Executive Summary: Key Legal and Evidentiary Issues

• Whether an arbitral cease-and-desist award, filed under the Canada Labour Code, was sufficiently clear, precise and non-declaratory to be enforceable through contempt proceedings.
• Enforceability was also challenged on the basis of a registry filing error and the Award's silence on a fixed deadline for compliance.
• Application of the doctrine of strictissimi juris — specifically whether strict compliance with contempt procedure demands "blind" compliance — framed Viterra's preliminary objections.
• Rule 470(2)'s protection against compelled testimony raised the question of whether it shields a corporation or the two subpoenaed employees from testifying.
• Admissibility of employee diaries turned on the "past recollection recorded" hearsay exception and, in the alternative, the principled approach to hearsay.
• Sentencing issues included the fitness of a $400,000 contempt fine and the propriety of awarding solicitor-client costs to the Union.

Facts of the case

Viterra Canada Inc. operates two grain terminals in the Port of Vancouver, where Grain Workers' Union Local 333 ILWU is the certified bargaining agent. The dispute originated in July 2017, when the Union filed two policy grievances alleging that Viterra violated the maximum weekly hours provisions of the Canada Labour Code. Arbitrator Christopher Sullivan issued a decision on the merits on October 28, 2019, finding that Viterra "regularly and often" required employees to work more than 48 hours per week in violation of sections 169 to 172 of the Code, and ordering the employer to cease and desist from violating the Code (the Award). The Union filed the Award in the Federal Court under section 66 of the Code, though the Registry's Certificate of Filing dated December 6, 2019 incorrectly cited subsection 251.15(1). After the arbitrator confirmed in a Letter Decision dated May 28, 2020 that his jurisdiction was exhausted, the Union commenced contempt proceedings on August 31, 2020. Prothonotary Ring found a prima facie case and issued a Show Cause Order on September 14, 2020, and the Court issued subpoenas duces tecum to two Viterra employees on October 13, 2020. The contempt proceedings generated seven separate Federal Court decisions, all by Gleeson J. except the Second Subpoena Order (Elliott J.), addressing preliminary objections, the subpoenas, evidentiary admissibility, the finding of contempt, penalty, a failed application to purge, and application costs. The Federal Court of Appeal consolidated Viterra's seven appeals by Order dated May 9, 2024, designating A-63-21 as the lead file, and heard them together on June 18, 2025.

Statutory and procedural provisions at issue

The operative term of the Award required Viterra to "cease and desist from violating the Code," which in practical terms meant it had to stop scheduling employees for more than 48 hours per week. Several statutory and regulatory provisions were central to the appeals. Section 66 of the Code governs the filing and registration of an arbitrator's order in the Federal Court, giving a registered order the same force as a court judgment, while subsection 251.15(1) — cited in error on the Certificate of Filing — applies only to payment orders. Section 58 provides that an arbitrator's order is final and not subject to review by any court. On the procedural side, Rules 466, 467 and 469 of the Federal Courts Rules establish the contempt framework and the beyond-a-reasonable-doubt standard, and Rule 470(2) provides that "[a] person alleged to be in contempt may not be compelled to testify." Viterra invoked subsection 35(1) of the Interpretation Act, under which "person" includes a corporation, to argue that Rule 470(2) extended to it. Paragraph 11(c) of the Charter — which protects an individual charged with an offence from being compelled to testify — served as the analogous constitutional provision the courts considered in construing the Rule. Rule 472 sets out the range of available contempt penalties.

The court's reasoning and analysis

On the Preliminary Appeal, Walker J.A. found no error in the Federal Court's conclusion that the Award was enforceable. The registry's citation of the wrong section was a technical defect that caused Viterra no prejudice, and the doctrine of strictissimi juris — which requires strict but not "blind" compliance with procedure — did not render the filing a nullity. The Court held that the Award was clear, precise and specific rather than declaratory: it compelled specific future conduct, and its reference to the Code's provisions did not require reading in the particulars of compliance. The absence of a fixed compliance date did not defeat enforceability, since an order may be interpreted as requiring compliance within a reasonable time, and in interpreting the Award the Federal Court had neither usurped the arbitrator's role nor breached section 58. On the Subpoena Appeal, the Court held that Rule 470(2) does not apply to corporations and does not prevent a corporation's employees from being compelled to testify, consistent with the jurisprudence on testimonial compulsion and with paragraph 11(c) of the Charter as interpreted in Amway and Québec inc. Viterra's abuse-of-process argument was treated as an improperly raised new issue, and its related challenge to document production was rejected as a collateral attack on the unappealed First Admissibility Order. On the Evidence Appeal, the Court upheld the admission of the diaries kept by employees McFeeters and Kerr under the "past recollection recorded" exception, finding a permanent lapse of memory as to hours worked and inferring satisfaction of the third Fliss criterion from the circumstances in which the entries were made; it also endorsed the alternative finding of admissibility under the principled approach to hearsay. The Contempt Appeal failed because Viterra's evidentiary arguments depended on quashing the subpoenas and excluding the diaries, and the Federal Court's finding that Viterra had a reasonable time to comply was supported by the evidence. On the Penalty Appeal, the Court found no basis to disturb the $400,000 fine, holding that the Federal Court applied the correct sentencing principles, properly weighed aggravating and mitigating factors, and reasonably considered Viterra's capacity to pay given its parent company's scale. The Court did, however, identify an error in the costs award, finding no justification for departing from the principle in Exeter with respect to the Preliminary Order and Second Subpoena Order. The Failure to Purge Appeal was dismissed because Viterra abandoned all grounds, and the Application Costs Appeal failed because the Union's review of the second purging application remained a step in assisting the Court to enforce the Award.

Ruling and overall outcome

The Grain Workers' Union Local 333 ILWU was the successful party. The Federal Court of Appeal dismissed the Preliminary, Subpoena, Evidence, Contempt, Failure to Purge and Application Costs Appeals, and allowed the Penalty Appeal only in part — solely to vary the costs award so that solicitor-client costs "throughout" would not extend to the preliminary hearing or the motion to quash the subpoenas. The $400,000 contempt fine imposed on Viterra was left undisturbed, and the Court awarded costs to the Union on a solicitor-client basis in respect of all of the appeals. Beyond the $400,000 fine, no fixed dollar figure for the costs award is specified in the decision.