(Canadian OH&S News) — The Court of Appeal for British Columbia has ruled that the defence of state immunity does not protect Mexico from labour relations issues that affect its workers in Canada.
On Jan. 30, the high court dismissed the appeal from the Supreme Court of British Columbia relating to Mexico’s judicial review petition. The issue arose out of a decision by the British Columbia Labour Relations Board (BCLRB), which involved an application to decertify Local 1518 of the United Food and Commercial Workers Canada (UFCW) union as the bargaining agent for a group of agricultural workers at Sidhu & Sons Nursery Ltd. in Mission. The labour board had concluded that state immunity did not prevent it from considering and making findings regarding Mexico’s conduct.
“I do not agree that the [BCLRB] exercised jurisdiction over Mexico when it considered whether Mexico’s conduct amounted to improper interference with the employees of the union for the purpose of exercising its discretion to refuse to cancel the union’s certification,” wrote Justice David Harris in the appeal court decision. “The [BCLRB] made no orders in relation to property in the ownership, possession or control of Mexico. It did not affect Mexico’s legal interests. In my view, that conclusion is sufficient to dispose of this appeal,” Justice Harris wrote.
On April 11, 2011, certain employees of the union applied to the labour board to decertify the union, the decision noted. A little more than a week later, the UFCW filed a complaint seeking the dismissal of the decertification application on the basis that Mexico had engaged in unfair labour practices and improper interference, such that the representation vote was unlikely to reflect the true wishes of union employees. “The union alleged that Mexico employed a policy of preventing workers who supported the union from returning to Canada or from working in unionized workplaces,” Justice Harris wrote.
Initially, the BCLRB ruled that it lacked jurisdiction to require Mexico to participate and dismissed the unfair labour practices complaint. But Justice Lisa Warren of the Supreme Court of B.C. dismissed that position, ruling that Mexico’s conduct could have consequences for others under Canadian law.
“It is one thing for Canadian courts to refrain from imposing Canadian labour law on a foreign employer if necessary to avoid interfering with a foreign state’s sovereign functions,” Justice Warren wrote. “It is quite another thing to ignore conduct of a foreign state that is relevant to the imposition of Canadian labour law on a Canadian employer.”
In the appeal court decision, Justice Harris wrote that it was not necessary in this particular case to consider the scope or content of the act of state doctrine. “The [BCLRB] did no more than examine Mexico’s conduct for the purpose of exercising its remedial powers under the law of British Columbia, in respect of the rights of the employees, the union and the employer in British Columbia,” he wrote. “I do not see that the act of state doctrine, however articulated, has any application to the case before us.”
Ivan Limpright, the president of UFCW Local 1518, called the ruling a victory for the workers involved and said that the case had involved leaked documents that had pointed to the blacklisting of suspected union sympathizers by the Mexican government.
Mexico has 60 days from the date of the appeal court’s decision to decide whether to apply for leave to appeal to the Supreme Court of Canada.