Judge orders ACTRA dispute to arbitration


TORONTO -- Canada's actors strike took another dramatic twist Tuesday when an Ontario court judge sent the 3-week-old labor dispute to arbitration.

But a failure by the Canadian Film and Television Production Assn. to secure an order preventing the use of continuation letters by performers union ACTRA means no early end to the dispute is in sight.

In a 19-page decision, Justice Sarah Pepall of the Ontario Superior Court of Justice agreed with a request by the CFTPA that a court-appointed arbitrator help work out a new collective agreement with striking actors.

The court cited arbitration provisions outlined in the Independent Production Agreement, the Canadian actors' labor pact with producers, as grounds to impose mediation in the dispute.

"The parties expressly turned their minds to the issue of dispute resolution and gave the arbitrator the power to decide whether a collective agreement had been entered into," the court argued.

"It seems to me that I should give effect to the parties' consensual dispute resolution process and that an arbitrator should be appointed," Justice Pepall wrote.

Producers representatives were quick to chalk the decision up as a win. "This is a victory for the industry. It keeps the IPA agreement intact," CFTPA chief negotiator John Barrack said following the ruling.

The CFTPA originally brought the lawsuit against ACTRA for abandoning dispute resolution protocols in the IPA to pursue separate arbitration through provincial labor relations boards.

But Stephen Waddell, chief negotiator for ACTRA, said that producers failed in their legal bid to stop its labor action.

"The judge did not grant an injunction to prevent ACTRA from striking and continuing to offer continuation letters," he said.

The court decided against forbidding use of the letters, which spare producer signatories on-set disruption in return for a 7% wage increase on struck film and TV sets.

The letters have produced a strike without work stoppages.

In her analysis of the case, Justice Pepall was not swayed by an earlier deposition from Barrack, who claimed that representatives of Sony Pictures and the Walt Disney Motion Pictures Group had decided against shooting in Montreal and Toronto, respectively, "for fear of a strike or lockout," and that they had threatened to shift those shoots back to the U.S.

"This is wholly insufficient to ground the granting of an injunction which is, of course, an extraordinary remedy," the court ruled.

Justice Pepall also left unanswered the question of whether the actors strike is illegal.

The CFTPA last week argued that provincial labor relations boards have no jurisdiction over the actors strike because ACTRA is not a bona-fide union and its members are not employees, but instead is an association for independent contractors.

But Justice Pepall ruled that the producers failure to establish "irreparable harm" from the strike meant she had no need to consider ACTRA's legal status.

"This decision should not be interpreted as necessarily precluding the jurisdiction of the labor boards across the country," the court ruled.

Despite their competing verdicts on the court ruling, both sides in the dispute called for a speedy return to the bargaining table.

ACTRA called its strike Jan. 8 after nearly three months of talks on a new IPA deadlocked over the question of how to pay actors for performances used on new digital platforms.

But the CFTPA's Barrack rejected a call by the actors to put the thorny issue of new media compensation aside for a joint committee, and for a deal on all other remaining issues to be quickly concluded.

"No. Can't do it. Everywhere in the English-language world, I have the right to put conventional product on new media," he argued.

The only territory where those rights are denied CFTPA members is in Canada outside of British Columbia, where a separate agreement governs actors wages.

Barrack insisted Canadian producers needed new media rights in order to sell its content to broadcasters at home and abroad.

But ACTRA's Waddell urged producers to "stop wasting time and money" and to settle the current strike by spinning off the issue of new media.

Waddell added his suspicion that U.S. studios participating in the IPA negotiations were keen on securing a "low-ball" agreement on new media compensation that they could use as a precedent during upcoming talks with U.S. guilds, including the Screen Actors Guild, this year and next.

"It doesn't make any sense that Barrack wouldn't agree to immediately refer the issue to a new media committee," Waddell said. "It causes you to speculate that it's the Americans that are dictating this and the CFTPA is not in control of this process."

No new bargaining days are scheduled between ACTRA and CFTPA negotiators.