A job applicant who alleges his interview was cancelled because of his association with a trade union can pursue an unfair labour practice complaint, the Prince Edward Island Labour Relations Board has ruled, even though he was not a union member at the time.
The board issued the preliminary ruling in a complaint filed against Newfound Mechanical Ltd. by an applicant who said he was granted an interview that was later cancelled due to his union association. The parties agreed the applicant was not a union member when he applied, but had been one in the past.
The employer asked the board to dismiss the complaint on the basis that the unfair labour practice provisions of the Prince Edward Island Labour Act do not apply to individuals who are not current union members. Both sides filed written submissions on the preliminary issue and asked the board to decide it before any hearing on the merits.
Competing interpretations
The applicant argued that the legislation captures discriminatory conduct based on actual or perceived union membership, including past membership. As a former union member, he submitted, he fell within the express language of the provision.
The employer countered that a modern approach to statutory interpretation does not support extending the provision to individuals who are not current union members. It argued the phrase “is a member” is expressed in the present tense and requires that the individual hold membership at the time of the alleged violation. Had the legislature intended to capture former members, the employer submitted, it would have used clear language such as “was a member,” “has been a member,” or “is or was a member.”
Board’s analysis
The board determined that the legislation must be interpreted in a fair, expansive and liberal manner to best ensure the attainment of its objects, citing its recent decision in Tyler Shea v. Police Association of Nova Scotia, Local 301, and the Prince Edward Island Interpretation Act.
Applying that approach, the board concluded the unfair labour practice provision can apply where a complainant is not a present union member but has been one in the past, and where a complainant is not a present union member but is perceived, incorrectly, to be one.
The board acknowledged the employer advanced a strong argument that the wording denotes current union membership at the material time. It nonetheless found that a fair and liberal interpretation extends protection to former union members. A past union member, the board said, falls squarely within the language of the provision, which references an individual who “has applied for membership in a trade union.”
That interpretation, the board found, is more consistent with the overall purpose of the legislation, which is remedial and aims to achieve a more balanced and equitable relationship between employer and employees through the trade union framework, regardless of an employee’s views or relationship with trade unionism.
The board said it would find it troubling, and inconsistent with legislative intent, if the act permitted an employer to freely discriminate against individuals on the basis of their association with a trade union, whether past or present. It also found it troubling to permit discrimination against an individual merely perceived, albeit incorrectly, to be associated with a trade union. Allowing such conduct, the board said, would create an unintended gap in the legislation and give rise to potential inequities.
Reliance on federal precedent
The board found a 1975 decision of the Canada Labour Relations Board, IBEW, Local 592 v. Central Broadcasting, to be compelling. In that case, the federal board considered a similar argument that complaints could not be supported because the affected employees were not actual union members.
The board quoted the federal panel’s finding that what matters is not whether the employee is in fact a union member, but “whether the Employer so believed and has terminated him for this reason.” The federal panel also found that to defend against such a complaint, it is not enough for an employer to demonstrate that the aggrieved person never in fact became a union member, “particularly if that person has engaged in union activities in such a manner as to suggest a reasonable inference that she was a union member.”
The decision was unanimous. The board made no findings of fact and did not consider the merits of the complaint. The matter will proceed to a hearing.
Counsel for Complainant Ron MacLeod and Gillian Lush
Counsel for Respondent Jacob Zelman
Decision Maker Stephen Carpenter, Chair; Don Desserud, Employee Member; Daniel Hughes, Employer Member, Prince Edward Island Labour Relations Board.
For more information, see (Plaintiff) v Newfound Mechanical Ltd., 2026 CanLII 40957 (PE LRB).
