Executive Summary: Key Legal and Evidentiary Issues

• The application turned on whether a collective agreement remained in force during an illegal strike on July 18 and 19, 2023.
   
• Statutory interpretation of paragraph 50(b) and subsections 67(4) to 67(6) of the Canada Labour Code governed the outcome.
   
• Reasonableness was the applicable standard of review for the Canada Industrial Relations Board's decision.
   
• Prior Board decisions in City of Yellowknife, Intek, and Canada Post supported the conclusion that no collective agreement survives past the statutory freeze absent a bridging clause.
   
• BCMEA argued that the Supreme Court's decision in Paccar mandated a different result, but the Court disagreed.
   
• No order as to costs was made because the parties had already agreed on that issue.
   

Facts of the case

The British Columbia Maritime Employers Association (BCMEA) applied for judicial review of a Canada Industrial Relations Board (CIRB) decision, International Longshore and Warehouse Union-Canada and British Columbia Maritime Employers Association, 2025 CIRB 1190. The BCMEA is the non-accredited bargaining agent for employers in national and international marine transportation in British Columbia, and the International Longshore & Warehouse Union-Canada (ILWU) is the bargaining agent for longshore employees on the Canadian west coast. Their collective agreement expired on March 31, 2023, after the BCMEA gave notice to bargain a renewal on November 30, 2022. The parties could not negotiate a renewal, and ILWU members engaged in a legal strike from July 1 to July 13, 2023. During that strike, at the urging of the federal Minister of Labour, the parties agreed to recommend a mediator's settlement terms to their principals, and members returned to work on July 13, 2023, while the proposal was considered. When an internal ILWU committee rejected the proposal, members resumed striking on July 18, 2023, without a fresh 72-hour strike notice. The CIRB had already found in a separate 2023 decision that this resumption was illegal for want of proper notice, a finding upheld by the Federal Court of Appeal in 2024 FCA 142. The BCMEA's grievance seeking damages for the illegal strike went to a labour arbitrator, who — at the ILWU's request — referred to the CIRB the question of whether a collective agreement was in force during the illegal strike. In 2025 CIRB 1190, the Board determined that no collective agreement was in force at that time, and the BCMEA sought judicial review of that determination.

Policy and legislative provisions at issue

The application centred on the interaction of several provisions of the Canada Labour Code, R.S.C. 1985, c. L-2. Paragraph 50(b) prohibits an employer from altering terms and conditions of employment once notice to bargain has been given, until the pre-strike/lockout conditions in paragraphs 89(1)(a) to (d) are met. Subsection 67(4) keeps a collective agreement's mandatory arbitration clause (required by subsection 57(1)) in force after the agreement's termination, again only until those same paragraph 89(1)(a) to (d) conditions are met. Subsections 67(5) and 67(6) govern arbitrators' powers before and after those conditions are met, with subsection 67(6) permitting arbitration only of dismissal or discipline grievances once the conditions are satisfied. Subsection 89(1) sets out the full list of pre-conditions — including notice to bargain, failed bargaining, ministerial notice, a 21-day waiting period, and compliance with sections 87.2 and 87.3 — that must be met before a legal strike or lockout can occur. Subsection 65(1) permits a labour arbitrator to refer questions about the existence of a collective agreement to the CIRB for determination, which is the mechanism that brought this question to the Board.

Reasoning and analysis

Writing for the Court, Justice Gleason held that the CIRB's decision was reasonable and dismissed the application. The Board had reasoned that paragraph 50(b) and subsections 67(4) to 67(6), read together, keep only certain terms of an expired collective agreement alive, and only until the conditions in paragraphs 89(1)(a) to (d) are met — after which subsection 67(6) preserves access to arbitration solely for dismissal or discipline grievances, not grievances like the BCMEA's. Because the paragraph 89(1)(a) to (d) conditions had already been satisfied by the time of the illegal July 18–19 strike, the Board concluded no collective agreement was then in force; the strike's illegality stemmed only from the ILWU's failure to give a fresh notice under paragraphs 89(1)(e) and (f), which are separate requirements. The Court agreed this interpretation aligned with the Board's own precedents in City of Yellowknife, Intek, and Canada Post. On the BCMEA's reliance on the Supreme Court's decision in Paccar of Canada Ltd., the Court found that case addressed a different legislative scheme lacking a statutory freeze, and that Justice La Forest's comments there concerned the continuing employer-employee relationship, not the continued existence of the collective agreement itself. The Court also rejected the BCMEA's argument that the Board's earlier return-to-work order implied the agreement remained in force, characterizing that order as directing work under the agreement's terms rather than finding the agreement itself still operative. Applying the reasonableness standard from Vavilov and Mason, the Court emphasized it was not for the reviewing court to prefer its own interpretation, but only to assess whether the Board's interpretation was justified, transparent, and intelligible — which it found it was, noting the Board had grappled with the competing submissions and binding authorities.

Ruling and overall outcome

The Federal Court of Appeal dismissed the BCMEA's application for judicial review, finding the CIRB's determination that no collective agreement was in force during the July 18–19, 2023 illegal strike to be reasonable. The ILWU, as respondent, was the successful party. The parties had already agreed on the issue of costs and advised the Court that no costs order was required, so the Court made no order as to costs — no monetary amount was awarded or specified in the judgment.