Present: Dickson C.J. and Beetz, McIntyre, Chouinard*, Wilson, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the court of appeal for saskatchewan
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of association ‑‑ Provincial legislation temporarily prohibiting strikes and lock‑outs in dairy industry ‑‑ Legislation providing for arbitration ‑‑ Whether provincial legislation violated s. 2(d) of the Charter ‑‑ If so, whether such violation justifiable under s. 1 of the Charter ‑‑ The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1.
Following unsuccessful contract talks between the respondent unions and the only major dairy businesses in Saskatchewan, the unions served strike notices on the dairies. Before the rotating strike could begin, the dairies served the unions with a series of lock‑out notices covering all of their fluid milk plants. The provincial legislature responded to these developments by passing The Dairy Workers (Maintenance of Operations) Act which temporarily prohibited the dairy employees from striking and the dairies from locking out their employees. The Saskatchewan Court of Queen's Bench dismissed respondents' application for a declaration that the Act infringed the freedom of association guaranteed by s. 2( d ) of the Canadian Charter of Rights and Freedoms but their appeal to the Court of Appeal was allowed. This appeal is to determine whether the Act violates s. 2( d ) of the Charter and, if so, whether such violation can be justified under s. 1 .
Held (Wilson J. dissenting): The appeal should be allowed.
Per Beetz, Le Dain and La Forest JJ.: For the reasons expressed by Le Dain J. in the Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, the guarantee of freedom of association in s. 2( d ) of the Canadian Charter of Rights and Freedoms does not include a guarantee of the right to bargain collectively and the right to strike. Accordingly, The Dairy Workers (Maintenance of Operations) Act did not violate s. 2( d ) of the Charter .
Per McIntyre J.: For the reasons I expressed in the Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, The Dairy Workers (Maintenance of Operations) Act did not violate freedom of association guaranteed in s. 2( d ) of the Charter because freedom of association does not embody the right to strike.
Per Dickson C.J.: In the context of labour relations, the guarantee of freedom of association in s. 2( d ) of the Charter included the freedom to bargain collectively and to strike. Therefore, The Dairy Workers (Maintenance of Operations) Act violated s. 2( d ) of the Charter to the extent that it interfered with the employees' freedom to engage in strike activity that would have been lawful in the absence of the Act.
The Act was justifiable under s. 1 of the Charter . A legislature is entitled to abrogate the freedom of employees to strike if the effect of a strike or lock‑out would be especially injurious to the economic interests of third parties, provided that the legislature substituted a fair arbitration scheme to resolve the dispute. The rationale for such an abrogation is that third parties who do not participate in a particular collective bargaining process ought not to be unduly harmed when the bargaining fails to produce a settlement. Economic harm to a third party will not always suffice, however, to justify, under s. 1, legislation abrogating the right to strike. In an interdependent economy, it is inevitable that a work stoppage in one industry will entail detrimental economic consequences for at least some individuals in other industries. In order for the legislation to be saved under s. 1, the objective advanced to justify the legislation must relate to a "pressing and substantial concern". Moreover, the legislative objective must be weighed against the deleterious effects of the measures which limit the enjoyment of the Charter right. In view of these principles established in Oakes, the relevant question to be answered in making such a determination is whether the potential for economic harm to third parties during a work stoppage is so massive and immediate and so focussed in its intensity as to justify the limitation of a constitutionally guaranteed freedom in respect of those employees.
In the case at bar, the legislative objective of avoiding serious harm to dairy farmers, in light of the unique nature of the dairy industry, constituted a satisfactory justification for the abrogation of the freedom of the dairy plant workers to strike. The evidence adduced indicated that the strike and the lock‑out would entail a virtually total closure of milk processing facilities in Saskatchewan. These facilities provided the sole outlet for dairy farmers and their closure would pose a serious threat to the farmers in that they would be forced to dump their product. The dairy farmers could not stop production and could not store the milk for more than three days. These effects would persist whether the work stoppage was of a short or long duration. Not only were the threatened economic losses large in absolute terms but they were to be borne in their full intensity by the province's 800 dairy farmers. The economic harm threatened by a total work stoppage in the dairy processing industry was so immediate, of such a high degree and of such an intense focus as to fall well within the ambit of the legislature's discretion to substitute a fair and efficient arbitration scheme for the dairy processing employees' freedom to strike.
The compulsory arbitration scheme enacted in the Act met the criteria of proportionality for such a scheme. The Act applied only to the workers in the dairy industry; it provided for a neutral arbitrator; either party could ultimately compel the other to submit to arbitration without interference from the government; and the scope of arbitration was not legislatively restricted. Accordingly, the Act satisfied the requirements of s. 1 of the Charter and embodied a reasonable limit on freedom of association.
Per Wilson J. (dissenting): The Dairy Workers (Maintenance of Operations) Act could not be saved under s. 1. The prevention of economic harm to a particular sector is not per se a government objective of sufficient importance to justify the limitation on the freedom of association guaranteed by s. 2(d). Economic regulation is an important government function in today's society but, if it is to be done at the expense of our fundamental freedoms, then it must be done in response to a serious threat to the well‑being of the body politic or a substantial segment of it. The evidence adduced in this case fell far short of establishing economic harm to the dairy workers and the public which is in that category.
There is, however, a point at which government interference with the collective bargaining process is justified. To determine under s. 1 of the Charter when that point has been reached, the government must satisfy the court that as a minimum the damage to the dairy industry as a consequence of the work stoppage would be considerably greater than that which would flow in the ordinary course of things from a work stoppage of reasonable duration. Industry and the public accept a certain amount of damage and inconvenience as the price of maintaining free negotiation in the work place. Such damage and inconvenience cannot therefore constitute the "pressing and substantial concern" held by this Court in Oakes to justify government intervention. There has to be more to it than that. There is no basis of solid fact in this case on which to make a judgment as to whether the government's intervention was reasonable or not. The government has thus failed to discharge its onus and the infringement of respondents' freedom of association accordingly was not demonstrably justified.
Assuming that the objective of protecting the economic interests of dairy farmers was of sufficient importance to justify overriding the workers' right to strike, the means chosen were not closely tailored to the objective so as to ensure the least possible infringement of the right. The government should not automatically respond with a total strike ban and the institution of compulsory arbitration. In the complex area of economic harm, the tailoring need not be exact but tailoring there must be. Here, the government did not establish that it had to impose such measure. On the contrary, the evidence adduced seemed to indicate that it could have tailored its legislative response in this case by instituting a partial ban on both strike and lock‑out. This would have attained its objective while at the same time meeting the proportionality test enunciated in Oakes.
The second government objective supporting the limitation on the freedom under s. 2(d) was that the dairy workers provided an essential service‑‑the delivery of an important food product to the consumers‑‑and that the cessation of such delivery might threaten the health of part of the population. There was no evidence to support this allegation. No threat to the health of Saskatchewan consumers was therefore established.
Cases Cited
By Le Dain J.
Applied: Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.
By McIntyre J.
Applied: Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.
By Dickson C.J.
Referred to: Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; R. v. Oakes, [1986] 1 S.C.R. 103; Dolphin Delivery Ltd. v. Retail, Wholesale & Department Store Union, Local 580 (1984), 10 D.L.R. (4th) 198, aff'd on a different issue, [1986] 2 S.C.R. 573.
By Wilson J. (dissenting)
PSAC v. Canada, [1987] 1 S.C.R. 424; Re Anti‑Inflation Act, [1976] 2 S.C.R. 373; R. v. Oakes, [1986] 1 S.C.R. 103; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; Ares v. Venner, [1970] S.C.R. 608; Attorney‑General v. Times Newspapers Ltd., [1974] A.C. 273; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 2( d ) , 24(1) .
Constitution Act, 1982 , s. 52(1) .
Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1.
Trade Union Act, R.S.S. 1978, c. T‑17, s. 34.
Authors Cited
Adell, Bernard. "Establishing a Collective Employee Voice in the Workplace: How Can the Obstacles be Lowered?" In Essays in Labour Relations Law. Papers presented at the Conference on Government and Labour Relations: The Death of Voluntarism. School Management, University of Lethbridge, September 6‑8, 1984. Don Mills, Ont.: CCH Canadian Ltd., 1986.
Arthurs H. W. "Free Collective Bargaining in a Regulated Society". In The Direction of Labour Policy in Canada. Edited by Frances Bairstow. Montréal: McGill University. Industrial Relations Centre, 1977.
Arthurs, H. W. "Public Interest Labor Disputes in Canada: A Legislative Perspective" (1967), 17 Buffalo L. Rev. 39.
Canada. Task Force on Labour Relations. Canadian Industrial Relations: The Report of Task Force on Labour Relations. Ottawa: Privy Council Office, 1968.
International Labour Organization. Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the I.L.O., 3rd ed. Geneva: International Labour Office, 1985.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1985), 19 D.L.R. (4th) 609, [1985] 5 W.W.R. 97, 39 Sask. R. 193, 85 CLLC ¶ 14,054, allowing respondents' appeal from a judgment of the Court of Queen's Bench (1984), 12 D.L.R. (4th) 10, [1984] 4 W.W.R. 717, 33 Sask. R. 219, 84 CLLC ¶ 14,061, 10 C.R.R. 1. Appeal allowed, Wilson J. dissenting.
Robert G. Richards and B. G. Welsh, for the appellants.
George Taylor, Q.C., for the respondents.
Eric Bowie, Q.C., for the intervener the Attorney General of Canada.
John Cavarzan, Q.C., for the intervener the Attorney General for Ontario.
Joseph J. Arvay, for the intervener the Attorney General of British Columbia.
Brian R. Burrows, for the intervener the Attorney General for Alberta.
Valerie J. Matthews Lemieux and W. Glenn McFetridge, for the intervener the Attorney General of Manitoba.
The following are the reasons delivered by
1. The Chief Justice‑‑This appeal raises the question whether The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, or any part thereof, violates the guarantee of freedom of association under s. 2( d ) of the Canadian Charter of Rights and Freedoms and, if so, whether such violation can be justified under s. 1.
I
Facts
2. The individual respondents are employees of the only major dairy businesses in Saskatchewan, Palm Dairies Limited ("Palm") and Dairy Producers Co‑operative Limited ("Co‑op"). The respondent unions represent all of the employees‑‑except those excluded from membership in any bargaining unit‑‑in eleven of the only twelve fluid milk plants operating in the province.
3. In March of 1984, contract talks were conducted between Palm and Co‑op and the respondent unions. No progress was made towards an agreement. On March 31, 1984, Local P‑241‑2 of the respondent United Food and Commercial Workers International Union served notice on Palm that strike action would commence on April 8, 1984, at Palm's Saskatoon plant. The Dairy and Produce Workers, Local 834, notified Co‑op on March 31 that strike action would begin on April 8 at the Co‑op Regina plant. However, this notice was withdrawn on April 6 when Local 834 instead notified Palm of strike action beginning on April 9 at Palm's Regina plant. It appears from the evidence that what was intended by the unions was some form of partial or rotating strike. These intentions were defeated by the employers, who, on April 1, served the unions with a series of lock‑out notices covering all of the eleven Co‑op and Palm fluid milk plants and taking effect on April 8.
4. On April 9 the legislature of Saskatchewan responded to these developments by enacting The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, which came into force immediately. It had the temporary effect of prohibiting the dairy employees from striking and prohibiting a lock‑out by their employers.
5. The respondents applied to the Saskatchewan Court of Queen's Bench for a declaration that the Act infringed freedom of association and was thereby of no force and effect. A number of affidavits were filed on behalf of the respondents containing the following opinion as to the result that would have obtained if the employers had not locked out the employees:
(a) Approximately 85% of the capacity of the dairy industry in Saskatchewan would have continued to function and provide services and commodities to dairy farmers and to the consumers of dairy products;
(b) The pick‑up of milk from dairy farmers in Saskatchewan for use in the dairy industry would have continued at full capacity; and
(c) The total quantity of milk and milk products previously available to consumers in Saskatchewan could have continued to be available because Dairy Producers has sufficient capacity to make up for any shortfall consequent on Palm's not operating.
Attached to the affidavits, however, were the lock‑out notices of the employers indicating that the employers would not co‑operate with the partial strike planned by the unions. The respondents also submitted several newspaper articles as exhibits attached to an affidavit. The Attorney General for Saskatchewan adduced no evidence.
6. The Chambers judge, Sirois J. dismissed the application: (1984), 12 D.L.R. (4th) 10. An appeal was taken to the Saskatchewan Court of Appeal and the appeal was allowed, Brownridge J.A. dissenting: (1985), 19 D.L.R. (4th) 609. On appeal to this Court, the Attorneys General of Canada, Ontario, British Columbia and Alberta intervened on behalf of the appellants. The Attorney General of Manitoba intervened on behalf of the respondents.
II
The Constitutional Questions
7. The Constitutional questions read as follows:
1. Does The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, or any part thereof, infringe or deny freedom of association guaranteed in s. 2( d ) of the Canadian Charter of Rights and Freedoms ?
2. If The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, or any part thereof, does infringe or deny freedom of association guaranteed in s. 2( d ) of the Canadian Charter of Rights and Freedoms , is the Act, or such part, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
III
Relevant Legislation
1. The Charter
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association. [Emphasis added.]
2. The Dairy Workers (Maintenance of Operations) Act
2 . . .
(f) "work stoppage" means a strike, lock‑out, work slow down or a refusal or failure to perform the usual duties of employment.
3 Immediately upon the coming into force of this Act:
(a) the employees shall resume the duties of their employment with the employer; and
(b) the employer shall permit its employees to resume their employment;
in accordance with the terms and conditions of the last collective bargaining agreement.
...
6 Notwithstanding any other Act or law or any provision of the last collective bargaining agreement to the contrary, the term of that agreement is extended to include the period commencing on April 1, 1984, and ending on the day on which a new or amended collective bargaining agreement is concluded in accordance with this Act and the terms and conditions of the last collective bargaining agreement remain in effect between the employer and the union for that period.
7 During the period for which the last collective bargaining agreement is extended in accordance with section 6:
(a) the employer shall not declare or cause a work stoppage,
(b) no officer or representative of the union shall declare, authorize or direct a work stoppage of any employee against the employer; and
(c) no employee shall participate in a work stoppage against the employer.
8 Where, 15 days after the coming into force of this Act, a new or amended collective bargaining agreement has not been concluded between the employer and the union, the employer and the union shall submit to final and binding arbitration in accordance with this Act.
...
12 (1) Every person who contravenes this Act is guilty of an offence and liable on summary conviction:
(a) in the case of an offence committed by the employer or the union or by a person acting on behalf of the employer or the union, to a fine of not more than $1,000 and, in the case of a continuing offence, to a further fine of $200 for each day or part of a day during which the offence continues;
(b) in the case of an offence committed by any person other than one described in clause (a), to a fine of not more than $100 and in the case of a continuing offence, to a further fine of $25 for each day or part of a day during which the offence continues.
IV
Judgments
1. Court of Queen's Bench
8. Sirois J. referred to the opinion expressed in the union affidavits that the dairy industry would have continued 85 per cent unimpeded if a lock‑out had not occurred as "purely speculative". He held that irreconcilable differences between labour and management, involving an imminent threat of a strike and lock‑out and consequential harm to dairy farmers and the public, justified the enactment of the impugned legislation.
9. In his view, it was unnecessary to resort to s. 1 of the Charter since the legislation did not violate s. 2(d). A democracy by its very nature imposes restrictions on freedom through majority rule and "The courts must in this sense respect the duly enacted legislation, which must be looked upon as the expressed intention of the majority of the people" (p. 24). He concluded that the right to strike is not a fundamental freedom but exists within a statutory framework designed to ensure peace and order in labour relations.
10. Sirois J. continued by pointing out that even if the Act did violate s. 2( d ) of the Charter , the legislation was saved by s. 1. The impasse between the two sides had to be resolved for the welfare and greater common good of the citizens of the province. The government was, therefore, justified in enacting the legislation.
2. Court of Appeal
11. The appeal was allowed by the majority.
12. (i) Bayda C.J.S.
13. Bayda C.J.S. held that every freedom has an inherent limit; a freedom without an inherent limit would lead to an absurdity, for a freedom of everyone to do everything is a freedom to do nothing. The limitations on freedom of association in s. 2( d ) of the Charter are, according to Bayda C.J.S., as follows: 1) individuals are free to perform in association without governmental interference only those acts that they are free to perform alone; 2) where an act by definition is incapable of individual performance, an individual is free to perform the act in association provided the mental component of the act is not to inflict harm.
14. According to the Chief Justice, those cases which have held that freedom of association only covers the act of combining and not activities in pursuit of the combination's purposes should not be followed. "To be in association means to act in association, for, it is metaphysically impossible for a human being to exist in a state of inanimateness, or in a state of no movement, or as it were, in a state of mere beingness" (p. 615). Freedom of association must, therefore, mean freedom to act as well as to be in association.
15. A strike is a concerted refusal to work and is, therefore, association. An individual may refuse to work. It follows, according to Bayda C.J.S. that the act of refusal to work by employees acting in concert is permissible. Since there was, in his view, some force to the contention that a strike by its nature was an act incapable of performance by an individual, the Chief Justice considered whether strike activity fell into the second class of inherently prohibited acts. He concluded that it did not. The dominant mental element of a strike was to compel an employer to agree to terms and conditions of employment, not to inflict injury. Thus, legislation which prohibits strikes is in violation of s. 2(d).
16. Accordingly, Bayda C.J.S. turned to s. 1 to determine whether the legislation was justifiable as a reasonable limit on the freedom of association of the respondents (at pp. 627‑28):
The exiguous circumstances disclosed in the affidavits leave to conjecture and speculation the economic and many other relevant circumstances of the appellants [respondents] who presumably would be detrimentally affected by the imposition of any limit. Apart from some inadmissible information contained in newspaper clippings (wrongly relied upon by the chambers judge as evidence) attached to one of the affidavits, the affidavits taken in their entirety say virtually nothing about the circumstances of the two companies, or of the producers of the milk, or of the consumers, all of whom presumably would be detrimentally affected if no limit were imposed. A number of the deponents stated an opinion that the proposed rotating strikes by the unions would not have deprived consumers of milk and would not have resulted in the producers being unable to market their milk. There was some information to support that opinion; there was no evidence to contradict or undermine it. In the end, I am compelled to say that there was not sufficient material before the chambers judge to enable him to engage in the balancing process he needed to engage in to arrive at a reasoned decision upon the reasonableness of the limit. Had the proper circumstances been disclosed to him, he may indeed have arrived at a reasoned decision that the limit was reasonable. On the other hand, he may not have. In other words, the impugned legislation may be reasonable but we have no way of knowing that. [Emphasis added.]
17. Thus, the onus under s. 1 of the Charter was not satisfied. Bayda C.J.S. concluded that the Act was of no force and effect under s. 52(1) of the Constitution Act, 1982 and the respondents were entitled to a declaration under s. 24(1) of the Charter .
18. (ii) Cameron J.A. (concurring in result)
19. According to Cameron J.A. the objects of a trade union include the improvement of working conditions and the financial welfare of its members, while the means of achieving those objects include collective bargaining, and, when that fails, the collective refusal to work. The Charter does not explicitly guarantee these objects in the sense of ensuring their attainment, but this does not bear upon the determination of the scope of freedom to associate.
20. In his view, some of the means by which a trade union pursues its objectives are constitutionally protected while others are not. The two primary ones of expression and assembly are the subject of express guarantee, but that is not to say that only those means which are themselves expressly guaranteed by the Charter are immune from legislative interference. Others are surely protected by necessary implication.
21. Cameron J.A. observed that the freedom to bargain collectively, of which the right to withdraw services is an integral aspect, lies at the very centre of the existence of an association of workers. To remove their freedom to withhold their labour would be to sterilize their association. Cameron J.A. reviewed the jurisprudence and concluded that (at p. 645):
... while the decided cases weigh in favour of the exclusion of "the right to strike" from the constitutional freedom of association, the emerging framework of principle governing Charter interpretation rather points to its inclusion, especially if we are to be faithful to the call to give these rights and freedoms a "generous interpretation ... suitable to give to individuals the full measure" of them.
22. Accordingly, the dairy workers in this case had a constitutionally protected freedom to withhold their services. There was nothing standing in the way of their doing so, except the impugned legislation, which, by denying them their freedom to withhold their work, abridged their s. 2(d) freedom of association.
23. Concerning s. 1 of the Charter , Cameron J.A. agreed with Bayda C.J.S. that the evidence adduced was insufficient. The newspaper articles, in his view, were not a source of information which could form the basis for judicial decision‑making. Cameron J.A. dealt with the arguments of the Government of Saskatchewan as follows (at p. 651):
The government contended that the dairy industry was an "essential industry" and that milk and dairy products, "because of their tremendous importance to health, (were) essential commodities". But even if that were so, there was no evidence to show that milk would necessarily be unavailable to Saskatchewan residents if the work stoppage had occurred. Nor was there any evidence to establish, as the government also contended, that the "continued viability of the dairy industry in this province" was at stake. Indeed the evidence of the unions suggested that 85% of the capacity of the industry would have remained unaffected by the rotational strikes which were proposed.
The government also contended that the situation posed "serious economic problems for many Saskatch‑ ewan farmers". While that was very likely so, evidence of the extent of this might have been helpful, as perhaps it might have been useful to establish the degree to which this was caused by the actions of the employers, the biggest of which was a producer's co‑operative, as well as by the employees. [Emphasis added.]
24. Cameron J.A. therefore held that the appeal should be allowed and the employees should be granted a declaration that the Act was of no force or effect.
25. (iii) Brownridge J.A. (dissenting)
26. According to Brownridge J.A., on numerous occasions it has been held that legislation which restricted or abolished the right of union members to strike did not, for this reason alone, infringe the guaranteed freedom of association. In this regard, he agreed with the majority opinion in Dolphin Delivery Ltd. v. Retail, Wholesale & Department Store Union, Local 580 (1984), 10 D.L.R. (4th) 198 (B.C.C.A.), appealed to this Court on a different issue, [1986] 2 S.C.R. 573, in which it was found that freedom of association did not include protection of the pursuit of the purposes for which the association exists. Since Brownridge J.A. did not find any violation of s. 2(d), he did not feel it was necessary to consider s. 1 of the Charter , although he indicated that in any event he agreed with Sirois J. on that issue.
V
Section 2( d ) of the Charter and The Dairy Workers (Maintenance of Operations) Act
27. In the Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (hereinafter Alberta Labour Reference) released concurrently, I interpreted the guarantee of freedom of association in s. 2( d ) of the Charter as including protection of the freedom to bargain collectively and to strike. In the present appeal, The Dairy Workers (Maintenance of Operations) Act abrogates the freedom of workers to strike. It compels workers to "resume the duties of their employment" (s. 3(a)); it extends the terms of the former collective bargaining agreement (s. 6); it forbids the employee from participating in a work stoppage during this period of extension (s. 7(c)); and it requires submission to final and binding arbitration if a new or amended collective bargaining agreement has not been concluded between the employer and the union within 15 days of the coming into force of the Act (s. 8).
28. For the reasons which I set out in the Alberta Labour Reference, I am of the opinion that The Dairy Workers (Maintenance of Operations) Act violates s. 2( d ) of the Charter to the extent that it interferes with the freedom of the employees to engage in strike activity that would have been lawful in the absence of the Act. It is therefore necessary to turn to s. 1 of the Charter .
VI
Section 1
29. The general principles under which a s. 1 inquiry is to be conducted are stated in R. v. Oakes, [1986] 1 S.C.R. 103. The inquiry involves two steps: 1) assessing the importance of the objective underlying the impugned law and 2) assessing the proportionality of the means employed to achieve the purpose pursued. The onus of proving the constituent elements of a s. 1 analysis is on the party seeking to justify the limit.
30. Two purposes or objectives have been advanced to justify the Act. First, it is said that because of the peculiar characteristics of the dairy industry a shut‑down of processing facilities would have serious adverse consequences for the dairy industry, especially for dairy farmers. Second, it is argued that milk is an important food product, an essential commodity, and continuity of supply to consumers must be preserved.
31. In the Alberta Labour Reference, I accepted the "essential services" justification for the substitution of an adequate scheme of compulsory arbitration for the freedom to strike. The legislature is entitled to limit the freedom of employees to strike if the effect of a strike would be to deprive the public of essential services. The rationale for such a limitation is that members of the public who do not participate in a particular collective bargaining process ought not to be unduly harmed when the bargaining fails to produce a settlement. In my view, such a rationale also applies when the harm to third parties is economic in nature. Although, as I indicated in the Alberta Labour Reference, the right to bargain collectively and therefore the right to strike involve more than purely economic interests of workers, it cannot be doubted that economic concerns play an important role in a great many industrial disputes. It would be strange, indeed, if our society were to give constitutional protection for the freedom of employees to advance economic, as well as non‑economic, interests by striking, while insisting that the state remain idle and indifferent to the infliction on others of serious economic harm. To require the legislature to be blind to the economic harm which may ensue from work stoppages would be to freeze into the constitution a particular system of industrial relations. Although, as yet, it would appear that Canadian legislatures have not discovered an alternative mode of industrial dispute resolution which is as sensitive to the associational interests of employees as the traditional strike/lock‑out mechanism, it is not inconceivable that, some day, a system with fewer injurious incidental effects will be developed. In the meantime, in my view, legislatures are justified in abrogating the right to strike and substituting a fair arbitration scheme, in circumstances when a strike or lock‑out would be especially injurious to the economic interests of third parties. As Professor Adell stated:
We are not deterred, nor should we be, by any claim that the right to strike is sacrosanct and ought never to be restricted. Limiting the right to strike when its social cost is considered too high may well be a legitimate legislative choice.
(Bernard Adell, "Establishing a Collective Employee Voice in the Workplace: How Can the Obstacles be Lowered?" in Essays in Labour Relations Law (1986), at p. 18.)
32. I do not mean to suggest that any economic harm to a third party will suffice to justify the abrogation of the right to strike. In an interdependent economy it is inevitable that a work stoppage in one industry will entail detrimental economic consequences for at least some individuals in other industries. The objective advanced to justify legislation which infringes a Charter ‑ protected right or freedom must relate to a "pressing and substantial concern" in order for the legislation to be saved under s. 1: Oakes, supra, at pp. 138‑39. Moreover, the third element of the s. 1 proportionality requirement propounded in Oakes calls for a weighing of the legislative objective against the deleterious effects of the measures which limit the enjoyment of the Charter right or freedom. These principles suggest that the relevant question, therefore, is whether the potential for economic harm to third parties during a work stoppage is so massive and immediate and so focussed in its intensity as to justify the limitation of a constitutionally guaranteed freedom in respect of those employees.
33. I now turn to an application of the above principles to the facts of the present appeal. At the outset, I wish to make it clear that I am treating the present case as one involving harm to a third party, namely, dairy farmers, rather than as a case involving harm to one of the parties to the industrial dispute. The fact that one of the employers was a co‑operative company owned at least in part by at least some dairy farmers does not, in my view, dictate a contrary approach. A co‑operative company is a separate legal entity and its directors are entitled to pursue a labour relations strategy which does not conform to the wishes of individual members. To pierce the corporate veil in respect of a widely‑held corporation would be most unfair to individual members of the co‑operative, to say nothing of non‑member dairy farmers.
34. The only evidence before the Court is contained in the affidavits filed on behalf of the respondent unions and in the newspaper articles attached as exhibits to one of those affidavits. With great respect for the contrary opinions of Bayda C.J.S. and Cameron J.A., I am unable to see why the newspaper articles should be held to be inadmis‑ sible or unhelpful in the peculiar circumstances of this case. The newspaper reports were, I reiterate, filed on behalf of the respondents, undoubtedly with a view to providing the factual context for the Charter argument. The appellants were apparently satisfied that the newspaper reports provided an adequate factual foundation for its s. 1 justification: in any event, the Government of Saskatch‑ ewan adduced no further evidence. There is nothing on the record to indicate that either party disputed the admissibility of the articles before the Chambers judge. Except to the extent that there exists conflicting material in the newspaper reports, the reports constitute an evidentiary foundation accepted by both parties. It is unnecessary in this appeal to consider whether newspaper articles tendered into evidence by one party and objected to by the other would generally be admissible for the purposes of s. 1.
35. The uncontroverted facts contained in the newspaper reports include the following:
1. The only Saskatchewan dairies not directly involved in the strike or lock‑out were an independent dairy in Estevan and a Co‑op cheese processing plant in Swift Current.
2. 1.3 million pounds of milk, worth about $250,000, was produced daily by Saskatch‑ ewan's 50,000 dairy cows on 800 dairy farms.
3. Co‑op employs all the bulk tanker drivers who pick up milk from dairy farmers in Saskatch‑ ewan.
4. Milk is normally picked up from dairy farmers every second day. It cannot be stored on the farm for more than three days.
36. In addition to their factual content, the newspaper reports vividly convey the enormity of the waste that would have resulted from an interruption of milk pick‑up and processing. The President of the dairy farmers' advocacy organization, the Saskatchewan Milk Producers' Association, was interviewed by one of the newspaper reporters:
In an interview, York said dairy producers would have to dump all their milk after three days if a dairy strike or lockout lasts that long.
...
"After three days we'd have to dump the whole works and start from scratch. You couldn't just dump half a load," he said.
York said a strike or lockout of even two days could be very harmful to the average dairy producer, as out of the 800 dairy farmers in Saskatchewan about 550 have loans and high annual or monthly payments.
(Saskatoon Star‑Phoenix, Thursday, April 5, 1984)
Another dairy farmer was interviewed on the day the back‑to‑work legislation was enacted:
Burney, who is also a director of the Saskatchewan Milk Producers Association, said neither the company or the union have considered the farmer during negotiations.
"Farmers began dumping milk Sunday and they will continue to dump until the trucks start picking up milk again tomorrow", Burney said.
(Saskatoon Star‑Phoenix, Monday, April 9, 1984)
37. These effects would persist whether the work stoppage was of a short or long duration. Not only were the threatened economic losses large in absolute terms, but the losses could not be distributed over a large population‑‑they were to be borne in their full intensity by the Province's 800 dairy farmers. Many of these farmers were in a vulnerable financial position on account of their debt loads, as noted above, and on account of their inability to cease milk production. In my view, the economic harm threatened by a total work stoppage in the dairy processing industry was so immediate, of such a high degree and of such an intense focus as to fall well within the ambit of discretion of the Saskatchewan legislature to substitute a fair and efficient arbitration scheme for the dairy processing employees' freedom to strike. I might add that what perhaps exacerbates the economic harm to dairy farmers and distinguishes it from the routine economic harm experienced by any supplier to a producer in the throes of a work stoppage is the combination of three unusual features: (i) the producer in this case was the sole outlet for the suppliers' only product; (ii) the product in question was highly perishable; and (iii) because of the biological imperatives of the cow, the supplier could not mitigate losses by ceasing production.
38. The affidavits of the respondents were addressed to the effects which would have ensued if there had been no lock‑out by the employer, but only a partial strike or a series of rotating strikes by the employees. It is claimed that the industry could have functioned at 85 per cent of normal capacity and that milk would have been collected from the farmers.
39. It is submitted that the appropriateness of any limitation upon the right to strike must be measured against the effects, not of the employer lock‑out, but of the proposed partial strike. This argument, however, ignores the fact that the legislature was faced with the reality of a total lock‑out. For the reasons given earlier, in such circumstances the legislature was justified in requiring the parties to submit their differences to binding arbitration and in ordering the parties back to work. Moreover, implicit in the respondents' argument is the assumption that the right to strike is in no way related to the employer's ability to lock out employees. To assess the validity of this assumption, it is necessary to consider the manner in which the constitutional freedom to strike interacts with the statutory regulation of labour relations.
40. In my reasons in the Alberta Labour Reference, I indicated that the very detailed legislative scheme of industrial relations that has been developed over several decades may be relevant to the assessment of constitutional questions pertaining to strike activity. In the Alberta Labour Reference the issue was not whether particular aspects of this standard statutory scheme were unconstitutional, but rather, when and in what circumstances that statutory paradigm could be done away with entirely in particular industries and replaced with an alternative mechanism. The present case was argued along similar lines. In addressing this issue, it would be inappropriate for the courts to venture into an assessment of the constitutional validity of the standard industrial relations paradigm which was not directly impugned. In short, until and unless a direct challenge is mounted against The Trade Union Act, R.S.S. 1978, c. T‑17, that enactment, with its various restrictions on the employees' ability to strike, is presumptively valid.
41. Under The Trade Union Act, as under similar legislation in the other Canadian jurisdictions, the statutory right of employees to strike is subject to a countervailing statutory right of employers to lock out their employees, as long as certain conditions are fulfilled. The Trade Union Act, s. 34 provides:
34.‑‑(1) Notwithstanding anything contained in any collective bargaining agreement heretofore entered into or, except as otherwise specifically provided therein, hereafter entered into, where either party to such agreement gives or has given notice in writing pursuant to subsection (4) of section 33 to negotiate a revision of the agreement, the employees in respect of whom the agreement applies and the employer of such employees may, after this section comes into force and after the expiry of the term of operation provided in the agreement, commence to strike or commence a lock‑out, as the case may require. [Emphasis added.]
42. The underlying premise of industrial relations reflected in The Trade Union Act is that the threat of a strike or lock‑out with its potentially disastrous loss of income to employee and employer alike will motivate the parties to reach a consensual solution either before a work stoppage occurs or within a reasonable time thereafter. Whether or not the legislature has fairly or evenly balanced the relative bargaining power of the parties is not the subject of the present appeal. It suffices to note that a particular balance of power is reflected in the rights and obligations delineated in The Trade Union Act, and that employer lock‑outs are permitted in the factual circumstances of this case. Since, under the unchallenged general labour law of the Province, the employer is entitled to lock out its employees in circumstances when employees are entitled to strike, it follows that the deleterious effects of permitting a strike must be taken to include the effects which flow from permitting an employer lock‑out. In the present case, the effect was a virtually total closure of milk processing facilities in Saskatchewan.
43. For the above reasons, I am persuaded that the legislative objective of avoiding serious harm to dairy farmers, in light of the unique nature of the dairy industry, constituted a satisfactory justification for the abrogation of the freedom of dairy plant workers to strike. It is therefore unnecessary to consider the second objective advanced by the government, namely the maintenance of continuity of supply to consumers of an essential commodity. In any event, there was no evidence regarding the possibility of importing milk from neighbouring provinces.
44. The compulsory arbitration scheme enacted in The Dairy Workers (Maintenance of Operations) Act meets the criteria of proportionality for such a scheme which I described in the Alberta Labour Reference. The Act applies only to the workers in the dairy industry; it provides for a neutral arbitrator; either party may ultimately compel the other to submit to arbitration without interference from the government; and the scope of arbitration has not been legislatively restricted. Accordingly, The Dairy Workers (Maintenance of Operations) Act embodies a reasonable limit on freedom of association.
VII
Conclusion
45. The constitutional questions are answered as follows:
1. Does The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, or any part thereof, infringe or deny freedom of association guaranteed in s. 2( d ) of the Canadian Charter of Rights and Freedoms ?
Answer: Yes. The Dairy Workers (Maintenance of Operations) Act infringes and denies freedom of association as guaranteed in s. 2( d ) of the Charter to the extent it prohibits collective withdrawal of services.
2. If The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, or any part thereof, does infringe or deny freedom of association guaranteed in s. 2( d ) of the Canadian Charter of Rights and Freedoms , is the Act, or such part, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
Answer: Yes. The Act is justified by s. 1 of the Charter and is therefore not inconsistent with the Constitution Act, 1982 .
46. The appeal should be allowed without costs.
The judgment of Beetz, Le Dain and La Forest JJ. was delivered by
47. Le Dain J.‑‑For the reasons I expressed in the Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, I am of the opinion that the guarantee of freedom of association in s. 2( d ) of the Canadian Charter of Rights and Freedoms does not include a guarantee of the right to bargain collectively and the right to strike. I would accordingly allow the appeal and answer the constitutional questions in the manner proposed by McIntyre J.
The following are the reasons delivered by
48. McIntyre J.‑‑I have read the reasons for judgment prepared in this appeal by the Chief Justice and those prepared by Wilson J. The Chief Justice has set out the facts, the legislative provisions involved, the issues which arise in the case and adequate summaries of the judgments in the courts below. With all due respect for the views of my colleagues, I have reached different conclusions.
49. For the reasons which I gave in the Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (judgment delivered concurrently), I have reached the conclusion that the Canadian Charter of Rights and Freedoms does not give constitutional protection to a right to strike. I would therefore allow the appeal and it is, of course, unnecessary for me to consider s. l of the Charter .
50. I would answer the constitutional questions, as follows:
1. Does The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, or any part thereof, infringe or deny freedom of association guaranteed in s. 2( d ) of the Canadian Charter of Rights and Freedoms ?
Answer: The Dairy Workers (Maintenance of Operations) Act does not violate freedom of association guaranteed in s. 2( d ) of the Charter because freedom of association does not embody the right to strike.
2. If The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, or any part thereof, does infringe or deny freedom of association guaranteed in s. 2( d ) of the Canadian Charter of Rights and Freedoms , is the Act, or such part, justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982 ?
Answer: Given my answer to the first question, I need not consider this second question.
The following are the reasons delivered by
51. Wilson J. (dissenting)‑‑I agree with Chief Justice Dickson for the reasons given by him that The Dairy Workers (Maintenance of Operations) Act, S.S. 1983‑84, c. D‑1.1, violates s. 2( d ) of the Canadian Charter of Rights and Freedoms . However, I cannot agree that this legislation is saved by s. 1 of the Charter .
52. The Government of Saskatchewan advanced two objectives to justify the Act. First, it submitted that because of the peculiar nature of the dairy industry a shut‑down of processing facilities would have serious adverse consequences for the industry, especially for dairy farmers. Second, the government submitted that milk is an essential commodity and that the continuity of supply to consumers must be preserved for health reasons.
53. The first objective advanced by the government is the prevention of economic harm to dairy farmers. In the Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 (judgment released concurrently herewith), Dickson C.J. concluded that the fact that employees were providing "essential services" justified the substitution of an adequate scheme of compulsory arbitration for the freedom to strike. He adopted the definition of an "essential service" reflected in decisions of the Freedom of Association Committee of the International Labour Office (p. 375). These decisions have consistently defined an essential service as a service "whose interruption would endanger the life, personal safety or health of the whole or part of the population" (Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the I.L.O., 3rd ed. Geneva, International Labour Office, 1985). The Chief Justice appears now to be engrafting a substantial extension on to that definition. He is sanctioning in this case the abrogation of the freedom to strike when the economic interests of a particular group are threatened. The implications of this for the collective bargaining process are extremely far‑reaching since some measure of damage to the economic interests of the parties and the public is an inevitable concomitant every work stoppage. Indeed, the effectiveness of this negotiating tool depends upon it.
54. Considerable discussion has taken place in Canada and elsewhere as to the circumstances in which it is appropriate for government to interfere with the standard industrial relations paradigm by prohibiting strike action. This paradigm which prevails in statutes in all Canadian jurisdictions is based on a belief in free negotiation between buyers and sellers of labour and in the strike as the indispensable catalyst that makes the system work. Free negotiation is valued because it enables workers to participate in establishing their own working conditions. It is an exercise in self‑government and enhances the dignity of the worker as a person.
55. Past discussion as to when government should intervene to prohibit strikes has always focussed on the question of when it is best for government to intervene not on the question of when it is constitutional for government to do so. Section 2( d ) of the Charter now gives constitutional protection to freedom of association and I agree with the Chief Justice that freedom of association in the context of industrial relations embraces the freedom to bargain collectively and that the strike, as an essential feature of effective collective bargaining, is also encompassed by that freedom. I cannot conclude, however, that the prevention of economic harm to a particular sector is per se a government objective of sufficient importance to justify the abrogation of the freedom guaranteed by s. 2(d).
56. I do not doubt that economic regulation is an important government function in today's society but, if it is to be done at the expense of our fundamental freedoms, then it must, in my view, be done in response to a serious threat to the well‑being of the body politic or a substantial segment of it. The Chief Justice found this to be the case in PSAC v. Canada, [1987] 1 S.C.R. 424 (judgment released concurrently herewith), where the government's avowed objective was to fight inflation. Inflation is an economic problem that affects all the citizens of Canada and can, if uncontrolled, spark a national crisis or emergency: see Re Anti‑Inflation Act, [1976] 2 S.C.R. 373. The evidence adduced in this case, in my view, falls far short of establishing economic harm to the dairy workers and the public which is in that category.
57. Between the two extremes of those who think that government should intervene in any labour dispute which harms the public or a segment of it and those firmly committed to the proposition that any government intrusion on free collective bargaining is an intolerable violation of the fundamental human rights of the parties to the dispute (see the Woods Task Force Report on Canadian Industrial Relations (1968), at p. 130) are those who reluctantly acknowledge the right of government to intervene in work stoppages which pose a threat to life or health or result in the withdrawal of essential public services. Legislatures in Canada have frequently intervened to prevent strikes in "essential services". Essential services initially comprised such things as public utilities, transportation and communications but the legislative definitions have gradually expanded to cover fire‑fighters and police and more recently the media, teachers and some classes of public employees.
58. What conclusion are we to draw from this progressive expansion of the concept of "essential services"? Is this the route through which increasing government intervention in labour disputes is to be justified, namely that more and more goods and services are to be designated "essential"? Or is there some other way in which the degree to which the public is affected by a particular labour dispute can be measured? Professor Arthurs says the public interest in a dispute cannot be measured in purely quantitative terms; it may affect the way of life of those affected by it and have qualitative aspects as well: H. W. Arthurs: "Public Interest Labor Disputes in Canada: A Legislative Perspective" (1967), 17 Buffalo L. Rev. 39, at p. 48. Nor can the degree of public interest be inferred from the fact that government has in fact intervened because each government intervention would then be used as a precedent to justify further intervention resulting in "an amoeba‑like tendency of public interest disputes to reproduce themselves" (p. 52). Professor Arthurs provides no answer to this difficult question; he appears to accept government regulation of labour management relations as politically inevitable: H. W. Arthurs: "Free Collective Bargaining in a Regulated Society" published in The Direction of Labour Policy in Canada (McGill University Industrial Relations Centre, 1977), at p. 110. More and more inroads will be made into the concept of free collective bargaining, he says, and "we will stop paying lip service to the pristine ideal of labour and management autonomy" and "explicitly acknowledge the pre‑eminence of public over private values in the industrial sector" (p. 112).
59. The difficulty with this critique, it seems to me, is that it fails to recognize that public and private interests are not being pitted against each other. What are being pitted against each other are two different kinds of public interest, the public interest in the continuation of services and the public interest in the freedom of workers to associate and act collectively. Whether Professor Arthur's gloomy prediction on the fate of collective bargaining in Canada absent the Charter is sound or not, the public interest in freedom of association is now a constitutionally protected value. The question, however, remains‑‑and s. 1 of the Charter demands an answer‑‑when is the public interest in the continuation of services so detrimentally affected by the collective bargaining process that its suspension is reasonable and justified in a free and democratic society? I say the continuation of services advisedly because it has not, in my opinion, been established that the provision of milk is an "essential" service in the same sense as hospitals, fire‑fighters, police and the like are providing essential services. Certainly it is not an essential service within the definition adopted by the Chief Justice from the decisions of the Freedom of Association Committee of the I.L.O. I believe, therefore, that the answer is not to be found in the designation of more and more services as "essential".
60. The onus is, of course, on government to justify the suspension of the collective bargaining process under s. 1. As was noted in R. v. Oakes, [1986] 1 S.C.R. 103, at p. 138:
Where evidence is required in order to prove the constituent elements of a s. 1 inquiry, and this will generally be the case, it should be cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit.
The government called no evidence. The only evidence before the Court was introduced by the respondents. It consisted of affidavits sworn by union representatives and some newspaper clippings. Bayda C.J.S. of the Saskatchewan Court of Appeal held the newspaper clippings inadmissible. As to the affidavits he said:
...the affidavits taken in their entirety say virtually nothing about the circumstances of the two companies, or of the producers of the milk, or of the consumers, all of whom presumably would be detrimentally affected if no limit were imposed.
(Re Retail, Wholesale & Department Store Union, Locals 544, 496, 635 and 955 and Government of Saskatchewan (1985), 19 D.L.R. (4th) 609, at p. 628.)
He concluded that there was not enough material before the Court to enable it to engage in the balancing process required to arrive at a decision on the reasonableness or otherwise of the limit.
61. Cameron J.A. agreed with Bayda C.J.S. that the government had failed to discharge its evidentiary burden under s. 1 of the Charter . He found that it had introduced no evidence to establish that the provision of milk was an "essential" service, that it would necessarily be unavailable to Saskatchewan residents if the work stoppage occurred, or that the "continued viability of the dairy industry in the province" was at stake.
62. On the subject of the newspaper clippings Cameron J.A. had this to say (at p. 649):
This information was gleaned from the newspaper clippings which, as might be expected, contained a rich variety of comment and opinion, some of it conflicting, much of it colourful, and all of it devoted to the public advocacy of one side or another during the height of the conflict. One "spokesman" was reported to have said that, in the event of a work stoppage, milk "will flood in from Manitoba and Alberta as it always has"; others were quoted as having said producers would have to "dump their milk" by the thousands of gallons. Management representatives accused the unions of taking "a completely unrealistic position" in view of the 33 million dollar indebtedness of the companies, while the unions described the negotiations as a "farce, mickey mouse", especially since the companies were enjoying "windfall profits". All of this is the common fare of newspapers, and, while it may serve to permit the public, for its purposes, to make reasonably informed assessments of current events, it cannot, with respect, form the basis for judicial decision‑making.
63. While I doubt the soundness of Bayda C.J.S.'s finding that the newspaper clippings were wholly inadmissible, I certainly agree with Cameron J.A. as to their probative value. Indeed, it is because of their inherent frailties as hearsay evidence that newspaper clippings are not admissible in civil or criminal proceedings in England or in this country. I recognize, however, that a greater degree of latitude is appropriate for the purpose of establishing legislative facts in constitutional cases: see Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714. But the Court was quick to point out in that case that it was speaking only of "material not inherently unreliable" (p. 723). With respect, I think that is precisely what we have here and, even if some form of estoppel operates against the respondents because they were the ones who introduced the newspaper clippings into evidence, I do not believe that that can affect their weight as opposed to their admissibility.
64. Certainly, the newspaper clippings here do not meet Wigmore's test for an exception to the hearsay rule, namely 1) unavailability of the witnesses themselves to testify under oath and be cross‑examined and 2) probable trustworthiness of their statements. This test was expressly adopted by this Court in Ares v. Venner, [1970] S.C.R. 608, at p. 620. The individuals whose statements are quoted in the clippings could easily have been called to the stand to give their evidence and be cross‑examined on it. Instead, a weaker form of proof, newspaper clippings, was substituted. The Chief Justice quotes the President of the Saskatchewan Milk Producers' Association for the fact that huge quantities of milk would have to be dumped if the work stoppage lasted more than three days. The figure of a $250,000 per day loss to dairy farmers, which the Chief Justice accepts, comes from one Gunnar Pedersen, General Manager of Regina's Dairy Producers Co‑operative Ltd. I do not believe that the statements of these and other interviewees meet Wigmore's test of trustworthiness. They were obviously using the media to try to persuade the public and the legislature of the justness of their cause. Their statements are completely self‑ serving. They are, moreover, offset by the equally self‑serving excerpts from the interviewees on the other side of the debate who denied that dumping on that scale would take place or that the supply of milk to residents would be halted. According to them milk would simply be imported from the adjoining provinces as it had been in the past.
65. As Lord Reid said in Attorney‑General v. Times Newspapers Ltd., [1974] A.C. 273, a contempt of court case, at p. 300:
Responsible "mass media" will do their best to be fair, but there will also be ill‑informed, slapdash or prejudiced attempts to influence the public. If people are led to think that it is easy to find the truth, disrespect for the processes of the law could follow, and, if mass media are allowed to judge, unpopular people and unpopular causes will fare very badly.
I think Cameron J.A. summed up very neatly the probative value of the newspaper clippings in the passage already quoted from his reasons.
66. Given, however, that there is a point at which government interference with the collective bargaining process is justified, how does the Court determine under s. 1 of the Charter when that point has been reached? It seems to me that the government must satisfy the court that as a minimum the damage to the dairy industry as a consequence of the work stoppage would be considerably greater than that which would flow in the ordinary course of things from a work stoppage of reasonable duration. Industry and the public accept a certain amount of damage and inconvenience as the price of maintaining free negotiation in the work place. Such damage and inconvenience cannot therefore constitute the "pressing and substantial concern" which the Court held in Oakes was required in order to justify government intervention. Otherwise every work stoppage would give rise to a "pressing and substantial concern" and government intervention would be the rule rather than the exception. There has to be more to it than that.
67. The Chief Justice suggests that the test should be the extent of the economic harm likely to be suffered by third parties as a result of the work stoppage and he characterizes the dairy farmers as third parties for purposes of the test. I am not convinced that the dairy farmers can properly be considered third parties for this purpose. The respondents were employees of Palm Dairies Ltd. and the Dairy Producers Co‑operative Ltd. The former owned two plants; the latter owned nine. The Dairy Producers Co‑operative Ltd., as the name suggests, was owned by dairy farmers. I have difficulty in appreciating how the owners of a corporation involved in the strike as a principal can be viewed as innocent third parties for purposes of assessing the harm suffered by such parties. The Chief Justice expresses the view that government can more easily justify intervening to protect third parties under s. 1 than intervening to protect principal parties. This may as a general proposition be correct but why should the government be able to justify more easily the protection of owners of the corporation than the corporation itself? I think the flaw is in characterizing the dairy farmers as third parties.
68. The Chief Justice further suggests that in assessing the extent of the harm to third parties the relevant questions are how massive the harm is and how focussed in its intensity. Those questions can, in my opinion, only be answered on the basis of evidence adduced in the case. They cannot be answered in the abstract. But, in my view, they become relevant only when the primary threshold of damage which is the inevitable concomitant of the work stoppage has been crossed. The government must stay its hand in order to give the process an opportunity to work. It must, in other words, distinguish between the permissible degree of harm which is the price of the system and the impermissible degree when that price becomes inordinately high.
69. As Bayda C.J.S. pointed out, we simply do not have a basis of solid fact in this case on which to make a judgment as to whether the government's intervention was reasonable or not. The government has simply failed to discharge its onus under s. 1 and the infringement of the respondents' freedom of association under s. 2( d ) of the Charter has accordingly not been demonstrably justified.
70. Even, however, if I am wrong in that and the government has established that its objective in protecting the economic interests of dairy farmers was sufficiently compelling to justify overriding the workers' right to strike, the government, in my view, has failed to show that the means employed by it were closely tailored to the objective so as to ensure the least possible infringement of the right. The government, in its legislation, forbade any lock‑out or strike action. It provided for compulsory arbitration. The government, in my view, should not automatically respond with a total strike ban and the institution of compulsory arbitration. In some cases, a partial strike ban will achieve the government objective of preventing harm that in the Chief Justice's words is "massive, immediate and focussed" or in my words "would be considerably greater than that which would flow in the ordinary course of things from a work stoppage of reasonable duration". In the complex area of economic harm the tailoring need not be exact but tailoring there must be. There may be cases, of course, where the government in order to prevent grave economic harm would have to limit the right to strike to a point where it would be rendered ineffective. In such a case, the government could and indeed would have a constitutional duty to institute compulsory arbitration. In this case, the government has not established that it had to institute a total strike ban and compulsory arbitration. The affidavits of the respondents indicate that they felt they would have an effective strike weapon if they were allowed to engage in a series of rotating strikes that would have allowed the industry to continue functioning at 85 per cent of normal capacity. The government has not contended that such a partial strike would have had unacceptable costs to dairy farmers. I do not see why an employer's total lock‑out in response to a proposed partial strike should relieve the government of its duty to tailor its legislative response. If it does, the employer has readily at hand the means to escalate the economic harm to third parties so as to warrant a total strike ban in all cases. It seems to me that if the Saskatchewan Government wished to maintain an even hand between employer and employees, it could have tailored its legislative response in this case by instituting a partial ban on both strike and lock‑out. This would have attained its objective while at the same time meeting the proportionality test enunciated in Oakes.
71. The second objective advanced by the government in support of the limitation on the freedom under s. 2(d) is that the dairy workers provide an essential service, the delivery of an important food product to the consumer, and that the cessation of such delivery might threaten the health of part of the population. There is no evidence to support this allegation. Milk is undoubtedly an important food product but there may be other food products which are an adequate substitute. We simply do not know. Further, as Cameron J.A. of the Saskatchewan Court of Appeal observed, there is no evidence that milk would not be imported from outside the province to supply the Saskatchewan consumer: Re Retail, Wholesale & Department Store Union, supra, at p. 651. No threat to the health of Saskatchewan consumers has therefore been established.
72. I would dismiss the appeal with costs. I agree with the Chief Justice's answer to the first constitutional question. I would answer the second constitutional question in the negative.
Appeal allowed, Wilson J. dissenting.
Solicitor for the appellants: James P. Taylor, Regina.
Solicitors for the respondents: Mitchell Taylor Romanow Ching, Saskatoon.
Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: Archie Campbell, Toronto.
Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Victoria.
Solicitors for the intervener the Attorney General for Alberta: McLennan Ross, Edmonton.
Solicitor for the intervener the Attorney General of Manitoba: Tanner Elton, Winnipeg.
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