Executive Summary: Key Legal and Evidentiary Issues

• Gate Gourmet challenged the BC Labour Relations Board's authority to restrict its use of out-of-province workers during a strike.

• The Board's cease and desist order was based on the use of replacement workers, which is prohibited under section 68 of the BC Labour Relations Code.

• Gate Gourmet argued the Board’s order was unconstitutional due to extraterritorial overreach.

• Both the chambers judge and the appellate court applied the “real and substantial connection” test to assess constitutional limits.

• The courts upheld the Board’s jurisdiction, finding a sufficient connection between BC, the employer, and the regulated conduct.

• The appeal was dismissed with no damages or explicit costs awarded.

Facts and outcome of the case

Background and strike activity
Gate Gourmet Canada Inc., an airline catering company operating at Vancouver International Airport (YVR) and other Canadian cities, was the employer of unionized workers represented by Unite Here, Local 40. After collective bargaining efforts stalled, the union initiated a lawful overtime ban in August 2022 as part of a strike action. In response, Gate Gourmet arranged for its employees in Calgary, Edmonton, and Toronto to double-cater Air Canada flights destined for and departing from YVR—work that would ordinarily have been performed by the striking Vancouver employees.

The union filed a complaint with the British Columbia Labour Relations Board, arguing that this conduct constituted an unfair labour practice under section 68 of the Labour Relations Code, which prohibits employers from using replacement workers during a legal strike.

Board’s decision and reasoning
The Labour Board ruled that Gate Gourmet violated sections 6(3)(e) and 68(1) of the Code by using out-of-province employees to perform "struck work." It emphasized that Gate Gourmet, as a single corporate employer with operations in multiple provinces, could not circumvent BC’s labour laws by shifting work elsewhere. The Board issued a cease and desist order prohibiting Gate Gourmet from assigning this work to employees outside of BC.

Reconsideration and judicial review
Gate Gourmet sought reconsideration, arguing the decision improperly applied BC law extraterritorially. A three-member panel upheld the original ruling, emphasizing that the order applied to the employer’s conduct—not the out-of-province workers themselves. The Board found a sufficient connection between the conduct and British Columbia, especially since the employer-employee relationship at YVR was clearly within the Board’s jurisdiction.

The company then pursued judicial review in the BC Supreme Court, which also dismissed the challenge. The chambers judge found that the Board acted within its jurisdiction and that the prohibition against replacement workers must be enforceable across all of an employer’s operations to be effective. The judge applied the “real and substantial connection” test from Unifund and Sharp, concluding that Gate Gourmet’s BC-based activities and employment relationship supported the Board’s order, even if its effects reached outside the province.

Appeal to the BC Court of Appeal
Gate Gourmet appealed the Supreme Court ruling, maintaining that the Board's order was an unconstitutional extraterritorial extension of provincial labour law. The BC Court of Appeal disagreed and upheld the decision. The Court found that the Board’s order targeted the employer’s conduct, not out-of-province individuals or entities, and that there was a compelling connection between BC, the employer, and the collective bargaining relationship. The Court emphasized that the modern reality of labour relations often includes interprovincial operations and that the fairness and effectiveness of BC’s labour regime justified the Board’s jurisdiction.

Final result
The appeal was dismissed. The BC Court of Appeal affirmed that Gate Gourmet’s use of out-of-province workers to perform struck work at YVR was a breach of BC’s labour laws and that the Board’s cease and desist order was constitutionally valid. No damages or specific cost awards were mentioned in the judgment.