Canada Industrial Relations Board Dismisses Bargaining Complaints as Moot

OUTCOME: Dismissed

Reasons for decision [NAME_1] (C.L.C.), complainant, and [COMPANY_2]., respondent . Board Files: 038738-C; 038905-C Neutral Citation: 2026 [NAME_3] 1235 March 30, 2026 The panel of the Canada Industrial Relations Board (the Board) was composed of [NAME_4], Vice-Chairperson, sitting alone pursuant to section 14(3) of the Canada Labour Code (the Code ). Counsels of [NAME_5], for [NAME_1] (C.L.C.); [NAME_6] and [NAME_19], for [COMPANY_2].

I. Nature of the Complaints [ 1 ] This decision concerns events that occurred between the [NAME_1] (C.L.C.) (the union) and [COMPANY_2]. (the employer) while they were bargaining a new collective agreement (CA). [ 2 ] On June 6, 2025, the union filed a complaint in Board file no. 038738-C. It alleged that the employer limited the number of employees who can participate in collective bargaining and that the employer communicated directly with the employees in contravention of the Code . [ 3 ] On July 29, 2025, the union filed a complaint in Board file no. 038905-C, alleging that the employer contravened the freeze provision of section 50(b) of the Code by cancelling vacation, by forcing employees to work overtime and by bringing in outside contractors to perform bargaining unit work. [ 4 ] On December 22, 2025, the union filed a complaint in Board file no. 039445-C alleging that the employer used replacement workers during a strike, in contravention of sections 94(4)(a)(b) and (c) of the Code ( the replacement workers application ). The union alleged incidents on November 29, 2025, and December 9 and 10, 2025. [ 5 ] A few days after the replacement workers application was filed, the parties ratified a new CA. The union confirmed that it was withdrawing its replacement workers application. However, it wished to maintain its two other complaints. [ 6 ] After consideration, the Board finds that there was no live issue or labour relations purpose to hear the complaints in Board file nos. 038738-C and 038905-C. The Board determined that these unfair labour practices ([NAME_7]) were moot, for the reasons that follow. The Board directs that the files be closed.

II. Background and Facts [ 7 ] The employer operates the Ridley Island Propane Export Terminal (RIPET). The employer voluntarily recognized the union, prior to the start-up of RIPET. The parties entered into their first CA for a term of six years, starting when the employer began its regular operations. The first CA took effect on May 24, 2019, and the six-year term ended on May 24, 2025. [ 8 ] On January 26, 2025, the union served the employer with a notice to commence bargaining in respect of the renewal of the term of the first CA. [ 9 ] Since issuing the notice to bargain, the parties met and attempted to bargain a CA on April 10, 15, 16, and May 8 and 9, 2025. [ 10 ] On May 19, 2025, the union gave the employer notice of its request for conciliation assistance pursuant to section 71 of the Code . The parties attended conciliation on July 29 and 30, 2025. A. The Unfair Labour Practice Complaints [ 11 ] On June 6, 2025, the union filed a first complaint alleging that the employer violated section 94(1)(a) of the Code by limiting the number of union members who could participate in collective bargaining. The union also alleges that the employer’s Memorandum Subject: Company Update issued by [NAME_8], General Manager – Export Operations, sent directly to employees on May 16, 2025, and May 29, 2025, violates section 94(1)(a) of the Code . The union seeks a declaration that the employer violated the Code , a cease and desist order, a posting of the Board’s decision and a copy of it provided to employees in the bargaining unit, as well as other relief. [ 12 ] The employer disputes these allegations and points to Article 13.02(e) of the CA which fixes the number of union members attending bargaining at three. The employer alleges that the union filed two grievances related to the breach of Article 13.02(e). The employer objected to one grievance which it claims was filed on an untimely basis. The employer rejected the second grievance but the union has not withdrawn it. The employer argues that the Board should decline jurisdiction given the existence of the grievance. The employer further argues that section 94(1)(a) of the Code does not prohibit an employer from communicating with its employees and its communications do not violate the Code . [ 13 ] On July 29, 2025, the union filed a complaint in Board file no. 038905-C, alleging that the employer violated section 50(b) of the Code by cancelling vacation for two employees for the period around July 15 and 18, 2025, by forcing five employees to work overtime on a shift spanning July 17 to 18, 2025, and by bringing in outside contractors to perform bargaining unit work on July 21, 2025. The union seeks a declaration that the employer violated the Code , a cease and desist order, a posting of the Board’s decision and a copy of it provided to employees in the bargaining unit. The union also seeks an order that it be made whole for damages and losses due to contracting out bargaining unit work and impacted employees be made whole for damages and losses due to the employer’s illegal conduct. [ 14 ] The employer disputes these allegations and alleges that there are CA provisions dealing with vacation scheduling and altering vacation after it has been approved, mandatory overtime where required and contracting out. The employer asserts that no vacation cancellation actually occurred. [ 15 ] The employer also asserts that the union has acquiesced in its use of contractors. The employer asserts that it was simply managing its business in the same pattern as it did before the statutory freeze took place and made reasonable decisions consistent with its past management practices, or consistent with what reasonable employers would have done in similar circumstances. B. Maintenance of Activities Application [ 16 ] On August 22, 2025, on the eve of a strike set to begin at 6:00 a.m. on August 23, 2025, the Minister of Labour made a referral to the Board, under section 87.4(5) of the Code , asking it to consider the application of section 87.4(1) of the Code , and the action, if any required, by the employer, the union and the employees to comply with section 87.4(1) of the Code in the event of a work stoppage (the MOA application). [ 17 ] The Board dealt with this as an expedited matter, with a hearing on October 1 and 3, 2025, and a decision issued on November 17, 2025 (see [COMPANY_2]. , 2025 [NAME_3] 1210). [ 18 ] In the MOA application, the Board heard substantial evidence about the employer’s use of contractors to deal with safety-related issues, and the employer’s concerns about the ability to use contractors during the strike, with union picketing activity. C. The Strike and Ratification of the Collective Agreement [ 19 ] On November 23, 2025, the union gave a strike notice. The strike began on November 27, 2025. The strike ended on December 24, 2025, with the ratification of a CA for a six-year term, and the employees returned to work by December 26, 2025.

III. Procedural History [ 20 ] On December 23, 2025, the Board sent the parties a letter fixing January 7, 2026, as a date for a case management conference (CMC) on the replacement workers application and asked the parties to reserve January 15 and 16, 2026, as tentative hearing dates. [ 21 ] On December 24, 2025, the parties reached a CA. [ 22 ] On December 29, 2025, the employer, advised the Board that the parties had reached a CA. The employer considered that this put an end to the complaint before the Board and to the need for further submissions. A. Expanding the Scope of the Case Management Conference [ 23 ] In light of the scheduled CMC, the tentative hearing dates on the replacement workers application and the employer’s advice that a CA had been reached, the Board wished to discuss with the parties at the upcoming CMC the status of all the matters involving the parties currently before it. [ 24 ] As a result, on January 2, 2026, the Board informed the parties that it wished to discuss all the outstanding ULP files at the CMC. The Board invited the parties to make submissions about the necessity of further proceedings regarding the replacement worker application and the two other [NAME_7] in light of the employer’s advice that they had reached a CA. [ 25 ] The CMC was rescheduled by consent to January 8, 2026. B. Issues at the Case Management Conference [ 26 ] At the outset of the CMC, the union informed the Board that it was seeking to withdraw its replacement worker application, but it asked the Board to adjudicate the two other ULP complaints. The employer did not oppose the union’s withdrawal request. However, the employer was opposed to the Board adjudicating the balance of the complaints. [ 27 ] As a result, the Board granted leave to withdraw the replacement worker application and cancelled the tentative hearing dates, which related only to the withdrawn application. [ 28 ] The Board heard oral submissions from the parties about whether it should take further proceedings regarding Board file nos. 038738-C and 038905-C. The union wished to proceed to have the Board determine the merits, and the employer took the position that the [NAME_7] were moot, in light of the new CA. [ 29 ] At the end of the submissions, the Board informed the parties that it believed that it had sufficient information to decide the issue of whether further Board processes were necessary, but it also advised the parties that it wished to provide them with an option to submit further written submissions with authorities. The Board specified a process wherein the parties informed it and each other by email, and if a party wished to make a written submission, the Board would fix a submissions schedule. [ 30 ] On January 9, 2026, each of the parties informed the Board by email that they did not wish to make further written submissions.

IV. Positions of the Parties A. The Union’s Position [ 31 ] The union submits that ULP applications are not moot. There is a good labour relations purpose to continue to determine these complaints, as this was a first renewal of the CA and it would be helpful to hear from the Board regarding what is acceptable and unacceptable in terms of communication and other employer practices. The union submits that it is not an unreasonable use of the Board’s resources. [ 32 ] The union argues that the difference in the parties’ positions about the bona fides of the employer’s conduct demonstrate precisely why there is a good labour relations purpose to hear the complaints, which would assist the parties in regulating their conduct between rounds of bargaining and during bargaining. [ 33 ] The union submits that the matters should not be referred to arbitration. The union is alleging violations of the Code and the heart of these issues is a violation of the Code . [ 34 ] In the course of argument, the union referred to [COMPANY_9]. , 2023 [NAME_3] 1069, a case in which the Board decided to proceed to determine ULP complaints after the parties had entered into a new CA. [ 35 ] The union submits that the Board can adjudicate these [NAME_7] on the basis of written submissions and an oral hearing is unnecessary. The union asserts that there should not be an oral hearing simply because the employer wishes to probe the union’s reasons for filing the ULP applications. It has the right under the Code to apply and have the Board assess the employer’s conduct. B. The Employer’s Position [ 36 ] The employer submits that the matters are moot. The employer asserts that there is no live controversy as the parties signed a six-year CA and the employees returned to work two days later. The employer says that a number of the ULP allegations deal with terms of the CA that relate to the number of union members permitted on the bargaining committee, the right to cancel or postpone vacations, the right to mandate overtime and the right to contract out work. [ 37 ] The employer asserts that there is no labour relations purpose in proceeding further to adjudicate the complaints as conduct during bargaining is no longer at issue. [ 38 ] The employer asserts that the [NAME_7] all deal with alleged conduct during bargaining and that none of the alleged [NAME_7] prevented the parties from reaching a CA. The employer asserts that it has the right to communicate with employees, and that this communication did not run afoul of the Code . [ 39 ] The employer argues that these issues could be the subject of a grievance if the union considers that the employer violated the CA. In its response to one of the ULP complaints, the employer informed the Board that grievances were filed. The employer further argues that the matters could be referred to an arbitrator. The employer asserts that if the matters are not moot, it requires an oral hearing so that it can cross-examine union representatives to ascertain the real intention behind the union’s applications.

V. Analysis and Decision [ 40 ] Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this matter without an oral hearing. A. Applicable Law [ 41 ] In this case, the Board raised the issue of mootness with the parties by raising the issue of the necessity of further proceedings. The Board has authority to refuse to hear and determine a complaint where there is no longer a live controversy between the parties and where a determination would have no practical effect on the parties’ rights (see [COMPANY_10]. , 2017 [NAME_3] 863; and [COMPANY_10]. (1994), 95 di 169 (CLRB no. 1090)). [ 42 ] The Board does not automatically dismiss a complaint as moot solely because a CA has been reached (see [COMPANY_10]. , at paragraphs 46 to 56). [ 43 ] In the course of applications involving mootness, in the past, parties have referred to the two-step analysis set out in [NAME_11] v. Canada (Attorney General ), [1989] 1 S.C.R. 342 ( [NAME_11] ), assessing whether there is a live controversy and whether there is a labour relations purpose: The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question. The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties. If the decision of the court will have no practical effect on such rights, the court will decline to decide the case. This essential ingredient must be present not only when the action or proceeding is commenced but at the time when the court is called upon to reach a decision. Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot. The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice. … The approach in recent cases involves a two-step analysis. First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic. Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case. ... (page 353) [ 44 ] In the Board’s view, the [NAME_11] approach must be applied with care. In this labour relations context, where the parties have reached a CA, the focus is on determining whether there is a labour relations purpose in proceeding to adjudicate the ULP complaints (see [COMPANY_10]. , at paragraph 44). B. Application to the Facts of this Case [ 45 ] The Board understands that the parties did not reach a specific negotiated resolution regarding any of the ULP complaints as part of their CA negotiations. The parties are still at odds about whether the employer’s conduct breached the Code . A dispute between the parties does not necessarily remain a live issue simply because the employer and the union disagree about whether the employer’s actions breach the Code . The Code does not mandate an inquiry into every allegation, especially when those allegations may be moot. [ 46 ] Section 50(b) of the Code is aimed at maintaining the balance of power between the union and the employer during collective bargaining. The Code prohibits the employer from modifying the terms and conditions of employment, as doing so would lessen the bargaining authority of the union in the eyes of its membership. As a result, in a complaint pursuant to section 50(b) of the Code , the Board’s focus is on determining whether the impugned employer action meets the “business as before” test. The Board looks at whether the employer is conducting its business and operations in the same way that it did before the statutory freeze (see [COMPANY_12]. , 2021 [NAME_3] 982, at paragraphs 72 and 73). [ 47 ] Section 94(1)(a) of the Code protects unions from employer interference. In considering allegations of a breach of section 94(1)(a), the analysis focuses on determining whether the employer’s conduct had the effect of interfering with union representation, irrespective of whether the employer intended to interfere. The onus is on the union to show that the employer’s actions interfered with the union’s administration or representation of employees (see [COMPANY_12]. , at paragraphs 92 and 93). [ 48 ] The Board understands that there may be underlying tensions between the parties regarding the employer’s manning requirements, the interpretation of the CA provisions related to holiday scheduling, mandatory overtime, employees attending collective bargaining and contracting out. These are all matters which are dealt with in the CA, at least to a certain extent, and for which the union has in some cases filed grievances, could have filed grievances and can file grievances in the future if it is of the view that there are breaches of the CA. However, the Board has no jurisdiction to interpret the CA. In the Board’s view, an arbitrator is in the best position to provide an authoritative interpretation of the CA, if it is required. [ 49 ] As such, the Board is not convinced that there are still live issues for it to consider regarding those allegations. While these issues arose during the course of bargaining or after conciliation, at the heart, they are essentially disputes over matters which would ordinarily be questions of the application or interpretation of the CA. They can also be characterized as [NAME_7] given that the statutory freeze arose from the notice to bargain. In the Board’s view, the giving of the notice resulting in the statutory freeze does not change the essential nature of the allegations. [ 50 ] The Board also notes that at the time the CMC was held, some of these allegations were more than six months old. [ 51 ] The parties have now entered into a six-year CA. The outstanding collective bargaining dispute has been resolved by reaching the CA. [ 52 ] The ratification of a CA does not necessarily put an end to ULP complaints that arise during the bargaining (see [COMPANY_10]. ). Sometimes it is necessary to adjudicate a complaint even if no live issue remains. There can be an underlying labour relations purpose in continuing to adjudicate a ULP allegation following the ratification of a CA. [ 53 ] For example, after the parties have reached a CA, the Board may still inquire into an allegation of a breach of section 50 of the Code . One example of this is where an employer failed to disclose information about salary increases and promotions during CA negotiations as this relates to the duty to bargain in good faith and the ongoing administration of the CA, and the ability of the union to represent its members. In that case, the Board found that the employer’s conduct would have a lasting impact on the continuing nature of the CA relationship regarding salaries (see [COMPANY_9] , 2001 [NAME_3] 110). [ 54 ] During argument, the union referred to [COMPANY_9] ., a case in which the Board decided that it would proceed to hear and determine a complaint about employer communications, despite the parties reaching a CA. In that case, the Board decided to hear the complaint because of the allegation that the employer’s communication resulted in “lasting reputational damage to the union’s relationship with its members” which impacted more than simply bargaining. It had the potential to impact the implementation and administration of the CA (see [COMPANY_9]. , at paragraphs 60 and 62). The Board notes that employer communications can sometimes erode trust and drive wedges between the union and a bargaining unit (see [COMPANY_12]. ). [ 55 ] In contrast to both [COMPANY_9] and [COMPANY_9]. , there is no indication in this case of any compelling labour relations issues that survive the settlement of the bargaining disputes. In the present case, there is no egregious concealment of information during bargaining such as what occurred in [COMPANY_9] that could impact the ongoing administration of the CA. [ 56 ] Unlike the situation in [COMPANY_9]. , in the present case, the union did not argue that the employer’s communications raised any issues of lasting reputational damage. The union’s argument that the Board should proceed to determine the [NAME_7] rests primarily on the educative effect arising from a Board decision about permissible communication and actions during the statutory freeze period. In this case, it is unclear from the pleadings whether the employer’s communications had even a transitory impact on bargaining unit employees. In reviewing the parties’ written submissions, the Board notes that the communications were not of the nature set out in [COMPANY_9] . [ 57 ] As to the union’s argument that there is educational value in the Board determining the complaint, the Board sees little purpose in offering guidance to the parties on how to conduct their future bargaining. For example, the sections of the Code that pertain to employer communications are not new and the law regarding employer communications is well settled. Employers have the right to communicate under the Code . There are limits on employer communications which are again well established in the case law. The issue is in the specific communications, in the context of a particular dispute. Therefore, analyzing the employer’s communications in the context of this dispute, which is now at an end, would provide little educational value for future rounds of bargaining. [ 58 ] Further, the Board is concerned that many of the other allegations raised by the union, including the use of contractors, the size of the bargaining committee and the scheduling and denial of vacation and mandatory overtime are all matters dealt with in the parties’ CA. The parties’ labour relations would benefit more from obtaining arbitral rulings on the administration of the CA provisions rather than the Board’s views on whether the employer’s alleged actions constitute [NAME_7]. [ 59 ] The Board is cognizant of the fact that the employer’s operation is one that requires sufficient staffing at critical times related to receiving rail cars, loading vessels and organizing the use of a jetty with [NAME_13] (the owner of the jetty) all within the context of an enterprise which needs to be inspected and monitored in order to maintain public safety. As such, an arbitrator interpreting the CA would be better positioned to resolve those types of issues. [ 60 ] Similarly, the Board notes that, regarding the union’s contracting out allegations, there is CA language dealing with contracting out, and further, as the Board found in [COMPANY_2] ., at paragraphs 75 to 81, that the employer relies on external contractors for work that is safety-related at RIPET. Many of the issues around the allegations of contracting out would be time-consuming to address at a hearing and would bring little labour relations benefits. [ 61 ] In terms of remedies, the Board notes that many of the remedies sought at this point are purely academic. The Board could provide declarations which could be posted in the workplace. For example, on the holiday scheduling issue, there may have been a transitory period when the employees were uncertain, but they did get their holidays, and there are no monetary claims arising from it. [ 62 ] In this case, the Board sees no labour relations purpose to dissect the past disputed facts about actions during bargaining. The union alleges discrete incidents which occurred during bargaining which are now many months old. [ 63 ] The collective bargaining process is often adversarial and, particularly in the course of a strike, can reach toxic levels, impairing an ongoing post-strike relationship. Fortunately, for both parties, the strike here was relatively short. The Board takes adjudicative notice that there is often hostility and relationship difficulties that need to be repaired following a strike. A settlement reached after a strike or lockout presents an opportunity for the parties to turn the page and focus on maintaining or enhancing a productive relationship. [ 64 ] The Board is of the view that the parties should focus on the effective and good faith implementation of the CA, which should go some ways to resolving past ill will, hostility and relationship difficulties.

VI. Conclusion [ 65 ] The Board finds that there is no live controversy or labour relations purpose to proceed to hear the applications in Board file nos. 038738-C and 038905-C. The Board dismisses these applications as moot and directs that the files be closed. ____________________ [NAME_4]-Chairperson