Author: Jonathan DeschampsOn June 11, 2020, the Superior Court of Quebec allowed in part a class action against the Fédération des travailleurs et travailleuses du Québec – Construction (FTQ‑C). This class action was composed of workers and employers with fewer than 50 employees who were deprived of work or wages as a result of illegal walkouts at several construction sites in Quebec in the fall of 2011.
The Superior Court concluded that by not taking action when the construction industry was paralysed, the FTQ-C was at fault of omission. The Court ordered the FTQ-C to pay approximately $9.9 million to compensate for lost wages and work, among other things, and ordered collective recovery of this amount. It also ordered the FTQ-C to pay damages for lost profits and additional costs to the employers and moral damages to the workers, and ordered the individual recovery of these amounts[1].
The FTQ-C appealed the Superior Court's decision, asking that the class action be dismissed or, alternatively, that the individual recovery of lost wages and work be ordered and that the other counts of compensatory damages be dismissed.
Decision of the Court of Appeal
In a decision handed down on July 13, 2022[2], the Quebec Court of Appeal confirmed the Superior Court's finding that a union has an obligation not only to take appropriate action on the facts to prevent an illegal strike from occurring, but also to act as quickly as possible to put an end to it once it has started.
However, the Court of Appeal ordered individual rather than collective compensation of approximately $9.9 million to compensate for lost wages and work, among other things. After setting out the principles applicable to collective recovery, the Court of Appeal concluded that the FTQ-C was "liable for the lost wages of the workers who were forced to leave the construction sites, who were refused access to them, and who were unlawfully prevented from performing their work," as well as " the damage suffered by the employers, who paid their workers’ wages […] without obtaining the performance of the work to which they were entitled in exchange." However, the FTQ-C could not be held liable for "reimburs[ing] the wages of the workers who participated in the unlawful strike"[3].
The Court of Appeal noted that collective recovery is inappropriate in this case, as the FTQ-C had individual defences against various members of the class. While a union that commits a fault of omission may have to compensate victims for the consequences resulting directly from the illegal strike, it is not required to compensate for lost wages suffered by employees who participated in the illegal strike. As part of the compensation process, the trial judge had to divide the workers into two groups: those who participated in the illegal strike and those who did not. Compensating them all for their lost wages in the same way constitutes a reviewable error.
The Court of Appeal also noted that there was no evidence that the employers were legally required to pay wages to the absent workers and that they actually made such payments. Therefore, it is not possible to put a precise figure on the total amount that can be claimed as compensation for lost work and wages.
Moreover, the impossibility of determining with precision the proportion of the work sites affected by the illegal walkouts does not allow for a sufficiently precise determination of the damages suffered by the affected members. This difficulty prompted the Court of Appeal to opt for individual recovery of compensatory damages, including amounts related to wages.
Finally, the Court of Appeal rejected the finding that there had been moral prejudice among the injured workers because of the lack of evidence in this regard at first instance. Indeed, the absence of any serious, precise and concordant presumption of fact leads to the conclusion that there is no such moral prejudice. However, the Court of Appeal upheld the trial judge's decision to order individual recovery of claims for the employers' additional costs and lost profits caused by the illegal strike. Since the employers suffered different degrees of lost profits and additional costs, individual recovery is warranted.
Key takeaways
In this case, the Court of Appeal reiterated the principles applicable to the choice of recovery method. In this regard, it is important to be able to determine with sufficient precision the total amount of the claims of all the members of a class in order to opt for collective recovery.
In closing, it should be noted that this decision has been the subject of an application for leave to appeal to the Supreme Court of Canada[4]. We will keep you informed of any subsequent developments in this case.
[1] Refer to our article on the topic: Une grève illégale qui coûte cher : la faute d’omission d’un syndicat québécois le contraint à verser 9,9 millions $ | Global Workplace Insider.
[2] FTQ-Construction c. N. Turenne Brique et pierre inc., 2022 QCCA 1014.
[3] Ibid., para. 80.
[4] Application for leave to appeal to the Supreme Court of Canada, No. 40385, September 29, 2022.