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Saskatchewan Court of Appeal to Rule Tomorrow on Charter Right to Strike

My prairie sources tell me that tomorrow is the big day. The Saskatchewan Court of Appeal is set to issue its landmark ruling on whether the Section 2(d) of the Charter [freedom of association] guarantees Canadians a right to strike. If the Charter guarantees a right to strike, then all manner of laws that prohibit and restrict the right to strike would be subject to challenge.  We have an abundance of such laws in Canada.

Of course, whatever the Saskatchewan Court of Appeal decides is just a step along the inevitable path to the Supreme Court of Canada. The last time the SCC was asked whether the Charter protects a right to strike, in 1987, the answer was no.  However, a lot has changed since then, including the B.C. Health Services decision, in which the SCC overturned its 1990 conclusion that the Charter did not include a right to collective bargaining.  Since BC Health Services, there has been an expectation in the labour law bar that the SCC will similarly overrule its 1987 rulings (in the so-called Labour Trilogy) that strikes are not protected.

For a review of the Labour Trilogy and its potential impact on the right to strike cases, see this excellent review by Prof. Jamie Cameron of Osgoode Hall Law School.

Interestingly, in the Labour Trilogy cases, the Saskatchewan Court of Appeal was on the side of recognizing a right to strike.  It was overturned by the SCC in one of the three Labour Trilogy cases (the Saskatchewan Dairy Workers case).  For very keen labour law students, go back and read the Court of Appeal reasons.  Is tomorrow’s ruling a chance for the Saskatchewan Court of Appeal to say, “I told you so” in a message to the SCC?

Justice Ball of the Saskatchewan Court of Queens Bench ruled last year that the right to strike was guaranteed by the Charter.  He relied on the Supreme Court of Canada’s recent pronouncements on the need for the Charter to be interpreted consistent with Canada’s international law obligations.  Those obligations include protection of a robust right to strike.  He ruled that Saskatchewan’s labour laws, which prohibited or rendered useless any right to strike infringed the Charter, and were not saved by Section 1 of the Charter.

Court of Appeal to Rule Tomorrow on Whether Charter Protects a Right to Strike

By way of refresher, here are some of my earlier blog postings on the case.  Though I won’t have time to do a full summary of the decision tomorrow, I will post it on the blog once I get it.

Explaining the Saskatchewan Court’s Finding that the Charter Protects a Right to Strike

Professor Michael Lynk’s Expert Affidavit on the ILO’s Law on the Right to Strike

Guest Blog: Professor Roy Adams on the Saskatchewan Decision Recognizing a Charter Right to Strike

Saskatchewan Government Appeals Ruling Finding Charter Protects Right to Strike

P.S., legal counsel for the Saskatchewan Federation of Labour in the case is Craig Bavis, who is presently a student in the Osgoode LLM program in labour and employment law, of which I am Director.  And my buddy from London graduate school days, Peter Barnacle, is on for CUPE.  Peter was at Cambridge doing his LLM, when I was at LSE.  Good luck, Craig and Peter!

The eyes of the labour law world are upon you this week.


7 Responses to Saskatchewan Court of Appeal to Rule Tomorrow on Charter Right to Strike

  1. Marky Mark Reply

    April 25, 2013 at 6:45 pm

    So if a legislature were to repeal a Labour Relations Act, which contains the collective bargaining framework, would that be caught? I’d always thought the Charter could operate to invalidate legislation, not to require that it be passed or not repealed–but, alas, my law school days were right before it was enacted.

    • admin Reply

      April 25, 2013 at 7:08 pm

      Marky, the question is a good one, and the answer rests in the analysis in two labour law decisions of the SCC in recent years: (1) Dunmore; and (2) Fraser. The SCC said in those cases that the Charter can require positive state action to promote freedom of association, when the absence of a protective legal regime makes it effectively impossible for employees to come together and make collective representations to their employer without fear of retaliation, and to ensure the employer engages in ‘good faith dialogue’ with the association about those representations. It is an exceedingly complex approach. But that is the labour law world we now inhabit. David

      • Marky Mark Reply

        April 25, 2013 at 8:03 pm

        Thanks-I will check them both out as I was not aware of this line of decision. I wonder if there will now be further Charter cases in other contexts requiring legislatures to pass laws or not allowing them to repeal existing laws (e.g, the Canada Health Act, should a government wish to do so).

        • slantendicular Reply

          April 29, 2013 at 9:28 pm

          See also the decision about the Insite safe injection site in Vancouver wherein the Supreme Court of Canada found that the government could not shut down the site on Charter grounds: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44

  2. Fernando Reis Reply

    April 26, 2013 at 1:51 pm

    The labour movement is anxiously awaiting this decision. My question is, in light of what the SCC said in Fraser that it is not “married” to a particular model of collective bargaining and that the AEPA met the minimum requirements, a type of labour relations act “light”, is there not a danger that, at some point, legislatures figure out that they can get away with “water downed” versions of their labour codes? I apologize for the long sentence.

    • admin Reply

      April 26, 2013 at 2:06 pm

      Fernando. Yes.

  3. Stephen Green Reply

    April 26, 2013 at 7:02 pm

    If the right to strike is a protected right under s. 2(d) of the Charter, then HLDAA and other legislated interest arbitration mechanisms like it could be struck down. That would lead to the right to strike in the hospital sector and other essential services. However, that would also lead to more essential services legislation being brought in under s.1 of the Charter. These essential services models could designate entire classes of workers as essential to protect the public interest and prohibit them from withdrawing services thus making the right to strike less effective for some unions as a dispute resolution mechanism. The right to strike could actually prove to be harmful for some unions who would be better off in interest arbitration. I don’t see why the right to strike would be desirable for many public sector unions. Would be interested to see how many public sector unions have intervened and to know their position on this issue.

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