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.
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.
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.