Is this the final chapter in the 2004 Telus labour dispute?

The latest in a long list of judgments dealing with contempt proceedings from the bitter lockout at Telus was issued on April 3, 2008, three years after the dispute ended. The BC Court of Appeal struck down a part of the order that the TWU members and supporters who had been found in contempt of a picketing injunction must pay the court costs awarded against them personally.

Originally 71 persons were arrested for breach of the order of Mr. Justice Burnyeat of the BC Supreme Court that restricted picketing. By the time things worked themselves through the justice system, eleven persons were found guilty of contempt and in March 2006 the sentences were handed down. These ranged from fines of $300 to $1000 payable to designated charities and 50 hours of community service. One person was given a one month suspended sentence, a fine of $1500 and ordered to provide a written apology. Costs were ordered against each of the eleven individuals. In response to a question from the judge, the union stated that it intended to assist with payment of the costs, but not the fines. So, the judge included in his order a stipulation that the fines and costs could not be paid by anyone other than the individuals themselves.

The individuals appealed the order for costs.

The Court of Appeal ruled that the stipulation that the indivuals themselves had to pay the costs was not appropriate in the circumstances.

The appeal court stated that there was no suggestion that the TWU had encouraged the individuals to breach the injunction and it disagreed with the judge's view that the union's payment of the court costs might be interepreted as condonation of the misconduct.

In his reasons the trial judge had also opined that the majority of union members might not approve of using union funds to pay the court ordered costs. This consideration, said the court of appeal, was not appropriate for a court and it was best left to the union members and their executive.

One of the interesting, and troubling, features of the legal saga around this strike is the extent of judicial activism in the prosecution of the contempt by the BC Supreme Court. The Court of Appeal makes reference to it at paragraph 33

"Here, the trial judge was advised by counsel that these parties had not been engaged in a labour dispute of this magnitude for over 25 years. The parties settled their dispute, and it was only at the behest of the trial judge that Telus pursued an order for costs. It did not seek an order in the terms of paras. 16 and 17. In our view, there is nothing in these facts to give rise to a real concern that members of the union would be encouraged to engage in further contumacious conduct simply because the TWU expressed a willingness to pay the costs of the appellants in this case." (emphasis added).

I regularly advise union locals that it is good practice, where there have been injunctions and there are actual or potential contempt proceedings, to seek to include in the back to work agreement a provision for a joint submission in the court proceedings. Specialized labour relations tribunals such as the LRB and labour arbitrators understand that, at the end of a labour dispute, the main objective of the parties is to get the business up and running by getting everyone back to work and start to rebuild the damaged labour/management relationship. Consequential court proceedings that drag on for years and that impose on the parties remnants of discord are not very helpful to this objective.

The case may be found at the following link:
http://www.courts.gov.bc.ca/Jdb-txt/CA/08/01/2008BCCA0144.htm