Date: 20090612
Dockets: A-305-07
A-306-07
Citation: 2009 FCA 201
CORAM: BLAIS
J.A.
EVANS
J.A.
RYER
J.A.
Docket: A-305-07
BETWEEN:
GRAIN WORKERS' UNION, LOCAL 333
Applicant
and
B.C. TERMINAL ELEVATOR
OPERATIONS' ASSOCIATION;
SASKATCHEWAN WHEAT POOL;
JAMES RICHARDSON INTERNATIONAL
LIMITED; UNITED GRAIN GROWERS
LIMITED d.b.a. AGRIGORE UNITED;
PACIFIC ELEVATORS LIMITED;
CASCADIA TERMINAL
Respondents
and
PUBLIC SERVICE ALLIANCE OF CANADA;
CANADIAN LABOUR CONGRESS
Intervenors
Docket: A-306-07
AND
BETWEEN:
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION – CANADA,
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION, LOCAL 500, and
INTERNATIONAL LONGSHORE AND
WAREHOUSE UNION SHIP AND DOCK
FOREMEN, LOCAL 514
Applicants
and
BRITISH COLUMBIA MARITIME EMPLOYERS
ASSOCIATION, WATERFRONT EMPLOYERS
ASSOCIATION and VANCOUVER WHARVES LTD.
Respondents
and
PUBLIC SERVICE ALLIANCE OF CANADA;
CANADIAN LABOUR CONGRESS
Intervenors
REASONS FOR JUDGMENT
EVANS J.A.
A. INTRODUCTION
[1]
The applicant unions have applied for judicial
review to set aside a decision of the Canada Industrial Relations Board
(“Board”), dated June 8, 2007. In that decision (CIRB/CCRI Decision No. 384),
the Board held that the unions had engaged in an illegal strike within the
meaning of sections 3(1) and 88.1 of the Canada Labour Code, R.S.C.
1985, c. L-2 (“Code”). During the existence of a collective agreement, the
unions’ members had not reported for work because they were not willing to
cross a lawful picket line established by members of another union in the
course of a strike against their employer.
[2]
The Board decided that the Code’s broad definition
of a “strike” included a work stoppage resulting from employees’ refusal to
cross the picket line, but did not infringe their rights to freedom of expression
and association guaranteed by paragraphs 2(b) and (d) of the Canadian
Charter of Rights and Freedoms and that, if it did, the infringement was
justified under section 1.
[3]
The issue before the Court is whether the Board
was correct to conclude that the impugned provision of the Code did not violate
the constitutional rights of the applicants’ members.
[4]
The applications for judicial review have been
consolidated because they concern the same Board decision and raise the same
issues. These reasons apply to both and a copy will be inserted in each file. The
Public Service Alliance of Canada (“PSAC”) and the Canadian Labour
Congress have intervened in support of the consolidated application.
[5]
For the reasons that follow, I have concluded
that the statutory definition of “strike”, as interpreted by the Board, infringes
union members’ right to freedom of expression under paragraph 2(b), but
that it is justified under section 1. Since counsel agreed that the same
section 1 analysis would apply to a breach of paragraph 2(d), I do
not find it necessary to determine whether the impugned provisions also violate
union members’ right to freedom of association.
B. FACTUAL
BACKGROUND
[6]
For the most part, the relevant facts are not in
dispute. The applicant Grain Workers’ Union, Local 333 (“GWU”) represents employees
of the grain terminals in the Port of Vancouver. A collective agreement is in force between GWU and the respondent
B.C. Terminal Elevator Operators’ Association (“BCTEOA”), a designated employers’
organization representing terminal operators.
[7]
The applicants International Longshore and
Warehouse Union – Canada, the International Longshore and Warehouse Union,
Local 500, and the International Longshore and Warehouse Union Ship & Dock
Foremen, Local 514 (collectively, “ILWU”), represent employees of stevedoring
companies who load grain for shipment. ILWU-Canada (including ILWU, Local 500)
is party to a collective agreement with the respondent B.C. Maritime Employers
Association (“BCMEA”), which represents stevedoring companies. BCMEA dispatches
employees to worksites as required by its members.
[8]
ILWU, Local 514 was at the material time party
to a collective agreement with the Waterfront Foremen Employers Association
(“WFEA”). WFEA dispatched foremen to worksites as required by the member
stevedoring companies. WFEA has ceased to exist as a legal entity, and BCMEA
has assumed legal responsibility for it in this matter.
[9]
At all relevant times, collective agreements
were in full force and effect, and contained clauses apparently permitting workers
to refuse to cross picket lines established by other unions during job action:
19.01 The Union
agrees that during the term of the Agreement there will be no slowdown nor
strike, stoppage of work, cessation of work, or refusal to work or to continue
to work. The Companies agree that during the term of the Agreement there will
be no lockout.
19.02 The Union agrees that in the event of
strikes or walkouts, the Union will not take similar action on the ground of
sympathy, but will continue to work. The Companies do not expect members of
the Union to pass a picket line. (Emphasis added).
[10]
Under the Canada Grain Act, R.S.C. 1985,
c. G-10, Canada Grain Commission (“CGC”) personnel inspect the grain being
stored and shipped at the Vancouver grain terminals. CGC inspectors are members of PSAC. There is no
collective bargaining relationship between PSAC and any of the respondent
employers.
[11]
In 2004, PSAC members were engaged in a lawful
strike against CGC and established picket lines at the Vancouver grain terminals. GWU and ILWU would have had to cross the PSAC picket
lines in order to get to work. This they refused to do. The employers filed
applications with the Board for declarations that their employees’ interruption
of work as a result of their refusal to cross PSAC’s picket line constituted an
illegal strike.
[12]
On September 24, 2004, the Board held that the
members of GWU were engaged in an illegal strike contrary to the Code and
issued an interim back-to-work order. After a separate hearing, the Board
issued similar orders against ILWU on October 4, 2004.
[13]
In response to the unions’ statement that they
intended to rely on paragraphs 2(b) and (d) of the Charter in
their defence, the Board ruled that it would hear the constitutional arguments
at a later hearing. These arguments were heard in October 2004, but the Board
did not render its decision until June 8, 2007.
[14]
On that very day, the Supreme Court of Canada
released its decision in Health Services and Support – Facilities Subsector
Bargaining Association v. British Columbia, 2007 SCC 27, [2007] 2 S.C. R. 391
(“Health Services”), dealing with the extent to which paragraph 2(d)
of the Charter protects collective bargaining. In a reconsideration decision, dated
November 27, 2008 (CIRB/CCRI Decision No. 428), the Board affirmed its earlier
decisions and held that Health Services made no difference to the
result.
C. LEGISLATIVE AND CONSTITUTIONAL
FRAMEWORK
[15]
A “strike” is defined in subsection 3(1) of the Canada Labour Code.
|
"strike" includes a cessation of work or a
refusal to work or to continue to work by employees, in combination, in
concert or in accordance with a common understanding, and a slowdown of work
or other concerted activity on the part of employees in relation to their
work that is designed to restrict or limit output;
|
« grève » S’entend notamment d’un arrêt
du travail ou du refus de travailler, par des employés agissant
conjointement, de concert ou de connivence; lui sont assimilés le
ralentissement du travail ou toute autre activité concertée, de la part des
employés, ayant pour objet la diminution ou la limitation du rendement et
relative au travail de ceux-ci.
|
[16]
Strikes, as defined by subsection 3(1), and
lockouts, are prohibited during the term of a collective agreement by section
88.1 of the Code, which was enacted in 1998, and came into force on January 1,
1999:
|
88.1 Strikes and lockouts are prohibited during
the term of a collective agreement except if
(a) a notice to bargain collectively has been
given pursuant to a provision of this Part, other than subsection 49(1); and
(b) the requirements of subsection 89(1) have
been met.
|
88.1 Les
grèves et les lock-out sont interdits pendant la durée d’une convention
collective sauf si, à la fois :
a) l’avis de négociation
collective a été donné en conformité avec la présente partie, compte non tenu
du paragraphe 49(1);
b) les conditions
prévues par le paragraphe 89(1) ont été remplies.
|
[17]
The relevant provisions of the Canadian Charter
of Rights and Freedoms are section 1 and paragraphs 2(b), and 2(d):
|
1. The Canadian Charter of Rights and
Freedoms guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society.
2. Everyone has the following fundamental
freedoms:
…
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication;
…
(d) freedom of association.
|
1. La Charte
canadienne des droits et libertés garantit les droits et libertés qui y sont
énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des
limites qui soient raisonnables et dont la justification puisse se démontrer
dans le cadre d'une société libre et démocratique.
2.
Chacun a les libertés fondamentales suivantes :
[…]
b)
liberté de pensée, de croyance, d'opinion et d'expression,
y compris la liberté de la presse et des autres moyens de communication;
[…]
d) liberté d'association.
|
D. DECISIONS OF THE BOARD
[18]
In the decision under review, the Board,
comprising a single member, concluded that the collective refusal of workers to
cross PSAC’s picket line constituted a mid-contract strike prohibited by subsection
3(1) and section 88.1 of the Code. The Board held that the clauses in the
collective agreements purporting to give workers the right to engage in this
type of activity were “invalid and ineffective” (at para. 78).
[19]
On the Charter issues, the Board concluded that
the definition of “strike” in subsection 3(1) of the Code did not infringe paragraph
2(b) of the Charter because neither the purpose nor the effect of the statutory
prohibition of mid-term strikes (including work stoppages caused when employees
refused to cross a picket line) infringed employees’ freedom of expression. It
further held that the prohibition did not violate paragraph 2(d) because
there was no constitutional right to strike. Alternatively, the Board concluded
that any infringement of section 2 was saved by section 1.
[20]
In its reconsideration decision, the Board,
comprising three members, largely affirmed the reasoning and conclusions of the
decision under review. It further held that Health Services did not
affect the result, because, among other things, the prohibition of mid-contract
strikes did not constitute a “substantial interference” with the right to
collective bargaining (at para. 70), and was enacted only after extensive
consultations (at para. 73). Further, the clauses in the collective agreements apparently
permitting employees to refuse to cross a picket line still had some legal
effect, because they prevented employers from suing for compensation for any
loss caused by their employees’ conduct or from otherwise disciplining them (at
para. 74).
E. ISSUES AND ANALYSIS
(i) common ground
[21]
In this proceeding, the applicants do not
challenge the Board’s determination that an illegal “strike” in subsection 3(1)
and section 88.1 of the Code includes a refusal by union members to cross a
picket line. They challenge only the constitutional validity of the Board’s
interpretation of these provisions.
[22]
The parties rightly agreed that the Board’s rulings
on the constitutional validity of the relevant sections of the Code are
reviewable on a standard of correctness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 58.
(ii) characterizing the issue
[23]
The respondents say that by framing the question
as one of freedom of expression the applicants have mischaracterized the
essential issue at stake. They argue that the employees’ conduct in this case
was found by the Board to constitute an illegal strike. Hence, they say, the
applicants are, in effect, attempting to use the right to freedom of expression
to obtain an order that the Charter guarantees to employees a right to strike.
They submit that this is inconsistent with the decisions of the Supreme Court
of Canada in Reference re Public Service Employees Relations Act (Alta.),
[1987] 1 S.C.R. 313 (“Alberta Reference”), PSAC v. Canada, [1987]
1 S.C.R. 424, and RWDSU v. Saskatchewan [1987] 1 S.C.R. 460 (“Labour
Trilogy”), where the majority held that no such constitutional right exists.
[24]
I do not agree. First, the issue in the Labour
Trilogy was whether freedom of association in paragraph 2(d) includes
the right to strike. In my view, it is not necessary to pass upon the
applicability of paragraph 2(d) to the facts of the present case.
Paragraph 2(b) is the relevant provision; the Court’s reasons in the Labour
Trilogy do not consider to what extent, if any, freedom of expression
protects conduct in the course of an industrial dispute.
[25]
Second, the Court has not hesitated to review under
paragraph 2(b) the validity of legislation governing expressive activities
undertaken during a strike. For example, in U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083 (“Kmart Canada”), employees were
prohibited by a broad statutory definition of picketing from passing out
leaflets on the strike to the public at secondary sites. The Court held that
this breached the employees’ freedom of expression under paragraph 2(b).
Writing for the Court, Justice Cory said (at 1105):
It is obvious that freedom of expression in
the labour relations context is fundamentally important and essential for
workers. In any labour dispute it is important that the public be aware of the
issues. Furthermore, leafleting is an activity which conveys meaning. In light
of the very broad interpretation that has been given to freedom of expression,
it clearly falls within the purview of s. 2(b) of the Charter.
Similarly, in R.W.D.S.U., Local 558 v.
Pepsi-Cola Canada
Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R.
156 (“Pepsi-Cola”), paragraph 2(b) was held to protect picketing
by employees at both principal and secondary sites.
[26]
Third, the Labour Trilogy is now over twenty
years old and recent decisions by the Supreme Court of Canada indicate a more nuanced
approach to paragraph 2(d) in the context of collective labour
relations. Thus, in Dunmore v. Ontario (Attorney General), 2001 SCC 94,
[2001] 3 S.C.R. 1016 (“Dunmore”), the Court held that paragraph 2(d)
includes the right of employees to organize and to undertake certain associated
“core” activities. Further, building on Dunmore, a majority of the
Court in Health Services departed from the reasoning of older cases,
including the Labour Trilogy, and held that paragraph 2(d) includes
a right to collective bargaining and protects the collective bargaining process
from substantial interference by legislation.
[27]
In summary, the Supreme Court has recognized the
importance of picketing as expressive activity in labour disputes and has
protected it by paragraph 2(b), and has held that paragraph 2(d)
protects the right of employees to organize and to engage in collective
bargaining. In these circumstances, I cannot read the Labour Trilogy as
excluding the potential protection of paragraph 2(b) on the ground that the
Board has interpreted the Code’s broad definition of a “strike” to include refusing
to cross another’s picket line to report for work.
[28]
On my analysis, therefore, two questions must be
decided in this appeal: does the definition of “strike” in the Code infringe
employees’ rights under paragraph 2(b) of the Charter, and, if it does,
is the infringement justifiable under section 1?
Issue 1: Does
the definition of “strike” in the Code, as interpreted by the Board, offend
paragraph 2(b) of the Charter?
[29]
In Irwin Toy Ltd. v. Quebec, [1989]
1 S.C.R. 927 (“Irwin Toy”), the Supreme Court established a two-step
inquiry for determining whether a law infringes the Charter right to freedom of
expression. The first is to consider whether the prohibited activity falls
within the sphere of conduct protected by the guarantee (the definitional step).
If it does, the second is to determine if the purpose or effect of the impugned
law restricts expression (the infringement step).
[30]
This test was refined in Montréal (City) v.
2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at paras.
60-85, where the Court added at the definitional step an inquiry into whether
the location or method of the expression removes it from the protection of
paragraph 2(b).
[31]
The respondents accept the conclusion of the
Board that the refusal to cross a picket line is an activity with expressive
content, and that there is nothing about the location or method of expression to
defeat the claim at the definitional step. A refusal to cross a picket line is
an activity that “attempts to convey meaning” (Irwin Toy at 969). The
definitional step is thus satisfied.
[32]
The more contentious issue in this case is
whether the prohibition of mid-contract work stoppages resulting from a refusal
to cross a picket line restricts freedom of expression in purpose or effect.
(i) purpose of the prohibition
[33]
In Irwin Toy (at 975-76), the Supreme Court
said this about determining whether the purpose of legislation was to infringe
freedom of expression.
In sum, the characterization of
government purpose must proceed from the standpoint of the guarantee in
issue. With regard to freedom of expression, if the government has aimed
to control attempts to convey a meaning either by directly restricting the
content of expression or by restricting a form of expression tied to content,
its purpose trenches upon the guarantee. Where, on the other hand, it aims
only to control the physical consequences of particular conduct, its purpose
does not trench upon the guarantee. In determining whether the
government's purpose aims simply at harmful physical consequences, the question
becomes: does the mischief consist in the meaning of the activity or the
purported influence that meaning has on the behaviour of others, or does it
consist, rather, only in the direct physical result of the activity. (Emphasis
added)
[34]
In my view, the purpose of the impugned provisions
of the Code is not to restrict freedom of expression, but to prevent the negative consequences of mid-contract strikes,
particularly the economic disruption caused by unpredictable work stoppages.
The prohibition of mid-contract strikes is an important component of the Code’s
attempt to balance equitably the interests of labour and management.
[35]
In reaching this conclusion, I note two points
in particular. First, the statutory
prohibition of mid-contract strikes is absolute, regardless of the expressive
content of a work stoppage, if any. The effect-based definition of “strike”
adopted by the Board may include conduct that would not normally be regarded as
a strike. However, for the purpose of the present application for judicial
review, the applicants do not challenge the Board’s broad interpretation of
subsection 3(1) and section 88.1. Second, the prohibition is temporary since it
only applies while a collective agreement is in force.
[36]
The applicants advance two arguments in support
of their contention that the purpose of the prohibition of mid-contract strikes
is to restrict expression. First, they say that since the provisions are
intended to ban all mid-contract work stoppages, including those with
expressive content, they must necessarily be intended to restrict expression.
Second, they argue, the form of the expression in this case is so closely tied
to its content that to outlaw the activity is to outlaw the message (see Irwin
Toy at 974-750).
[37]
I agree with the Board that the harmful effects
of the expressive activity, the work stoppage, are immediate and independent of
any particular meaning being conveyed. Production or services cease as soon as
employees refuse to work, regardless of whether they are refusing to cross a
picket line, attending a political protest, or simply defecting en masse
to go fishing.
[38]
My conclusion that the purpose of the Code’s
definition of “strike” is not to curtail employees’ freedom of expression, but
to limit the adverse consequences of mid-contract work stoppages, is consistent
with the decision of the British Columbia Court of Appeal in British
Columbia Teachers’ Federation v. British Columbia Public School Employers’ Assn.,
2009 BCCA 39, 89 B.C.L.R. (4th) 96 (“BCTF”), where public sector
unions relied on paragraph 2(b) to impugn a similarly broad definition
of “strike” in the province’s Labour Relations Code. An application for
leave to appeal to the Supreme Court of Canada is pending.
[39]
The Court held (at para. 34) that, while the
statutory definition of “strike” is broad enough to include work stoppages
resulting from employees’ attendance at a political protest rally, the purpose
of the legislation is to constrain
the effects of work stoppages involved in
political protests and not the otherwise free expression of the protest. That
is the purpose of the definition of strike on the face of the wording.
The Court also noted (at para. 32) that British Columbia’s Labour Relations Code
only restricts employees’ attendance at political rallies during working hours
and that “the content and form of rallies is otherwise unconstrained.”
(ii) effect of the prohibition
[40]
I frame my analysis of whether the statutory
prohibition has the effect of limiting the freedom of expression of members of
the applicant unions with the following three considerations.
[41]
First, the jurisprudence on paragraph 2(b)
indicates that a party alleging an infringement of freedom of expression has a
relatively low threshold to cross, and that the main issue in the great
majority of cases is whether the infringement is justifiable under section 1.
This point is well made by Peter W. Hogg, Constitutional Law of Canada,
5th edition supplemented (Scarborough, Ontario: Thomson Carswell, 2007) at 43-6 (“Hogg”):
… we shall see that the unqualified
language of s. 2(b), reinforced by the broad interpretation that has been given
to that language, means that, in most of the freedom of expression cases, it is
easy to decide that, yes, the impugned law does limit s. 2(b). In that case the
constitutionality of the law will turn on the outcome of the … s. 1 inquiry.
Indeed, the paucity of jurisprudence from
the Supreme Court of Canada and intermediate appellate courts on whether a law
has the effect of impinging on any of the values articulated in Irwin Toy
suggests that the “effects” requirement is not a significant impertinent for
litigants alleging a breach of paragraph 2(b).
[42]
Second, the Supreme Court of Canada has
emphasized the fundamental importance of freedom of expression in labour
disputes. In particular, in Pepsi-Cola at para. 35, Chief Justice McLachlin
and Justice LeBel, writing for the Court said:
Free expression in the labour context
benefits not only individual workers and unions, but also society as a whole…As
part of the free flow of ideas which is an integral part of any democracy, the
free flow of expression by unions and their members in a labour dispute brings
the debate on labour conditions into the public realm.
[43]
Third, it seems to me indisputable that the
prohibition in fact limits employees’ ability to express their support
for the PSAC members on strike against their employer, CGC. This is because it
prevents them from honouring the picket line (an admittedly expressive
activity) during working hours. “Honouring a picket line” may take several forms:
employees may choose to demonstrate their solidarity by joining it, by
approaching it and turning back after discussion with the strikers, or by
simply staying away from work. Indeed, by requiring employees to cross a picket
line, the prohibition has the effect of forcing employees to engage in conduct
that may convey the message that they do not support the strike.
[44]
The question to be decided is whether, despite
the low threshold for establishing a prima facie breach of paragraph 2(b)
and the de facto limit on employees’ expressive activity imposed by the
prohibition, the prohibition has the effect, in law, of limiting freedom
of expression.
[45]
In Irwin Toy (at 976), the Supreme Court stated
that in order to show that a law has the effect of restricting expression, the
claimant must demonstrate that the prohibited activity (in this case, failing
to report for work because of a refusal to cross a picket line) promotes at
least one of the principles and values underlying the guarantee of free
expression, namely:
(1) seeking and attaining the truth is an inherently
good activity; (2) participation in social and political decision-making is to
be fostered and encouraged; and (3) the diversity in forms of individual
self-fulfillment and human flourishing ought to be cultivated in an essentially
tolerant, indeed welcoming, environment not only for the sake of those who
convey a meaning, but also for the sake of those to whom it is conveyed…. [A] plaintiff
must at least identify the meaning being conveyed and how it relates to the
pursuit of truth, participation in the community, or individual
self-fulfillment and human flourishing.
[46]
The focus of the argument in the present case is
whether the expressive activity in question is related to “participation in social
and political decision-making”. In my respectful view, the value captured by
this phrase should not be approached narrowly. Indeed, the Court’s paraphrase
of the phrase as “participation in the community” indicates that it is of broad
application.
[47]
The Supreme Court has stated, in other contexts,
that labour disputes involve “fundamental” legal, political, and social issues
(Kmart Canada at para. 29), and that picketing “brings debate about
labour conditions issues into the public realm” (Pepsi-Cola at para.
35). I need not decide whether these statements mean that expressing support
for a strike by not crossing a picket line and thereby failing to report for
work always constitutes participating in “social and political decision-making”
or “participation in the community”. For the purpose of disposing of this
appeal, I shall confine myself to situations where the strikers who have put up
the picket line are in dispute with a government agency over their “labour
conditions”.
[48]
Refusing to cross a picket line is a uniquely powerful
means for employees to publicly express their solidarity with strikers. In
addition to giving moral support and encouragement to the strikers, honouring a
picket line is also intended to assist in bringing the issues of the strike to
the attention of the wider public, to rally public support for the strike, and
to bring pressure to bear on the strikers’ employer. The fact that refusing to
cross a picket line in order to report for work is likely to result in a loss
of earnings amplifies the message of support.
[49]
This issue was considered recently by the
British Columbia Court of Appeal in BCTF. The question in that case was
whether the definition of “strike” in the province’s Labour Relations Code,
which is virtually identical to that in the Canada Labour Code, infringes
paragraph 2(b) by prohibiting employees from absenting themselves from work
in order to attend a political rally protesting the enactment of legislation
that “changed conditions of employment and overrode collective bargaining
processes” (at para. 22).
[50]
Finding that the definition had the effect of
restricting expression, the Court noted that, since “the objectives [of the
work stoppage] were not restricted solely to the economic interests of union
members … the effect of the mid-contract strike prohibition is a restriction on
an effective means of expressive action and for that reason alone, it trenches
on the s. 2(b) guarantee of free expression” (BCTF at para. 37).
[51]
The respondents in the present case argue that BCTF
is distinguishable, on the ground that the reason for the work stoppage in that
case resulted from employees’ attendance at a political protest rally aimed at
the provincial government which was not limited to protesting about the terms
of their employment by school boards. In contrast, they say, the refusals to
cross the picket line in the present case were designed to support PSAC in its
attempt to secure a more favourable collective agreement from the employer:
PSAC was engaged in a purely commercial dispute with the employer. Accordingly,
they submit, since there was no evidence that PSAC was striking in furtherance
of political or social ends, rather than simply for better terms of employment
for their members, the prohibition of mid-contract work stoppages did not have
the effect of limiting employees’ participation in “social and political
decision-making”.
[52]
I do not agree. The expressive activity of
refusing to cross a picket line by members of the applicant unions was in
support of a strike by members of PSAC, who were in dispute with their
employer, CGC, an agency of the Government of Canada. I agree with the
following observations in BCTF (at para. 37) on the nature of strikes in
the public sector.
Public sector unions have been given the
right to strike for collective bargaining purposes, apart from essential
services staffing requirements, and the political dimension of such strikes
cannot be ignored. Unlike the private sector, the primary target of the
strike weapon is the government and public opinion; the strike is in that sense
political…. Motivations are mixed and strike objectives in the public
sector cannot be conveniently divided into political protest and collective
bargaining categories. In both cases, the strike exerts pressure directed
beyond the formal public sector employers to the governments that are their
masters. It is a form of effective expression that is curtailed by its
inclusion within the strike definition. (Emphasis added)
[53]
I would only add that public sector strikes are
also “political” because their resolution almost invariably implicates such
public policy issues as the appropriate allocation of public resources, the
level of public services to be provided and the manner of their delivery, and
the basis on which any additional costs of the services are to be defrayed. These
are questions of community concern.
[54]
By putting up a picket line in support of its
strike and attempting to attract public support, and thereby to influence the
government, PSAC was engaging in “political” action, regardless of the particular
issues involved in its dispute with CGC, on which there is no evidence in the
record before us. Accordingly, when members of the applicant unions refused to
cross the PSAC picket line to go to work they were assisting them by adding
their support to PSAC’s attempts to put the issues into the public domain, in
order to win public support and increase pressure on the government.
[55]
Thus, by including the work stoppages that
occurred in the present case within the definition of “strike”, and prohibiting
those that take place mid-contract, the Code has the effect of discouraging employees’
from participating “in social and political decision-making”, and “in the
community” (Irwin Toy at 977), and thus infringes their rights under
paragraph 2(b).
[56]
The fact that members of the applicant unions
have no right to participate in PSAC’s negotiations with CGC does not preclude
their prohibited conduct from being sufficiently related to “social and
political decision-making” within the meaning of Irwin Toy. Honouring
picket lines in order to show support for public sector employees and to
increase pressure on the government to settle a dispute by mobilising public
opinion is aptly characterized as “participation in the community”, a value
promoted by paragraph 2(b).
[57]
In addition, not crossing another union’s lawful
picket line is widely regarded by members of the labour movement as an ethical
obligation. Hence, I am inclined to think that, as applied to the facts before
us, the impugned provisions of the Code also have a negative effect on the
freedom of expression value of promoting “the diversity in forms of individual
self-fulfillment and human flourishing”: Irwin Toy at 976. However, despite
the obvious breadth of this value, I express no concluded opinion on it in the
absence of sustained argument.
[58]
The respondents argue that the prohibition does
not limit employees’ freedom to express their support for the PSAC strikers
because they have many other ways of doing this. I do not agree. Since, in my
view, the impact of the prohibition on freedom of expression is more than
minimal its partial nature is relevant to the inquiry under section 1, not
paragraph 2(b). In my view, Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, is of little assistance. The issue in that
case was whether the government had a positive obligation to create a
legislative framework for providing the most effective means for employees to
express themselves or to associate.
ISSUE 2: Is
the infringement of paragraph 2(b) justified under section 1?
[59]
If a statutory limit on a Charter right is “reasonable”
and “demonstrably justifiable in a free and democratic society”, it will be
upheld under section 1, even though it infringes a right guaranteed elsewhere
in the Charter. The analytical framework for determining whether section 1 is
satisfied was established in R. v. Oakes, [1986] 1 S.C.R. 103 (“Oakes”).
[60]
The Oakes analysis requires the party seeking
to uphold the legislation to establish that the objective of the impugned law
is “sufficiently pressing and substantial” and that the impugned law is proportional
to that objective. “Proportionality” is determined on the basis of a
three-pronged test: the law must be rationally connected to its objective; it
must impair the constitutional right in question as little as possible; and it must
not have a disproportionately severe effect on the right.
(i) importance of the statutory
objective in prohibiting mid-contract strikes
[61]
In my view, the Board correctly held that the
purpose of the broad statutory prohibition of mid-contract strikes is to avoid
the social and economic costs of unpredictable interruptions to production and
services. As the Supreme Court of Canada has acknowledged, strikes and
picketing impose great social costs on both the immediate parties to a dispute and
the broader community: Retail, Wholesale and Department Store Union v. Dolphin Delivery, [1986] 2 S.C.R. 573 at 591; Alberta Reference at 414.
[62]
The British Columbia Court of Appeal reached a
similar conclusion on the “pressing and substantial” nature of the objectives
of nearly identical provisions in British Columbia’s Labour Relations Code: BCTF at paras. 49-51.
(ii) Proportionality of the
prohibition
(a) rational
connection between the prohibition and the statutory objective
[63]
It seems clear on its face, as the parties
appear to have accepted, that there is a rational connection between the
prohibition of mid-contract strikes on the one hand, and, on the other, the
statutory objective of limiting unpredictable work stoppages and the consequent
interruption of services or production. See also BCTF at para. 55.
(b)
minimal impairment of rights
[64]
The applicant unions argue that the prohibition
of mid-contract strikes impairs Charter rights more than is necessary in order
to achieve the statutory objective, because Parliament could have carved out an
exception for situations where a collective agreement permits employees to
refuse to cross a lawful picket line. In the present case, it will be recalled,
the collective agreements (as is apparently common in British
Columbia (see Board reasons at para. 59)) provided as
follows:
19.02 The Union agrees that in the event of
strikes or walkouts, the Union will not take similar action on the ground of
sympathy, but will continue to work. The Companies do not expect members of
the Union to pass a picket line. (Emphasis added)
[65]
I do not agree that such an exception is
required. Despite the categorical language used in Oakes to describe the
“minimum impairment” or “least restrictive” element of the proportionality
test, the Supreme Court has allowed a significant margin of appreciation to
legislatures in designing the means of achieving the objectives of statutory
schemes. A measure of judicial deference is particularly appropriate when the
scheme involves the resolution of complex social issues and the balancing of the
interests of competing groups in a way that advances the public interest. See
Hogg at 38.35-42.
[66]
In my opinion, the Code falls within the above
categories of scheme to which a measure of judicial deference is due. It is not
unreasonable to suppose that the suggested “carve-out” would undermine the
statutory objectives of enhancing stability of industrial relations over the
term of a collective agreement and the predictability of interruptions of
services and production. To permit parties to contract out of a fundamental
principle of the federal labour relations scheme might well jeopardize the
Code’s statutory objectives, especially since the costs associated with unpredictable
work stoppages are generally borne not only by the contracting parties, but
also by the public.
[67]
Support for this conclusion is found in a
decision by the Board in Saskatchewan Wheat Pool, [1994] C.L.R.B. No.
1055, where the Board held (at 10) that the parties could not contract out of
the statutory definition of a “strike”:
Nor can the
public purpose of “industrial peace” behind the no-strike provision be avoided
by “contracting out” of the legal obligations of the Code…. Of course, the
parties can negotiate an employee’s individual right to refuse to work and
these clauses will be applied in accordance with their given interpretation,
subject to arbitration. However, the union or its members cannot use such a
clause to circumvent the Code by giving employees the right to refuse
collectively to work contrary to [the Code].
In a subsequent decision, Westshore
Terminals Ltd., [2000] C.I.R.B. No. 61, the Board explained (at para. 28) that
permitting parties to modify by contract the Code’s definition of a “strike”
… would result in inconsistent and unequal
rights and protections applying to parties that fall under the scope of the
Code, depending on the negotiated provisions in the applicable collective
agreements. The public interest aspects of the legislation and the Board’s
attempt to encourage and support the development of good industrial relations
and constructive collective bargaining practices could be subverted by
individual agreements.
[68]
Consequently, I am satisfied that the impugned
provisions of the Code do not impair the freedom of expression of employees
more than is necessary to achieve the statutory objective.
(c)
proportionality of impact on the right
[69]
Here the question is whether the extent of the
impairment of employees’ freedom of expression is disproportionate to the
achievement of the statutory objectives. In my opinion, it is not. While the
prohibition of mid-contract strikes does curtail employees’ ability to express
a message of union solidarity in a particularly powerful manner, it also leaves
them free to express their support for striking employees in other ways,
including joining them on the picket line outside work hours.
[70]
In view of the well-recognized social costs of
industrial conflict, I am not persuaded that the infringement is disproportionate
to the benefits of achieving the pressing and substantial objective of the
Code.
[71]
Counsel argue that, unlike the “political
protest strike” considered in BCTF, work stoppages resulting from
employees’ refusal to cross another union’s picket line are relatively
predictable, since unions can only strike at defined stages in the bargaining
cycle. Moreover, it is open to an employer whose employees may refuse to cross
to find out from the other employer when and whether picket lines are likely to
go up.
[72]
I do not agree. For one thing, while the timing
of a strike following the breakdown of collective bargaining may be more
predictable than that of a political protest, its duration is not. In addition,
it is unreasonable to expect that one employer will always be able to learn
from another about whether a strike is the likely outcome of its collective
bargaining.
(iii) Conclusion
[73]
Accordingly, in my opinion, the Code’s breach of
employees’ right to freedom of expression guaranteed by paragraph 2(b)
is justified under section 1.
D. CONCLUSIONS
[74]
For these reasons, I would dismiss the consolidated
application for judicial review with costs. In accordance with the order of Justice
Ryer, dated January 13, 2008, I would not award costs with respect to the
interveners.
“John
M. Evans”
BLAIS
J.A.
(Concurring reasons in the result)
[75]
I have read the reasons of my colleague, Justice
Evans, and I agree that the applications should be dismissed.
[76]
Nevertheless, I respectfully disagree with my
colleague when he suggests that section 2(b) of the Charter is infringed in
this particular case.
[77]
I will rely on the facts as presented by my
colleague in lieu of reproducing them here.
[78]
After reviewing the jurisprudence, I conclude
that the statutory limit on the applicants’ right to strike does not engage the
right to freedom of expression as guaranteed by section 2(b) of the Canadian
Charter of Rights and Freedoms, being Part 1 of the Constitution Act
1982, Schedule B, Canada Act, 1982, c. 11 (U.K.) [R.S.C. 1985,
Appendix II No. 44] (the Charter). In essence, I agree with the Board that the
definition of “strike” in subsection 3(1) of the Canada Labour Code,
R.S.C. 1985, c. L-2, (the Code) does not infringe section 2(b) because
neither the purpose nor effect of a prohibition on mid-term strikes infringes
the applicants’ freedom of expression.
Does
the definition of “strike” in section 3 of the Code limit freedom of expression
as guaranteed under section 2(b) of the Charter?
[79]
Both parties rely on Irwin Toy Ltd. v. Québec
(Attorney General), [1989] 1 S.C.R. 927, (Irwin Toy) for the test
for determining if freedom of expression had been infringed. Specifically the
test examines: a) whether the activity was within the sphere of conduct
protected by freedom of expression; and b) whether the purpose or effect of the
government action was to restrict freedom of expression.
[80]
While not all activity is protected by freedom
of expression, the Board determined that the applicants’ refusal to cross the
PSAC picket line was an activity with expressive content within the meaning of
section 2(b) of the Charter. None of the parties dispute this.
[81]
The parties disagree on whether the purpose or
effect of the Code in limiting the applicants’ freedom to refuse to cross a
picket line was to restrict the applicants’ freedom of expression.
Purpose of the provision
[82]
I agree with the Board and my colleague that the
purpose of the provision was not to restrict freedom of expression.
[83]
The Code must be interpreted as an overall
scheme, as suggested by the Board in both decisions. The strike provision and
its associated purpose simply cannot be isolated from the provisions regarding
limits on the employers’ rights. The limits on strike activity do not have the
intention of prohibiting expression when they are considered in context. As
stated in the Board’s original decision, the purpose of the definition of
“strike” in conjunction with the prohibition in section 88.1 is “part of the
comprehensive legislative scheme designed to introduce a measure of certainty
into the labour relations environment, by regulating the right to lawfully
engage in strike activity” (see paragraph 91). Regulation of work stoppages is
intended to control the physical consequences of the expression, namely, the
cessation of work by the applicants, regardless of the meaning conveyed by it.
[84]
The applicants’ strike action had a severe
negative consequence on the employers’ businesses. The applicants’ employers
are third parties not involved in the collective bargaining process at the root
of the PSAC workers’ strike. They are the only parties who hold no power in the
contractual negotiations associated with the legal PSAC strike nor in the
strike action of their own workers.
[85]
The purpose of limiting striking activities to
certain periods during the collective bargaining cycle is to limit the negative
consequences that strikes have on employers in the interest of providing
certainty and stability in industry labour relations. These provisions did not
have the aim of silencing workers wishing to express their solidarity with
legally striking workers. It aimed to “control only the physical consequences
of certain human activity, regardless of the meaning being conveyed, its
purpose is not to control expression” (Irwin Toy at paragraph 49).
Effect of the provisions
[86]
The effect of the impugned provisions is also to
be considered at the second stage of the Irwin Toy analysis. In
questioning the effect of the restriction, the Supreme Court indicated at
paragraph 53 of Irwin Toy that a plaintiff must demonstrate that its
activity promotes at least one of the following principles:
a. seeking and
attaining the truth;
b. participating
in social and political decision-making; or
c. cultivating
diversity in the form of individual self-fulfillment and human flourishing.
[87]
The applicants suggest that their expression
related to the PSAC employees’ participation in social and political
decision-making and individual self-fulfillment. The interveners claim that the
applicants were attempting to influence political and economic decision-making
in their community through a show of solidarity and that this demonstration was
influential to the decision-makers. The interveners also argue that the form of
the message (withdrawal of services) was indivisible from its content; that the
message “we will shoulder the same burden as you” could not be demonstrated by
other means.
[88]
In my respectful opinion, the strike activity in
which the applicants were participating had neither a social nor political
purpose. It was an intrusion into a private contractual dispute between PSAC
employees and their employer, the Canada Grain Commission. On this point, I
differ in opinion with my colleague and the decision of the British Columbia
Court of Appeal in British Columbia Teachers’ Federation v. British Columbia
Public School Employers’ Assn., 2009 BCCA 39 (BCTF). Whereas the
Court in BCTF suggested that, in theory, strikes could be directed at
political issues unrelated to employment, there is nothing to suggest that
there was any political motivation in this case. The only aspect of the PSAC
strike that could be construed as relating to political decision-making is that
the employer was a government agency. However, in my view, this does not result
in a re-framing of the issues, which only involve the working conditions of the
striking PSAC workers.
[89]
In addition, the applicants were free to support
the striking workers in other ways; the restriction to their activity only
affected the applicants’ withdrawal of services from their third party
employer. The effect of the applicants’ work stoppage was on their employer, it
was not an attempt to draw attention to the strike from the wider public. The
Charter does not guarantee individuals or groups their most effective means of
expression. In Delisle v. Canada (Attorney General), [1999] 2 S.C.R.
989, at paragraph 41, Justice Bastarache indicated that where the effectiveness
of a message was diminished, there was not necessarily a violation of freedom
of expression.
[90]
If this Court were to accept the appellant’s
position that their work-stoppage was a form of expression protected by section
2(b) then it would be difficult to consider any regulation of human activity as
not infringing this section. Taken to the extreme, all human activity conveys
some form of meaning that can inevitably be framed in such a way as to appear
to promote one of the principles enunciated in Irwin Toy. I do not
believe it is appropriate to do so here.
Conclusion
[91]
The respondent indicates that, despite the
framing of the issues by the applicants (freedom of expression and
association), the real issue is a claim to be permitted to engage in strike
activity during the term of a collective agreement, and that refusal to cross a
picket line was a strike by the employees. Since strikes are not afforded
constitutional protection, the applicants have reformulated the issues to try
to avoid the consequences of engaging in an unlawful strike. I agree.
[92]
For the reasons above, I would dismiss the
applications with costs.
“Pierre Blais”
RYER J.A. (Concurring Reasons)
[93]
I have had the benefit of reviewing the reasons
of my colleagues Blais J.A. and Evans J.A. I agree with them that the
applications should be dismissed.
[94]
I am in agreement with my colleague, Blais J.A.,
that the provisions of the Canada Labour Code, R.S.C. 1985, c. L-2 (the
“Code”) that prohibit strikes and lockouts during the term of a collective
agreement do not infringe upon the applicants’ right to freedom of expression
under paragraph 2(b) of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11. In support of the reasoning of Blais J.A. on
this issue, I offer the following opinion.
[95]
The point of contention with respect to this
issue is whether the impugned provisions of the Code have the effect of
restricting the applicants’ right to freedom of expression. The applicants
contend that those provisions inhibit their “participation in social and
political decision making” as contemplated by the Supreme Court of Canada in Irwin
Toy v. Quebec (Attorney-General), [1989] 1 S.C.R. 927.
[96]
In my view, this expression requires attention
to be focused upon the decision making in respect of which the applicants seek
to participate. In the circumstances of this appeal, the decision making that
was addressed by the work stoppage by the members of the applicant unions, as
manifested by their refusal to cross the PSAC employees’ picket line, was
decision making that related to the private contractual affairs of those PSAC
employees and their employer, the Canada Grain Commission. Decision making
that takes place in a private context is, in my respectful opinion, not within
the ambit of “participation and social and political decision making” as
contemplated by the Supreme Court of Canada in Irwin Toy.
[97]
It may well be that the ambit of this expression
is limited to circumstances in which the party who wishes to participate in the
decision-making has a legal right to do so. Thus, the participation of the
British Columbia Teachers Federation and the Hospital Employees Union in the
political protests against proposed British Columbia labour legislation, as described in British Columbia Teachers’
Federation v. British Columbia Public School Employees Assn., 2009 BCCA 39,
may be seen as an example of participation in the political decision
making, which the members of those unions clearly had the legal right to
undertake.
[98]
In the present circumstances, the only
connection between the private negotiations between the PSAC employees and the
Canada Grain Commission and any political decision-making is that the Canada
Grain Commission is a government emanation. In my view, this connection is far
too tenuous. Moreover, it is not apparent that the members of the applicant
unions had any legal right to participate in the contractual negotiations
between PSAC and the Canada Grain Commission.
“C. Michael Ryer”
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