This post updates our earlier commentary on the decision of the BC Supreme Court in Gate Gourmet Canada Inc. v Unite Here, Local 40, 2024 BCSC 1528.
The British Columbia Court of Appeal (the "BCCA") has weighed in on the constitutional limits of provincial labour law in Gate Gourmet Canada Inc. v Unite Here, Local 40, 2025 BCCA 246. The BCCA has affirmed that the restrictions on using replacement workers (as set out in section 68 of the Labour Relations Code (the “Code”)) applies to the use of out-of-province workers.
The BCCA’s decision confirms that employers cannot circumvent BC’s replacement worker restrictions by reassigning work to other jurisdictions, even if the workers and operations in those other provinces are governed by different labour law regimes.
In its decision, the BCCA addressed the extraterritorial implications of the order of the BC Labour Relations Board (the “Board”), including its impact on customers and employees outside of the province in Alberta and Ontario. While acknowledging that the Board’s order had implications that extend beyond BC’s provincial boundaries, the Court clarified that the proper focus of the constitutional analysis was not on third parties outside of the province, but on the conduct of the employer regulated by the Code.
Issues on Appeal
Gate Gourmet Canada Inc. (“Gate”) argued that the Board’s order exceeded the constitutional limits of provincial jurisdiction. Specifically:
- the order had unconstitutional “extraterritorial impacts” on parties outside of BC;
- section 68 of the Code should not apply to matters of “extra-provincial customer choice”, or extra-provincial labour forces working under different labour relations schemes;
- there was no "sufficient connection" between the impugned conduct outside the province and BC; and
- the effectiveness of BC’s labour relations regime should not be the decisive factor in assessing constitutional limits.
BCCA Decision
While the BCCA agreed that the Board’s order had practical effects on out-of-province parties, it held that those parties were not the subject of the Board’s regulatory authority. Rather, the Board’s order was directed solely at the employer of striking workers in BC that had arranged for out-of-province workers to perform the struck work of its employees. The BCCA also confirmed that the only parties legally bound by its order were Gate and the Union.
As a result, the BCCA concluded that the impact on out-of-province operations was an incidental effect of the order, and did not render it constitutionally invalid. Put simply, the BCCA stated:
This is not a case of a provincial tribunal asserting jurisdiction over an extraterritorial party. Rather, it is a case of a tribunal with jurisdiction over a party under its regulatory sphere, in which some of that party’s extraterritorial actions are caught by the tribunal’s order.
Takeaways for Employers
This decision has important implications for employers operating in multiple provinces, particularly in situations where unionized work may be reassigned across provincial borders during a labour dispute.
Regulated employers in BC need to consider the broad application of the replacement worker restrictions in the Code when deciding whether to transfer work to other provinces during a lawful strike in BC.
Employers should seek legal counsel if they need assistance with a possible or ongoing labour dispute at their workplace, particularly when replacement workers may be involved as part of a strike contingency plan.
We will continue to monitor this case for any developments, including whether Gate seeks leave to appeal to the Supreme Court of Canada. Updates will be posted here.
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