In Ontario, unions have unsuccessfully advanced two different arguments to try to persuade the courts to enforce internal union fines. Both arguments are premised on an important Supreme Court of Canada decision: Berry v. Pulley, 2002 SCC 40. This decision found that an individual union member’s relationship with his or union is “in the nature” of a contractual relationship. Each union member this connected to the union as a whole by virtue of a written or implied individual contract. In essence, the contract requires that the union member agrees to pay dues to the union and to abide by the union’s rules, and in exchange the union agrees to represent the member in his or her relationship with the employer.
The Contractual Relationship is Unequal and Unusual
It is important to note that the contract is not a typical contract between two parties with equal bargaining power. The Supreme Court has said that a union constitution is “in the nature of a contract.” The Supreme Court has found that the contract existing or implied between an individual member and his or her union is a contract of adhesion – in other words it is a contract that is presented on a “take it or leave it” basis. A person who joins a union (typically because he or she has been hired by a unionized employer) has no real power to object to particular provisions in the union constitution, or to try to negotiate for changes to the union constitution. If the person wants the job, they’ll have to accept the union’s rules as they exist.
Unions have argued that individual members, once they’ve joined the union, have the ability to run for executive positions, and/or vote for their preferred candidates to join the executive, and therefore should be able to advocate for changes to the constitution. The courts have rejected this argument because by the time a person has been hired and initiated into the union as a condition of employment, the member has already been bound by the existing constitution. The inequality of bargaining power in this contract of adhesion exists at the formation of the contractual relationship. The limited ability of an individual member to seek changes to the union constitution afterward is not relevant.