Canada: Unionized Workers Have The Right To Remain Silent — Most Of The Time

Last Updated: October 23 2014
Article by Christopher Munroe

"You have the right to remain silent. Anything you say can and will be used against you," is a phrase familiar to anyone who watches crime dramas on television. What even the most avid Law & Order fans may not know is that a unionized employee has the right to remain silent in the context of a workplace investigation into alleged misconduct (with certain important exceptions).

The leading case on this topic is Tober Enterprises Ltd. (Re)1. A grocery store employee was charged for allegedly selling anabolic steroids to a police informant. He sold them from the store during working hours and used the store's telephone to contact the informant. The charges were later dropped when it turned out that the substance was not actually steroids.

The employee was suspended from work immediately when charged. The store asked the employee to explain his conduct (including his frequent use of the store's telephone). When the employee refused, he was fired. The union grieved his termination. An arbitrator found that dismissal was excessive (given that the charges were dropped) but that an unpaid suspension for the employee's failure to explain was warranted. The union sought review by the British Columbia Industrial Relations Council.

The Council found that a unionized employee's failure to explain alleged misconduct is not an independent cause for discipline. In short, an employer must rely on the substantive misconduct as the cause for discipline, rather than the failure of the employee to explain it. The Council was quick to note that staying silent can have other consequences. For example, if an employee chooses to remain silent, the employer's evidence of misconduct may be uncontested and therefore justify discipline - the employee misses her chance to tell her side of the story.

There are two exceptions to a unionized employee's right to remain silent:

  1. a deliberate attempt to mislead an employer by a false or misleading explanation may be cause for discipline; and
  2. an employee knowingly allowing his or her silence to damage the legitimate business interests of the employer may be cause for discipline.

The first exception was briefly considered in Overwaitea Foods / Save-on-Foods British Columbia v. United Food and Commercial Workers Union, Local 15182.  In this case, a junior employee took an extra 15-minute break. The employer had video evidence. The employee was called into meetings with her manager on two occasions. On both occasions, the manager gave the employee an opportunity to come clean. At the first meeting, the employee didn't mention the extra break; at the second meeting, the employee lied. As a result, she was fired.

The union grieved the termination. At arbitration, the employee admitted that she had "lied", but the union argued that lying or failing to admit the misconduct could not be grounds for discipline. The employer successfully argued that the failure to admit the extra break at the first meeting "was a lie of omission" and fit in the Tober exception as a deliberate attempt by the employee to deceive her manager, and therefore could be grounds for discipline. Despite this, the arbitrator found that a suspension was sufficient and ordered conditional reinstatement.

The second exception was successfully raised by BC Ferries in British Columbia Ferry and Marine Workers' Union v. British Columbia Ferry Services Inc3. This case arose out of the sinking of the Queen of the North ferry in 2006, in which two people died. Following the tragic event, BC Ferries launched an internal inquiry with the goal of releasing a public report. It sought interviews with key employees, including Karl Lilgert and Kevin Hilton who were responsible for navigation when the ferry ran aground. In addition to the BC Ferries inquiry, there was an ongoing criminal investigation.

Lilgert and Hilton refused to answer questions about the time period immediately before the accident unless that information would be kept confidential. BC Ferries refused the confidentiality and suspended them without pay for refusing to answer. The union grieved the suspensions.

At arbitration, the employees argued they had a right to remain silent, and that silence alone could not amount to grounds for discipline. The employer argued that the employees' silence was harming its legitimate business interest by impacting its ability to produce a detailed public report.

The arbitrator agreed with the employer: in these circumstances, BC Ferries' duty to make full disclosure outweighed the employees' right to remain silent. The union applied for a reconsideration by the Labour Relations Board and further judicial review. In both cases, the decision was upheld. On judicial review, the Court made a comment about the exceptional facts of the case: "there is no suggestion in either the [arbitration decision] or the [Board decision] that any business interest of an employer, however, mundane or marginal, will be sufficient to negate the general rule in Tober" [emphasis in original]. This statement clearly indicates the Court thought that only a significant business interest will be sufficient to trigger the exception.

These decisions demonstrate that, absent an employer's significant and legitimate business interest, unionized employees have a general right to remain silent in workplace investigations. Despite that right, employees may not allow their silence to deliberately mislead their employers.


1 1990 B.C.L.R.B.D. No. 51

2 2011 B.C.C.A.A.A. No. 21

3 2008 BCSC 1464

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
7 Nov 2019, Seminar, Birmingham, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

14 Nov 2019, Seminar, London, UK

Providing content specifically tailored to the needs of GCs and Heads of Legal working in government organisations and their affiliates.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions