Appellate Court confirms out-of-province effect of BC replacement worker ban

Can the British Columbia (BC) Labour Relations Board (the Board) order a BC employer to cease work that is taking place outside of the province during a labour dispute? According to the BC Court of Appeal, in some circumstances it can.

In Gate Gourmet Canada Inc. v. Unite Here, Local 40, 2025 BCCA 246, the BC Court of Appeal confirmed the Board can order an employer to cease work outside of the province if that work is being carried on in breach of a statutory prohibition on use of replacement workers during a labour dispute.

British Columbia’s prohibition on replacement workers

BC’s Labour Relations Code (the Code) prohibits employer use of replacement workers during a lawful strike or lockout. With narrow exceptions, an employer cannot engage temporary workers or its own employees to do the work of a striking or locked out bargaining unit. This prohibition extends to transferring work ordinarily performed by the bargaining unit to another location operated by the employer. Using replacement workers in contravention of the Code is classified as an unfair labour practice (a ULP) under the Code. 

Prior to the Gate Gourmet case, it had not been established whether this prohibition extended to transferring work entirely out of province. 

Background of the Gate Gourmet case

Gate Gourmet provides catering services to airlines. It has operations at several airports across Canada, including Vancouver International Airport (YVR). Gate Gourmet’s Vancouver-based employees engaged in a lawful strike. To prevent disruption to one of its major clients normally serviced out of YVR, Gate Gourmet instructed its employees based at airports in Calgary, Edmonton, and Toronto to “double cater” flights destined for YVR. Double catering involves stocking an airplane with enough food and beverages for both an outbound and a return flight.

The union for the striking Vancouver workers complained to the Board that this double catering work was a breach of the Code prohibition on replacement workers. It amounted to a transfer of work from the YVR bargaining unit to other locations in Canada. The Board agreed and ordered Gate Gourmet to cease.

Gate Gourmet disputed this order ultimately leading to the Court of Appeal. The central question throughout was whether the Board had authority under the Code to make orders affecting work outside British Columbia’s borders.

Extraterritorial effects do not deprive the Board of jurisdiction

The Court of Appeal noted that provincial laws cannot apply to matters outside of the province unless there is a “real and substantial connection” between those matters and the legislation in question. The Court found that there was such a connection. The Board’s order was related to Gate Gourmet as a BC employer and related to the redirection of bargaining unit work in a BC labour dispute. This was not a case of the Board asserting jurisdiction over an out-of-province party, but rather over an employer and a labour dispute under its regulatory authority.

While there were “extraterritorial” effects stemming from the Board’s order, these were not sufficiently serious to amount to an intrusion on the legislative authority of other provinces. The Board’s order prohibiting double-catering of YVR bound flights prevented Alberta and Ontario employees from performing that work and denied a Gate Gourmet customer one possible solution to the ongoing labour dispute. These impacts were incidental to the underlying purpose of the Board’s order, which was to bar the improper relocation of bargaining unit work during a work stoppage, contrary to the Code. The Court found that the incidental impacts did not create a situation of disorder in the Canadian legal system, the labour market or the commercial marketplace.

The Court of Appeal closed by stating its view that Gate Gourmet did not suffer any unfairness in being unable to relocate the disputed work out-of-province. The company relies on a unionized workforce in British Columbia and is obliged to comply with the “rules of the game” in that province. This includes a prohibition on use of replacement workers, whether inside or outside of British Columbia.

Takeaways

Multi-jurisdiction Canadian employers should take note of the Gate Gourmet case. In past, reliance on out-of-province operations may have been a part of business continuity planning for employers subject to labour disputes in British Columbia. We have now seen in Gate Gourmet, and in at least one other recent decision in the building materials sector, that unions have been successful in obtaining orders against relocating bargaining unit work to employees outside British Columbia. The relocation of bargaining unit work may be limited in future as a business continuity option.

It is also worth noting that when the Gate Gourmet case started in 2022 there were only two Canadian jurisdictions with replacement worker bans – British Columbia and Quebec. In the past year, Manitoba and the federal jurisdiction have adopted such bans. It remains to be seen whether unions in those jurisdictions will follow suit and argue for extraterritorial application of those bans.  Employers facing this issue in other provinces should not assume that work can be redirected to operations in other provinces during a labour dispute.