07 Sep Wiebe v Saskatchewan Institute of Applied Science and Technology, 2007 SKQB 60 (CanLII)
A unionized employee, subject to the terms of a collective agreement, must go through the necessary steps of dispute resolution before applying to a court for a remedy. If the collective agreement specifically addresses matters related to the creation of works and copyright therein during the term of employment, then, in the event a dispute regarding copyright ownership arises between the employee and the employer, the appropriate firs step is to file a grievance and take the matter before an arbitrator.
You are an employee of Billy Bonka’s Candy College, a world-renowned higher learning institute with a focus on candy. You specialize in blowing bubbles with bubble gum and you have just completed your life’s work, a complete guide on proper bubble gum blowing technique. You have been using this work as a support tool in your classes for the past several weeks.
Your boss, Billy, has learned of your work and is enthused by it. He has obtained a copy of your work and is now publishing it through the college’s press. Both you and the college have been sharing the royalties. However, you are upset by Billy’s actions. You feel you are the sole copyright owner and, as such, are the only person who can authorize the publishing of it and receive royalties from it. The college, being an institute of higher learning that employs many unionized employees, has a collective agreement in place that specifically deals with works created by employees and the ownership of copyright in those works. You are a member of a union subject to that collective agreement.
You file an action in court against Billy, your employer, as having infringed on your copyright.
At this stage it is unlikely you will succeed in court. Since you are a unionized employee subject to a collective agreement, you must abide by the procedures set out in that agreement. The collective agreement in your case specifically deals with the subject matter of your action against Billy. As such, you must go through the dispute resolution process set out in the collective agreement, the first step of which is likely filing a grievance. It is likely you will have to go through a few steps of an arbitration process before you can appear in court. But, going to arbitration does not mean you can never eventually have your case heard in court. If the collective agreement did not specifically deal with the subject matter of your case against Billy, you would likely have been able to proceed directly to court.