, proceedings under the Companies’ Creditors Arrangements Act (CCAA) and picket-line disputes.
- Retaining, monitoring and instructing outside counsel appearing before administrative tribunals and courts. Work assigned to outside counsel ranges from short opinions in specialized areas of law, such as intellectual property or taxation, to enormously complicated and lengthy matters such as pension and corporate restructuring during insolvency proceedings.
- Advising staff and officers on all non-litigation legal matters (such as issues arising in collective bargaining) through formal legal opinions and ongoing summary advice.
- Education support for staff and local union officers and activists including seminars on preparation and presentation of grievances, updates on law in areas of grievance arbitration, human rights, duty of fair representation, constitutional law and other topics.
- Preparation of submissions to governments in both federal and provincial jurisdictions on law reform in areas such as labour relations, pension protection, occupational health and safety, human rights and employment standards.
- Advice to directors and senior staff on internal union issues.
The Legal Department has been particularly busy since 2023 with the implementation of pay equity legislation among our bargaining units in federally regulated industries. With the assistance of the USW Pay Equity Administrator Jan Borowy, we have filed several cases of first instance under the new legislation to support our members seeking pay equity at CIBC, Telus and CN Rail. We continue to provide legal support to our members and Pay Equity Committees currently developing their pay equity plans.
Some files involve little time, such as requests for relatively straightforward advice, while others may be fairly routine but nevertheless involve significant time for investigation and pleading, such as: applications for certification, unfair labour practice complaints and complaints about the duty of fair representation. Other files, such as those involving protracted litigation or complex legal issues, involve weeks or months of work, in some cases by more than one lawyer.
Our team has been at the forefront of many legal issues that affect the working lives of our members in the past few years.
The following is a non-exhaustive summary of some particularly significant and/or time consuming files:
- U.S. Steel Canada insolvency – the monitoring of outside counsel in court proceedings and negotiations on behalf of our members was time consuming and complex. This file has finally come to an end with the former Stelco lands being sold to fund a trust to generate revenue for pension funding for retirees of Local 8782 and Local 1005.
- TELUS
- Providing bargaining support during the most recent round of collective bargaining with Local 1944, overseeing the recent litigation regarding TELUS’s return-to-office mandate including grievance arbitration and an injunction filed by outside counsel and continuing to provide summary advice during a very uncertain time for members in this sector.
- The department was successful in a case of first instance which established that termination on the basis of non-culpable absenteeism attracts severance under the Canada Labour Code: Telus Communications Inc. and TWU (Gallant), Re 2024 CarswellNat 3714. This precedent-setting case will ensure that disabled members who are terminated for non-cupable reasons in the federal sector are entitled to severance pay, a win not only for USW members, but all workers who are covered by the Canada Labour Code.
- Labour law reform – several sets of lengthy and detailed submissions including:
- Proposed changes to the Canada Labour Code that finally saw the prohibition of the use of replacement workers during strikes and lockouts for federally regulated workers.
- Comprehensive submissions made to the the B.C. Labour Relations Code Review Panel regarding labour law reform in B.C., with a focus on promoting broad-based or sectoral bargaining.
- Submissions to the Canadian government regarding changes to the CUSMA to protect Canadian industries that employ our members and strengthen the complaint resolution mechanisms (the Rapid Response Mechanism) in order to ensure that labour standards in North America are upheld in future iterations of the trade agreement.
- Submissions and participation in the Canadian government’s consultations on the Task Force Report on Employment Equity for federally regulated employees.
- Workplace harassment issues – as required by statute in many jurisdictions across Canada, it has been necessary to update the USW anti-harassment and anti-violence policies to comply with the comprehensive requirements with respect to the content of policies, the requirements for investigation of complaints and related training. The Legal Department is in the process of consulting again with staff in the Education and Equality Department to review and amend our policies for use by the internationalunion and by local unions and area councils both in their offices and at union events.
- Starbucks Canada – during first contract bargaining with our first unionized store in Ontario in District 6, the employer tabled a proposal to prohibit unionized members from “borrowing” shifts, or working in non-unionized stores in order to have sufficient hours to survive. It appeared to the union as though our members were being punished for joining a union and being deprived of a right that continued to be available to all non-unionized employees. The Legal Department filed an application with the Ontario Labour Relations Board to have the contract settled by an arbitrator given the uncompromising positions taken by the employer at the bargaining table without reasonable justification. The application succeeded and the outstanding issues in collective bargaining were referred to arbitration. The department worked in conjunction with the CNO’s Research Department on the interest arbitration. The result was a collective agreement which preserved employees’ right to borrowing and the ability to earn a living by working at both the unionized as well as non-unionized locations.
- Paladin Security – we successfully fought off an attempt by LIUNA to claim a bargaining unit of Paladin security guards at a mall in London, Ont., when the contract changed hands. The decision by the Ontario Labour Relations Board reaffirmed case law from the 1990s saying that broader-based bargaining rights should prevail in contract flip situations where there is a conflict of bargaining rights. This will protect our province-wide bargaining rights in the security sector in Ontario, an important win for the union.
- In another case of first instance, the Legal Department was successful in convincing the Ontario Labour Relations Board (OLRB) that a company’s decision to bring security services work in-house which was previously contracted out counts as a “sale of business” for the purpose of section 69.1 of the Labour Relations Act. The employer in this case was Health Sciences North, a hospital which contracted out security work until 2022. The hospital then decided to hire security guards directly, but took the position that this was not a sale of business. The OLRB disagreed with the hospital’s position. Again, this case is significant in protecting our broader-based bargaining rights in the security sector
in Ontario. - CORE – the department filed a complaint with the Canadian Ombudsperson for Responsible Enterprise (CORE) together with the Canadian Labour Congress (CLC) about Canadian-owned companies Canadian Tire/Mark’s Work Warehouse using supplier factories in Bangladesh that do not pay a living wage to workers. We went through the complaint process and received an unsatisfactory final report from the Ombudspersons’ office, and filed an application for judicial review of that decision at the Federal Court. The department is working together with the Steelworkers’ Humanity Fund and the CLC to ensure Canadian companies operating overseas are held to the human rights standards and labour standards that have been established internationally.
- Thessalon First Nation Application for Certification – we represented the union in our first certification of a First Nations Band Council. We were successful and the unit is now in bargaining for a first collective agreement.
- CN Rail and TELUS – the department successfully opposed two applications for multiple pay equity plans in the federal sector at CN Rail and Telus. Multiple pay equity plans for one employer generally undermine the goals of pay equity. The CN Rail case was the first multiple plan decision at the Federal Pay Equity Commission and was a precedent-setting decision. The TELUS case was voluminous and on short notice, and we were also successful with resisting the employer’s attempt to establish multiple plans.
- Vale Canada Inc. – Local 6166 had filed a series of grievances over the past four years about the employer’s unilateral “workforce adjustment” which had led to layoffs of USW members and contracting out of a significant amount of bargaining unit work to outside contractors. We were successful in negotiating a global settlement of these grievances which ensured damages were paid to the laid-off employees, reinstatement of some employees and significant damages were paid to the local union to compensate for the work that had been contracted out. The settlement also reinforced that the employer would institute training for managers and enforce governance of the contracting-out provisions of the collective agreement and work with the union to prevent future contracting out of bargaining unit work.
- Rapid Response Mechanism (RRM) Complaint under CUSMA – We filed our first claim under the Rapid Response Mechanism of the Canada U.S. Mexico Free Trade Agreement on behalf of our partners in Mexico, Los Mineros. The employer, Los Orlas Mining, is a Canadian-owned mine based in Vancouver. The employer has used a series of inducements and threats to employees of the mine to join a protection union and not support Los Mineros, which had already been established as the bargaining agent at the mine under Mexican labour law. Threats against Los Mineros organizers included threats of violence and actual armed threats from what are believed to be cartel members acting on behalf of the employer to intimidate employees and discourage support for Los Mineros. A state-supervised vote with armed forces who were present resulted in an unsurprising loss for Los Mineros. The Canadian National Administrative Office (NAO) has accepted our complaint and is in the process of investigating our claims at the time of writing this report.
Conclusion
Our USW legal team’s work defending and advancing the interests of our members continues in the face of great economic and political uncertainty. USW lawyers and the work they do provide a backstop against unfairness in our workplaces and protect our members from attacks on working conditions and wages by employers. Through our legal work providing justice for our members, the USW raises the bar for all workers across Canada.