I was intrigued by the provincial governments’ position yesterday that it would not legislate an end to the strike because they think it will violate the Charter. Say What?! What in the heck are they talking about? Governments can’t pass back to work legislation? Since when?
This is a point I have raised several times before, especially during the whole debate about whether the TTC should be ordered back to work. Here’s the legal issue in a nutshell. Section 2(d) of the Charter guarantees “freedom of association”. But in 1987, the Supreme Court decided that freedom of association does not include a right to strike or a right to collective bargaining. Therefore, governments are free to order strikers back to work, since the workers don’t have a guaranteed right to strike.
Then came Health Services in 2007. That case did not deal directly with the right to strike. However, the Court did rule there that it is was wrong when it ruled that Section 2(d) did not include a right to collective bargaining. In fact, it does. But the Court was clear in noting that it was not dealing with the right to strike. So why does the government believe that back to work legislation at York would be challenged, and maybe successfully, by CUPE?
The answer lies in three things. One is a general trend in the Supreme Court towards expanding the scope of Section 2(d) protections which has been creeping into decisions for a while, but most notably in Health Services and Dunmore, the case involving the exclusion of agricultural workers from protective labour legislation.
A second factor is the statement made in Health Services that the state might be justified (under section 1) in limiting the newly recognized right to collective bargaining “on an exceptional and typically temporary basis, in situations, for example, involving essential services, vital state administration, clear deadlocks and national crisis.” Does this mean that back to work legislation can only be imposed in the case of a “clear deadlock” and, if so, what does that mean? Are courts really going to start making factual findings about when a ‘deadlock’ has occurred, upon which the right to collective bargaining and to strike will depend?
[Interestingly, that 'clear deadlock" language was taken by the Court from an article (here it is) about the ILO's interpretation of Convention 98, which Canada has not in fact ratified (see para. 77 of Health Services). Professor Langille has critiqued this part aspect of the Health Services decision in "Can We Rely on the ILO" in the Canadian Labour & Employment Law Journal, and Roy Adams has, in turn, critiqued Langille, arguing that Canada is obligated to comply with Convention 98 even absent ratification (see "Commentary: The Supreme Court Collective Bargaining and International Law: A Reply to Brian Langille", same journal). So we have an intriguing debate between some big hitters in Canadian labour law]
Thirdly, the Court in Health Services ruled that Section 2(d) should be interpreted to provide “at least the level of protection” provided by international labour conventions that Canada has ratified. Canada has ratified Convention 87 of the International Labour Organization, and while C87 does not expressly include a right to strike, that right has long been read into the Convention by the ILO’s expert bodies. That is important, because the Supreme Court directed us in Health Services to the decisions of those expert bodies to find out what C87 means.
Well, if Section 2(d) of the Canadian Charter provides at least as much protection of freedom of association as does C87, as interpreted by the ILO’s expert bodies, and those bodies have found C87 includes an extensive right to strike, then, logic would follow, Section 2(d) protects a right to strike. (This is an argument I have explored in more detail in this paper, if you are interested) Unions are waiting in the wings for the right case to come along to make this argument. McGuinty’s people have warned him that this could be the case. Why?
The reason lies in understanding precisely what the ILO says about C87. Here’s a good article describing its approach. In short, it allows back to work legislation, or other legislative restrictions on the right to strike, only in cases where a strike “would endanger the life, personal safety or health of the whole or part of the population” (ILO, 1983b, para. 214). Does this include university classes? I highly doubt it. This is why the ILO expert bodies have ruled Canadian back to work legislation violates C87 many, many times, as this report describes, including legislation ordering teachers back to work. In fact, Canada has been specifically singled out by the ILO for its persistent failure to protect the right to strike in the way that our governments like to rush to back to work legislation whenever the public gets pissed off by a strike.
So there is little doubt that, if McGuinty ordered a legislated end to the York strike, the government would face a new complaint before the ILO, which it would no doubt lose. This hasn’t frightened governments in the past, because the ILO’s only power is public embarrassment, and our governments have not cared about that. But now the stakes are raised, because in addition to the ILO complaint, the McGuinty government could also find itself facing a Charter challenge. Were the government to lose that argument, and the Court find that Section 2(d) protects a right to strike, governments across Canada could then find themselves unable to use back to work legislation in other cases–garbage strikes, transit strikes, etc.
Of course, it is possible that the Court could recognize a constitutional right to strike, but still permit back to work legislation. This could happen if the Court ruled: (1) there is a right to strike under Section 2(d); (2) back to work legislation violates that right; but (3) limiting that right is justified in the circumstances under Section 1 of the Charter, which allows violations of Charter rights when it is justified “in a free and democratic society”. But I can understand why a government might be concerned about getting into that sort of debate in regards to a university education strike. If I were the government, I’d prefer to fight that sort of battle in a case involving something like, say, public transit or health care, where the implications of a strike are huge to the public well-being and/or the economy. Compared to a hospital strike or even a TTC strike, a strike by a few thousand university instructors in North Toronto doesn’t seem all that significant in the big picture.
So, that’s the context. Comments?