Public Service Alliance of Canada v. Canada, docket T-1383-99

Date: 20000518

Docket: T-1383-99

Ottawa, Ontario, this 18^th day of May 2000

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

PUBLIC SERVICE ALLIANCE OF CANADA

Plaintiff

- and -

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER AND ORDER

PELLETIER J.

[1]      Unlike the Parliament at Westminster, the Parliament of Canada is not supreme. It has never been so. The division of powers found in sections 91 and 92 of the Constitution Act, 1867 (formerly the British North America Act ) identified certain subjects in respect of which Parliament could not legislate. Federal legislation which touched upon matters reserved to the provinces was struck down. Since the advent of the Canadian Charter of Rights and Freedoms (the "Charter"), Parliament has been further constrained in that it cannot legislate in ways which infringe the rights enumerated in the Charter . Legislation which did so has been declared invalid. In this action, the plaintiff, Public Service Alliance of Canada ("PSAC"), argues that, in addition to the constraints on Parliament arising_ from the Constitution Act, 1867 and the Charter, Parliament is also incompetent to pass laws which are contrary to the rule of law. The foundation for that argument is found in the preambles to the Constitution Act, 1867¹ and the Charter². It is an argument which is not without significance.

    

[2]      The application before the Court is a motion by the defendant, Her Majesty the Queen, to strike out PSAC"s claim on the basis that it discloses no cause of action. The facts alleged in the Statement of Claim are therefore to be taken as proven for the purposes of the motion. They are as follows:

2.      The Public Service Alliance of Canada is an employee organization within the meaning of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, as amended, ("PSSRA") and is certified as bargaining agent for two Correctional Group bargaining units - one unit consisting of supervisory employees and another consisting of non-supervisory employees. The Correctional Group (also know as the CX Group) consists of Correctional Officers employed by Correctional Services Canada in federal penitentiaries.

3. Terms and conditions of employment governing employees within the Correctional Group bargaining units are contained in collective agreements negotiated between the Public Service Alliance of Canada and the Treasury Board. The Treasury Board is the federal government agency which is designated as the employer of employees within the federal public service.

4. Sections 78 to 78.5 of the PSSRA specify a process by which positions in bargaining units may be designated as requiring the performance of duties which are necessary in the interest of the safety or security of the public. Where a position is designated as having such duties, an incumbent of such a position is not entitled to engage in strike action under the PSSRA.

5. Historically, the Treasury Board has taken the position that Correctional Officers must be designated under the PSSRA and, in fact, all positions within the CX bargaining units have been designated in the past. As no one in the CX bargaining units may engage in strike action on the basis of this designation pattern, engaging in a strike to settle a collective agreement would be ineffective.

6. Under the PSSRA, there are two processes for resolving collective bargaining disputes. Under the first process, the parties are required to bargain in good faith following the service of Notice to Bargain. Where no collective agreement is concluded, the parties may refer the matter to conciliation. Once conciliation is complete, the parties may engage in strike action subject to express conditions set forth in the PSSRA.

7. The second process under the PSSRA includes the obligation to bargain in good faith following the service of Notice to Bargain. However, where no collective agreement is concluded, the dispute is referred to an Arbitration Board which will consider and rule upon the issues raised. Any arbitral award issued by an Arbitration Board is binding upon the parties as if it were a collective agreement.

8. Under the PSSRA, bargaining agents are entitled to choose one of these two processes for the purpose of resolving disputes which arise in the course of collective bargaining with an employer. As the conciliation - strike option is ineffective for the CX bargaining units, the Alliance has historically elected the arbitration process for the resolution of collective bargaining disputes.

9. In 1996, by operation of section 62 of the PSSRA, the availability of binding arbitration as a dispute settlement mechanism was suspended until June 1999. This legislative amendment therefore deprived members of the CX bargaining units of their right to elect that collective bargaining disputes be resolved by arbitration and forced CX members to utilize the conciliation-strike process even though, to that point, all members could not engage in legal strike activity.

10. On the 22ndday of April 1997, the Alliance served notice to bargain in respect of the CX bargaining units on the Treasury Board. Thereafter, Treasury Board representatives proceeded to identify a number of CX positions in order that they be designated pursuant to sections 78 to 78.5 of the PSSRA. The Plaintiff states, however, that several hundred CX positions were not properly designated in accordance with the stated requirements of the PSSRA. As a result, incumbents of those positions were entitled to engage in lawful strike activity.

11. On the 9thday of February 1999, the Alliance presented an application to the Public Service Staff Relations Board ("PSSRB")for an order of the Board that the incumbents of those CX positions which had not been properly designated by the Treasury Board could engage in lawful strike activity in the event that the parties were unsuccessful in concluding a collective agreement.

12. Thereafter, the Treasury Board initiated separate proceedings before the PSSRB the essential purpose of which was to obtain orders from the Board designating specified CX positions and, thereby, disentitling the incumbents of such positions from engaging in strike activity.

13. In response to the proceedings initiated by the Alliance and by the Treasury Board, hearings were scheduled to proceed before the Board over several days commencing March 22, 1999.

14. On March 19, 1999, an appointed Conciliation Board issued its report pursuant to section 87 of the PSSRA with the result that lawful strike activity could be engaged in by incumbents of non-designated positions within the CX Group on March 26,1999.

15. On March 19, 1999, representatives of the Alliance and Treasury Board as employer reached agreement respecting the various designation proceedings outstanding before the Board as specified in paragraphs ll to 13 hereof. This agreement provided that incumbents of approximately 728 positions within the CX bargaining unit would not be designated pursuant to the designation procedure established under the Act. Accordingly, the incumbents of the 728 identified positions were entitled to engage in strike action on or about March 26,1999. It was expressly agreed between the parties that the terms and conditions of the aforesaid agreement were to be confirmed by the Board in the form of a consent order. This agreement was formally ratified on Monday, March 22, 1999, by the parties.

16. On Monday, March 22, 1999, Bill C-76, the Government Services Act, 1999, was formally introduced in the House of Commons. Generally speaking, Bill C-76 was intended to prohibit the CX Group from engaging in strike action and provided to the Governor-in-Council the authority to impose terms and conditions of employment which would be binding on the members of the CX Group and the Alliance.

17.      On Friday, March 26,1999, incumbents of the 728 positions referred to in paragraph 15 hereof commenced lawful strike activity.

18. O n March 25, 1999, the Government Services Act, 1999 was assented to. Pursuant to an Order-in-Council dated March 29, 1999, Part II of the Government Services Act, 1999 came into force on March 29, 1999, at 23:30 hours (standard time). Part II of the Act deals expressly with employees in the Correctional Groups.

19. Sections 16 and 17 of the Act broadly required members of the CX Group to return to work and prohibited them from engaging in further strike action. As well, strict obligations were imposed upon the Alliance to ensure that no further strike action occurred. Among these obligations were the requirement that the Alliance, and each officer and representative of the Alliance, give notice to employees that its lawful strike authorization for the incumbents of the 728 positions referred to in paragraph 15 hereof was "invalid". Sections 16 and 17 provide as follows:

16. On the coming into force of this Part,

(a) the employer shall resume without delay, or continue, as the case may be, government services; and

(b) every employee shall, when so required, resume without delay, or continue, as the case may be, the duties of that employee's employment.

17. The bargaining agent and each officer and representative of the bargaining agent shall

(a) without delay on the coming into force of this Part, give notice to the employees that, by reason of the coming into force of this Part,

(i) any declaration, authorization or direction to go on strike given to them before the coming into force of this Part is invalid, and

(ii) government services are to be resumed or continued, as the case may be, and that the employees, when so required, are to resume without delay, or continue, ast the case may be, the duties of their employment;

(b) take all reasonable steps to ensure that employees comply with paragraph 16(b); and

(c) refrain from any conduct that may encourage employees not to comply with paragraph 16(b).

20. In addition, the Act provided for the resumption of expired collective agreements and the authority of the Governor-in-Council to prescribe terms and conditions of employment, as indicated in section 19, 20 and 21 of the Act:

19. The master agreement and each group specific agreement is deemed to have had effect from the date it expired to the coming into force of this Part and shall continue to have effect in respect of the employer, the bargaining agent and the employees until the earlier of

(a) the day they become bound by a collective agreement concluded by

the employer and the bargaining agent, and

(b) the day they become bound by a collective agreement referred to in subsection 20(3).

20. (1) The Governor in Council may, on the recommendation of the Treasury Board, and taking into account collective agreements entered into by the employer in respect of bargaining units in the Public Service since the Public Sector Compensation Act ceased to apply to compensation plans applicable to them, prescribe

(a) the terms and conditions of employment applicable to the employees; and

(b) the period during which those terms and conditions of employment are applicable.

(2) The Governor in Council may provide that any of the terms and conditions of employment is effective and binding on a day before or after the beginning of the period prescribed under paragraph (1)(b).

(3) The terms and conditions prescribed under paragraph (1)(a) constitute a new collective agreement in respect of each group of employees bound by an agreement referred to in Schedule 2.

(4) The Public Service Staff Relations Act applies to the collective agreements referred to in subsection (3) and those collective agreements are effective and binding on the employer, the bargaining agent and the employees for the duration of the period they are applicable, despite any provision of that Act.

(5) For greater certainty, the Statutory Instruments Act does not apply in respect of anything done under this section.

(6) If the employer, the bargaining agent and employees become bound by a collective agreement concluded by the employer and the bargaining agent before terms and conditions of employment applicable to those employees are prescribed under subsection (1), subsections (1) to (5) and section 22 are deemed to be spent in respect of those employees.

21. During the period beginning on the coming into force of this Part and ending on the expiration of the period during which a collective agreement referred to in paragraph 19(a) or a collective agreement referred to in subsection 20(3), whichever is applicable, has effect,

(a) no officer or representative of the bargaining agent shall declare, authorize or direct a strike by any employee bound by that collective agreement; and

(b) no employee bound by that collective agreement shall participate in a strike against the employer.

21. Section 23 of the Act further provided that individuals who contravened any provision of the Part applicable to correctional officers would be guilty of an offence and liable to a fine of not more than $50,000 for each day or part of a day that the individual is acting in the capacity of an officer or representative of the employer or the Alliance or of not more than $1,000 in any other case. If the Alliance contravened any provision of this Part, it would be guilty of an offence and liable to a fine of not more than $100,000 for each day or part of a day during which the offence continues.

22. By Order-in-Council dated March 29, 1999, the new terms and conditions of employment governing CX employees were issued by the Governor-in-Council on the recommendation of the Treasury Board. These terms and conditions constituted a new collective agreement which was to be in force as of 00:01 hours on March 30, 1999, and would be binding on the employer, the Alliance, and the employees affected until May 31, 2000. The Alliance did not agree with the terms of the collective agreement imposed by the Order-in-Council.

23. The Plaintiff states that Part II of the Government Services Act, 1999 is offensive of the rule of law and therefore of no force or effect for the following reasons:

(a) the Act represents arbitrary interference with the statutory right to engage in collective bargaining in circumstances where those affected by the law had fully expected to engage in collective bargaining in accordance with the PSSRA;

(b) the Act, combined with the suspension of arbitration, denies access to a statutorily appointed decision maker to address disputes under the PSSRA;

(c) the Act was passed in bad faith as it deprived correctional officers of the right to strike even though Treasury Board as employer had, just prior to the passage of the legislation, negotiated an agreement, consequent upon its own negligence, which enabled a specified number of correctional officers to engage in strike action;

(d) the Act was passed in bad faith as it compelled the Alliance, its officers and representatives to declare that its strike authorization was "invalid" even though that strike authorization was lawful particularly in view of the agreement reached with the Treasury Board respecting the 728 positions which would not be designated under the PSSRA; and

(e) the Act confers discretion on the Governor-in-Council to impose terms and conditions of employment on correctional officers.

24. The Plaintiff states further that the provisions of Part II of the Government Services Act, 1999 are inconsistent with section 2(b) of the Canadian Charter of Rights and Freedoms, and cannot be saved under section 1 of the Canadian Charter of Rights and Freedoms, as the Act has deprived members of the CX Group the right to express themselves through collective bargaining and strike action and as the Act compelled the Alliance, its officers and representatives to make certain statements as specified in the Act.

25. The Plaintiff states that Part II of the Government Services Act, 1999 is in violation of the freedom of association protected by section 2(d) of the Charter and cannot be saved by section 1 of the Charter. In particular, the Plaintiff states that the provisions of Part II of the Act prohibit members of the CX Group from exercising their freedom of expression in association through the collective bargaining and strike process.

[3]      The hard kernel of the facts is that the Treasury Board and PSAC negotiated an agreement with respect to certain members of the CX group (correctional officers) which confirmed their right to strike. Days later, Parliament passed legislation which had the effect of rendering ineffective the negotiated agreement by ordering the CX group back to work and compelling PSAC to advise its members that any direction or authorization to strike given prior to the passage of the legislation was invalid by reason of the coming into force of the legislation. PSAC says that the legislation is contrary to the rule of law because it is arbitrary and was passed in bad faith. It is also an infringement of the plaintiff"s freedom of expression because it requires the officers of the plaintiff to communicate certain information to their members. A claim that the legislation was an infringement of PSAC"s members freedom of association was abandonned, at least for purposes of this application.

[4]      It is important to note that the motion before the Court is one to strike the Statement of Claim as failing to disclose a cause of action. It is not an application for summary judgment. In an application such as this, the Court is not free to dispose of issues of law which have not been "fully settled in the jurisprudence". Nash v. R. in the Right of Ontario (1995) 27 O.R. (3d) 1 (Ont.C.A.), [1995] O.J. No. 4043. Wilson J. reviewed and summarized the Canadian and English jurisprudence on this point in Hunt v. Carey Canada Inc. , [1990] 2 S.C.R. 959, (1990) 117 N.R. 321 and concluded as follows:

Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19: assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action? As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat". Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of a plaintiff's statement of claim be struck out under Rule 19(24)(a).

[5]      As a result, my function on this application is not to decide if there is an issue for trial but whether, as a matter of law, the claim discloses a legal foundation for a claim. The threshold is not high.

[6]      The plaintiff"s position is that the law in this area is in a state of development. As an indication of the direction the law is taking, it points to dicta of Nöel J. (as he then was) in Huet v. Canada (Minister of National Revenue) (1994) 85 F.T.R. 171, [1994] F.C.J. No. 1022:

If the Courts have the power to keep in force laws which are otherwise inoperative by virtue of the necessity to maintain the rule of law, they must also have the power to invalidate laws when the effect of their application in time is to suspend the rule of law. p. 191

[7]      As a foundation for its position, the plaintiff points to a number of Supreme Court of Canada cases which recognize the rule of law as a constitutional principle. Foremost among these authorities are Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, (1985) 12 D.L.R. (4^th) 1 and Reference re Secession of Quebec, [1998] 2 S.C.R. 217, (1998) 161 D.L.R. (4^th) 385. In the Reference re Manitoba Language Rights case, the Supreme Court concluded that the failure to pass the laws of Manitoba in French as well as English resulted in the invalidity of those laws. Giving immediate effect to the Court"s judgment would have created an immediate legal vacuum, an absence of laws, a prospect which the Court found to be intolerable. It relied upon the rule of law to fashion a means of avoiding this state of lawlessness:

The difficulty with the fact that the unilingual Acts of the Legislature of Manitoba must be declared invalid and of no force or effect is that, without going further, a legal vacuum will be created with consequent legal chaos in the Province of Manitoba. p. 747

In the present case, declaring the Acts of the Legislature of Manitoba invalid and of no force or effect would, without more, undermine the principle of the rule of law. The rule of law, a fundamental principle of our Constitution, must mean at least two things. First, that the law is supreme over officials of the government as well as private individuals, and thereby preclusive of the influence of arbitrary power. p. 748

Second, the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order. Law and order are indispensable elements of civilized life. "The rule of law in this sense implies ... simply the existence of public order." p. 749

The conclusion that the Acts of the Legislature of Manitoba are invalid and of no force or effect means that the positive legal order which has purportedly regulated the affairs of the citizens of Manitoba since 1890 will be destroyed and the rights, obligations and other effects arising under these laws will be invalid and unenforceable. p. 749

Additional to the inclusion of the rule of law in the preambles of the Constitution Acts of 1867 and 1982, the principle is clearly implicit in the very nature of a Constitution. The Constitution, as the Supreme Law, must be understood as a purposive ordering of social relations providing a basis upon which an actual order of positive laws can be brought into existence. The founders of this nation must have intended, as one of the basic principles of nation building, that Canada be a society of legal order and normative structure: one governed by rule of law. While this is not set out in a specific provision, the principle of the rule of law is clearly a principle of our Constitution. p. 750

The Court has in the past inferred constitutional principles from the preambles to the Constitution Acts and the general object and purpose of the Constitution. p. 751

In other words, in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada. In the case of the Patriation Reference, supra, this unwritten postulate was the principle of federalism. In the present case it is the principle of rule of law. p. 752

The only appropriate solution for preserving the rights, obligations and other effects which have arisen under invalid Acts of the Legislature of Manitoba and which are not saved by the de facto or other doctrines is to declare that, in order to uphold the rule of law, these rights, obligations and other effects have, and will continue to have, the same force and effect they would have had if they had arisen under valid enactments, for that period of time during which it would be impossible for Manitoba to comply with its constitutional duty under s. 23 of the Manitoba Act, 1870. The Province of Manitoba would be faced with chaos and anarchy if the legal rights, obligations and other effects which have been relied upon by the people of Manitoba since 1890 were suddenly open to challenge. The constitutional guarantee of rule of law will not tolerate such chaos and anarchy. p. 754

[8]      As can be seen from this series of excerpts, the resort to the rule of law in the Manitoba Language Reference was driven by the need to avoid creating a legal vacuum. The principle of the rule of law was not used to invalidate legislation but to justify a suspension of the coming into effect of the Court"s own judgment.

[9]      In the Reference re Quebec Secession, the Supreme Court was called to rule upon the circumstances under which Quebec could separate from the rest of Canada. This entailed a review of the constitutional structure of the country:

Our Constitution is primarily a written one, the product of 131 years of evolution. Behind the written word is an historical lineage stretching back through the ages, which aids in the consideration of the underlying constitutional principles. These principles inform and sustain the constitutional text: they are the vital unstated assumptions upon which the text is based. p. 247 (S.C.R.)

The individual elements of the Constitution are linked to the others, and must be interpreted by reference to the structure of the Constitution as a whole. As we recently emphasized in the Provincial Judges Reference, certain underlying principles infuse our Constitution and breathe life into it. Speaking of the rule of law principle in the Manitoba Language Rights Reference, supra, at p. 750, we held that "the principle is clearly implicit in the very nature of a Constitution". The same may be said of the other three constitutional principles we underscore today. p. 248

Although these underlying principles are not explicitly made part of the Constitution by any written provision, other than in some respects by the oblique reference in the preamble to the Constitution Act, 1867, it would be impossible to conceive of our constitutional structure without them. p. 248

Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations (have "full legal force", as we described it in the Patriation Reference, supra, at p. 845), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments. "In other words", as this Court confirmed in the Manitoba Language Rights Reference, supra, at p. 752, "in the process of Constitutional adjudication, the Court may have regard to unwritten postulates which form the very foundation of the Constitution of Canada". pp. 249-250

At its most basic level, the rule of law vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs. It provides a shield for individuals from arbitrary state action. p. 257

In the Manitoba Language Rights Reference, supra, at pp. 747-52, this Court outlined the elements of the rule of law. We emphasized, first, that the rule of law provides that the law is supreme over the acts of both government and private persons. There is, in short, one law for all. Second, we explained, at p. 749, that "the rule of law requires the creation and maintenance of an actual order of positive laws which preserves and embodies the more general principle of normative order". It was this second aspect of the rule of law that was primarily at issue in the Manitoba Language Rights Reference itself. A third aspect of the rule of law is, as recently confirmed in the Provincial Judges Reference, supra, at para. 10, that "the exercise of all public power must find its ultimate source in a legal rule". Put another way, the relationship between the state and the individual must be regulated by law. Taken together, these three considerations make up a principle of profound constitutional and political significance. pp. 257-258

[10]      The plaintiff also relies on a series of other pronouncements from other decisions of the Supreme Court of Canada, each advancing in its own way the proposition that the Constitution does not exist in a vacuum, that it is nourished by unwritten constitutional principles which can also be given effect, a position perhaps best expressed by the following extract from the [1981] 1 S.C.R. 753">Manitoba (Attorney General) v. Canada (Attorney General), [1981] 1 S.C.R. 753 at p. 851, (1981) 125 D.L.R. (3d) 1, (the Patriation Reference):

This Court, since its inception, has been active in reviewing the constitutionality of both federal and provincial legislation. This role has generally been concerned with the interpretation of the express terms of the B.N.A. Act. However, on occasions, this Court has had to consider issues for which the B.N.A. Act offered no answer. In each case, this Court has denied the assertion of any power which would offend against the basic principles of the Constitution.

It may be noted that the above instances of judicially developed legal principles and doctrines share several characteristics. First, none is to be found in express provisions of the British North America Acts or other constitutional enactments. Second, all have been perceived to represent constitutional requirements that are derived from the federal character of Canada's Constitution. Third, they have been accorded full legal force in the sense of being employed to strike down legislative enactments. Fourth, each was judicially developed in response to a particular legislative initiative in respect of which it might have been observed, as it was by Dickson J. in the Amax (supra) case at p. 591, that: "There are no Canadian constitutional law precedents addressed directly to the present issue...".

[11]      These passages, which are cited by Professor Monahan in his article Is the Pearson Airport Legislation Unconstitutional? The Rule of Law as a Limit on Contract Repudiation by Government³ represent, it seems to me, the gist of the position advanced by the plaintiff, which is that the Constitution includes not only the constitutional documents themselves⁴ but also those constitutional principles which underlie the documents. That is particularly so when those principles are expressly recognized in the constitutional documents, as the rule of law is in the preamble to the Charter. Where there is a gap in the constitutional documents, it can be supplied by reference to the underlying principles, as suggested by the Supreme Court in the extract from the Patriation Reference quoted above. In the present case, the absence of specific reference in the constitutional documents to control of arbitrariness by Parliament is said to justify invocation of the rule of law to strike down the legislation in question.

[12]      A possible illustration of the principle referred to by Professor Monahan is found in Wells v. Newfoundland, [1999] S.C.J. No. 50, (1999) 177 D.L.R. (4^th ) 73, a case of a holder of office during good behaviour whose office was abolished. Wells was appointed Commissioner (Consumer Representative) of the Public Utilities Board. His appointment was during good behaviour to age 70. Some four and one half years after his appointment, the Newfoundland legislature abolished the Public Utilities Board, and with it, Well"s office. The legislation did not speak to the issue of compensation for Mr. Wells but by Cabinet Directive, the government dictated that Wells should receive no compensation. The Supreme Court held that the legislature had the right to abolish the office and to deprive Wells of compensation, but since it failed to do so by legislation, his rights survived:

At the cost of repetition, there is no question that the Government of Newfoundland had the authority to restructure or eliminate the Board. There is a crucial distinction, however, between the Crown legislatively avoiding a contract, and altogether escaping the legal consequences of doing so. While the legislature may have the extraordinary power of passing a law to specifically deny compensation to an aggrieved individual with whom it has broken an agreement, clear and explicit statutory language would be required to extinguish existing rights previously conferred on that party. ...

It is eye-catching that the Vice-Chairman of the Resource Legislation Review Committee of the Newfoundland House of Assembly suggested that the new Act be entitled "The Get Rid of Andy Wells Bill": Newfoundland: Proceedings of the Resource Legislation Review Committee, December 14, 1989, at L7. The government was free to pass such a bill and they were equally free to pass a bill which would have explicitly denied the respondent compensation (see Welch v. New Brunswick (1991), 116 N.B.R. (2d) 262 (Q.B.), for an explicit bar to compensation). However, since no such act was passed, the respondent's basic contractual rights to severance pay remain.

[13]      While the case supports the plaintiff"s position in the sense of saying that the rule of law requires that the Government will honour its obligations⁵, it is in fact a strong statement in support of the defendant"s position. The decision appears to recognize explicitly the Legislature"s right to pass legislation without restriction, even if passed in circumstances highly suggestive of bad faith ("the Get Rid of Andy Wells Bill").

[14]      The defendant relies upon two decisions for her position on the issue of the rule of law. The first is the decision of the Saskatchewan Court of Appeal in Bacon v. Saskatchewan Crop Insurance Corp., [1999] 11 W.W.R. 51, (1999) 180 Sask. R. 20. In that case, a group of individuals who had contractual claims against the Saskatchewan Crop Insurance Corporation challenged the validity of legislation passed by the Saskatchewan legislature abrogating their rights and extinguishing their claims for breach of contract. At trial, Laing J. found that the rule of law applied to the Government and Legislature of Saskatchewan so as to invalidate arbitrary legislation but went on to find that the legislation was not arbitrary and dismissed the action. The Saskatchewan Court of Appeal rejected the notion that the rule of law was a discrete ground under which legislation could be invalidated. It found that arbitrary administrative action could be remedied by the superiour courts exercising their supervisory function; arbitrary legislative action which could not otherwise be challenged pursuant to the division of powers or the Charter, could be challenged at the ballot box. The following passage reflects the judgment of the Court on this issue:

I am unable to accept that these justices of the Supreme Court [in the Reference re Secession of Quebec], whilst providing an analysis of our federal system, were at the same time engaged in changing that system. That is particularly so when we are not talking of a subtle or marginal change, but one which would reduce the supremacy of Parliament by subjecting it to the scrutiny of superior court judges to be sure it did not offend the rule of law and if it did, to determine whether it was an arbitrary action. If the Supreme Court of Canada meant to embrace such a doctrine, I would expect it would see the need to say so very clearly in a case where that was the issue before them. This is particularly so when they are not only cognizant of the many cases in various jurisdictions acknowledging the supremacy of Parliament, but must also be aware of their own previous judgments which have endorsed that principle ...

[15]      The second case relied upon by the defendant is the decision of McKeown J in Singh v. Canada, [1999] 4 F.C. 583, (1999) 170 F.T.R. 215 affirmed [2000] F.C.J. No. 4 where my colleague carefully canvassed the jurisprudence and concluded that unwritten constitutional norms cannot be used to invalidate legislation. McKeown J. reviewed the numerous comments in various Supreme Court judgments where the role of unwritten constitutional principles was discussed, including those where judicial restraint in the use of such unwritten principles was advocated by the Supreme Court. He concluded that none of the unwritten principles cited to him, federalism, separation of powers, judicial independence or rule of law justified setting aside legislation enacted by Parliament acting within the jurisdiction conferred upon it by the Constitution. The essence of his position is found in the following extract from the headnote to the case:

Legislation enacted which is contrary to the division of powers as set out in the Constitution Act, 1867 is ultra vires the enacting legislature and has always been subject to a declaration of invalidity by the courts. The enactment of the Constitution Act, 1982 added a second ground on which a court may declare legislation invalid. The applicants argued that the largely unwritten foundational and organizing principles of the Constitution Act, 1867 provide a third ground, in

addition to the division of powers and the Charter, on which a court may rely to invalidate legislation enacted by Parliament or by the provincial legislatures. The Supreme Court of Canada has concluded that unwritten constitutional norms may be used to fill a gap in the express terms of the constitutional text or used as interpretative tools where a section of the Constitution is not clear. But the principles of judicial review do not enable a court to strike down legislation in the absence of an express provision of the Constitution which is contravened by the legislation in question. There was no requisite express constitutional provision herein. Moreover there was no gap in the Constitution to be filled. These largely unwritten constitutional norms were not sufficient, in and of themselves, to invalidate otherwise properly enacted legislation.

[16]      McKeown"s conclusions were approved and his reasoning further developed in the Federal Court of Appeal. Strayer J.A., writing for the Court, reviewed jurisprudence on parliamentary supremacy and concluded that it remained part of our constitutional law, except to the extent that Parliament was bound by the terms of the Constitution acts. He went on to consider the effect of the unwritten constitutional principles and concluded, relying on Bacon, supra, that an unwritten principle, including the rule of law, could not be used to strike down legislation which was within Parliament"s legislative competence and which did not offend the Charter .

[17]      There is another case dealing with Parliament"s ability to legislate in circumstances where some irregularity is alleged. In Turner v. Canada, [1992] 3 F.C. 458 (Fed. C.A.), (1992) 149 N.R. 218, Turner sued the Federal crown alleging that it had negligently passed legislation which adversely affected his interests in litigation which was pending at the time the legislation was enacted. The legislation had retroactive effect and deprived Turner of a defence to a claim against him, thereby injuring him. The Federal Court of Appeal found that the claim was not justiciable on the basis of parliamentary sovereignty. There are points of distinction, for example Turner alleged that Parliament was tortiously misled while PSAC alleges Parliament acted arbitrarily, Turner sought damages where PSAC seeks a declaration of invalidity. However, the Court"s conclusion "that Parliament has been induced to enact legislation by the tortious acts of Ministers of the Crown is not justiciable"⁶ addresses Parliament"s susceptibility to judicial oversight. It is not conclusive of this case because arbitrariness and bad faith stand on a different footing than negligence but it does show insofar as negligence and procedural unfairness are in issue, Parliament is not subject to judicial scrutiny.

[18]      Can it be said, on the basis of the decision of the Saskatchewan Court of Appeal in Bacon, supra, and the decision of the Federal Court of Appeal in Singh, supra , that this matter has been "fully settled in the jurisprudence". It is clear that the Saskatchewan Court of Appeal rejected the notion that Parliamentary supremacy had been reduced by "subjecting it to the scrutiny of superior court judges to be sure it [the legislation] did not offend the rule of law and if it did, to determine whether it was an arbitrary action." This is the very thesis advance by the plaintiff. The Federal Court of Appeal adopted the position taken by the Saskatchewan Court of Appeal.

[19]      I find that the decision of the Federal Court of Appeal in Singh, supra, would be sufficient to dispose of the plaintiff"s claim on an application for summary judgment. However, the test on an application to strike a claim for failure to disclose a cause of action is somewhat different. As noted above, the fact of the existence of a good defence does not entitle the defendant to succeed in such an application because the issue is not the success of the application but whether the plaintiff"s grievance is one known to law. The Court could therefore dismiss an application to strike which would have succeeded had it been brought as an application for summary judgment.

[20]      Is this a case of a claim to which there is a good defence or is it a claim which is unknown to law? This case appears to be on the boundary between the two possibilities. On the basis of the conventional view that Parliament"s sovereignty is limited only by the division of powers in the Constitution Act, 1867 and the enumerated rights in the Canadian Charter of Rights and Freedoms, I find that the plaintiff does not have a cause of action arising from breach of the rule of law. I am fortified in this view by the fact that both the Saskatchewan Court of Appeal and the Federal Court of Appeal have come to the same conclusion. Those portions of the plaintiff"s claim claiming a declaration of invalidity based upon a breach of the rule of law will be struck.

[21]      The second ground advanced by the plaintiff is the alleged infringement of the freedom of expression of the members, who were obliged to cease picketing, an activity which serves an expressive function, and of the officers of the plaintiff who were required to make certain statements to the membership about the validity of communications with respect to the strike.

[22]      The plaintiff relies upon the decision of the Supreme Court of Canada in United Food and Commercial Workers, Local 1518 (U.F.C.W.) v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, [1999] S.C.J. No. 44, for the proposition that picketing is expressive behaviour which is protected by the Charter.

Picketing is an important form of expression in our society and one that is constitutionally protected. In B.C.G.E.U. Dickson C.J. held that picketing is an "essential component of a labour relations regime founded on the right to bargain collectively and to take collective action" (p. 230). Dickson C.J. referred to Harrison v. Carswell [page1111], [1976] 2 S.C.R. 200">[1976] 2 S.C.R. 200, where a majority of this Court stated at p. 219:

Society has long since acknowledged that a public interest is served by permitting union members to bring economic pressure to bear upon their respective employers through peaceful picketing....

[23]      The plaintiff says that there is, in addition, a difference in kind between a restriction on picketing and a requirement that union leaders say certain things to their membership, things which they may find highly objectionable. That form of enforced speech is an infringement of freedom of expression.

[24]      The defendant says first that it is established that there is no constitutional right to bargain collectively or to strike. Reference re Public Service Employee Relations Act (Alta), [1987] 1 S.C.R. 313 at p. 409-410, (1987) 38 D.L.R. (4^th ) 161. It then says bargaining and strike action are not, in and of themselves, forms of expression. Syndicat des travailleurs et travailleuses des postes v. Canada, [1999] J.Q. 1088. Finally, the defendant relies upon Delisle v. Canada, [1999] 2 S.C.R. 989, [1999] S.C.J. No. 43 for the proposition that the government has no obligation to enable expression; it must simply refrain from limiting it except in justifiable ways.

The appellant and certain interveners in particular argue that the exclusion of RCMP members from the PSSRA violates the members' freedom of expression and right to equality. The reasoning that applies to the issue of freedom of association also applies here. As I said before, except in exceptional circumstances, freedom of expression imposes only an obligation that Parliament not interfere (see in this regard Native Women's Assn. of Canada v. Canada, supra), and the exclusion of RCMP members therefore cannot violate it,, para 38

[25]      Earlier in the judgment, the government"s role vis-à-vis freedom of expression is expressed as follows:

With respect to freedom of expression, this principle was articulated by this Court in Haig v. Canada, [1993] 2 S.C.R. 995, at p. 1035:

The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones.

[26]      While these propositions may address the plaintiff"s position on the question of the restriction in its member"s freedom of expression, in the passive sense, it does not address the question of the coercion on the part of the plaintiff"s leadership to make certain announcements to their membership. Freedom of expression can be compared to freedom of religion about which Dickson J. said the following in [1981] 1 S.C.R. 299">R. v. Big M. Drug Mart Ltd ., [1981] 1 S.C.R. 299:

Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason,from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices.

[27]      The legislation in question here includes among its provisions, the following:

The bargaining agent and each officer and representative of the bargaining agent:

a) shall forthwith on the coming into force of this Act, give notice to every employee that, by reason of that coming into force,

i) any declaration, authorization or direction to go on strike given to them before that coming into force has become invalid, and

ii) government services are forthwith to be resumed and every employee when so required, is forthwith to resume the duties of that employee"s employment.

[28]      It is apparent that this is not a case of interfering with speech but of imposing a positive obligation to express certain views with which the plaintiff"s representatives may very well find offensive.

[29]     

The Statement of Claim does not expressly plead that the legislation is invalid for compelling speech which is offensive to PSAC and its officers. There is reference to forced speech in paragraph 23 of the Statement of Claim but in the context of the rule of law.

[30]      I am not prepared to dismiss this portion of the claim on procedural grounds. In the interests of having the real issues between the parties before the Court, an order will issue striking the portions of the claim dealing with freedom of expression unless within 30 days the plaintiff moves to amend the claim to allege that paragraph 17(a)(i) is a violation of its right to freedom of expression as guaranteed in subsection 2(b) of the Charter.

ORDER

     IT IS HEREBY ORDERED THAT:     

1) -      Paragraphs 1(a), and 23 of the plaintiff"s Statement of Claim are struck.

2) -      The balance of the claim will be struck effective 30 days from the date of this order unless the plaintiff moves within the said thirty days for an order granting it leave to amend its Statement of Claim to allege that paragraph 17(a)(i) is a violation of the rights of its officers guaranteed by subsection 2(b) of the Charter and such leave is granted, whether before or after the expiry of the said 30-day period.

"J.D. Denis Pelletier"

Judge

__________________

¹      Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that          of the United Kingdom:... (emphasis added)

²      Whereas Canada is founded upon principles that recognize the supremacy of God and          the rule of law: ...(emphasis added)

³      (1995) Osgoode Hall Law Journal Vol. 33 No 3 p. 411

⁴      The Constitution Act, 1867 and the Constitution Act, 1982 which includes the Charter

⁵      "In a nation governed by the rule of law, we assume that the government will respect its obligations unless it specifically exercises its power not to. ...To argue the opposite is to say that government is bound only by its whim, not its word. In Canada this is unacceptable, and does not accord with the nation"s understanding of the relationship between the state and its citizens." (emphasis added)

⁶      p. 462