The Statutory T imetable | :
either party can serve a notice to bargain on the other party when an existing agreement has
expired, or within a certain period before its expiry date. The precise period during which
notice to bargain for the renewal of an agreement varies from jurisdiction to jurisdiction.
The service of a notice to bargain triggers the start of the statutory “duty to bargain.”
Under Canadian labour relations statutes, that duty generally has two interrelated branches:
a duty to bargain “in good faith,” and a duty to make “every reasonable eort” to reach a
collective agreement. The Supreme Court of Canada in Royal Oak Mines v Canada (Labour
Relations Board),  SCR , excerpted in Section : described the “good faith”
requirement as the subjective element of the duty to bargain, and the “reasonable eorts”
requirement as the objective element. Statutes in the three Maritime provinces refer only
to “reasonable eorts,” and do not mention “good faith,” but in those provinces the duty to
bargain has been interpreted as having the same subjective and objective elements as in the
rest of the country: see Canadian Union of Public Employees v Labour Relations Board (Nova
Scotia),  SCR (the Digby School Board case).
Once a notice to bargain has been served, the parties remain under a duty to bargain until
they reach a collective agreement. The duty does not require that they succeed in negotiat-
ing an agreement, but only that they try. Sometimes, no matter how hard they try, they may
reach an impasse. Normally, before they may resort to a strike or lockout, labour relations
legislation requires them to go through a conciliation or mediation process, usually under
the auspices of the labour ministry. This requirement of conciliation or mediation, which is a
long-standing feature of Canadian labour law, is predicated on the idea that the parties act-
ing alone will often be unable to reach an agreement, not because there isn’t any overlap in
their respective positions, but because bargaining strategies and various obstacles to com-
munication obscure potential points of agreement.
Although the state will intervene to try to help the parties reach an agreement, in general
it will not impose one on them. The most important exception to this principle is what is
called “rst contract arbitration,” which allows for state imposition of the terms of the rst
collective agreement after certication if the parties cannot settle those terms themselves.
First contract arbitration is now provided for in most Canadian jurisdictions, and is discussed
in Section :. Other exceptions to the general principle that the state will not impose a
bargain on the parties include ad hoc back-to-work legislation and specic statutes requiring
compulsory interest arbitration in certain sectors. The use of these types of legislation varies
widely across the country, and will be discussed briey in Chapter (Section :).
Once a work stoppage (a strike or lockout) becomes legal, the duty to bargain continues,
even while a stoppage is actually underway. However, the content of the duty changes sig-
nicantly in those circumstances. If a party has complied with the duty to bargain but an
impasse has nonetheless been reached at the bargaining table, that party is allowed to break
o negotiations on the basis that there is no current prospect of progress. In a strike or a
lockout, each side hopes that the economic pressure it puts on the other side will prompt
concessions. Conversely, a party that thinks it is winning a strike or lockout can take advan-
tage of that situation to toughen its stance. “It would be naive in the extreme,” in the Ontario
Labour Relations Board’s words, “for parties to collective bargaining to expect that condi-
tions which prevailed before a strike or lockout to still prevail afterwards”: Toronto Jewellery
Manufacturers Association,  OLRB Rep July at .