Grievance is between BC Maritime Employers Association, International Longshore & Warehouse Union
The Federal Court of Appeal has confirmed the absence of an active collective agreement between the British Columbia Maritime Employers Association (BCMEA ) and the International Longshore & Warehouse Union-Canada (ILWU) during the ILWU’s illegal strike, given the combined effect of the Labour Code’s applicable provisions.
In British Columbia Maritime Employers Association v. International Longshore & Warehouse Union‐Canada, 2026 FCA 136, the parties had a collective agreement that expired on Mar. 31, 2023.
BCMEA, the applicant, was the non-accredited bargaining agent for employers involved in national and international marine transportation in BC. The ILWU, the respondent, was the bargaining agent for longshore employees at Canadian West Coast ports.
Collective agreement not renewed
On Nov. 30, 2022, the BCMEA gave the ILWU notice to bargain for the collective agreement’s renewal. However, the parties could not negotiate a renewal agreement.
First and second strikes
After the statutory cooling-off period’s expiration, the ILWU obtained the right to strike legally. Its members participated in a legal strike from July 1–July 13, 2023.
During the legal strike, the federal labour minister encouraged the parties to recommend to their principals settlement terms proposed by a federal mediator. The parties did so.
On July 13, 2023, while the proposal was under consideration, ILWU members returned to work. An internal committee of the ILWU then rejected the proposal. On July 18, 2023, without providing a fresh 72-hour strike notice, ILWU members resumed their strike.
Grievance between BCMEA and ILWU
In a grievance referred to a labour arbitrator, the BCMEA requested damages based on the ILWU’s illegal strike.
At the ILWU’s request, the arbitrator referred to the Canada Industrial Relations Board (CIRB) the issue of whether a collective agreement was in force during the illegal strike from July 18–19, 2023.
Canada Industrial Relations Board determination
In 2025, the CIRB found that the parties had no collective agreement in force between them when ILWU members held an illegal strike from July 18–19, 2023.
In a judicial review application, the BCMEA sought to set aside the CIRB decision.
Judicial review application denied
The Federal Court of Appeal dismissed the BCMEA’s judicial review application without costs.
The appeal court ruled that the CIRB reasonably ruled that no active collective agreement existed during the illegal strike due to the combined effect of the relevant provisions of the Canada Labour Code, 1985, as supported by the pertinent case law.
In line with the CIRB’s reasonable findings, the appeal court explained that:
- Upon the collective agreement’s expiry, s. 50(b) and ss. 67(4) to (6) of the Labour Code would keep an expired collective agreement’s provisions (except for those permitting the arbitration of dismissal or discharge grievances) in force, only until the fulfillment of the requirements of ss. 89(1)(a) to (d) of the Labour Code
- After that point, s. 67(6) of the Labour Code limited arbitration to dismissal and discharge grievances, thus excluding grievances like the BCMEA’s
While there was satisfaction of 89(1)(a) to (d) when the illegal strike had happened and the collective agreement had expired, the appeal court pointed out that the CIRB considered the strike illegal solely due to the ILWU’s failure to provide the necessary second strike notice.
The appeal court noted that ss. 89(1)(e) and (f) of the Labour Code contained the requirements for a strike notice, strike vote, or the settlement of issues on maintenance of activities prior to a legal strike.
The appeal court added that the CIRB carefully weighed the opposing positions, explained why it preferred one interpretation over the other, gave thorough and intelligible reasons, and reached a rational and internally coherent conclusion that was available under the statutory scheme.
Prior Federal Court of Appeal cases on employees
Here are some other recent labour and employment law decisions from the Federal Court of Appeal.
The Federal Court of Appeal issued Mar. 3 decision affirming the rejection of employment insurance benefits requested by an employee who failed to timely advance his argument that his employer’s vaccination policy infringed his Charter rights to religious freedom and bodily autonomy.
The Federal Court of Appeal made a Feb. 24 decision denying a judicial review application challenging the CIRB’s rejection of an unjust dismissal complaint brought by an aircraft maintenance engineer, whom WestJet terminated for breaching its COVID-19 vaccination policy.
The Federal Court of Appeal issued an Aug. 27, 2025, decision confirming a CIRB decision granting an employee’s and his union’s complaint alleging that an employer’s disciplinary measures amounted to a reprisal against his refusal of unsafe work.
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