Executive Summary: Key Legal and Evidentiary Issues

• Whether the British Columbia Supreme Court has jurisdiction to grant interim injunctive relief in federal labour relations before an arbitrator is appointed remains a central question of law.

• TELUS announced initiatives affecting approximately 1,000 Union members, requiring remote workers to work from the office and 140 members to relocate from Barrie, Ontario to Montreal, Quebec.

• The Union filed policy grievances and sought court injunctive relief due to the tight timelines imposed by TELUS, which did not allow for arbitral remedies before the August 9, 2024 election deadline.

• Section 60(1)(a.2) of the Canada Labour Code empowers arbitrators to grant interim orders, but this power is only available once an arbitrator is selected or appointed.

• Courts retain residual discretionary power to grant interlocutory relief where "no adequate alternative remedy exists," filling the remedial gap between grievance filing and arbitrator appointment.

• Undertakings as to damages are discretionary and not typically required in labour arbitrations, and the chambers judge's decision to decline requiring one was upheld as a valid exercise of discretion.

Background and facts of the dispute

On July 9, 2024, TELUS Communications Inc., a federally regulated telecommunications company, notified the Telecommunications Workers Union, United Steelworkers Local Union 1944, that it would consolidate certain call centres in four Canadian provinces and redistribute the work. Approximately 1,000 Union members were affected by the consolidations, almost all of whom worked remotely as customer experience agents. After the consolidations, the affected members would be required to work from the office three times per week. For 140 members, the consolidations required that they move from Barrie, Ontario to Montreal, Quebec.

The members received written notification of the consolidations on July 10, 2024. TELUS gave them a choice: they could accept the job changes or take a voluntary severance package. They had to indicate their choice by August 9, 2024.

Union's response and court proceedings

On July 29, 2024, the Union filed two policy grievances under its collective agreement with TELUS, challenging the consolidations. The collective agreement provides for arbitration.

On that same date, the Union also filed a notice of civil claim in the British Columbia Supreme Court seeking an interim injunction restraining TELUS from requiring affected members to indicate their election by August 9.

The injunction application was heard on August 7, 2024, and judgment was released the next day. No arbitrator was yet in place. In its response to the request for injunctive relief, TELUS argued the Supreme Court should not grant an injunction because this was a matter within the exclusive authority of an arbitrator. The Union disagreed, submitting that until an arbitrator was in place, the Supreme Court had inherent authority to fill the remedial gap and prevent irreparable harm.

The chambers judgment and injunction terms

The chambers judge agreed he had jurisdiction to grant injunctive relief in the circumstances. Applying RJR-MacDonald Inc. v. Canada (Attorney General), he issued an interim injunction enjoining TELUS from requiring Union members to indicate their election by August 9, 2024. The injunction would expire two months after the appointment of an arbitrator, subject to written agreement between the parties or further court order.

The judge found that TELUS' "tight timelines [for electing whether to accept the job changes or take severance] did not allow for the arbitral process to provide an adequate alternative remedy." Under the collective agreement, the Union has 30 days to file a policy grievance, and once a grievance has been filed, the collective agreement allows for up to 120 days before it becomes necessary for one of the parties to commence the arbitration process.

On the question of damages, the judge accepted there was a "potential financial cost to TELUS from delay in implementing their desired [job] changes without the benefit of an undertaking from [the Union]." However, he understood that "such undertakings are not required in labour arbitrations in exchange for interim injunctions" and declined to make that order.

Subsequent arbitration proceedings

An arbitrator was appointed four days after the injunction. The Union's policy grievances were heard by the arbitrator in September 2024, he dismissed them on October 15, 2024, and he issued reasons for the dismissal on October 28, 2024. The injunction continued to run during that period, lapsing of its own accord once it reached the two-month end date.

The appeal and jurisdictional analysis

TELUS appealed the injunction. The appeal raised three discrete legal issues: whether a Supreme Court judge has jurisdiction to grant an interim injunction in the federal labour relations context before the appointment of an arbitrator; if an injunction is available, whether it must end the day an arbitrator is appointed; and whether a judge is obliged to require an undertaking as to damages.

TELUS argued that because section 60(1)(a.2) of the Canada Labour Code authorizes an arbitrator to make any interim order they "consider appropriate," including an order for injunctive relief, there is no remedial gap and the judge had no jurisdiction to step in. The Union argued there was a gap because when it applied for an interim injunction, no arbitrator had been appointed, and consequently, there was no one in place with the authority to invoke the statutory power.

The Court of Appeal's ruling and outcome

The Court of Appeal for British Columbia dismissed the appeal. Justice DeWitt-Van Oosten, with Justices Gomery and Warren concurring, held that because the collective agreement at issue allows for delay between the filing of a grievance and the appointment of an arbitrator, there is a remedial gap within the meaning of Canadian Pacific and the Supreme Court had jurisdiction to grant interim relief exercising its residual discretionary power.

The Court affirmed the broader proposition from Canadian Pacific that it is important "that there be a tribunal capable of resolving the matter, if a legal, rather than extra-legal, solution is to be found." The Court rejected TELUS' submission that recognizing a residual discretionary power in the Supreme Court before the appointment of an arbitrator will do "violence" to the labour relations scheme, noting that "deference to labour tribunals and exclusivity of jurisdiction to an arbitrator are not inconsistent with a residual jurisdiction in the courts to grant relief unavailable under the statutory labour scheme."

On the undertaking issue, the Court found that the judge's discretionary decision to not require an undertaking attracts a deferential standard of review and cannot be overturned in the absence of TELUS establishing a material error of law or principle, or a palpable and overriding error of fact. The Court concluded that TELUS had not met this burden.

The appeal was dismissed. The Union was successful in defending the chambers judge's order on appeal; however, no monetary amount was at issue as this matter concerned injunctive relief rather than damages. The underlying grievances had been separately dismissed by the arbitrator.