Supreme Court of Canada won’t hear Merit case against Manitoba Hydro

After a five-year battle in court the Merit Contractors Association’s case against Manitoba Hydro was rejected by the Supreme Court of Canada.

"We were very disappointed that the Supreme Court of Canada would not hear our case," said Merit Manitoba president Yvette Milner.

She explained the court’s decision dealt with whether or not the case belonged with the Manitoba Labour Board or before the court.

"Although the decision was not in our favour, it should be emphasized that the merits of the case have not been adjudicated," she said. "The case is important to Merit members in that it relates to government policy that requires Project Labour Agreements that favour building trade unions."

She added that currently in Manitoba the government has committed to implementing fair and open tendering practices.

"At this time we will work with the provincial government to develop solutions as opposed to pursuing this case further," she said.

Merit sought to challenge Manitoba Hydro’s requirement that contractors join unions and pay dues to work on projects. Two collective agreements and a Manitoba Hydro-Electric Board tendering policy require that contractors working on larger-scale hydro projects, such as the Bipolle III project, Wuskwatim Generation Project and the Keeyask Generating Station, join a union and pay applicable union dues.

Merit argued that the rules infringed on employees’ Charter rights. The Manitoba Hydro Board, International Brotherhood of Electrical Workers (IBEW) and the International Union of Operating Engineers argued that the matter would be best settled with an arbitrator through the Manitoba Labour board.

"The courts have clearly rejected these assertions and the Supreme Court’s rejection of the appeal represents the third loss for the anti-union forces in this case," reads a statement from the National Union of Public and General Employees (NUPGE). "There has been a long-standing directive on many of these massive projects that workers have designated union representation designed to protect the rights of workers and ensure all are treated equitably by having proper representation."

The judges at the Supreme Court of Canada and the Manitoba Court of Appeal both awarded costs against Merit, which means they must pay the legal costs incurred by Manitoba Hydro and the other defendants, including the Locals of the International Association of Heat and Frost Insulators and Allied Workers, IBEW Local 2034 and Operating Engineers Local 987.

"This decision can be seen as a signal that the courts did not see that Merit’s appeals of this case served the broader public interest, which would have been a reason to waive costs," stated NUPGE.

Michael Bevan, stakeholder relations for the Building Trades of Alberta, also applauded the decision saying it showed the courts were willing to protect the rights of workers and the role of the union.

"From its very beginning, Merit Contractors has functioned to try to weaken unions and remove them from the construction industry altogether, and one of their main focuses is on getting labour legislation changed in order to remove protections for workers," wrote Bevan in a statement. "They tried this in Manitoba and failed."

Five construction workers and Merit Manitoba filed a statement of claim against Manitoba Hydro in the Court of Queen’s Bench in 2012 in order to challenge the legality of the collective agreements enforced on all major hydroelectric construction projects.

Geoff Thiessen, a regional director for the Christian Labour Association of Canada (CLAC), stated there shouldn’t a monopoly for any particular labour model. He explained that while it was understandable years ago to set up the current system, the need for it is gone.

While the union did not participate in the court case, they would like to see the current system changed and have been lobbying government to do so.

"We believe that over time, monopolies create inefficiencies," he said. "What was once a good model has become stale and needs to be refreshed."

He noted that the Keeyask hydroelectric project is now $2.2 billion over budget and has been delayed by more than a year.

"I wouldn’t pretend to know that it is all because of the labour model, but I also don’t hear a lot of resounding endorsements that it is succeeding in employing local people," he said.

Thiessen said CLAC is keeping a close eye on the massive Site C Dam project in B.C. where the province is using an open-site model for the first time. However, the approach was pioneered in Alberta over the last two decades building the massive, multi-billion dollar oilsands projects in the remote northern regions of the province.

"I would hope that Site C is successful as it could be a great case study for Manitoba," he said.