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Guest Blog: Craig Bavis on Damages in Labour Charter Litigation

The first post of the new school year is a Guest Blog by labour lawyer Craig Bavis, a partner at my old law firm Victory Square Law Office in Vancouver.  Craig is also one of our star alumni from the Osgoode Hall Law School Masters of Law specialist degree in Labour and Employment Law that I direct along with John Craig of Fasken Martineau.  Craig was one of several lawyers who represented the Saskatchewan Federation of Labour in last year’s big win for labour in Saskatchewan Federation of Labour v Saskatchewan.  The Supreme Court of Canada ruled in that case that “freedom of association” guaranteed by Section 2(d) of the Charter protects a right to strike, overturning Saskatchewan legislation that restricted the right of public sector health care workers to strike.

After that decision, the parties returned to the Saskatchewan court where the case began.  The plaintiff SFL sought damages from the court against the government.   In this Guest Blog, Craig Bavis describes the state of that argument.  This is very interesting, because the follow up to Charter cases often receives little attention.  After reading Craig’s post, consider whether you believe the court should order the Saskatchewan government to pay damages as a result of its Charter violation.

Show me the money: Charter Damages for Unconstitutional Laws

Craig Bavis, Victory Square Law Office, co-counsel for SFL

It’s been over a year and half since the SCC’s landmark decision in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4,  in which the SCC found that the Public Service Essential Services Act violated s. 2(d) of the Charter. Abella J, wrote that

Craig Bavis, Lawyer for the Saskatchewan Federation of Labour

Craig Bavis, Lawyer for the Saskatchewan Federation of Labour

“The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right” and found it was “the time to give this conclusion constitutional benediction” and declared the PSESA invalid pursuant to s. 52 of the Constitution Act, suspending the declaration for a year.

While the Saskatchewan Government enacted new essential service legislation in the Saskatchewan Employment Act to attempt to the cure the defects of the PSESA, this new legislation has not yet been  challenged. However, the parties and a number of the intervenors returned to Ball, J in the Court of Queen’s Bench to hear the unions’ claim for monetary damages pursuant to s. 24 of the Charter.  The parties spent three days arguing the following legal issues:

  1. Does the court have jurisdiction to award damages under s. 24(1) of the Canadian Charter of Rights and Freedoms where the enactment of a statute is subsequently found to be unconstitutional?
  2. If so, is there a basis for awarding damages to the plaintiffs under s. 24(1) of the Canadian Charter of Rights and Freedoms?

Such a dual remedy of a declaration of invalidity and damages is exceedingly rare. The oft quoted rule in Mackin v. New Brunswick (Minister of Finance) 2002 SCC 13 at para 78 holds that “absent conduct that is clearly wrong, in bad faith or an abuse of power, the courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that is subsequently declared to be unconstitutional”. As applied, this rule requires a litigant who has demonstrated that a law breaches the Charter meet a further onus of demonstrating threshold misconduct on the part of government to receive damages.

The Plaintiffs in SFL argued that since Vancouver (City) v. Ward, 2010 SCC 27  appropriate framework for damages had changed and that the Plaintiffs do not have to prove threshold misconduct, rather just a functional justification for damages, with the onus on the government to show why damages are not appropriate as countervailing factors:

The first step in the inquiry is to establish that a Charter right has been breached.  The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches.  At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust.  Ward, para 4

One of the very few cases, and only labour case, in which the dual remedy was awarded was British Columbia Teachers’ Federation v. British Columbia, 2014 BCSC 121 in which the Griffin J, awarded s. 24 damages in the amount of $2 million after the BC Government reintroduced almost identical legislation to that previously held to be unconstitutional in                British Columbia Teachers’ Federation (Chudnosky) v. British Columbia, 2011 BCSC 469. The 2014 decision, which found that legislation which stripped class size and composition language out of collective agreements and prohibited bargaining those topics breached s. 2(d), was overturned on appeal in British Columbia Teachers’ Federation v. British Columbia, 2015 BCCA 184. The Court of Appeal found no violation of s. 2(d) because the government engaged in pre-legislative consultation and thus the Court of Appeal did not address the damage issue. The appeal of this case will be heard by the SCC on November 10, 2016 and will be an important case on the s. 2(d) jurisprudence and the scope of consultation, regardless of whether the SCC discusses damages.

However, a recent Ontario case in which s. 24 damages were sought in conjunction with a s.52 declaration of invalidity did not succeed: Canadian Union of Postal Workers v Her Majesty in Right of Canada, 2016 ONSC 418. In that case, challenging back to work legislation which imposed an arbitration framework with significant restrictions on the result including wage restrictions lower than the employer’s offer in bargaining, Firestone J, found the Restoring Mail Delivery for Canadians Act violated s. 2(d) but did not award damages, finding no government misconduct and holding hat “Declaratory relief is, in my view, sufficient to provide the Union and its members a meaningful remedy for the violation of their constitutional freedoms.” [CUPW para 244]

So, the parties and intervenors joined issue about whether the Mackin or Ward approach applies and whether the unconstitutional PSESA requires a remedy of damages. While not as egregious as the BC Governments conduct in BCTF, Ball J did comment on the objective of the Saskatchewan Government in the trial decision, Saskatchewan v. Saskatchewan Federation of Labour, 2012 SKQB 62, which the Plaintiffs argued showed bad faith.

Quite apart from the political environment of the time, it may also be that the Government did not consult with the Unions because the PSES Act was intended to  have not one, but two, objectives: the first, being to ensure the continuation of essential services during a labour dispute; the second, being to alter the balance of power at the collective bargaining table. The most obvious way to alter the balance of power would be to empower every public employer to prohibit any meaningful strike activity by employees while ensuring that the employees would have no access to any alternative dispute resolution process. [Para 163]

So, stay tuned to see if damages are justified. At the very least, Ball J should provide some guidance to the parties and the legal community on this developing area of the law.





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