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strike replacement contractor denied stay
July 22, 2000

In Canadian Chambermaid Services, BCLRB No. B266/2000, the Applicants applied for a stay of the Board’s decision in South Surrey Hotel BCLRB No. B258/2000 wherein the BC Labour Relations Board found that the Applicants constituted replacement workers contrary to Section 68. The Board’s decision in B258/2000 relied on an arbitrator’s finding that the Employer’s use of the Applicants was not genuine contracting out.

The Applicants also sought a stay of the arbitration award pending the outcome of their application for review of that award. The Applicants argued that they were not given formal notice of the arbitration or of CAW Local 3000′s application for a replacement worker declaration. They argued that this breach of natural justice was a factor the Board should consider when deciding whether they would suffer irremediable prejudice if the stay were denied.

The Applicants argued they would suffer irremediable prejudice because they could never be compensated for the losses they would suffer as a result of being denied continued work at the Employer’s hotel even if their appeals succeeded. They argued that the Section 68 decision gives the Union leverage in bargaining and, if the Employer is forced to capitulate, their appeal would be rendered academic. They argued that they would not have sufficient funds to finance their appeals if a stay was not granted.

The Board noted that the second part of the test applied in stay applications is expressed in terms of an applicant being irremediably prejudiced in its ability to advance its appeal (White Spot, BCIRC No. C41/89). However, the focus in stay applications has been on the issue of whether, unless a stay is granted, the appeal would be a pointless or futile exercise. The Applicants did not adduce any evidence on this point and unless such an outcome is the obvious result of not granting a stay, it will not suffice for an applicant’s counsel to merely assert that to be the case.

The Panel noted that it will not suffice for a party to only demonstrate that, unless a stay is granted, it will not be able to be “made whole” if its review application succeeds. Nor will it suffice to prove that someone will be displaced from their position pending the outcome of a review application. The Applicants’ application for a stay was dismissed (click here for full text of the decision).