SUPREME
COURT OF CANADA
Between:
Saskatchewan
Federation of Labour (in its own right and
on
behalf of the unions and workers in the Province of Saskatchewan),
Amalgamated
Transit Union, Local 588, Canadian Office and Professional Employees’ Union,
Local 397, Canadian Union of Public Employees, Locals 7 and 4828,
Communications, Energy and Paperworkers’ Union of Canada and its Locals,
Health
Sciences Association of Saskatchewan, International Alliance of Theatrical
Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of U.S.,
its Territories and Canada, Locals 295, 300 and 669, International Brotherhood
of Electrical Workers, Locals 529, 2038 and 2067, Saskatchewan Government and
General Employees’ Union, Saskatchewan Joint Board Retail, Wholesale and
Department Store Union, Saskatchewan Provincial Building & Construction
Trades Council, Teamsters, Local 395, United Mine Workers of America, Local 7606,
United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union
and
its Locals and University of Regina Faculty Association
Appellants
and
Her
Majesty The Queen in Right of the Province of Saskatchewan
Respondent
- and -
Attorney
General of Canada, Attorney General of Ontario,
Attorney
General of Quebec, Attorney General of British Columbia,
Attorney
General of Alberta, Attorney General of Newfoundland and Labrador, Saskatchewan
Union of Nurses, SEIU-West, United Nurses of Alberta,
Alberta
Federation of Labour, Professional Institute of the Public Service of Canada,
Canadian Constitution Foundation, Air Canada Pilots’ Association,
British
Columbia Civil Liberties Association, Conseil du patronat du Québec,
Canadian
Employers Council, Canadian Union of Postal Workers,
International
Association of Machinists and Aerospace Workers,
British
Columbia Teachers’ Federation, Hospital Employees’ Union,
Canadian
Labour Congress, Public Service Alliance of Canada,
Alberta
Union of Provincial Employees, Confédération des syndicats nationaux,
Regina
Qu’Appelle Regional Health Authority, Cypress Regional Health Authority,
Five
Hills Regional Health Authority, Heartland Regional Health Authority,
Sunrise
Regional Health Authority, Prince Albert Parkland Regional Health Authority,
Saskatoon Regional Health Authority, National Union of Public and General
Employees,
Canada
Post Corporation and Air Canada
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Karakatsanis and Wagner JJ.
Reasons
for Judgment:
(paras. 1 to 103)
Joint
Reasons Dissenting in Part:
(paras. 104 to 176)
|
Abella J. (McLachlin C.J. and LeBel,
Cromwell and Karakatsanis JJ. concurring)
Rothstein and Wagner JJ.
|
saskatchewan federation of labour v. saskatchewan, 2015
SCC 4, [2015] 1 S.C.R. 245
Saskatchewan Federation of Labour
(in its own right and on behalf of the
unions and
workers in the Province of
Saskatchewan),
Amalgamated Transit Union, Local 588,
Canadian Office and Professional
Employees’ Union, Local 397,
Canadian Union of Public Employees,
Locals 7 and 4828,
Communications, Energy and Paperworkers’
Union of Canada and its Locals,
Health Sciences Association of
Saskatchewan,
International Alliance of Theatrical
Stage Employees,
Moving Picture Technicians, Artists and
Allied Crafts of U.S.,
its Territories and Canada, Locals 295,
300 and 669,
International Brotherhood of Electrical
Workers,
Locals 529, 2038 and 2067,
Saskatchewan Government and General
Employees’ Union,
Saskatchewan Joint Board Retail,
Wholesale and Department Store Union,
Saskatchewan Provincial Building &
Construction Trades Council,
Teamsters, Local 395,
United Mine Workers of America, Local
7606,
United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial
and Service Workers International Union
and its Locals, and
University of Regina Faculty
Association Appellants
v.
Her Majesty The Queen in Right
of the Province of Saskatchewan Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Attorney General of Newfoundland and
Labrador,
Saskatchewan Union of Nurses,
SEIU-West,
United Nurses of Alberta,
Alberta Federation of Labour,
Professional Institute of the Public
Service of Canada,
Canadian Constitution Foundation,
Air Canada Pilots’ Association,
British Columbia Civil Liberties
Association,
Conseil du patronat du Québec,
Canadian Employers Council,
Canadian Union of Postal Workers,
International Association of Machinists
and Aerospace Workers,
British Columbia Teachers’ Federation,
Hospital Employees’ Union,
Canadian Labour Congress,
Public Service Alliance of Canada,
Alberta Union of Provincial Employees,
Confédération des syndicats nationaux,
Regina Qu’Appelle Regional Health
Authority,
Cypress Regional Health Authority,
Five Hills Regional Health Authority,
Heartland Regional Health Authority,
Sunrise Regional Health Authority,
Prince Albert Parkland Regional Health
Authority,
Saskatoon Regional Health Authority,
National Union of Public and General
Employees,
Canada Post Corporation and
Air Canada Interveners
Indexed as: Saskatchewan Federation of Labour v. Saskatchewan
2015 SCC 4
File No.: 35423.
2014: May 16; 2015: January 30.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell,
Karakatsanis and Wagner JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law — Charter of Rights — Freedom of
Association — Right to strike — Public Service Employees — Stare decisis —
Whether right to strike is protected by s. 2 (d) of Charter — Whether
prohibition on essential services employees participating in strike action
amounts to substantial interference with meaningful process of collective
bargaining and therefore violates s. 2 (d) of Charter — If so, whether such
violation is justified under s. 1 of Charter — Canadian Charter of Rights and
Freedoms, s. 2 (d) — Public Service Essential Services Act, S.S. 2008, c. P-42.2.
Constitutional
law — Charter of Rights — Freedom of association — Provincial legislation
changing certification process and provisions dealing with communications by
employers with employees — Whether legislation violates s. 2 (d) of Charter —
Canadian Charter of Rights and Freedoms, s. 2 (d) — Trade Union Amendment Act,
2008, S.S. 2008, c. 26.
In
December, 2007, the newly elected Government of Saskatchewan introduced two
statutes: The Public Service Essential Services Act, S.S. 2008, c. P-42.2
(PSESA), and The Trade Union Amendment Act, 2008, S.S. 2008, c. 26 ,
which became law in May, 2008. The PSESA is Saskatchewan’s first
statutory scheme to limit the ability of public sector employees who perform
essential services to strike. It prohibits unilaterally designated “essential
services employees” from participating in any strike action against their
employer. These employees are required to continue the duties of their
employment in accordance with the terms and conditions of the last collective
bargaining agreement. No meaningful mechanism for resolving bargaining impasses
is provided.
The
Trade Union Amendment Act, 2008 changes the union certification process by
increasing the required level of written support and reducing the period for
receiving written support from employees. It also changes the provisions
dealing with communications between employers and their employees.
In
July 2008, the Saskatchewan Federation of Labour and other unions challenged
the constitutionality of both the PSESA and The Trade Union Amendment
Act, 2008. The trial judge concluded that the right to strike was a
fundamental freedom protected by s. 2 (d) of the Canadian Charter of
Rights and Freedoms and that the prohibition on the right to strike in the PSESA
substantially interfered with the s. 2 (d) rights of the affected public
sector employees. He also found that the absolute ban on the right to strike in
the PSESA was neither minimally impairing nor proportionate and
therefore was not saved by s. 1 of the Charter . The declaration of
invalidity was suspended for one year. On the other hand, the trial judge
concluded that the changes to the certification process and permissible
employer communications set out in The Trade Union Amendment Act, 2008 did
not breach s. 2 (d).
The
Saskatchewan Court of Appeal unanimously allowed the Government of
Saskatchewan’s appeal with respect to the constitutionality of the PSESA.
The appeal against the finding that The Trade Union Amendment Act, 2008 did
not violate s. 2 (d) of the Charter was dismissed.
Held (Rothstein and Wagner
JJ. dissenting in part): The appeal with respect to the PSESA should be
allowed. The prohibition against strikes in the PSESA substantially
interferes with a meaningful process of collective bargaining and therefore
violates s. 2 (d) of the Charter . The infringement is not
justified under s. 1 . The declaration of invalidity is suspended for one year.
The appeal with respect to The Trade Union Amendment Act, 2008 is
dismissed.
Per McLachlin C.J.
and LeBel, Abella, Cromwell and Karakatsanis JJ.: The right to strike is an essential part of a
meaningful collective bargaining process in our system of labour relations. The
right to strike is not merely derivative of collective bargaining, it is an
indispensable component of that right. Where good faith negotiations break down, the ability to engage in the
collective withdrawal of services is a necessary component of the process
through which workers can continue to participate meaningfully in the pursuit
of their collective workplace goals. This crucial role in collective bargaining is why the right to strike is
constitutionally protected by s. 2 (d).
In Health Services and Support —
Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R.
391, this Court recognized that the Charter values of “[h]uman dignity,
equality, liberty, respect for the autonomy of the person and the enhancement
of democracy” supported protecting the right to a meaningful process of
collective bargaining within the scope of s. 2 (d). The right to strike
is essential to realizing these values through a collective bargaining process because
it permits workers to withdraw their labour in concert when collective
bargaining reaches an impasse. Through a strike, workers come together to
participate directly in the process of determining their wages, working
conditions and the rules that will govern their working lives. The ability to
strike thereby allows workers, through collective action, to refuse to work
under imposed terms and conditions. This collective action at the moment of
impasse is an affirmation of the dignity and autonomy of employees in their
working lives.
The right to strike also promotes
equality in the bargaining process. This Court has long recognized the deep
inequalities that structure the relationship between employers and employees,
and the vulnerability of employees in this context. While strike activity
itself does not guarantee that a labour dispute will be resolved in any particular
manner, or that it will be resolved at all, it is the
possibility of a strike which enables workers to negotiate their employment
terms on a more equal footing.
In 1935, the Wagner Act was
adopted in the United States, introducing a model of labour relations that came
to inspire legislative schemes across Canada. This model was adopted in Canada
because the federal and provincial governments recognized the fundamental need
for workers to participate in the regulation of their work environment. One of
the goals of the Wagner model was to reduce the frequency of strikes by
ensuring a commitment to meaningful collective bargaining. The right to strike,
however, is not a creature just of the Wagner model. Most labour relations
models include it because the ability to collectively withdraw services for the
purpose of negotiating the terms and conditions of employment — in other words,
to strike — is an essential component of the process through which workers
pursue collective workplace goals.
Canada’s international human rights
obligations also mandate protecting the right to strike as part of a meaningful
process of collective bargaining. Canada is a party to international instruments which explicitly protect the right to
strike. Besides these
explicit commitments, other sources confirm the protection of a right to strike
recognized in international law. And strikes are
protected globally, existing in many of the countries with labour laws outside
the Wagner Act model.
This historical, international,
and jurisprudential landscape suggests compellingly that a meaningful process
of collective bargaining requires the ability of employees to participate in
the collective withdrawal of services for the purpose of pursuing the terms and
conditions of their employment through a collective agreement. The ability to
engage in the collective withdrawal of services in the process of the
negotiation of a collective agreement is, and has historically been, the
irreducible minimum of the freedom to associate in Canadian labour relations.
To determine whether there has
been an infringement of s. 2 (d) of the Charter , the test is whether the legislative interference with the right to
strike in a particular case amounts to a substantial interference with a
meaningful process of collective bargaining. The prohibition in the PSESA on designated
employees participating in strike action for the purpose of negotiating the
terms and conditions of their employment meets this threshold and therefore
amounts to a violation of s. 2 (d) of the Charter .
The
breach of s. 2 (d) of the Charter is not justified under s. 1 . The maintenance of essential public
services is self-evidently a pressing and substantial objective, but the
determinative issue in this case is whether the means chosen by the government
are minimally impairing, that is, carefully tailored so that rights are
impaired no more than necessary.
The fact that a service is
provided exclusively through the public sector does not inevitably lead to the
conclusion that it is properly considered “essential”. Under the PSESA,
a public employer has the unilateral authority to dictate whether and how
essential services will be maintained, including the authority to determine the
classifications of employees who must continue to work during the work
stoppage, the number and names of employees within each classification, and,
for public employers other than the Government of Saskatchewan, the essential
services that are to be maintained. Only
the number of employees required to work is subject to review by the
Saskatchewan Labour Relations Board. And even where an employee has been prohibited from participating in
strike activity, the PSESA does not tailor his or her responsibilities
to the performance of essential services alone. The provisions of the PSESA
therefore go beyond what is reasonably required to ensure the uninterrupted
delivery of essential services during a strike.
Nor is
there any access to a meaningful alternative mechanism for resolving bargaining
impasses, such as arbitration. Where
strike action is limited in a way that substantially interferes with a
meaningful process of collective bargaining, it must be replaced by one of the
meaningful dispute resolution mechanisms commonly used in labour relations. Those
public sector employees who provide essential services have unique functions
which may argue for a less disruptive mechanism when collective bargaining
reaches an impasse, but they do not argue for no mechanism at all.
The unilateral authority of public
employers to determine whether and how essential services are to be maintained
during a work stoppage with no adequate review mechanism, and the absence of a
meaningful dispute resolution mechanism to resolve bargaining impasses, justify
the conclusion that the PSESA is not minimally impairing. It is
therefore unconstitutional.
The Trade Union Amendment Act, 2008, on
the other hand, does not violate s. 2 (d). The
changes it introduces to the process by which unions may obtain or lose the
status of a bargaining representative, as well as the changes to the rules
governing employer communication to employees, do not substantially interfere
with freedom of association.
Per
Rothstein and Wagner JJ. (dissenting in part): This Court should not intrude
into the policy development role of elected legislators by constitutionalizing
the right to strike under the freedom of association guarantee in s. 2 (d)
of the Charter . The statutory right to strike, along with other
statutory protections for workers, reflects a complex balance struck by
legislatures between the interests of employers, employees and the public. Providing
for a constitutional right to strike not only upsets this delicate balance, but
also restricts legislatures by denying them the flexibility needed to ensure
the balance of interests can be maintained.
Democratically
elected legislatures are responsible for determining the appropriate balance
between competing economic and social interests in the area of labour relations.
This Court has long recognized that it is the role of legislators and not
judges to balance competing tensions in making policy decisions, particularly
in the area of socio-economic policy. The legislative branch requires
flexibility to deal with changing circumstances and social values. Canadian
labour relations is a complex web of intersecting interests, rights and
obligations, and has far-reaching implications for Canadian society. It is not
the role of this Court to transform all policy choices it deems worthy into
constitutional imperatives. The exercise of judicial restraint is essential in
ensuring that courts do not upset the balance by usurping the responsibilities
of the legislative and executive branches.
Constitutionalizing
a right to strike restricts governments’ flexibility, impedes their ability to
balance the interests of workers with the broader public interest, and
interferes with the proper role and responsibility of governments. Constitutionalizing
a right to strike introduces great uncertainty into labour relations: it will
make all statutory limits on the right to strike presumptively unconstitutional.
By constitutionalizing a broad conception of the right to strike, the majority
binds the governments’ hands and limits its ability to respond to changing
needs and circumstances in the dynamic field of labour relations.
Constitutionalizing a right to
strike enshrines a political understanding of the concept of “workplace
justice” that favours the interests of employees over those of employers and
even over those of the public. While employees are granted constitutional
rights, constitutional obligations are imposed on employers. Employers and the
public are equally entitled to justice: true workplace justice looks at the
interests of all implicated parties. In the public sector, strikes are a
political tool. The public expects that public services, and especially
essential services, will be delivered. Thus unions attempt to pressure the
government to agree to certain demands in order that these services be
reinstated. Public sector labour disputes are unique in that the government as
employer must take into account that any additional expenditures incurred to
meet employee demands will come from public funds.
It
is incorrect to say that without the right to strike a constitutionalized right
to bargain collectively is meaningless. The threat of work stoppage is not what
motivates good faith bargaining. It is the statutory duty, and after Health
Services and Support — Facilities Subsector Bargaining Assn. v. British
Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, the constitutional duty, not
the possibility of job action, that compels employers to bargain in good faith.
The statutory right to strike allows both employers and employees to exercise
economic and political power. Now by constitutionalizing only the ability of
employees to exert such power, the majority disturbs the delicate balance of
labour relations in Canada and impedes the achievement of true workplace justice.
The
conclusion that the right to strike is an indispensable component of collective
bargaining does not accord with recent jurisprudence. There is nothing in the
concept of collective bargaining as it was defined by this Court in Health
Services, Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011]
2 S.C.R. 3, and Mounted
Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, that would imply that employees have a constitutional
right to strike and that employers have a constitutional obligation to preserve
the jobs of those employees. The threshold for overturning prior judgments is
high. While the s. 2 (d) jurisprudence has developed since the Labour
Trilogy, neither this development, nor any change in the circumstances of
Canadian labour relations justifies a departure from precedent. If anything,
developments in the law support a finding that the right to freedom of
association does not require constitutionalizing the right to strike. This is
because recent s. 2 (d) jurisprudence has already established a right to
meaningful, good faith collective bargaining.
International
bodies disagree as to whether the right to strike is protected under
international labour and human rights instruments. The current state of
international law on the right to strike is unclear and provides no guidance in
determining whether this right is an essential element of freedom of
association.
A
right to strike is not required to ensure the constitutional guarantee of
freedom of association. Therefore, the PSESA, which restricts the
ability of public sector workers who provide essential services to strike, does
not violate the right to meaningful collective bargaining protected under s. 2 (d)
of the Charter . The PSESA’s controlled strike regime does not
render effectively impossible, nor substantially interfere with, the ability of
associations representing affected public sector employees to submit
representations to employers and to have them considered and discussed in good
faith. The PSESA facilitates consultation between employers and unions
regarding the designation of essential services and the evidence in this case
demonstrates that good faith collective bargaining took place. A violation of s.
2 (d) of the Charter cannot be founded simply on allegations that
the legislation does not provide an adequate dispute resolution process; s. 2 (d)
does not entail such a right. Moreover, the goal of strikes is not to ensure
meaningful collective bargaining, but instead to exert political pressure on
employers. Finally, the statutory balance struck by the Government of
Saskatchewan is eminently reasonable. Canadian federal and provincial
governments have made a constitutional commitment “to provid[e] essential
public services of reasonable quality to all Canadians” (Constitution Act,
1982, s. 36(1) (c)). As a result, the Government of Saskatchewan
cannot subject itself to arbitral awards that could make it unaffordable to
deliver on its undertaking. It has devised a particular legislative framework
in order to safeguard the continued delivery of essential services to the
community during labour disputes. This Court should defer to the government’s
policy choices in balancing the interests of employers, employees, and the
public.
The
Trade Union Amendment Act, 2008 does not infringe the right to freedom of
association.
Cases Cited
By Abella J.
Overruled:
Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R.
313; referred to: Health Services and Support — Facilities Subsector
Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario
(Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted
Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1,
[2015] 1 S.C.R. 3; Canada (Attorney General) v. Bedford, 2013 SCC 72,
[2013] 3 S.C.R. 1101; Perrault v. Gauthier (1898), 28 S.C.R. 241; Canadian
Pacific Railway Co. v. Zambri, [1962] S.C.R. 609; Alberta (Information
and Privacy Commissioner) v. United Food and Commercial Workers, Local 401,
2013 SCC 62, [2013] 3 S.C.R. 733; Gagnon v. Foundation Maritime Ltd.,
[1961] S.C.R. 435; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages
(West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; Re Service Employees’ International
Union, Local 204 and Broadway Manor Nursing Home (1983), 4 D.L.R. (4th)
231; Williams v. Aristocratic Restaurants (1947) Ltd., [1951] S.C.R.
762; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1
S.C.R. 901; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; R. v. Hape,
2007 SCC 26, [2007] 2 S.C.R. 292; Divito v. Canada (Public Safety and
Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Re Alberta
Union of Provincial Employees and the Crown in Right of Alberta (1980), 120
D.L.R. (3d) 590; Demir v. Turkey, No. 34503/97, ECHR 2008-V; Enerji
Yapi-Yol Sen v. Turquie, No. 68959/01, April 21, 2009 (HUDOC); National
Union of Rail, Maritime and Transport Workers v. United Kingdom, No. 31045/10,
April 8, 2014 (HUDOC); Attorney-General v. National Labour Court, [1995-6]
Isr. L.R. 149; New Histadrut General Workers’ Union v. State of Israel (2006),
25 I.L.L.R. 375; Koach La Ovdim v. Jerusalem Cinematheque (2009), 29
I.L.L.R. 329; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Advance Cutting &
Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; RJR-MacDonald Inc. v.
Canada (Attorney General), [1995] 3 S.C.R. 199; Canadian Union of Public
Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Dunmore v.
Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Professional
Institute of the Public Service of Canada v. Northwest Territories
(Commissioner), [1990] 2 S.C.R. 367.
By Rothstein and Wagner JJ. (dissenting in part)
R.W.D.S.U.,
Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1
S.C.R. 156; Reference re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v.
Saskatchewan, [1987] 1 S.C.R. 460; Health Services and Support —
Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,
[2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20,
[2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney
General), 2015 SCC 1, [2015] 1 S.C.R. 3; R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295; Divito v. Canada (Public Safety and Emergency
Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Vriend v. Alberta,
[1998] 1 S.C.R. 493; Plourde v. Wal-Mart Canada Corp., 2009 SCC 54,
[2009] 3 S.C.R. 465; Canadian Union of Public Employees v. Labour Relations
Board (Nova Scotia), [1983] 2 S.C.R. 311; Perfection Foods Limited v. Retail
Wholesale Dairy Worker Union, Local 1515 (1986), 57 Nfld. & P.E.I.R.
147; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance
Co. (2005), 76 O.R. (3d) 161; Canada (Attorney General) v. Bedford,
2013 SCC 72, [2013] 3 S.C.R. 1101; J.B. v. Canada, Communication No. 118/1982
(1986), U.N. Doc. CCPR/C/OP/2, Selected Decisions of the Human Rights
Committee under the Optional Protocol, vol. 2 (1990), p. 34; R. v. Hape,
2007 SCC 26, [2007] 2 S.C.R. 292; Turp v. Canada (Justice), 2012 FC 893,
[2014] 1 F.C.R. 439; Dunmore v. Ontario (Attorney General), 2001 SCC 94,
[2001] 3 S.C.R. 1016.
Statutes and Regulations Cited
Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16.
Canada Labour Code, R.S.C. 1985, c. L-2,
ss. 50 (a), 88.1 , 89 .
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (b), (d).
Constitution Act, 1982, s. 36(1) (c).
Constitution of France, preamble § 7.
Constitution of Italy, art. 40.
Constitution of Portugal, art. 57.
Constitution of South Africa, s. 23(2).
Constitution of Spain, art. 28(2).
Industrial Relations Act, R.S.N.B. 1973,
c. I-4, s. 1(1) “collective bargaining”.
Labour Act, R.S.P.E.I. 1988, c. L-1, s. 22(a).
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Labour Relations Act, C.C.S.M., c. L10,
s. 62.
Labour Relations Act, R.S.N.L. 1990, c. L-1,
s. 71.
Labour Relations Act, 1995, S.O. 1995,
c. 1, Sch. A, s. 17.
Labour Relations Code, R.S.A. 2000, c. L-1,
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Labour Relations Code, R.S.B.C. 1996, c.
244, s. 11(1).
National Labor Relations Act, 49 Stat.
449 (1935) (codified as amended at 29 U.S.C. §§ 151-169).
Public Service Essential Services Act,
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Trade Union Act, R.S.N.S. 1989, c. 475,
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Trade Union Act, R.S.S. 1978, c. T-17
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Trade Unions Act, 1872, S.C. 1872, c. 30.
Treaties and Other International Instruments
Charter of the Organization of American States, Can. T.S. 1990 No. 23, art. 45(c).
Convention (No. 87) concerning freedom of association and protection
of the right to organize, 68 U.N.T.S. 17, art. 3(1).
Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 221 [the European
Convention on Human Rights], art. 11.
European Social Charter, E.T.S. No. 35
[revised E.T.S. No. 163], art. 6(4).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 22.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, art. 8(1), (2), (3).
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APPEAL
from a judgment of the Saskatchewan Court of Appeal (Klebuc C.J.S. and
Richards, Ottenbreit, Caldwell and Herauf JJ.A.), 2013 SKCA 43, 414 Sask. R.
70, 575 W.A.C. 70, 361 D.L.R. (4th) 132, 280 C.R.R. (2d) 187, [2013] 6 W.W.R.
453, 227 C.L.R.B.R. (2d) 1, 2013 CLLC ¶220-032, [2013] S.J. No. 235 (QL), 2013
CarswellSask 252 (WL Can.), setting aside in part a decision of Ball J., 2012
SKQB 62, 390 Sask. R. 196, 254 C.R.R. (2d) 288, [2012] 7 W.W.R. 743, 211
C.L.R.B.R. (2d) 1, 2012 CLLC ¶220-016, [2012] S.J. No. 49 (QL), 2012 CarswellSask
64 (WL Can.). Appeal allowed in part, Rothstein and Wagner JJ. dissenting in
part.
Rick
Engel, Q.C., Craig D. Bavis and Peter
Barnacle, for the appellants.
Graeme
G. Mitchell, Q.C., Barbara C. Mysko
and Katherine M. Roy, for the respondent.
Mark
R. Kindrachuk, Q.C., and Sean Gaudet,
for the intervener the Attorney General of Canada.
Robert
E. Charney and Sarah Wright, for the
intervener the Attorney General of Ontario.
Caroline
Renaud and Amélie Pelletier Desrosiers, for
the intervener the Attorney General of Quebec.
Keith
Evans, for the intervener the Attorney General of
British Columbia.
Roderick
Wiltshire, for the intervener the Attorney General
of Alberta.
Chantelle
MacDonald Newhook, for the intervener the Attorney
General of Newfoundland and Labrador.
Gary
L. Bainbridge and Marcus R. Davies, for the
intervener the Saskatchewan Union of Nurses.
Drew
S. Plaxton, for the intervener SEIU-West.
Written
submissions only by Ritu Khullar, Q.C., and Vanessa Cosco,
for the interveners the United Nurses of Alberta and the Alberta Federation of
Labour.
Written
submissions only by Peter C. Engelmann and Colleen Bauman, for
the intervener the Professional Institute of the Public Service of Canada.
Darryl
Cruz and Brandon Kain, for the intervener the
Canadian Constitution Foundation.
Steve
Waller and Christopher Rootham, for the
intervener the Air Canada Pilots’ Association.
Lindsay
M. Lyster, for the intervener the British Columbia
Civil Liberties Association.
Written
submissions only by Louise Laplante, Nancy Ménard-Cheng and Sébastien
Beauregard, for the intervener Conseil du patronat du Québec.
John
D. R. Craig and Christopher D. Pigott, for
the intervener the Canadian Employers Council.
Paul
J. J. Cavalluzzo and Adrienne Telford, for
the interveners the Canadian Union of Postal Workers and the International
Association of Machinists and Aerospace Workers.
Joseph
J. Arvay, Q.C., and Catherine J. Boies
Parker, for the interveners the British Columbia Teachers’ Federation and
the Hospital Employees’ Union.
Written
submissions only by Steven Barrett and Ethan Poskanzer, for the
intervener the Canadian Labour Congress.
Andrew
Raven and Andrew Astritis, for the
intervener the Public Service Alliance of Canada.
Patrick
G. Nugent and Tamara Friesen, for the
intervener the Alberta Union of Provincial Employees.
Éric Lévesque and Benoît Laurin,
for the intervener Confédération des syndicats nationaux.
Evert van Olst, Q.C., and Leah
Schatz, for the interveners the Regina Qu’Appelle Regional Health
Authority, the Cypress Regional Health Authority, the Five Hills Regional
Health Authority, the Heartland Regional Health Authority, the Sunrise Regional
Health Authority, the Prince Albert Parkland Regional Health Authority and the Saskatoon
Regional Health Authority.
Paul
Champ and Bijon Roy, for the intervener the National
Union of Public and General Employees.
Written
submissions only by Brian W. Burkett, for the interveners the Canada
Post Corporation and Air Canada.
The
judgment of McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis was
delivered by
[1]
Abella J. — In the Alberta
Reference (Reference re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313), this Court held that the freedom of association
guaranteed under s. 2 (d) of the Canadian Charter of Rights and
Freedoms did not protect the right to
collective bargaining or to strike. Twenty years later, in Health Services and Support — Facilities
Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, this
Court held that s. 2 (d) protects the right of employees to engage in a
meaningful process of collective bargaining. The
rights were further enlarged in Ontario (Attorney General) v. Fraser,
[2011] 2 S.C.R. 3, where the Court accepted that a meaningful process includes
employees’ rights to join together to pursue workplace goals, to make
collective representations to the employer, and to have those representations
considered in good faith, including having a means of recourse should the
employer not bargain in good faith. And, most recently, in Mounted Police
Association of Ontario v. Canada (Attorney General), [2015] 1 S.C.R. 3,
the Court recognized that a process of collective bargaining could not
be meaningful if employees lacked the independence and choice to determine and
pursue their collective interests. Clearly the arc bends increasingly towards
workplace justice.
[2]
The question in this
appeal is whether a prohibition on designated employees participating in strike
action for the purpose of negotiating the terms and conditions of their
employment amounts to a substantial interference with their right to a
meaningful process of collective bargaining and, as a result, violates s. 2 (d)
of the Charter . The question of whether other forms of collective work
stoppage are protected by s. 2 (d) of the Charter is not at issue
here.
[3]
The conclusion that the
right to strike is an essential part of a meaningful collective bargaining
process in our system of labour relations is supported by history, by
jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund
and Bob Hepple recognized:
The power
to withdraw their labour is for the workers what for management is its power to
shut down production, to switch it to different purposes, to transfer it to
different places. A legal system which suppresses the freedom to strike puts
the workers at the mercy of their employers. This — in all its simplicity — is
the essence of the matter.
(Laws
Against Strikes (1972), at p. 8)
The right
to strike is not merely derivative of collective bargaining, it is an
indispensable component of that right. It seems to me to be the time to
give this conclusion constitutional benediction.
[4]
This applies too to
public sector employees. Those public sector employees who provide essential
services undoubtedly have unique functions which may argue for a less
disruptive mechanism when collective bargaining reaches an impasse, but they do
not argue for no mechanism at all. Because Saskatchewan’s legislation
abrogates the right to strike for a number of employees and provides no such
alternative mechanism, it is unconstitutional.
Background
[5]
On December 19, 2007,
the newly elected Government of Saskatchewan introduced two statutes which
ground this appeal: The Public Service Essential Services Act, S.S.
2008, c. P-42.2 (PSESA), and The Trade Union Amendment Act, 2008,
S.S. 2008, c. 26. They became law on May 14, 2008.
[6]
Prior to the enactment
of The Public Service Essential Services Act, public sector strikes were
regulated on an ad hoc basis in Saskatchewan. Without a regime in
place, it was often difficult to ensure the adequate provision of essential
services during labour disputes. In April 1999, for example, 8,400 members of
the Saskatchewan Union of Nurses participated in a province-wide strike and
many health care facilities throughout the province lost the capacity to
provide critical care to patients. Similarly, in 2001, health care employees
represented by the Canadian Union of Public Employees withdrew their services,
seriously affecting the delivery of health care. The trial judge noted that
[a]s the strike progressed, the impact
on health care services became more serious. In the Regina area alone, elective
procedures were cancelled, patients were transferred out of province to
alternate provincial sites, and there were no admissions to permanent beds,
convalescent beds, palliative beds or respite beds. Admissions to long term
care facilities were halted. All day support programs and Meals on Wheels
programs were cancelled. Eighty-eight beds at the Regina General Hospital were
closed, which left it functioning at 75 percent, and 110 beds at the Pasqua
Hospital were closed, leaving it functioning at only 54 percent of capacity.
Operating room theatres were reduced from eight to one at the Regina General
Hospital, and from seven to one at the Pasqua Hospital, being the only two
operating hospitals in the city. The women’s health centre was closed and five
children’s beds were closed in in-patient rehabilitation at Wascana
Rehabilitation Centre, in addition to eight adult rehabilitation beds. [para.
147]
And from
December 2006 to February 2007, the Saskatchewan Government and General
Employees’ Union engaged in lawful strike action. A large number of highway
workers, snow plow operators, and corrections workers participated, sparking
concerns about public safety.
[7]
As a result of these
experiences, in 2007 the newly elected provincial government moved to implement
an essential services labour relations regime in the province. The PSESA is
Saskatchewan’s first statutory scheme to regulate and limit the ability of
public sector employees who perform “essential services” to strike. The Act
applies to every “public employer” in Saskatchewan and to every “employee” of a
public employer who is represented by a union.
[8]
Under the PSESA,
designated “essential services employees” are prohibited from participating in
any work stoppage against their public employer. In the event of a strike,
those employees are required to continue “the duties of [their] employment with
the public employer in accordance with the terms and conditions of the last
collective bargaining agreement”, and are prohibited from refusing to continue
those duties “without lawful excuse”. Contravention of any provision under the PSESA
is a summary conviction offence that could result in an increasing fine for
every day the offence continues.
[9]
The PSESA sets
out a broad definition of “essential services”:
s. 2 (c)
(i) with
respect to services provided by a public employer other than the Government of
Saskatchewan, services that are necessary to enable a public employer to
prevent:
(A)
danger to life, health or safety;
(B)
the destruction or serious deterioration of machinery, equipment or premises;
(C)
serious environmental damage; or
(D)
disruption of any of the courts of Saskatchewan; and
(ii) with
respect to services provided by the Government of Saskatchewan, services that:
(A)
meet the criteria set out in subclause (i); and
(B)
are prescribed;
[10]
A “public employer” is
defined as:
s. 2 (i)
(i) the
Government of Saskatchewan;
(ii) a
Crown corporation as defined in The Crown Corporations Act, 1993;
(iii) a
regional health authority as defined in The Regional Health Services Act;
(iv) an
affiliate as defined in The Regional Health Services Act;
(v) the
Saskatchewan Cancer Agency continued pursuant to The Cancer Agency Act;
(vi) the
University of Regina;
(vii) the
University of Saskatchewan;
(viii)
the Saskatchewan Polytechnic;
(ix) a
municipality;
(x) a
board as defined in The Police Act, 1990;
(xi) any
other person, agency or body, or class of persons, agencies or bodies, that:
(A)
provides an essential service to the public; and
(B)
is prescribed;
[11]
A public employer and
the union are to negotiate an “essential services agreement” to govern how
public services are to be maintained in the event of a work stoppage. In the
event that the negotiations break down, the public employer has the authority to
unilaterally designate, by “notice”, which public services it considers to be
essential, the classifications of employees required to continue to work during
a work stoppage, and the names and number of employees in each of the
classifications. Further notice may be given by the public employer at any
time, either to increase or decrease the numbers of employees required to
maintain essential services.
[12]
Where the employer is the Government of
Saskatchewan, essential services are prescribed by regulation.
[13]
The Saskatchewan Labour
Relations Board has limited jurisdiction to review the numbers of employees
required to work in a given classification during a strike, but it has no
authority to review whether any particular service is essential, which
classifications involve the delivery of genuinely essential services, or
whether specific employees named by the employer to work during the strike have
been reasonably selected.
[14]
The second statute at
issue in this appeal is The Trade Union Amendment Act, 2008. It introduced
stricter requirements for a union to be certified by increasing the required level of written support
from 25% to 45% of employees; by reducing the period for receiving written
support from the employees from six months to three; and by eliminating the
automatic certification previously available when over 50% of the employees had
given written support prior to the application. The Saskatchewan Labour Board
no longer had any discretion to decide whether a representation vote by secret
ballot was needed.
[15]
The Trade Union
Amendment Act, 2008 also
decreased the level of employee support required for decertification. The
predecessor legislation, The Trade Union Act, R.S.S. 1978, c.
T-17 (repealed by S.S. 2013, c. S-15.1), had set out a process by which
employees in a bargaining unit could apply to have a union decertified as the
bargaining representative. That provision was changed in The Trade Union
Amendment Act, 2008 by decreasing the required level of advanced
written support for decertification from 50% plus one to 45%. The period
within which the required written support was to be submitted was reduced from
six months to three.
[16]
Finally, it was no
longer an “unfair labour practice” for an employer to communicate “facts and
its opinions to its employees” during the exercise of their rights under The
Trade Union Amendment Act, 2008.
[17]
In July 2008, the
Saskatchewan Federation of Labour and other unions challenged the
constitutionality of both the PSESA and The Trade Union Amendment Act,
2008. The Saskatchewan Union of Nurses, the Canadian Union of Public
Employees, the Service Employees International Union-West, and the Saskatchewan
Government and General Employees’ Union each subsequently commenced separate
proceedings challenging only the constitutionality of the PSESA.
[18]
Both sets of challenges
were decided by the trial judge, Ball J., under s. 2 (d) of the Charter .
In his view, the majority decisions in the Alberta Reference had been
superseded by this Court’s interpretation of the scope of s. 2 (d) of the
Charter in Health Services and Fraser to include
protection for the right to engage in collective action to achieve workplace
goals. While recognizing that the Court had not yet directly considered
whether strike activity was encompassed by s. 2 (d), Ball J. nonetheless
concluded that “the right to strike is a fundamental
freedom protected by s. 2 (d) of the Charter ”.
[19]
He accordingly found
that the prohibition on the right to strike in the PSESA substantially
interfered with the s. 2 (d) rights of the affected public sector
employees. He acknowledged that while Canadian and international law supports
the restriction or prohibition of strikes by essential services employees,
after an extensive and thoughtful analysis, he found that the absolute ban on
the right to strike in the PSESA was neither minimally impairing nor
proportionate for essentially the following reasons:
•
Saskatchewan failed to engage in meaningful
consultation or negotiation with respect to the PSESA and The Public
Service Essential Services Regulations.
•
Good-faith negotiation in determining essential
services designations is not possible under the PSESA since one side has
the capacity to impose an agreement.
•
The definition of “essential services” is “very
broad”. In the absence of an agreement with the Unions about what the
definition means, employers are entitled unilaterally to decide what they
included.
•
The definition of “public employer” is also
overbroad. There was no evidence that some of the designated public employers
actually employed any employees who were engaged in the delivery of essential
services.
•
The power of public employers during a work
stoppage to designate how essential services are to be maintained and by whom
was unilateral and required no consultation with the Unions.
•
The unilateral decision-making power granted to
public employers was unnecessary. There was no explanation for why the Unions
were denied any input into naming essential services employees.
•
The PSESA goes beyond what is reasonably
required to ensure the uninterrupted delivery of essential services during a
strike.
•
Compared to analogous legislation in other
Canadian jurisdictions, the PSESA is uniquely restrictive of the right
to strike and devoid of both review mechanisms and alternate means of
addressing workplace issues.
[20]
The declaration of invalidity was suspended for
one year.
[21]
In his analysis of the
second statutory scheme, The Trade Union Amendment Act, 2008, on
the other hand, Ball J. concluded that the legislation did not breach s. 2 (d).
While he acknowledged that the changes to
the certification process introduced by The Trade Union Amendment Act, 2008 had the effect of reducing the success rate of union
applications for certification, he held that s. 2 (d) does not require
the enactment of legislation that ensures that unions succeed easily in their
efforts to be certified; “it precludes the enactment of legislation that
interferes with the freely expressed wishes of employees in the exercise of
their s. 2 (d) rights”.
[22]
With respect to the
broadened scope of permissible employer communications, Ball J. held that permitting employers to communicate facts
and opinions is consistent with the employers’ freedom of expression under s.
2 (b) of the Charter . He concluded that both the purpose and
effect of the relevant provision is that employers could only communicate with
employees in a manner that does not infringe on the ability of the employees to
engage their collective bargaining rights.
[23]
The Saskatchewan Court of
Appeal unanimously allowed the Government of Saskatchewan’s appeal with respect
to the constitutionality of the PSESA, concluding that “[w]hile the Court’s freedom of association jurisprudence
has evolved in recent years, it has not shifted far enough, or clearly enough,
to warrant a ruling by this Court that the right to strike is protected by s.
2 (d) of the Charter ”. The appeal against the trial judge’s finding that The Trade Union
Amendment Act, 2008 did not violate s. 2 (d) of the Charter was
dismissed.
[24]
I agree with the trial
judge. Along with their right to associate, speak through a bargaining
representative of their choice, and bargain collectively with their employer
through that representative, the right of employees to strike is vital to
protecting the meaningful process of collective bargaining within s. 2 (d).
As the trial judge observed, without the right to strike, “a constitutionalized
right to bargain collectively is meaningless”.
[25]
Where strike action is
limited in a way that substantially interferes with a meaningful process of
collective bargaining, it must be replaced by one of the meaningful dispute
resolution mechanisms commonly used in labour relations. Where essential
services legislation provides such an alternative mechanism, it would more
likely be justified under s. 1 of the Charter . In my view, the failure
of any such mechanism in the PSESA is what ultimately renders its
limitations constitutionally impermissible.
Analysis
[26]
Section 2 of the Charter
guarantees the following:
2. Everyone has
the following fundamental freedoms:
. . .
(d) freedom of
association.
[27]
The trial judge in this
case relied on changes in this Court’s s. 2 (d) jurisprudence to depart
from the precedent set by the majority in the Alberta Reference.
[28]
The recognition of the broader purpose
underlying s. 2 (d) led the Court to conclude in Health Services that
“s. 2 (d) should be understood as protecting the right of employees to
associate for the purpose of advancing workplace goals through a process of
collective bargaining” (para. 87). In reaching this conclusion, McLachlin C.J.
and LeBel J. held that none of the majority’s reasons in the Alberta
Reference which had excluded collective bargaining from the scope of s. 2 (d)
“survive[d] scrutiny, and the rationale for excluding inherently collective
activities from s. 2 (d)’s protection has been overtaken by Dunmore”
(Health Services, at para. 36).
[29]
This Court reaffirmed in Fraser that a
meaningful process under s. 2 (d) must include, at a minimum, employees’ rights to join together to pursue workplace goals, to
make collective representations to the employer, and to have those
representations considered in good faith, including having a means of recourse
should the employer not bargain in good faith.
[30]
The evolution in the Court’s approach to s. 2 (d)
was most recently summarized by McLachlin C.J. and LeBel J. in Mounted
Police, where they said:
The jurisprudence on
freedom of association under s. 2 (d) of the Charter . . . falls
into two broad periods. The first period is marked by a restrictive approach
to freedom of association. The second period gradually adopts a generous and
purposive approach to the guarantee.
. . .
. . . after an initial period of
reluctance to embrace the full import of the freedom of association guarantee
in the field of labour relations, the jurisprudence has evolved to affirm a
generous approach to that guarantee. This approach is centred on the purpose of
encouraging the individual’s self-fulfillment and the collective realization of
human goals, consistent with democratic values, as informed by “the historical
origins of the concepts enshrined” in s. 2 (d) . . . . [paras. 30 and 46]
[31]
They confirmed that freedom of association under
s. 2 (d) seeks to preserve “employee autonomy against the superior power
of management” in order to allow for a meaningful process of collective
bargaining (para. 82).
[32]
Given the fundamental
shift in the scope of s. 2 (d) since the Alberta Reference was
decided, the trial judge was entitled to depart from precedent and consider the
issue in accordance with this Court’s revitalized interpretation of s. 2 (d):
Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, at para. 42.
[33]
Dickson C.J.’s
dissenting reasons in the Alberta Reference were influential in the
development of the more “generous approach” in the recent jurisprudence.
Recognizing that association “has always been vital as a means of protecting
the essential needs and interests of working people” (at p. 368), and that
Canada’s international human rights obligations required protection for both
the formation and essential activities of labour unions, including collective
bargaining and the freedom to strike, Dickson C.J. concluded that “effective
constitutional protection of the associational interests of employees in the
collective bargaining process requires concomitant protection of their freedom
to withdraw . . . their services [collectively], subject to s. 1 of the Charter ”
(at p. 371). (See also Perrault v. Gauthier (1898), 28 S.C.R. 241, at
p. 256, and Canadian Pacific Railway Co. v. Zambri, [1962] S.C.R. 609,
at pp. 618 and 621.)
[34]
His views are supported
by the history of strike activity in Canada and globally.
[35]
This Court referenced this history
in Health Services:
In England, as early as the end of the
Middle Ages, workers were getting together to improve their conditions of
employment. They were addressing petitions to Parliament, asking for laws to
secure better wages or other more favourable working conditions. Soon thereafter, strike activity began (M.-L. Beaulieu, Les
Conflits de Droit dans les Rapports Collectifs du Travail (1955), at pp.
29-30). [para. 45]
[36]
In England in the 19th century,
strike action was the subject of criminal sanction under the common law
doctrine of criminal conspiracy, reflected in the Combination Acts of 1799 and 1800. Even when certain forms of trade
unionism and collective bargaining became legal under the Combination Act
of 1825, strike activity itself remained criminal: Health Services, at
paras. 47-48. This state of affairs continued in England “until the
‘legislative settlement’ of the 1870s . . . lifted the threat of criminal
sanctions from all but violent forms of behaviour associated with industrial
action”: Simon Deakin and Gillian S. Morris, Labour Law (6th ed. 2012),
at p. 8.
[37]
British labour law was influential
in the development of Canadian labour law prior to the 1940s, but the extent to
which the restrictions on collective action were actually adopted and enforced
in Canada appears to be unclear: Health Services, at paras. 43 and 50.
As Judy Fudge and Eric Tucker wrote in describing the Canadian experience:
The collective dimension of
striking was covered by combination law, but just what that law was in early
and mid-nineteenth century Canada is even more opaque than the status of
English master and servant law. However, regardless of the formal law,
historians have not identified a single case in which workers were successfully
prosecuted under combination law simply for the act of striking. It is also
clear that the social practice of workers striking to improve terms and
conditions of employment became deeply rooted during this era.
(“The
Freedom to Strike in Canada: A Brief Legal History” (2009-2010), 15 C.L.E.L.J.
333, at pp. 340-41)
[38]
What is known, however, is
that workers participated in strike activity long before the modern system of
labour relations was introduced in Canada. Strikes and collective bargaining
were seen to go hand in hand since both “are creatures of working class action:
working people turned to these methods to improve their lot in industry from
the earliest days of nineteenth century Canadian capitalism”: Geoffrey England,
“Some Thoughts on Constitutionalizing the Right to Strike” (1988), 13:2 Queen’s
L.J. 168, at p. 175. See also Gilles Trudeau, “La grève au Canada et aux
États-Unis: d’un passé glorieux à un avenir incertain” (2004), 38 R.J.T.
1; Claude D’Aoust and François Delorme, “The Origin of the Freedom of
Association and of the Right to Strike in Canada: An Historical Perspective”
(1981), 36 Relat. ind. 894; Bryan D. Palmer, “Labour Protest and
Organization in Nineteenth-Century Canada, 1820-1890” (1987), 20 Labour
61; Fudge and Tucker.
[39]
The acceptance of the crucial role
of strike activity led to its eventual decriminalization. In 1872, Parliament
began the process of eliminating the criminal prohibition against collective
action by enacting the Canadian The Trade Unions Act, 1872, S.C.
1872, c. 30. Through a series of legislative reforms, “the taint of criminal
liability” had finally been removed from all trade unions in Canada by 1892:
George W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at ¶ 1.80.
Parliament recognized the importance of this legislative reform for workers:
[In enacting the 1872 Trade
Unions Act ], the Canadian Parliament recognized the value for the
individual of collective actions in the context of labour relations. As Sir
John A. Macdonald mentioned in the House of Commons, the purpose of the Trade
Unions Act of 1872 was to immunize unions from existing laws considered to
be “opposed to the spirit of the liberty of the individual” (Parliamentary
Debates, vol. III, 5th Sess., 1st Parl., May 7, 1872, at p. 392, as cited
by M. Chartrand, “The First Canadian Trade Union Legislation: An Historical
Perspective” (1984), 16 Ottawa L. Rev. 267, at p. 267).
(Health Services,
at para. 52)
[40]
McLachlin C.J. and
LeBel J. further explain in Health Services that,
[b]efore the adoption of the modern
statutory model of labour relations, the majority of strikes were motivated by
the workers’ desire to have an employer recognize a union and bargain
collectively with it (D. Glenday and C. Schrenk, “Trade Unions and the State: An
Interpretative Essay on the Historical Development of Class and State Relations
in Canada, 1889-1947” (1978), 2 Alternate Routes 114, at p. 128; M.
Thompson, “Wagnerism in Canada: Compared to What?”, in Proceedings of the
XXXIst Conference — Canadian Industrial Relations Association (1995), 59,
at p. 60; C. D. Baggaley, A Century of Labour Regulation in Canada (February
1981), Working Paper No. 19, prepared for the Economic Council of Canada, at p.
57). [para. 54]
[41]
And in Alberta (Information and Privacy Commissioner) v.
United Food and Commercial Workers, Local 401, [2013] 3 S.C.R. 733, at para. 35, the Court noted that “[s]trikes
and picketlines have been used by Canadian unions to exert economic pressure
and bargain with employers for over a century”.
[42]
In 1935, the Wagner
Act was adopted in the United States, introducing a model of labour
relations that came to inspire legislative schemes across Canada. This model
was adopted in Canada because the federal and provincial governments
“recognized the fundamental need for workers to participate in the regulation
of their work environment”, and, in doing so, “confirmed what the labour
movement had been fighting for over centuries and what it had access to in the
laissez-faire era through the use of strikes — the right to collective
bargaining with employers” (Health Services, at para. 63). One of
the goals of the Wagner model, therefore, was to reduce the frequency of
strikes by ensuring a commitment to meaningful collective bargaining.
[43]
As this Court noted in Health
Services, the “unprecedented
number of strikes, caused in large part by the refusal of employers to
recognize unions and to bargain collectively, led to governments adopting the
American Wagner Act model of legislation” (para. 54). In implementing statutorily protected
bargaining rights, modern labour relations legislation was “designed to secure a greater measure of industrial
peace to the public by encouraging collective bargaining and conciliation
procedures rather than strikes as a method of resolving industrial disputes” (Gagnon
v. Foundation Maritime Ltd., [1961] S.C.R. 435, at pp. 443-44, per Ritchie
J.).
[44]
Modern labour relations
legislation in Canada accordingly limited certain forms of strike activities
and replaced the freedom to collectively engage in the withdrawal of services
with statutorily protected rights to organize and engage in collective
bargaining. As Judy Fudge and Eric Tucker noted, this model gave workers
collective bargaining protection as a trade-off for limitations imposed on the
freedom to strike:
The loss of the freedom to strike for
recognition was accompanied by a certification procedure that enabled employees
to obtain union representation through a democratic process, and also imposed
on employers a duty to recognize and to bargain in good faith with certified
unions. The loss of the freedom to strike during the life of a collective
agreement came with a right to enforce the terms of that agreement through
binding arbitration. And, of course, the postponement of strikes until after
conciliation . . . also came with a statutory freeze on terms and conditions.
Finally, the new regime also gave workers a right to strike in the Hohfeldian
sense, by prohibiting employers from terminating the contract of employment
merely because the worker was on strike. The scope of the right to resume
employment varies from jurisdiction to jurisdiction, but it protects striking
workers’ jobs in most situations. [p. 350]
[45]
As George W. Adams
writes, “All statutes have a policy commitment to the postponement of the
reciprocal rights of lockout and strike until the exhaustion of all settlement
mechanisms” (¶ 1.250). The trade-off in the Wagner labour relations
model, limiting the ability to strike in favour of an emphasis on negotiated
solutions for workplace issues, remains at the heart of labour relations in
Canada. That is not to say it is the only model available, but it is the
prevailing model in this country and the one under the s. 2 (d)
microscope in this case.
[46]
It is important to
point out, however, that the right to strike is not a creature just of the
Wagner model. Most labour relations models include it. And where history has
shown the importance of strike action for the proper functioning of a given
model of labour relations, as it does in Wagner-style schemes, it should come
as no surprise that the suppression of legal strike action will be seen as
substantially interfering with meaningful collective bargaining. That is
because it has long been recognized that the ability to collectively withdraw
services for the purpose of negotiating the terms and conditions of employment
— in other words, to strike — is an essential component of the process through
which workers pursue collective workplace goals. As Prof. H. D. Woods wrote in
his landmark 1968 report, the “acceptance of collective bargaining carries with
it a recognition of the right to invoke the economic sanction of the strike” (Canadian
Industrial Relations: The Report of the Task Force on Labour Relations
(1969), at p. 175). The strike is “an
indispensable part of the Canadian industrial relations system” and “has become
a part of the whole democratic system” (pp. 129 and 176).
[47]
Bob Hepple writes that “the strike weapon as a last resort is an
essential safety-valve, a sanction aimed at achieving meaningful participation”
(“The Right to Strike in an International Context” (2009-2010), 15 C.L.E.L.J.
133, at p. 139).
[48]
The recognition that
strikes, while a powerful form of economic pressure, are nonetheless critical
components of the promotion of industrial — and therefore socio-economic —
peace, was also cogently summarized in R.W.D.S.U., Local 558 v. Pepsi-Cola
Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156:
Labour disputes may touch important
sectors of the economy, affecting towns, regions, and sometimes the entire
country. The cost to the parties and the public may be significant. Nevertheless,
our society has come to see it as justified by the higher goal of achieving
resolution of employer-employee disputes and the maintenance of economic and
social peace. The legally limited use of economic pressure and the infliction
of economic harm in a labour dispute has come to be accepted as a legitimate
price to pay to encourage the parties to resolve their differences in a way
that both can live with (see generally G. W. Adams, Canadian Labour Law (2nd
ed. (loose-leaf)), at pp. 1-11 to 1-15). [para. 25]
[49]
As Gilles Trudeau wrote, [translation] “[t]he
strike was at the heart of the industrial relations system that prevailed
throughout most of the 20th century . . . in Canada” (p. 5). Its significance as an economic sanction to collective bargaining — or
threat thereof — is what led Dickson C.J. to conclude in the Alberta
Reference, as previously noted, that “effective constitutional protection
of the associational interests of employees in the collective bargaining
process requires concomitant protection of their freedom to withdraw
collectively their services, subject to s. 1 of the Charter ” (p. 371).
[50]
The inevitability of
the need for the ability of employees to withdraw services collectively was
also accepted by McLachlin C.J. and LeBel J. in R.W.D.S.U., where they recognized that the purpose of strikes — placing
economic pressure on employers — is a legitimate and integral means of
achieving workplace objectives:
Occasionally, . . . negotiations stall and disputes
threaten labour peace. When this happens, it has come to be accepted that,
within limits, unions and employers may legitimately exert economic pressure on
each other to the end of resolving their dispute. Thus, employees are
entitled to withdraw their services, inflicting economic harm directly on their
employer and indirectly on third parties which do business with their employer.
[Emphasis added; para. 24.]
[51]
The preceding historical account reveals that
while strike action has variously been the subject of legal protections and
prohibitions, the ability of employees to withdraw their labour in concert has
long been essential to meaningful collective bargaining. Protection under s.
2 (d), however, does not depend solely or primarily on the
historical/legal pedigree of the right to strike. Rather, the right to strike
is constitutionally protected because of its crucial role in a meaningful
process of collective bargaining.
[52]
Within this context and
for this purpose, the strike is unique and fundamental. In Re Service
Employees’ International Union, Local 204 and Broadway Manor Nursing Home (1983), 4 D.L.R. (4th) 231 (Ont. H.C.J.), Galligan J. emphasized the importance of strikes to
the process of collective bargaining:
. . . freedom of
association contains a sanction that can convince an employer to recognize the
workers’ representatives and bargain effectively with them. That sanction is
the freedom to strike. By the exercise of that freedom the workers, through
their union, have the power to convince an employer to recognize the union and
to bargain with it.
. . . If that sanction is
removed the freedom is valueless because there is no effective means to force
an employer to recognize the workers’ representatives and bargain with them.
When that happens the raison d’être for workers to organize themselves
into a union is gone. Thus I think that the removal of the freedom to strike
renders the freedom to organize a hollow thing. [Emphasis added; p. 249.]
[53]
In Health Services, this Court recognized
that the Charter values of “[h]uman dignity, equality, liberty, respect
for the autonomy of the person and the enhancement of democracy” supported
protecting the right to a meaningful process of collective bargaining within
the scope of s. 2 (d) (para. 81). And, most recently, drawing on these
same values, in Mounted Police it confirmed that protection for a
meaningful process of collective bargaining requires that employees have the
ability to pursue their goals and that, at its core, s. 2 (d) aims
to protect the individual from
“state-enforced isolation in the pursuit of his or her ends” . . . . The
guarantee functions to protect individuals against more powerful entities. By
banding together in the pursuit of common goals, individuals are able to
prevent more powerful entities from thwarting their legitimate goals and
desires. In this way, the guarantee of freedom of association empowers
vulnerable groups and helps them work to right imbalances in society. It
protects marginalized groups and makes possible a more equal society. [para.
58]
[54]
The right to strike is essential to realizing
these values and objectives through a collective bargaining process because it
permits workers to withdraw their labour in concert when collective bargaining
reaches an impasse. Through a
strike, workers come together to participate directly in the process of
determining their wages, working conditions and the rules that will govern
their working lives (Fudge and Tucker, at p. 334). The ability to strike
thereby allows workers, through collective action, to refuse to work under
imposed terms and conditions. This collective action at the moment of impasse
is an affirmation of the dignity and autonomy of employees in their working
lives.
[55]
Striking — the
“powerhouse” of collective bargaining — also promotes equality in the
bargaining process: England, at p. 188. This Court has long recognized the deep
inequalities that structure the relationship between employers and employees,
and the vulnerability of employees in this context. In the Alberta Reference, Dickson C.J. observed that
[t]he role of association has
always been vital as a means of protecting the essential needs and interests of
working people. Throughout history, workers have associated to overcome their
vulnerability as individuals to the strength of their employers. [p. 368]
And this Court affirmed in Mounted
Police that
. . . s. 2 (d)
functions to prevent individuals, who alone may be powerless, from being
overwhelmed by more powerful entities, while also enhancing their strength
through the exercise of collective power. Nowhere are these dual functions of
s. 2 (d) more pertinent than in labour relations. Individual employees
typically lack the power to bargain and pursue workplace goals with their more
powerful employers. Only by banding together in collective bargaining
associations, thus strengthening their bargaining power with their employer,
can they meaningfully pursue their workplace goals.
The right to a meaningful
process of collective bargaining is therefore a necessary element of the right
to collectively pursue workplace goals in a meaningful way . . . . [The]
process of collective bargaining will not be meaningful if it denies employees
the power to pursue their goals. [paras. 70-71]
Judy Fudge and Eric Tucker point
out that it is “the possibility of the strike which enables workers to
negotiate with their employers on terms of approximate equality” (p. 333). Without it, “bargaining
risks being inconsequential — a dead letter” (Prof. Michael Lynk, “Expert
Opinion on Essential Services”, at par. 20; A.R., vol. III, at p. 145).
[56]
In their dissent, my
colleagues suggest that s. 2 (d) should not protect strike activity as
part of a right to a meaningful process of collective bargaining because “true
workplace justice looks at the interests of all implicated parties” (para. 125),
including employers. In essentially attributing equivalence between the power
of employees and employers, this reasoning, with respect, turns labour
relations on its head, and ignores the fundamental power imbalance which the
entire history of modern labour legislation has been scrupulously devoted to
rectifying. It drives us inevitably to Anatole France’s aphoristic fallacy:
“The law, in its majestic equality, forbids the rich as
well as the poor to sleep under bridges, to beg in the streets, and to steal
bread.”
[57]
Strike activity itself does not
guarantee that a labour dispute will be resolved in any particular manner, or
that it will be resolved at all. And, as the trial judge recognized, strike
action has the potential to place pressure on both sides of a dispute to
engage in good faith negotiations. But what it does permit is the employees’
ability to engage in
negotiations with an employer on a more equal footing (see Williams v. Aristocratic Restaurants (1947) Ltd., [1951] S.C.R. 762, at p. 780; Mounted
Police, at paras. 70-71).
[58]
Moreover, while the right to strike is best analyzed through the lens of
freedom of association, expressive activity in the labour context is directly
related to the Charter -protected right of workers to associate to
further common workplace goals under s. 2 (d) of the Charter : Fraser,
at para. 38; Alberta (Information and Privacy Commissioner), at
para. 30. Strike action “bring[s the] debate on the labour conditions with an
employer into the public realm”: Alberta (Information and Privacy
Commissioner), at para. 28. Cory J.
recognized this dynamic in United Nurses of Alberta v. Alberta (Attorney
General), [1992] 1 S.C.R. 901:
Often it is only by means of a strike that union members
can publicize and emphasize the merits of their position as they see them with
regard to the issues in dispute. It is essential that both the labour and
management side be able to put forward their position so the public fully
understands the issues and can determine which side is worthy of public
support. Historically, to put forward their position, management has had far
greater access to the media than have the unions. At times unions had no
alternative but to take strike action and by means of peaceful picketing put
forward their position to the public. This is often the situation today. [p.
916]
[59]
As Dickson C.J. observed, “[t]he very nature of
a strike, and its raison d’être, is to influence an employer by joint
action which would be ineffective if it were carried out by an individual” (Alberta
Reference, at p. 371).
[60]
Alternative dispute
resolution mechanisms, on the other hand, are generally not associational in
nature and may, in fact, reduce the effectiveness of
collective bargaining processes over time: Bernard Adell, Michel Grant and
Allen Ponak, Strikes in Essential Services (2001), at p. 8. Such mechanisms can help avoid the negative
consequences of strike action in the event of a bargaining impasse, but as
Dickson C.J. noted in RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, they do not, in the same way, help to realize what is protected by the
values and objectives underlying freedom of association:
. . . 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 . . . . [A]s
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 . . . . [pp. 476-77]
That is why, in the Alberta
Reference, Dickson C.J. dealt with alternative dispute resolution
mechanisms not as part of the scope of s. 2 (d), but as part of his s. 1
analysis: pp. 374-75.
[61]
The ability to engage
in the collective withdrawal of services in the process of the negotiation of a
collective agreement is therefore, and has historically been, the “irreducible
minimum” of the freedom to associate in Canadian labour relations (Paul Weiler,
Reconcilable Differences: New Directions in Canadian Labour Law (1980), at
p. 69).
[62]
Canada’s international
human rights obligations also mandate protecting the right to strike as part of
a meaningful process of collective bargaining. These obligations led Dickson
C.J. to observe that
there is a clear consensus amongst the
[International Labour Organization] adjudicative bodies that [Convention
(No. 87) concerning freedom of association and protection of the right to organize,
68 U.N.T.S. 17 (1948)] goes beyond merely protecting the formation of
labour unions and provides protection of their essential activities — that is
of collective bargaining and the freedom to strike. [Alberta Reference,
at p. 359]
[63]
At the time of the Alberta
Reference, Dickson C.J.’s reliance on Canada’s commitments under
international law did not attract sufficient collegial support to lift his
views out of their dissenting status, but his approach has more recently proven
to be a magnetic guide.
[64]
LeBel J. confirmed in R.
v. Hape, [2007] 2 S.C.R. 292, that in interpreting the Charter ,
the Court “has sought to ensure consistency
between its interpretation of the Charter , on the one hand, and Canada’s
international obligations and the relevant principles of international law, on
the other”: para. 55. And this Court reaffirmed in Divito v. Canada
(Public Safety and Emergency Preparedness), [2013] 3 S.C.R. 157, at para.
23, “the Charter should be presumed to provide at least as great a
level of protection as is found in the international human rights documents
that Canada has ratified”.
[65]
Given this presumption,
Canada’s international obligations clearly argue for the recognition of a right
to strike within s. 2 (d). Canada is a party to two instruments which explicitly protect the right to
strike. Article 8(1) of the International
Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, to which
Canada acceded in May 1976, provides that the “States Parties to the present
Covenant undertake to ensure . . . (d) the right to strike, provided
that it is exercised in conformity with the laws of the particular country”.
(See also affidavit of Prof. Patrick Macklem (Expert Report), sworn December 21, 2010.) In Dickson C.J.’s view, the qualification
that the right had to be exercised in conformity with domestic law appeared to
allow for the regulation of the right, but not its legislative abrogation (Alberta
Reference, at p. 351, citing Re Alberta Union of Provincial
Employees and the Crown in Right of Alberta (1980), 120 D.L.R. (3d) 590
(Alta. Q.B.), at p. 597; see also Hepple, at p. 138).
[66]
In addition, in 1990,
just over two years after the Alberta Reference was decided, Canada
signed and ratified the Charter of the Organization of American States,
Can. T.S. 1990 No. 23. Article 45(c) states:
Employers and workers, both rural and
urban, have the right to associate themselves freely for the defense and
promotion of their interests, including the right to collective bargaining
and the workers’ right to strike, and recognition of the juridical
personality of associations and the protection of their freedom and
independence, all in accordance with applicable laws;
[67]
Besides these explicit commitments, other
sources tend to confirm the protection of the right to strike recognized in
international law. Canada is a party to the International Labour Organization (ILO) Convention (No. 87) concerning freedom of association
and protection of the right to organize, ratified in 1972. Although
Convention No. 87 does not explicitly refer to the right to strike, the
ILO supervisory bodies, including the Committee on Freedom of Association and
the Committee of Experts on the Application of Conventions and Recommendations,
have recognized the right to strike as an indissociable corollary of the right
of trade union association that is protected in that convention: see Pierre Verge and Dominic Roux, “L’affirmation des principes de
la liberté syndicale, de la négociation collective et
du droit de grève selon le droit international et le
droit du travail canadien: deux solitudes?”, in Pierre Verge, ed., Droit
international du travail: Perspectives canadiennes (2010), 437, at p. 460; Janice R. Bellace, “The ILO and the right
to strike” (2014), 153 Int’l Lab. Rev. 29, at p. 30. Striking, according to the Committee of Experts, is
“one of the essential means available to workers and their organizations for
the promotion and protection of their economic and social interests”: Freedom
of Association and Collective Bargaining (1994), at para. 147; Jean-Michel
Servais, “ILO Law and the Right to Strike” (2009-2010), 15 C.L.E.L.J.
147, at p. 150.
[68]
Under the International
Covenant on Economic, Social and Cultural Rights signatory states are not permitted to take “legislative
measures which would prejudice, or apply the law in such a manner as would
prejudice, the guarantees provided for in [Convention No. 87]”: Article
8(3) of the ICESCR. The principles relating to the right to strike were summarized by the Committee on Freedom of Association as follows:
521. The Committee has always recognized
the right to strike by workers and their organizations as a legitimate means of
defending their economic and social interests.
522. The right to strike is one of the
essential means through which workers and their organizations may promote and
defend their economic and social interests.
523. The right to strike is an
intrinsic corollary to the right to organize protected by Convention No. 87.
. . .
526. The
occupational and economic interests which workers defend through the exercise
of the right to strike do not only concern better working conditions or
collective claims of an occupational nature, but also the seeking of solutions
to economic and social policy questions and problems facing the undertaking
which are of direct concern to the workers. [References omitted.]
(ILO, Freedom of Association: Digest of decisions and
principles of the Freedom of Association Committee of the Governing Body
of the ILO (5th rev. ed. 2006))
[69]
Though not strictly
binding, the decisions of the Committee on Freedom of Association have considerable persuasive weight and have been favourably cited
and widely adopted by courts, tribunals and other adjudicative boards around
the world, including our Court: Lynk, at para. 9; Health Services, at
para. 76; Alberta Reference, at pp. 354-55, per Dickson C.J. The
relevant and persuasive nature of the Committee
on Freedom of Association jurisprudence has developed
over time through custom and practice and, within the ILO, it has been the
leading interpreter of the contours of the right to strike: Bellace, at p. 62.
See also Roy J. Adams, “The
Supreme Court, Collective Bargaining and International Law: A Reply to Brian
Langille” (2008), 14 C.L.E.L.J. 317, at p. 321; Neville Rubin, in
consultation with Evance Kalula and Bob Hepple, eds., Code of International
Labour Law: Law, Practice and Jurisprudence, vol. I, Essentials of
International Labour Law (2005), at p. 31.
[70]
Canada is also a party
to the International Covenant on Civil and Political Rights, 999
U.N.T.S. 171 (ICCPR), which incorporates Convention No. 87 and
the obligations it sets out: see Article 22(3); Tonia Novitz, “Connecting
Freedom of Association and the Right to Strike: European Dialogue with the ILO
and its Potential Impact” (2009-2010), 15 C.L.E.L.J. 465, at p. 472; Roy
J. Adams, at p. 324.
[71]
Additionally, there is an emerging international
consensus that, if it is to be meaningful, collective bargaining requires a
right to strike. The European Court of Human Rights now shares this view.
After concluding in Demir v. Turkey [GC], No. 34503/97, ECHR
2008-V, that freedom of association under Article 11 of the European
Convention on Human Rights, 213 U.N.T.S. 221, protects a right to
collective bargaining, it went on in Enerji Yapi-Yol Sen v. Turquie, No.
68959/01, April 21, 2009 (HUDOC), to conclude that a right to
strike is part of what ensures the effective exercise of a right to collective
bargaining:
The terms
of the Convention require that the law should allow trade unions, in any manner
not contrary to Article 11, to act in defence of their members’ interests.
Strike action, which enables a trade union to make its voice heard, constitutes
an important aspect in the protection of trade union members’ interests . . .
. The Court also observes that the right to strike is recognised by the
International Labour Organisation’s (ILO) supervisory bodies as an
indissociable corollary of the right of trade union association that is
protected by ILO Convention C87 on trade union freedom and the protection of
trade union rights (for the Court’s consideration of elements of international
law other than the Convention, see Demir et Baykara . . .). It recalls
that the European Social Charter also recognises the right to strike as a means
of ensuring the effective exercise of the right to collective bargaining.
(Unofficial
translation of Enerji Yapi-Yol Sen, at para. 24, cited in K. D.
Ewing and John Hendy, “The Dramatic Implications of Demir and Baykara”
(2009-2010), 15 C.L.E.L.J. 165, at pp. 181-82 (text in
brackets in Ewing and Hendy); see also National Union
of Rail, Maritime and Transport Workers v. United Kingdom, No. 31045/10,
April 8, 2014 (HUDOC).)
[72]
Even though German labour relations are not based on the Wagner
model, German courts too have concluded that strike action is protected when
it is complementary to collective bargaining, that is, when the strike action
is aimed at the achievement of a collective agreement and is proportionate to
that aim (Hepple, at p. 135; Manfred Weiss and Marlene Schmidt, Labour Law
and Industrial Relations in Germany (4th rev. ed. 2008), at paras.
484-86).
[73]
Israeli courts have also held that freedom of association is a
basic right, derived from the right to human dignity. They have interpreted
freedom of association to include the right to organize, the right to bargain
collectively, and the right to strike: Attorney-General v. National Labour
Court, [1995-6] Isr. L.R. 149 (H.C.J.), at p. 162; New
Histadrut General Workers’ Union v. State of Israel (2006), 25 I.L.L.R. 375, at para. 10; Koach La Ovdim v. Jerusalem Cinematheque (2009), 29 I.L.L.R. 329, at p. 331; Guy Davidov, “Judicial
Development of Collective Labour Rights — Contextually” (2009-2010), 15 C.L.E.L.J. 235, at
p. 241.
[74]
And strikes, as collective action, are protected
globally, existing in many countries with labour laws outside the Wagner Act
model: J.-M. Servais, at p. 148. Moreover, several countries have
explicitly included the right to strike in their constitutions, including
France (Constitution of 1946, § 7 of the preamble), Italy (Constitution of
1948, art. 40), Portugal (Constitution of 1976, art. 57), Spain (Constitution
of 1978, art. 28(2)), and South Africa (Constitution of 1996, s. 23(2))
(Hepple, at p. 135). The European Social Charter similarly
recognizes the importance of the freedom to strike for meaningful collective
bargaining (E.T.S. No. 35, 1961(revised E.T.S. No. 163, 1996), Article 6(4)).
[75]
This historical,
international, and jurisprudential landscape suggests compellingly to me that
s. 2 (d) has arrived at the destination sought by Dickson C.J. in the Alberta
Reference, namely, the conclusion that a meaningful process of collective
bargaining requires the ability of employees to participate in the collective
withdrawal of services for the purpose of pursuing the terms and conditions of
their employment through a collective agreement. Where good faith negotiations break down, the ability to engage in the
collective withdrawal of services is a necessary component of the process
through which workers can continue to participate meaningfully in the pursuit
of their collective workplace goals. In this case, the suppression of the
right to strike amounts to a substantial interference with the right to a
meaningful process of collective bargaining.
[76]
In their dissenting reasons,
however, my colleagues urge deference to the legislature in interpreting the
scope of s. 2 (d). This Court has repeatedly held
that the rights enumerated in the Charter should be interpreted
generously: Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156;
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. It is not
clear to me why s. 2 (d) should be interpreted differently: Health
Services, at para. 26; R. v. Advance Cutting & Coring Ltd.,
[2001] 3 S.C.R. 209, at para. 162; Mounted Police, at para. 47. In the
context of constitutional adjudication, deference is a conclusion, not an
analysis. It certainly plays a role in s. 1 , where, if a law is justified as
proportionate, the legislative choice is maintained. But the whole purpose of Charter
review is to assess a law for constitutional compliance. If the touchstone of Charter
compliance is deference, what is the point of judicial scrutiny?
[77]
This brings us to the
test for an infringement of s. 2 (d). The right to strike is protected
by virtue of its unique role in the collective bargaining process. In Health
Services, this Court established that s. 2 (d) prevents the state from substantially interfering with the ability of
workers, acting collectively through their union, to exert meaningful influence
over their working conditions through a process of collective bargaining (para. 90). And in Mounted
Police, McLachlin C.J. and LeBel J. confirmed that
[t]he balance necessary to ensure
the meaningful pursuit of workplace goals can be disrupted in many ways. Laws
and regulations may restrict the subjects that can be discussed, or impose
arbitrary outcomes. They may ban recourse to collective action by employees without
adequate countervailing protections, thus undermining their bargaining power. .
. . Whatever the nature of the restriction, the ultimate question to be
determined is whether the measures disrupt the balance between employees and
employer that s. 2 (d) seeks to achieve, so as to substantially interfere with
meaningful collective bargaining . . . . [Emphasis added; para. 72.]
[78]
The test, then, is whether the legislative
interference with the right to strike in a particular case amounts to a
substantial interference with collective bargaining. The PSESA
demonstrably meets this threshold because it prevents designated employees from
engaging in any work stoppage as part of the bargaining process. It must therefore be justified under s. 1 of
the Charter .
[79]
The maintenance of
essential public services is self-evidently a pressing and substantial objective,
as the Unions acknowledge. The Unions also accept the trial judge’s further
conclusion that the government’s objective — ensuring the continued delivery of
essential services — is rationally connected to the “basic structure of the
legislation, including the sanctions imposed on employees and their unions to
ensure compliance with its provisions”.
[80]
The determinative issue
here, in my view, is whether the means chosen by the government are minimally
impairing, that is, “carefully tailored so that rights are impaired no more
than necessary” (RJR-MacDonald Inc. v. Canada (Attorney General), [1995]
3 S.C.R. 199, at para. 160).
[81]
The trial judge
concluded that the provisions of the PSESA “go beyond what is reasonably
required to ensure the uninterrupted delivery of essential services during a
strike”. I agree. The unilateral authority of public employers to
determine whether and how essential services are to be maintained during a work
stoppage with no adequate review mechanism, and the absence of a meaningful
dispute resolution mechanism to resolve bargaining impasses, justify the trial
judge’s conclusion that the PSESA impairs the s. 2 (d) rights more
than is necessary.
[82]
In Canadian Union of
Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793,
L’Heureux-Dubé J. explained why public sector strike action engages singular
considerations:
When “public” employees strike, the
pressure exerted on the employer is not largely financial, as in the private
sector, but rather arises from the disruption of services upon which society
depends for the daily activities of its members. While consumers may simply go
to another source for goods and services provided by private enterprise,
alternatives to the services targeted by the special regimes may be unavailable
or very difficult and expensive to obtain. [para. 32]
[83]
That is why the trial
judge accepted that “the principle that it is unacceptable to risk the health
and safety of others as a means to resolve a public sector collective
bargaining dispute is well established in Canada”.
[84]
But it is important to
keep in mind Dickson C.J.’s admonition in the Alberta Reference that
“essential services” be properly interpreted:
It is . . . necessary to define “essential services” in
a manner consistent with the justificatory standards set out in s. 1 . The logic
of s. 1 in the present circumstances requires that an essential service be one
the interruption of which would threaten serious harm to the general public or
to a part of the population. In the context of an argument relating to harm of
a non-economic nature I find the decisions of the Freedom of Association
Committee of the I.L.O. to be helpful and persuasive. 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., supra).
In my view, and without attempting an exhaustive list, persons essential to the
maintenance and administration of the rule of law and national security would
also be included within the ambit of essential services. Mere inconvenience
to members of the public does not fall within the ambit of the essential
services justification for abrogating the freedom to strike. [Emphasis
added; pp. 374-75.]
[85]
In other words, the
fact that a service is provided exclusively through the public sector does not
inevitably lead to the conclusion that it is properly considered “essential”.
In some circumstances, the public may well be deprived of a service as a result
of strike action without being deprived of any essential service at all
that would justifiably limit the ability to strike during negotiations. As
Ball J. wrote:
. . . all of the services provided
by public sector workers are not essential. It cannot be credibly argued, for
example, that the services provided by every employee of every governmental
ministry, Crown corporation and agency, every city, town and village, and every
educational institution, are so essential that their discontinuance would
jeopardize the health and safety of the community. Can it be said that the
community would be at risk if employees at casinos and liquor stores in
Saskatchewan decided to withdraw their services in support of higher wages?
[para. 96]
[86]
This need for
demarcated limits on both the right of essential services employees to strike
and, concomitantly, on the extent to which services may justifiably be limited
as “essential”, is reflected too in international law. As the trial judge
noted:
International law also
recognizes the necessity of limitations on the right to strike of essential
service workers. . . . The jurisprudence under ILO Convention No. 87, the
ICSECR [sic] and the ICCPR has been consistent. As expressed by Prof.
Patrick Macklem:
Each
of these instruments has been interpreted as enshrining the right to strike,
and their respective supervisory bodies have insisted that the right to strike
may be restricted or prohibited:
(a) in
the public service only for public servants exercising authority in the name of
the state;
(b) in
essential services in the strict sense of the term (that is, services the
interruption of which would endanger the life, personal safety or health of the
whole or part of the population); or
(c) in the event of an acute
national emergency and for a limited period of time.
(Paragraph
127, citing affidavit of Patrick Macklem sworn December 21, 2010.)
See also Lynk, at paras. 19-20; Verge and Roux, at
pp. 461-62. And within the general category of essential
services, the ILO has recognized that “certain classes of personnel . . .
should not be deprived of the right to strike, because the interruption of
their functions does not in practice affect life, personal safety or health”:
Servais, at p. 154.
[87]
Under the PSESA,
however, the categories of workers whose right to strike may be abrogated
because they provide essential services is subject to the employer’s unilateral
discretion. The scheme requires a public employer and a trade union to first
attempt to negotiate the terms of an essential services agreement. Section
6(2) of the Act contemplates that the employer must “advise the trade
union” of the services it considers to be essential within the meaning of the Act.
And where the employer is the Government of Saskatchewan, the prescribed
essential services have been identified by regulation, without any room for
further discussion about what constitutes an essential service. It is, as a
result, not even clear that the scheme necessarily contemplates that the
designation of certain services as essential will be the subject of negotiation
under an agreement.
[88]
Moreover, s. 7(2) of
the PSESA states that under an essential services agreement, the number
of employees within each classification “is to be determined without regard to
the availability of other persons to provide essential services”. As the trial
judge found:
The apparent purpose of s. 7(2)
is to enable managers and non-union administrators to avoid the inconvenience
and pressure that would ordinarily be brought to bear by a work stoppage. Yet
if qualified personnel are available to deliver requisite services, it should
not matter if they are managers or administrators. If anything s. 7(2) works at
cross purposes to ensuring the uninterrupted delivery of essential services
during a work stoppage. [para. 192]
[89]
And in the event that
an agreement cannot be reached, s. 9(2) gives a public employer the unilateral
authority to dictate whether and how essential services will be maintained,
including the authority to determine the classifications of employees who must
continue to work during the work stoppage, the number and names of employees
within each classification, and, for public employers other than the Government
of Saskatchewan, the essential services that are to be maintained. As the trial judge found, “[o]f the unilateral
designations made by public employers under s. 9(2) only one, that of the
number of employees required to work, is subject to review by the [Saskatchewan
Labour Relations Board].” There is no jurisdiction for the Board to even
consider significant dimensions of an employer’s unilateral designation
with regard to the maintenance of essential services, such as whether any particular service is essential, or
which job classifications involve the delivery of genuinely essential
services.
[90]
There is no evidence to
support Saskatchewan’s position that the objective of ensuring the continued
delivery of essential services requires unilateral rather than collaborative
decision-making authority. And its view that public employers can be relied
upon to make fair decisions has the potential to sacrifice the right to a
meaningful process of collective bargaining on the altar of aspirations. The
history of barriers to collective bargaining over the past century represents a
compelling reality check to such optimism.
[91]
And even where an
employee has been prohibited from participating in strike activity, the PSESA
does not tailor his or her responsibilities to the performance of essential
services alone. Section 18(1)(a) of the PSESA requires that in the event
of a work stoppage, all essential services employees must continue “the duties
of [their] employment with the public employer in accordance with the terms and
conditions of the last collective bargaining agreement” and must not fail to
continue those duties “without lawful excuse” (s. 18(2)). Requiring those
affected employees to perform both essential and non-essential work
during a strike action undercuts their ability to participate meaningfully in
and influence the process of pursuing collective workplace goals.
[92]
All this is in addition to the absence of an
impartial and effective dispute resolution process to challenge public employer
designations under s. 9(2) of the legislation, a particular concern in
light of the significant definitional latitude given to public employers. As noted, the ILO’s
Committee on Freedom of Association defined essential services as those needed
to prevent a “clear and imminent threat to the life, personal safety or health
of the whole or part of the population” (Freedom of Association, at
para. 581). The definition of
“essential services” under the PSESA requires basic judgments to be made
about when life, health, safety, or environmental concerns, among others,
justify essential services designation. These are fundamental questions, yet
all are permitted to be answered unilaterally by the employer under the Act
with no access to an effective dispute resolution mechanism for reviewing
disputed employer designations.
[93]
Nor is there any access to a meaningful
alternative mechanism for resolving bargaining impasses, such as arbitration.
Paul Weiler persuasively explained why such an alternative is crucial for
essential services employees:
If we pull all the teeth of a union by
requiring provision of imperative public safety services, such that any
remaining strike option does not afford the union significant bargaining
leverage, then I believe the union should have access to arbitration at its
option. [Emphasis deleted; p. 237.]
[94]
Not surprisingly, Dickson C.J. was alive to the
profound bargaining imbalance the union inherits when the removal of the right
to strike is not accompanied by a meaningful mechanism for resolving collective
bargaining disputes:
Clearly,
if the freedom to strike were denied and no effective and fair means for
resolving bargaining disputes were put in its place, employees would be denied
any input at all in ensuring fair and decent working conditions, and labour
relations law would be skewed entirely to the advantage of the employer. It is
for this reason that legislative prohibition of freedom to strike must be
accompanied by a mechanism for dispute resolution by a third party. I agree
with the Alberta International Fire Fighters Association at p. 22 of its factum
that “It is generally accepted that employers and employees should be on an
equal footing in terms of their positions in strike situations or at compulsory
arbitration where the right to strike is withdrawn”. The purpose of such a
mechanism is to ensure that the loss in bargaining power through legislative
prohibition of strikes is balanced by access to a system which is capable of
resolving in a fair, effective and expeditious manner disputes which arise
between employees and employers. [Emphasis added.]
(Alberta
Reference, at p. 380)
[95]
The trial judge compared the PSESA with
other Canadian essential services labour relations schemes and was struck by
how uniquely restrictive the PSESA was:
. . . no other essential
services legislation in Canada comes close to prohibiting the right to strike
as broadly, and as significantly, as the [PSESA]. No other essential
services legislation is as devoid of access to independent, effective dispute
resolution processes to address employer designations of essential service
workers and, where those designations have the effect of prohibiting meaningful
strike action, an independent, efficient, overall dispute mechanism. . . .
. . .
Canadian legislation
prohibiting strikes by firefighters and police officers, where the level of
essentiality is very high, invariably provides compensatory access to
arbitration to resolve collective bargaining disputes. The same is true for
legislation prohibiting strikes by hospital workers. Although that legislation
contains a variety of approaches for determining when and how access should be
provided, the point is that it is invariably provided.
There is a pragmatic
reason why “no strike” legislation almost always provides for access to
independent, effective dispute resolution processes: mechanisms of that kind
can operate as a safety valve against an explosive buildup of unresolved labour
relations tensions.
[96]
Given the breadth of essential services that the
employer is entitled to designate unilaterally without an independent review
process, and the absence of an adequate, impartial and effective alternative
mechanism for resolving collective bargaining impasses, there can be little doubt
that the trial judge was right to conclude that the scheme was not minimally
impairing. Quite simply, it impairs the s. 2 (d) rights of designated
employees much more widely and deeply than is necessary to achieve its
objective of ensuring the
continued delivery of essential services.
[97]
The Public Service Essential Services Act is
therefore unconstitutional.
[98]
The Unions had
alternatively argued that the PSESA interferes with freedom of
expression under s. 2 (b) of the Charter by limiting the ability
of essential services employees to conduct and participate in strike activity.
In light of the conclusion that the limits on strike activity in the PSESA
violate the s. 2 (d) rights of public sector employees, it is unnecessary
to realign the arguments under s. 2 (b).
[99]
As for The Trade Union Amendment Act, 2008,
this Court has long recognized that the freedom of association protects the
“right to join associations that are of [employees’] choosing and independent
of management, to advance their interests”: Mounted Police, at para. 112;
see Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, at
para. 30. In Professional Institute of the Public Service of Canada v.
Northwest Territories (Commissioner), [1990] 2 S.C.R. 367, this Court
stated that “s. 2 (d) protects the freedom to establish, belong to and
maintain an association” (p. 402), and in Health Services it was
reaffirmed that s. 2 (d) guarantees employees “the right to unite” (para.
89).
[100]
But I agree with the trial judge, whose
conclusion was upheld by the Court of Appeal, that in introducing amendments to
the process by which unions may obtain (or lose) the status of a bargaining
representative, The Trade
Union Amendment Act, 2008 does not substantially interfere with the freedom to freely create
or join associations. This conclusion is reinforced by the trial judge’s
findings that when compared to other Canadian labour relations statutory
schemes, these requirements are not an excessively difficult threshold such
that the workers’ right to associate is substantially interfered with.
[101]
I also agree with the trial judge that
permitting an employer to
communicate “facts and its opinions to its employees” does not strike an
unacceptable balance so long as the communication is done in a way
that does not infringe upon the ability
of the employees to engage their collective bargaining rights in accordance
with their freely expressed wishes.
[102]
Accordingly, I would uphold the conclusion that The Trade Union Amendment Act, 2008 does not violate s. 2 (d) of the Charter .
[103]
In light of the conclusion that the PSESA
is unconstitutional, I would therefore allow the Unions’ appeal with
costs throughout and suspend the declaration of invalidity for one year. I
would dismiss the appeal in respect of The Trade Union Amendment Act, 2008 but, in the circumstances, without
costs.
The reasons of
Rothstein and Wagner JJ. were delivered by
Rothstein and Wagner
JJ. (dissenting
in part) —
I.
Introduction
[104]
This case requires the Court to consider whether
the right to strike is constitutionally protected under s. 2 (d) of the Canadian
Charter of Rights and Freedoms . The appellant unions challenge
Saskatchewan’s The Public Service Essential Services Act, S.S.
2008, c. P-42.2 (“PSESA”), which restricts the ability of public
sector workers who provide essential services to strike. The majority finds
that these workers do have a constitutional right to strike. We disagree.
[105]
McLachlin C.J. and LeBel J., writing for a
unanimous Court in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages
(West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, cautioned that
[j]udging
the appropriate balance between employers and unions is a delicate and
essentially political matter. Where the balance is struck may vary with the
labour climates from region to region. This is the sort of question better
dealt with by legislatures than courts. Labour relations is a complex and
changing field, and courts should be reluctant to put forward simplistic
dictums. [para. 85]
Thirteen years later, the
majority in this case ignores this sage warning in reaching its conclusion. Our
colleagues have taken it upon themselves to determine “the appropriate balance
between employers and unions”, despite the fact that this balance is not any
less delicate or political today than it was in 2002. In our respectful view,
the majority is wrong to intrude into the policy development role of elected
legislators by constitutionalizing the right to strike.
[106]
In the Labour Trilogy, this Court firmly
rejected the proposition that the right to strike in Canada is constitutionally
entrenched (Reference re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313 (the “Alberta Reference”); PSAC v. Canada,
[1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460
(collectively, the “Labour Trilogy”)). Then, in Health Services and Support
— Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,
[2007] 2 S.C.R. 391, and Ontario (Attorney General) v. Fraser, 2011 SCC
20, [2011] 2 S.C.R. 3, despite the evolution in the s. 2 (d)
jurisprudence, this Court rejected the idea that there is a constitutional
right to a dispute resolution process. The majority (at para. 1) now casts off
these and other precedents and injects a one-sided view of “workplace justice”
into s. 2 (d) of the Charter . The majority has so inflated the
right to freedom of association that its scope is now wholly removed from the
words of s. 2 (d).
[107]
The statutory right to strike, along with other
statutory protections for workers, reflects a complex balance struck by
legislatures between the interests of employers, employees, and the public.
Providing for a constitutional right to strike not only upsets this delicate
balance, but also restricts legislatures by denying them the flexibility needed
to ensure the balance of interests can be maintained. We are compelled to
dissent.
II.
Analysis
A.
There Is No Right to Strike Under Section 2(d)
of the Charter
[108]
The majority purports to recognize a violation
of s. 2 (d) of the Charter only where a “prohibition on designated
employees participating in strike action for the purpose of negotiating the
terms and conditions of their employment amounts to a substantial interference
with [the] right to a meaningful process of collective bargaining” (para. 2).
It attempts to minimize the impact of its decision by stating that the right to
strike is only protected where it interferes with the right to meaningful
collective bargaining, a right which has already been recognized in Health
Services, Fraser, and Mounted Police Association of Ontario v.
Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3. But our
colleagues’ reasons, in their entirety, reveal the true ambit of this decision:
they have created a stand-alone constitutional right to strike.
[109]
The majority’s reasons include numerous references to the right to
strike as being “essential” to, “crucial”, and an “indispensable” component of
meaningful collective bargaining. The majority describes the right to strike as
“vital to protecting the meaningful process of collective
bargaining within s. 2 (d)” (para. 24). If the
right to strike is a necessary element of meaningful collective bargaining, it
will not only apply on a case-by-case basis; logically, any limitation on the
right to strike will infringe s. 2 (d) of the Charter . With respect,
to accept this decision as simply an espousal of the right to meaningful
collective bargaining disregards the substance of the majority’s reasons.
(1)
The Historical Right to Strike That the Majority
Invokes Does Not Justify Constitutionalizing the Modern, Statutory Right to
Strike
[110]
The majority attempts to ground its new-found
constitutional right to strike in the long history of strikes. There is no
dispute that, at common law, employees are permitted to refuse to work (see G.
W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at ¶ 11.90; H. W.
Arthurs, “Tort Liability for Strikes in Canada: Some Problems of Judicial
Workmanship” (1960), 38 Can. Bar Rev. 346, at p. 349).
[111]
But the majority conflates this common law right
to withdraw labour with the modern, statutory right to strike, which imposes
obligations on employers: “Historically, there was no legal ‘right’ to strike
at common law, entailing a correlative obligation on an employer to refrain
from retaliatory measures, but rather a common law ‘freedom’ to do so” (B.
Oliphant, “Exiting the Freedom of Association Labyrinth: Resurrecting
the Parallel Liberty Standard Under 2(d) & Saving the Freedom to Strike”
(2012), 70:2 U.T. Fac. L. Rev. 36, at p. 41). Thus, at common law, employers are not obligated to refrain from terminating striking
workers or from hiring replacement employees to perform their functions (see B.
Langille, “What Is a Strike?” (2009-2010), 15 C.L.E.L.J. 355, at pp.
368-69).
[112]
This historical common law right to strike is a
fundamental component of our legal system insofar as it reflects the idea that
employees have no obligation to continue to work under conditions they consider
to be unsatisfactory: no legislature can force an individual or a group into
servitude. The majority correctly remarks that “[t]he ability to strike thereby
allows workers, through collective action, to refuse to work under imposed
terms and conditions” (para. 54). The majority, however, is not
constitutionalizing this fundamental historical right. Rather, it constitutionalizes
a duty on employers not to terminate employees who have withdrawn their
labour, nor to hire replacement workers.
[113]
In the words of Justice Richards of the
Saskatchewan Court of Appeal (as he then was) the majority invokes “the contemporary
right to strike, a right significantly bound up with, integrated into, and
defined by a specific statutory regime” (2013 SKCA 43, 414 Sask. R. 70, at
para. 61 (emphasis in original)). This statutory regime is not found in s. 2 (d)
of the Charter or anywhere else in Canadian constitutional law.
(2)
Courts Must Demonstrate Deference in the Field
of Labour Relations
[114]
While Charter rights must be interpreted
generously, this Court has cautioned that it is nevertheless “important not to
overshoot the actual purpose of the right or freedom in question”: R. v. Big
M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. (See also Divito v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3
S.C.R. 157, at para. 19, per Abella J.) Our colleagues assert that affording
deference to legislative choices erodes the role of judicial scrutiny (para.
76). In so doing, they overlook that within the Canadian constitutional order
each institution plays a unique role. The exercise of judicial restraint is
essential in ensuring that courts do not upset the balance by usurping the
responsibilities of the legislative and executive branches.
[115]
This Court has long recognized that it is the
role of legislators and not judges to balance competing tensions in making
policy decisions. As this Court recognized in Vriend
v. Alberta, [1998] 1 S.C.R.
493:
In
carrying out their duties, courts are not to second-guess legislatures and the
executives; they are not to make value judgments on what they regard as the
proper policy choice; this is for the other branches. Rather, the courts are to uphold the Constitution and have been
expressly invited to perform that role by the Constitution itself. But
respect by the courts for the legislature and executive role is as important as
ensuring that the other branches respect each others’ role and the role of the
courts. [Emphasis added; para. 136.]
[116]
This is particularly true in the area of
socio-economic policy. The legislative branch requires flexibility in this area
to deal with changing circumstances and social values. Canadian labour
relations is a complex web of intersecting interests, rights, and obligations,
and has far-reaching implications for Canadian society. Our colleagues clearly
believe that providing an affirmative right to strike, with protection for the
striking workers’ positions, is a worthy policy choice. But it is not the role
of this Court to transform all policy choices that the majority deems worthy
into constitutional imperatives. The majority here sets aside the legislature’s
choice regarding the right to strike and, in so doing, it imposes
constitutional burdens on third party employers and limits their rights. It
restricts the ability of governments to balance the competing interests of
employers, employees, and the public. Relying on a constitutional freedom to
impose restrictions on third parties in the absence of clear constitutional
wording to that effect threatens to undermine Canada’s constitutional order.
[117]
The majority’s justification for disturbing the
government’s policy choices fails to acknowledge the constitutional guarantees
that already exist to protect employees. Reaching back to Dickson C.J.’s
concerns in the Labour Trilogy (and even further to 19th century French
novelists), the majority ignores significant evolution in the jurisprudence of
s. 2 (d) of the Charter . This Court has asserted on numerous
occasions that s. 2 (d) guarantees meaningful collective
bargaining (see Health Services, Fraser and Mounted Police).
Therefore, a right to collective bargaining without a right to strike cannot
possibly be “meaningless”, as the majority states (para. 24). This
constitutional right had not been recognized when Dickson C.J. wrote his
reasons in the Labour Trilogy, and certainly not in fin de siècle
France. What the majority is constitutionalizing is a particular policy, which
cuts directly against this Court’s approach to s. 2 (d) most recently
stated in Mounted Police: “. . . th[e] right is one that
guarantees a process rather than an outcome or access to a particular model of
labour relations” (para. 67).
[118]
Democratically elected legislatures are
responsible for determining the appropriate balance between competing economic
and social interests in the area of labour relations. Strike action is one of
many constituent elements factored into this statutory balance of power. There
is always a public interest in avoiding protracted labour disputes, and the
public interest in labour relations is amplified where the government or
private sector delivers essential services, and indeed in all cases where the
government is the employer.
[119]
The majority reasons, in describing the impact
of public sector strikes in Saskatchewan prior to the enactment of the PSESA,
illustrate the potentially devastating results of strikes in the area of essential
services on the health and safety of individuals (para. 6). Because the
government bears the responsibility to protect the public interest, and is
responsible to the electorate for doing so, it is reasonable that a legislative
regime limit such detrimental strikes. The importance of such legislation is
underscored by the government’s constitutional commitments. The federal and
provincial governments have committed to “providing essential public services
of reasonable quality to all Canadians” (s. 36(1) (c) of the Constitution
Act, 1982 ). In constitutionalizing a right to strike, the majority
restricts governments’ flexibility and impedes their ability to balance the
interests of workers with the broader public interest.
[120]
Over time governments have adapted and modified
labour relations schemes to fit changing circumstances. The majority’s decision
to constitutionalize a particular conception of a strike imposes obligations on
others and ignores the public interest. In so doing, it interferes with the proper
role and responsibility of governments. Governments, not courts, are charged
with adapting legislation to changing circumstances in order to achieve a
balance between the interests of employers, employees, and the public.
Constitutionalizing selected aspects of the modern, statutory right to strike
denies governments the flexibility they require to effectively adapt labour
relations legislation.
[121]
Statutory collective bargaining regimes in
Canada are modelled on the American National Labor Relations Act, 49
Stat. 449 (1935), 29 U.S.C. §§ 151-169 (the “Wagner Act”). Governments
adopted this model in response to an “unprecedented number of strikes, caused
in large part by the refusal of employers to recognize unions and to bargain
collectively” (Health Services, at para. 54). Wagner model
legislation imposes limitations on workers’ ability to strike in exchange for
alternative processes that ensure greater stability and predictability. For
example, the freedom to engage in recognition strikes was replaced with a
democratic union certification process, and the ability to strike during the
life of an employment contract was replaced with a process of binding
arbitration through which the terms of the agreement could be enforced.
Legislatures created, and have since refined, a balance between competing
interests in the labour relations sphere by imposing constraints on all parties
involved.
[122]
Canadian labour relations are heavily regulated
and nowhere is this more evident than in the ability of workers to strike. In
most Canadian labour relations regimes, employees are only permitted to strike
in very specific circumstances. For example, in the Canada Labour Code,
R.S.C. 1985, c. L-2 , strikes are generally only permitted where the term of a
collective agreement has elapsed, the union has given notice to the employer,
there has been a failure to negotiate or a failure to reach a collective
agreement, the Minister of Labour has received a notice of dispute or taken
certain prescribed actions, the prescribed time period has elapsed, and the
union has held a vote by secret strike ballot where a majority of employees
voting approve the strike (see ss. 88.1 and 89 ). The result of these conditions
is that actions such as recognition strikes or sympathy strikes are not permitted.
[123]
Constitutionalizing a right to strike introduces
great uncertainty into labour relations. In Canada, the ability of workers to
strike and the limits placed on this ability are essential to the balance
between employers, employees, and the public interest. The majority’s reasons
will make all statutory limits on the right to strike presumptively
unconstitutional, a significant concern since all labour relations statutes
contain extensive limits on the conditions under which workers may strike. Will
governments be forced to defend all of these limits under s. 1 of the Charter ,
no matter how ingrained they may be in Canadian labour relations? What is the
true scope of this new, constitutionalized right to strike? Despite our general
understanding of Charter rights applying broadly to all Canadians, has
the majority now created a fundamental freedom that can only be exercised by
government employees and the 17 percent of the private sector workforce that is
unionized?: R. J. Adams, Labour Left Out: Canada’s Failure to Protect and
Promote Collective Bargaining as a Human Right (2006), at p. 19. Are
workers without collective agreements able to exercise this new right? The
majority sidesteps these fundamental questions.
[124]
These unanswered questions reveal why courts
must be deferential. The unbridled right to strike that the majority endorses
has far-reaching consequences that are difficult to predict and even more
difficult to address once that right is constitutionalized. By
constitutionalizing this broad conception of the right to strike, the majority
binds the government’s hands and limits its ability to respond to changing
needs and circumstances in the dynamic field of labour relations.
(3)
The Court Must Not Constitutionalize Particular
Political Positions in Labour Relations
[125]
Under the rubric of “workplace justice”, our
colleagues, relying on a 19th century conception of the relationship between
employers and workers, enshrine a political understanding of this concept that
favours the interests of employees over those of employers and even over those
of the public. While employees are granted constitutional rights,
constitutional obligations are imposed on employers. Employers and the public
are equally as entitled to justice as employees — true workplace justice looks
at the interests of all implicated parties.
[126]
As Binnie J. cautioned in Plourde v. Wal-Mart
Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465,
“[c]are must be taken . . . not to hand to one side (labour) a lopsided
advantage because employees bargain through their union (and can thereby invoke
freedom of association) whereas employers, for the most part, bargain
individually” (para. 57). This echoes the Court’s holding in Pepsi-Cola
quoted above. Similarly, McIntyre J.’s warning in the Alberta Reference about
the danger of excessively restricting the legislature’s discretion in the field
of labour law is as true today as it was in 1987:
Labour law . . . is a fundamentally
important as well as an extremely sensitive subject. It is based upon a political
and economic compromise between organized labour — a very powerful socio-economic force — on the one hand, and the
employers of labour — an equally powerful socio-economic force — on the other. The balance between the two forces is
delicate and the public-at-large depends for its security and welfare upon the
maintenance of that balance. . . . There is clearly no correct balance which
may be struck giving permanent satisfaction to the two groups, as well as
securing the public interest. The whole process is inherently dynamic and
unstable. Care must be taken . . . in considering whether constitutional
protection should be given to one aspect of this dynamic and evolving process
while leaving the others subject to the social pressures of the day. [Emphasis
added; p. 414.]
The majority ignores
these wise admonitions.
[127]
In the private sector, strikes operate as an
economic weapon, a stand-off as to whether employers can forgo or limit
carrying on business for longer than employees can forgo wages. In the public
sector, strikes are a political tool. The public expects that public services,
and especially essential services, will be delivered. Thus unions attempt to
pressure the government to agree to certain demands in order that these
services be reinstated. Public sector labour disputes are also unique in that
the government as employer must take into account that any additional
expenditures incurred to meet employee demands will come from public funds. To
hold that s. 2 (d) of the Charter protects a particular economic
or political weapon of employees, the right to strike together with employer
obligations and demands on public resources, plainly tips the balance of power
against employers and the public and fails to respect the important role played
by democratically elected legislators in balancing the complex competing
interests at stake in labour relations. Under a statutory scheme, the
legislature is able to make adjustments in appropriate circumstances (e.g.
back-to-work legislation or restrictions on strikes by essential service
workers). When the right to strike is constitutionalized, elected legislators
are faced with an unwarranted hurdle that interferes with their ability to
achieve this balance.
(4)
The Right to Strike Is Not an Indispensable
Component of Collective Bargaining as Defined by
This Court
[128]
The majority finds that “the right to strike is
an essential part of a meaningful collective bargaining process” and that
“[t]he right to strike is not merely derivative of collective bargaining, it is
an indispensable component of that right” (para. 3). Such statements expressly
contradict the right to meaningful collective bargaining as it was so recently
recognized and defined by this Court in Health Services and Fraser.
[129]
In Fraser, the majority explains
that s. 2 (d) of the Charter protects a right to collective
bargaining, that is, “a process that allows employees to make representations
and have them considered in good faith by employers, who in turn must engage in
a process of meaningful discussion” (para. 54). Nothing in the concept of
collective bargaining, as this Court has defined the term, includes a
constitutional right for employees to strike with a concomitant constitutional
obligation on employers to not hire replacement workers or to take the
employees back at the end of the strike.
[130]
The majority in Fraser found a
constitutionally protected dispute resolution process unnecessary. The Court
interpreted the Ontario Agricultural Employees Protection Act, 2002,
S.O. 2002, c. 16 (“AEPA”), as including a requirement that employers
consider employee representations in good faith. The Court noted that “the
Minister . . . stated that the AEPA was not intended to ‘extend
collective bargaining to agricultural workers’”, but said that this statement
may be understood as an affirmation
that the AEPA did not institute the dominant Wagner model of collective
bargaining, or bring agricultural workers within the ambit of the [Labour
Relations Act, 1995, S.O. 1995, c. 1, Sch. A], not that the Minister intended
to deprive farm workers of the protections of collective bargaining that s. 2 (d)
grants. [para. 106]
Despite the fact that the AEPA
contained no dispute resolution mechanism, only a bare requirement that
employers consider employee representations in good faith, the Court concluded
that the Act did not violate s. 2 (d) of the Charter (para. 107).
[131]
The majority’s reasons overlook this Court’s
findings in Fraser. The trial judge in this case held, and the majority
agrees, that without the right to strike “a constitutionalized right to bargain
collectively is meaningless” (2012 SKQB 62, 390 Sask. R. 196, at para. 92;
majority reasons, at para. 24). With respect, this is plainly incorrect — it is
not the threat of work stoppage that motivates good faith bargaining. Before Health
Services, there was a legal duty on employers to bargain in good faith
under various labour relations statutes (see, e.g., the current duty in the Canada
Labour Code, s. 50 (a); Ontario Labour Relations Act, 1995,
S.O. 1995, c. 1, Sch. A, s. 17; Saskatchewan Trade Union Act, R.S.S.
1978, c. T-17, s. 2(b); British Columbia Labour Relations Code, R.S.B.C.
1996, c. 244, s. 11(1); Alberta Labour Relations Code, R.S.A. 2000, c.
L-1, s. 60(1)(a); Manitoba Labour Relations Act, C.C.S.M., c. L10, s.
62; Quebec Labour Code, CQLR, c. C-27, s. 53; Newfoundland and Labrador Labour
Relations Act, R.S.N.L. 1990, c. L-1, s. 71; New Brunswick Industrial
Relations Act, R.S.N.B. 1973, c. I-4, s. 1(1), definition of “collective
bargaining”; Nova Scotia Trade Union Act, R.S.N.S. 1989, c. 475, s.
35(a) (see Canadian Union of Public Employees v. Labour Relations Board
(Nova Scotia), [1983] 2 S.C.R. 311); Prince Edward Island Labour Act,
R.S.P.E.I. 1988, c. L-1, s. 22(a) (see Perfection Foods Limited v. Retail
Wholesale Dairy Worker Union, Local 1515 (1986), 57 Nfld. & P.E.I.R.
147)). After Health Services, this duty was constitutionalized. It is
the statutory duty, and is now this constitutional duty, not the
possibility of job action, that compels employers to bargain in good faith. To
say that this constitutional right is meaningless without a concomitant
constitutionalized dispute resolution process would be to say that individuals
can never vindicate their rights through the courts or other public institutions.
[132]
The goal of strike action is not to guarantee a
right that was statutory and is now constitutionally guaranteed. Instead, it is
to apply economic or political pressure on employers to meet union demands. As
the majority of the Court stated in Fraser:
. . .
legislatures are [not] constitutionally required, in all cases and for all
industries, to enact laws that set up a uniform model of labour relations
imposing a statutory duty to bargain in good faith, statutory recognition of
the principles of exclusive majority representation and a statutory mechanism
for resolving bargaining impasses and disputes regarding the interpretation or
administration of collective agreements . . . . What is
protected is associational activity, not a particular process or result. [para.
47]
[133]
When the right to strike was simply statutory,
both employers and employees were able to exercise economic and political power
through labour action. In certain circumstances, employees had the right to
strike, while employers had the right to lock out. Even when meaningful
collective bargaining was constitutionalized, good faith was required of both
sides of the bargaining table. In Health Services, the majority of the
Court noted that the employees’ right to collective bargaining “requires both
employer and employees to meet and to bargain in good faith, in the pursuit of
a common goal of peaceful and productive accommodation” (para. 90; see also Fraser,
at para. 40). Now, by constitutionalizing only the ability of employees to
exert economic and political pressure, the majority disturbs the delicate
balance of labour relations in Canada and impedes the achievement of true
workplace justice.
[134]
The majority asserts that employees must have
some “means of recourse should the employer not bargain in good faith” (para.
29). In the event that bargaining does not occur in good faith, workers have
recourse: they can bring a claim under the relevant statutory provision or, in
some cases, directly under s. 2 (d) of the Charter , which is
precisely what was done in Health Services.
[135]
The majority’s conclusion that the right to
strike is “an indispensable component” of collective bargaining (at para. 3)
does not accord with recent jurisprudence. There is nothing in the concept of
collective bargaining as it has been defined by this Court in Health
Services, Fraser and Mounted Police that would imply that
employees have a constitutional right to strike and that employers have a
constitutional obligation to preserve the jobs of those employees.
[136]
Contrary to Fraser, the majority now says
that “[t]he right to strike is not merely derivative of collective bargaining,
it is an indispensable component of that right” (para. 3). However, the
majority also says that the right to strike is protected simply because “the
right to strike is an essential part of a meaningful collective bargaining
process” (para. 3). This must mean that the right is indeed derivative — a
right to strike is protected only because it derives from the right to
collective bargaining, a right which was itself derived from the protection of
freedom of association (see Fraser, at paras. 46, 54, 66 and 99). As
earlier noted, the result is to inflate the right to freedom of association to
such an extent that its scope is now completely divorced from the words of s.
2 (d) of the Charter themselves.
(5)
This Court Should Not Depart From Its Precedents in This Case
[137]
In our legal system, certainty in the law is
achieved through the application of precedents. To overrule a precedent is to
displace community expectations founded on that decision. As the Ontario Court
of Appeal aptly observed in David Polowin Real Estate Ltd. v. Dominion of
Canada General Insurance Co. (2005), 76 O.R. (3d) 161, per Laskin J.A.,
“[t]he values underlying the principle of stare decisis are well known:
consistency, certainty, predictability and sound judicial administration. . . .
Adherence to precedent . . . enhances the legitimacy and acceptability of
judge-made law, and by so doing enhances the appearance of justice” (paras.
119-20).
[138]
For this reason, the threshold for overturning
prior judgments is high (see Canada (Attorney General) v. Bedford, 2013
SCC 72, [2013] 3 S.C.R. 1101, at para. 44; Fraser, at para. 57). In
determining whether the threshold is met, courts must balance certainty against
correctness (Bedford, at para. 47). As Binnie J. observed in Plourde,
“[i]t would be unfortunate, absent compelling circumstances, if the
precedential value of a . . . decision of this Court was thought to expire with
the tenure of the particular panel of judges that decided it” (para. 13).
[139]
In reaching its conclusion, the majority departs
from significant precedents of this Court. Twenty-seven years ago, in the
Labour Trilogy, this Court held that s. 2 (d) does not protect the right
to strike. The majority overrules this finding (para. 77). But the Labour
Trilogy’s precedents are not the only ones reversed by the majority. In finding
that s. 2 (d) of the Charter now protects the right to a dispute
resolution mechanism (strike action), our colleagues also depart from this
Court’s finding in Fraser, made less than four years ago, that
freedom of association “does not require the parties to conclude an agreement
or accept any particular terms and does not guarantee a legislated dispute
resolution mechanism in the case of an impasse” (para. 41).
[140]
Further, in its heavy-handed treatment of
Saskatchewan’s legislative policy choices in the field of labour relations, the
majority defies this Court’s cautions in Pepsi-Cola that legislatures,
not the courts, should deal with the delicate and political balance of
interests in labour relations (para. 85).
[141]
In Bedford, this Court explained that a
lower court may deviate from binding appellate jurisprudence where there is a
new legal issue or a significant change in the circumstances or evidence:
. . . a
trial judge can consider and decide arguments based on Charter provisions
that were not raised in the earlier case; this constitutes a new legal issue.
Similarly, the matter may be revisited if new legal issues are raised as a
consequence of significant developments in the law, or if there is a change in
the circumstances or evidence that fundamentally shifts the parameters of the
debate. [para. 42]
In this case, neither
developments in the s. 2 (d) jurisprudence, nor any change in the
circumstances of Canadian labour relations justifies the trial judge’s
departure from Supreme Court precedent.
[142]
The majority concludes that the high threshold
for overruling the Labour Trilogy’s finding on the right to strike has been met
on the basis that the “historical, international, and jurisprudential
landscape” indicate that “s. 2 (d) has arrived at the destination sought
by Dickson C.J. [in dissent] in the Alberta Reference” (para. 75). With
respect, the sources relied on by the majority to demonstrate this change in
circumstances do not provide a basis to overturn the many relevant precedents
of this Court.
[143]
Many of the sources identified by the majority
existed at the time this Court rendered its decisions in the Labour Trilogy.
For instance, the history of strike activity in Canada and abroad canvassed by
the majority at paras. 36 to 55 was information available to this Court when it
considered the Labour Trilogy appeals. It cannot now form the basis for an
entirely different result than that reached by this Court in 1987. The
criterion that, in order for a precedent to be overruled, there must be “a
change in the circumstances or evidence that fundamentally shifts the
parameters of the debate” (Bedford, at para. 42) is manifestly
unsatisfied.
[144]
While there has been an evolution in the s. 2 (d)
jurisprudence sufficient to be termed a “significant developmen[t] in the law”
(Bedford, at para. 42), that evolution does not support departing from
the Labour Trilogy’s conclusion that there is no constitutional right to
strike. If anything, developments in the law since 1987 support a finding that the
right to freedom of association does not require constitutionalization
of the right to strike. This is because recent s. 2 (d) jurisprudence has
already established a right to collective bargaining that protects the ability
of workers in associations “to exert meaningful influence over working
conditions through a process of collective bargaining conducted in accordance
with the duty to bargain in good faith” and mandates “both employer and
employees to meet and to bargain in good faith, in the pursuit of a common goal
of peaceful and productive accommodation” (Health Services, at
para. 90).
[145]
Subsequent to the Alberta Reference, this
Court made it clear that the right to collective bargaining under s. 2 (d)
of the Charter does not include a statutory dispute resolution process.
Most recently, in Fraser, the majority affirmed:
It follows
that Health Services does not support the view of the Ontario Court of
Appeal in this case that legislatures are constitutionally required, in all
cases and for all industries, to enact laws that set up a uniform model of
labour relations imposing a statutory duty to bargain in good faith, statutory
recognition of the principles of exclusive majority representation and a
statutory mechanism for resolving bargaining impasses and disputes regarding
the interpretation or administration of collective agreements . . . . [para.
47]
[146]
The majority in this appeal states that the
supposed absence of any dispute resolution mechanism in the PSESA “is
what ultimately renders its limitations [on the right to strike]
constitutionally impermissible” (para. 25).
[147]
However, a finding that there is a
constitutional right to strike (or to an alternative statutory dispute
resolution process), is an express contradiction of this Court’s ruling in Fraser
that s. 2 (d) of the Charter does not require a statutory
dispute resolution process (para. 41). While s. 2(d) jurisprudence has
evolved since 1987, such changes cannot be used to justify contradicting the
decisions that brought about these very same changes.
[148]
Even more puzzling, the majority claims that the
Court affirmed in Fraser that a meaningful process under s. 2 (d)
of the Charter must include some “means of recourse should the employer
not bargain in good faith” (para. 29). They do so despite explicit language to
the contrary in that case (see Fraser, at para. 41). In misinterpreting
the content of Fraser, our colleagues overrule that decision without
acknowledging that they are doing so.
[149]
The more “generous approach” to s. 2 (d)
of the Charter , referred to by the majority at para. 33, does not
license this Court to indeterminately expand the scope of freedom of
association. In imposing constitutional limitations on the legislature in this
case, the majority disregards stare decisis and the certainty and
predictability it is intended to foster.
(6)
International Law Is Not Determinative of the
Content of Section 2(d) of the Charter
[150]
Contrary to the majority’s approach,
international law provides no guidance to this Court in determining whether the
right to strike is encompassed within s. 2 (d) of the Charter for
at least one key reason: the current state of international law on the right to
strike is unclear.
[151]
Caution must be exercised where the current
state of international law is subject to conflicting interpretations. As
explained below, international bodies disagree as to whether the right to
strike is protected under international labour and human rights instruments.
Where this Court opts to rely on non-binding interpretations of international
conventions, it should not cherry pick interpretations to support its
conclusions.
[152]
For instance, the majority invokes the
International Labour Organization (“ILO”) Convention (No. 87) concerning
freedom of association and protection of the right to organize, 68 U.N.T.S.
17 (“Convention No. 87”), as confirming the protection of the right to
strike in international law (see para. 67), despite the fact that this right is
not found in the text of the convention, nor is it found in the ILO
Constitution (online) or the Declaration of Philadelphia (which concerns the
aims and purposes of the ILO; see the Annex to the ILO Constitution). Article
3(1) of Convention No. 87 protects the rights of workers’ and employers’
organizations to “formulate their programmes”, but there is debate as to
whether this includes the right to strike.
[153]
ILO bodies themselves disagree on the
interpretation of ILO Convention No. 87. The Committee on Freedom of
Association (“CFA”) and the Committee of Experts on the Application of
Conventions and Recommendations (“COE”) have endorsed a right to strike in ILO Convention
No. 87 (Freedom of Association: Digest of decisions and principles of
the Freedom of Association Committee of the Governing Body of the ILO (5th
rev. ed. 2006), at para. 520; L. Swepston, “Human rights law and freedom of
association: Development through ILO supervision” (1998), 137 Int’l Lab.
Rev. 169, at p. 187; S. Regenbogen, “The International Labour Organization
and Freedom of Association: Does Freedom of Association Include the Right to
Strike?” (2012), 16 C.L.E.L.J. 385, at p. 404). However, these bodies do
not perform judicial functions and do not enforce obligations under ILO conventions
— the CFA is an investigative body and the COE, the first stage of the ILO
supervisory process, simply provides observations (B. A. Langille, “Can We Rely
on the ILO?” (2006-2007), 13 C.L.E.L.J. 273, at pp. 285 and 287; N.
Valticos and G. von Potobsky, International Labour Law (2nd rev. ed.
1995), at paras. 661-62). The Conference Committee on the Application of
Standards is the second stage of the ILO supervisory process. This tripartite
committee consisting of government, employer, and worker representatives has
not reached a consensus on whether freedom of association includes the right to
strike (Regenbogen, at pp. 398-400 and 404; Valticos and von Potobsky, at
paras. 663-64; International Labour Conference, 102nd Sess., Conference
Committee on the Application of Standards: Extracts from the Record of
Proceedings (2013)).
[154]
The International Covenant on Civil and
Political Rights, 999 U.N.T.S. 171 (“ICCPR”), does not include an
explicit right to strike. While freedom of association is protected under art.
22(1), the U.N. Human Rights Committee, which receives and considers complaints
regarding conformity to obligations under the ICCPR, found that art. 22 does
not protect the right to strike (J.B. v. Canada, Communication No.
118/1982 (1986), reported in U.N. Doc. CCPR/C/OP/2, Selected
Decisions of the Human Rights Committee under the Optional Protocol, vol. 2
(1990), p. 34, at para. 6.4). Article 22(3) does explicitly refer to ILO Convention
No. 87, but given the lack of agreement as to whether this Convention
protects the right to strike, the reference alone cannot create this right.
[155]
The International Covenant on Economic,
Social and Cultural Rights, 993 U.N.T.S. 3 (“ICESCR”), in
art. 8(1)(d), protects a qualified right to strike. Specifically, the
right is subject to explicit restrictions as it applies to public sector
workers. Article 8(2) states: “This article shall not prevent the imposition of
lawful restrictions on the exercise of these rights by members of the armed
forces or of the police or of the administration of the State.” Even if we
accept that there is a general right to strike in international law, which is
far from certain, the express restriction on this right in art. 8(2)
demonstrates that the measures at issue are not precluded.
[156]
There is thus no clear consensus under
international law that the right to strike is an essential element of freedom
of association.
[157]
Further, this Court has indicated that
obligations under international law that are binding on Canada are of
primary relevance to this Court’s interpretation of the Charter . In R.
v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, LeBel J. notes that “[i]n
interpreting the scope of application of the Charter , the courts should
seek to ensure compliance with Canada’s binding obligations under
international law where the express words are capable of supporting such a
construction” (para. 56 (emphasis added)). Similarly, in Divito,
Abella J., quoting McLachlin C.J. and LeBel J. in Health Services, at
para. 70, states that “the Charter should be presumed to provide
at least as great a level of protection as is found in the international human
rights documents that Canada has ratified” (para. 23 (emphasis added)).
While other sources of international law can have some persuasive value in
appropriate circumstances, they should be granted much less weight than sources
under which Canada is bound (see, e.g., P. W. Hogg, Constitutional Law of
Canada (5th ed. Supp.), at pp. 36-39 to 36-43; P.-A. Côté, in collaboration
with S. Beaulac and M. Devinat, The Interpretation of Legislation in Canada
(4th ed. 2011), at pp. 395-400).
[158]
The majority notes that the right to strike is
contained in a number of foreign constitutions, as well as in the European
Convention on Human Rights, 213 U.N.T.S. 221 (1950), and the European
Social Charter (E.T.S. No. 35, 1961, revised E.T.S. No. 163, 1996) (paras.
71 and 74). However, the express inclusion of the right to strike in domestic
constitutions and charters other than our own has little relevance to this
Court’s interpretation of “freedom of association” under s. 2 (d). If
anything, the absence of an express right to strike in the Charter —
which was enacted subsequent to many of the constitutions cited by the majority
— indicates Parliament and the provincial legislatures’ intention to exclude
such a right (see Alberta Reference, at pp. 414-16).
[159]
There is good reason to accord little weight to
international instruments to which Canada is not a party. It is the role of the
government to accept international obligations on behalf of Canada, not the
courts (see Hogg, at pp. 11-2 to 11-4). Judicial review and the use of
international law as an interpretive aid should not become a euphemism for this
Court interfering in the government’s prerogative over foreign affairs (see Turp
v. Canada (Justice), 2012 FC 893, [2014] 1 F.C.R. 439; Hogg, at p. 1-20).
Moreover, their invocation of international law is particularly problematic
given the unique historic context in which labour relations have developed
within different countries.
[160]
International law is of no help to this Court in
determining whether freedom of association in s. 2 (d) of the Charter
includes a right to strike.
B.
The PSESA Does Not Violate Section 2(d) of the Charter
[161]
For the reasons above, s. 2(d) does not
confer a Charter right to strike. The question remains whether the PSESA
nevertheless violates the right to a process of meaningful collective
bargaining protected under s. 2(d). In our respectful view, it does not.
[162]
The majority in this appeal retreats from the
test for determining whether legislation interferes with the constitutional
right to collective bargaining that was emphatically established by this Court
in Fraser.
[163]
The PSESA’s “controlled strike” regime
does not render effectively impossible nor substantially interfere with the
ability of associations representing affected public sector employees to submit
representations to employers and to have them considered and discussed in good
faith. There are three reasons for this conclusion: there is evidence
that good faith collective bargaining took place under the PSESA
framework; Fraser and Health Services both held that there is no
right to a dispute resolution mechanism; and the goal of strikes is not to
ensure meaningful collective bargaining, but instead to exert political and
economic pressure on employers. Moreover, insofar as the Government of
Saskatchewan restricts the jurisdiction of the Labour Relations Board (“LRB”),
it does so in good faith and is justified. Saskatchewan essential service
workers do not require a right to strike in order to ensure that their s. 2(d)
rights are respected.
[164]
First, the PSESA
facilitates consultation between employers and unions regarding the designation
of essential services. Although the right to collective
bargaining under s. 2(d) does not protect a particular outcome (Fraser,
at para. 45), the fact that essential services agreements have been
achieved in the provincial public sector during the currency of the PSESA
indicates that there has been no substantial interference with the right to
meaningful collective bargaining. The first collective agreement to be signed
after the PSESA came into force — the 2009-2012 agreement between the
Public Service Commission (“PSC”) and the Saskatchewan Government and General
Employees’ Union (“SGEU”) — was signed only eight months after the preceding
agreement ended, over three months faster than the average time to reach a
collective agreement. Essential
services agreements were also signed between the PSC and the SGEU, and between
the PSC and the Canadian Union of Public Employees, Local 600. Tentative collective agreements were reached between the
Saskatchewan Association of Health Organizations and each of the Canadian Union
of Public Employees, the Service Employees International Union, and the SGEU in August
2010; these were later ratified.
[165]
Moreover, s. 6 of the PSESA
requires public employers to negotiate with trade unions with a view to
concluding an essential services agreement. The evidence demonstrates that such
good faith collective bargaining took place. For instance, the trial judge held
that urban municipalities, the University of Regina, and the University of
Saskatchewan all engaged in meaningful consultations with unions (para. 189). In
fact, the Government of Saskatchewan exceeded the requirements of s.
6(3) of the PSESA: the PSC consulted the SGEU regarding which services
(other than those relating to health and safety) would be designated as
essential in The Public Service Essential Services Regulations, R.R.S.,
c. P-42.2, Reg. 1. As a result of these consultations, a number of changes were
made to the Regulations.
[166]
Second, this Court determined in both Health
Services and Fraser that s. 2(d) does not entail a right to a
dispute resolution mechanism. A violation of s. 2(d) cannot be found
here simply on allegations that the legislation does not provide an adequate
dispute resolution process. As Rothstein J. observed in dissent in Mounted
Police, the inconsistency between the majority’s position here and the
Court’s decision in Fraser is rendered all the more puzzling when one
compares the vulnerability of the agricultural workers in that case, who were
found not to require a dispute resolution mechanism, with the greatly enhanced
position of the public service providers who now come before this Court.
[167]
Finally, the appellants argue that this Court
must defer to the trial judge’s finding that, in absence of the ability of
workers to strike, there can be no assurance that collective bargaining will
occur in good faith. As discussed earlier, this mischaracterizes the primary
purpose of the strike, which is to exert political and economic pressure, not
to ensure good faith collective bargaining, which is protected by statute and,
since Health Services, by s. 2 (d) of the Charter .
[168]
The statutory balance struck by the Government
of Saskatchewan is eminently reasonable. The narrow scope of the LRB’s powers
of review is justifiable in the essential services context, where public
health, safety, and security are at stake. As noted earlier, the Government of
Saskatchewan, together with the federal and other provincial governments, has a
constitutional commitment to “provid[e] essential public services of reasonable
quality to all Canadians” (s. 36(1) (c) of the Constitution Act, 1982 ).
In view of this commitment, the Government of Saskatchewan cannot subject
itself to arbitral awards that could make it unaffordable for the province to
deliver on its undertaking. Yet, that is an inherent concern in constitutionalizing
the right to strike and finding that a limitation to this right could only be
justified if there is “a meaningful alternative mechanism for resolving
bargaining impasses, such as arbitration” (majority reasons, at para. 93). The
Government of Saskatchewan was entitled to determine that compulsory
arbitration could thwart the goal of the PSESA: assuring the continued
delivery of essential services during labour actions.
[169]
Governments are unlike private businesses: they
cannot decide to exit a field of economic activity by no longer providing the
particular essential service, they are not able to move the service to a
jurisdiction with lower labour costs, and they cannot realistically declare
bankruptcy and shut down all operations. Recognition of this context is
essential in evaluating the Government of Saskatchewan’s decision to enact some
limits on the LRB’s powers of review.
[170]
The PSESA does not infringe on the right
of essential service workers to meaningful, good faith collective bargaining.
There is evidence of good faith collective bargaining under the PSESA, Health
Services and Fraser confirm that s. 2(d) does not entail a
right to a dispute resolution mechanism, and the purpose of strikes in the
public sector is to exert political pressure, not to ensure meaningful
collective bargaining, as meaningful collective bargaining is already
statutorily and constitutionally guaranteed. A right to strike is not required
to ensure the s. 2(d) guarantee of freedom of association.
[171]
The Government of Saskatchewan has devised a
particular legislative framework in order to safeguard the continued delivery
of essential services to the community during labour disputes. This Court
should defer to the government’s policy choices in balancing the interests of
employers, employees, and the public to allow the government to meet its
constitutional commitment to deliver these services.
[172]
In concluding that the PSESA infringes
the right to meaningful collective bargaining, the majority fails to apply the
substantial interference standard the Court established in recent s. 2(d)
jurisprudence. In Dunmore v. Ontario (Attorney General), 2001 SCC 94,
[2001] 3 S.C.R. 1016, while concluding the inquiry on a standard of
“substantial interference” the majority was nevertheless alive to the fact that
the exercise of s. 2(d) rights was “all but impossible” for the
appellant agricultural workers (paras. 25 (emphasis deleted) and 48). The
majority in Health Services used similar language, concluding that
“[t]here must be evidence that the freedom would be next to impossible to
exercise” (para. 34). In Fraser, the majority of this Court held that
“[i]n every case, the question is whether the impugned law or state action has
the effect of making it impossible to act collectively to achieve workplace
goals” (para. 46). It was under these circumstances that the standard for
substantial interference was developed. Our colleagues overlook this context by
applying a lower standard in their constitutional analysis.
[173]
Because the PSESA does not violate s. 2 (d)
of the Charter , it is unnecessary to engage in an analysis under s. 1 .
C.
The PSESA Does Not Violate Section 2(b) of the
Charter
[174]
The appellants have made an alternative argument
under s. 2(b). They say that the PSESA violates workers’ freedom
of expression in limiting their ability to participate in strikes. It would not
be appropriate to express an opinion on what is an undeveloped record on this
point. As was the case before the Court of Appeal, the appellants’ submissions
on s. 2(b) are “very much by way of a secondary argument” (para. 72).
Having pursued a detailed argument in respect of s. 2(d), the appellants
expend little effort in their s. 2(b) arguments. It would be ill advised
to undertake an evaluation of a Charter argument in the absence of
substantive arguments on the issue.
D.
The Trade Union Amendment Act, 2008, S.S. 2008,
c. 26, Does Not Violate Section 2(d) of the Charter
[175]
We agree with the majority that The Trade
Union Amendment Act, 2008 (“TUAA”) does not infringe freedom of
association. Amending the process for certification and decertification and
allowing an employer to communicate “facts and its opinions to its employees” (TUAA,
s. 6) does not render meaningful collective bargaining effectively impossible
nor does it substantially interfere with this process.
III.
Conclusion
[176]
Neither the PSESA nor the TUAA
infringes s. 2 (d) of the Charter . We would dismiss the appeal
with costs. We would answer the constitutional questions as follows:
1.
Does The Public Service Essential
Services Act, S.S. 2008, c. P-42.2, in whole or in part, infringe s.
2 (b) of the Canadian Charter of Rights and Freedoms ?
No.
2.
If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. l of the Canadian Charter of Rights and Freedoms ?
It is unnecessary to
answer this question.
3.
Does The Public Service Essential Services
Act, S.S. 2008, c. P-42.2, in whole or in part, infringe s.
2 (d) of the Canadian Charter of Rights and Freedoms ?
No.
4.
If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms ?
It is unnecessary
to answer this question.
5.
Do ss. 3, 6, 7 and 11 of The Trade
Union Amendment Act, 2008, S.S. 2008, c. 26 , in whole or in part,
infringe s. 2 (d) of the Canadian Charter of Rights and Freedoms ?
No.
6.
If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms ?
It is unnecessary
to answer this question.
Appeal
allowed in part with costs, Rothstein
and Wagner JJ. dissenting
in part.
Solicitors
for the appellants: Gerrand Rath Johnson, Regina; Victory Square Law Office,
Vancouver; The W Law Group, Saskatoon.
Solicitor
for the respondent: Attorney General for Saskatchewan, Regina.
Solicitor
for the intervener the Attorney General of Canada: Attorney General of Canada,
Saskatoon.
Solicitor
for the intervener the Attorney General of Ontario: Attorney General of
Ontario, Toronto.
Solicitor
for the intervener the Attorney General of Quebec: Attorney General of Quebec,
Québec.
Solicitor
for the intervener the Attorney General of British Columbia: Attorney General
of British Columbia, Vancouver.
Solicitor
for the intervener the Attorney General of Alberta: Attorney General of
Alberta, Edmonton.
Solicitor
for the intervener the Attorney General of Newfoundland and Labrador: Attorney
General of Newfoundland and Labrador, St. John’s.
Solicitors
for the intervener the Saskatchewan Union of Nurses: Bainbridge Jodouin
Cheecham, Saskatoon.
Solicitors
for the intervener SEIU-West: Plaxton & Company, Saskatoon.
Solicitors
for the interveners the United Nurses of Alberta and the Alberta Federation of
Labour: Chivers Carpenter, Edmonton.
Solicitors
for the intervener the Professional Institute of the Public Service of Canada:
Sack Goldblatt Mitchell, Ottawa.
Solicitors
for the intervener the Canadian Constitution Foundation: McCarthy Tétrault,
Toronto.
Solicitors
for the intervener the Air Canada Pilots’ Association: Nelligan O’Brien Payne,
Ottawa.
Solicitors
for the intervener the British Columbia Civil Liberties Association: Moore
Edgar Lyster, Vancouver.
Solicitors
for the intervener Conseil du patronat du Québec: Norton Rose Fulbright Canada,
Montréal.
Solicitors
for the intervener the Canadian Employers Council: Fasken Martineau DuMoulin,
Toronto.
Solicitors
for the interveners the Canadian Union of Postal Workers and the International
Association of Machinists and Aerospace Workers: Cavalluzzo Shilton McIntyre
Cornish, Toronto.
Solicitors
for the interveners the British Columbia Teachers’ Federation and the Hospital
Employees’ Union: Farris, Vaughan, Wills & Murphy, Vancouver.
Solicitors
for the intervener the Canadian Labour Congress: Sack Goldblatt Mitchell,
Toronto.
Solicitors
for the intervener the Public Service Alliance of Canada: Raven, Cameron,
Ballantyne & Yazbeck, Ottawa.
Solicitors
for the intervener the Alberta Union of Provincial Employees: Nugent Law
Office, Edmonton.
Solicitors for the intervener Confédération des syndicats nationaux:
Laroche Martin, Montréal.
Solicitors for the interveners the Regina Qu’Appelle Regional Health
Authority, the Cypress Regional Health Authority, the Five Hills Regional Health
Authority, the Heartland Regional Health Authority, the Sunrise Regional Health
Authority, the Prince Albert Parkland Regional Health Authority and the
Saskatoon Regional Health Authority: Saskatoon Regional Health Authority,
Saskatoon; MacPherson Leslie & Tyerman, Saskatoon.
Solicitors
for the intervener the National Union of Public and General Employees: Champ
& Associates, Ottawa.
Solicitors for the
interveners the Canada Post Corporation and Air Canada: Fasken Martineau
DuMoulin, Toronto.