The Supreme Court of Canada released a much anticipated but under the radar decision today dealing with Section 2(d) freedom of association under the Charter. One of the only commentaries I have seen about the lower court decisions was published right here on Law of Work blog by former OLRB Chair Rick MacDowell.
The case is called Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec.
I have some quick thoughts based on my rushed reading of the decision! The outcome of the decision is much less interesting to me than the road the SCC takes to get there.
The facts are straightforward: the Quebec Labour Code, like labour legislation across the country, excludes “managers” from coverage. A Quebec union/association organized low level managers of a casino. The Association applied for certification under the Code and challenged the managerial exclusion as a s. 2(d) infringement. The Association argued that without the protection of the Code, the workers had no ability to engage in meaningful collective bargaining or to strike, which are both protected by the Charter. The Tribunal and the Quebec Court of Appeal agreed, setting up this appeal to the SCC.
SCC Rules that the Managerial Exclusion Does Not Violate Section 2(d)
The SCC notes that this is an ‘under-inclusive’ case, like Dunmore, which struck down the exclusion of agricultural workers from the Ontario Labour Relations Act. The SCC ruled in Dunmore that the agricultural workers were unable to bargain collectively without coverage under a collective bargaining statute and therefore the exclusion amounted to a “substantial interference” in the exercise of their Charter freedoms.
In today’s decision, the majority noted that the test coming out of Dunmore and subsequent decisions involved two questions:
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- Do the activities fall with the range of activities protected by freedom of association (FOA)?
2. Does government action (ie legislation), in purpose or effect, substantially interfere with those activities?
On the first question, the SCC ruled that the casino workers’ Association was arguing that the exclusion impeded the exercise of fundamental freedoms. They were attempting to exercise freedoms to engage in collective bargaining and to strike. These are activities that clearly fall within the scope of s. 2(d) protections.
The fact that the remedy sought by the Association was the striking down of the exclusion, thereby bringing the workers under the Code’s protection, did not amount to an attempt by the Association to use the Charter to bring the workers into a “specific legal regime”. In an interesting passage, the SCC states:
SCC: “the Association’s claim is made to allow its members to exercise their right to a meaningful collective bargaining process, which exists independently of the Labour Code as part of the associational activities protected under s. 2(d). The association’s members are not merely seeking access to a statutory regime.”
Moreover, if the SCC did strike down the exclusion the result need not be that the “managers” are swept into the Labour Code. The SCC could order the government to address the violation either by simply removing the exclusion or by crafting a new labour statute that extends statutory protections to managers that satisfies the Charter. That is essentially what happened in both Dunmore and the more recent MPAO decision.
Therefore, at least for public sector workers, the Charter provides its own labour code that is separate and apart from any particular statutory scheme. More on this in a minute. Any claim that government action impedes the exercise of Charter freedoms will pass the first Dunmore test.
However, while the Association satisfied the first part of the Dunmore test, the SCC ruled that the exclusion did not “substantially interfere” with the exercise of Charter freedoms by the managers. The reason is that Association representing the managers had managed to obtain a voluntary recognition from the employer which had produced a basic memorandum of understanding that established basic consultation principles.
This fact suggests that this was probably not the best case to bring to test the statutory exclusion of managers in Canadian labour statutes. A better case would involve an employer that ignored attempts by its managers to bargain collectively, or better yet, fired the managers for having the audacity to ask! Since the fired managers would not have the protections of the labour code’s unfair labour practice provisions, it would be a much easier case to prove a Section 2(d) infringement.
The finding that FOA is not violated where the employer of a category of workers excluded from collective bargaining legislation agrees to meet with the employees collectively effectively places control in the hands of the employer. It’s an odd model if you think about it. It encourages employers to agree to a very weak voluntary, extra-statutory model of collective bargaining in order to ensure those workers will not win an argument that they are entitled to coverage under a thicker, more substantive statutory model of collective bargaining.
The most interesting passage in today’s decision, in my opinion, involves the SCC’s comments on what would happen if the employer simply ignored an agreement with the Association:
SCC: The Société, as a government corporation, must respect the Canadian Charter. … Although the record shows that the Société has neglected to properly respect the memorandum of understanding at times, the Association can seek remedies in court for any substantial interference with its members’ right to meaningful collective bargaining, including their right to strike, which is protected under s. 2(d) even without an enabling legislative framework (Saskatchewan Federation of Labour, at para. 61). In my respectful view, without evidence on the record that these remedies are inadequate, the Court of Appeal and the ALT could not conclude that the lack of access to a specialized dispute resolution mechanism or legislative protection of the right to strike causes a substantial interference with the members’ freedom of association.
I confess to not being entirely certain what the SCC means here when it states that the Association “can seek remedies in court for any substantial interference” with meaningful bargaining in reference to the employer’s apparent breaches of the voluntary agreement. It seems circular to conclude that there has been no substantial interference with FOA because the parties have bargained a voluntary agreement and then to say that the Association can always run to court to challenge as a substantial interference any breach of the agreement by the employer. I thought that the Association was in court arguing that there had been substantial interference that includes the employer not complying with the voluntary agreement. I’ll have to think that one through later.
But note here that the SCC takes essentially the same tact it took in Fraser and that we saw recently in a lower court decision in a case called MedReleaf/Aurora Cannabis in ruling that it is premature to find a s 2(d) breach if the workers have not yet attempted to take matters into their own hands by striking.
The SCC says that “without evidence” if a strike by the workers would have caused the employer to engage in meaningful collective agreement, it cannot be said that excluding them from the Labour Code amounts to a substantial interference with the freedom to strike. In Fraser and MedRelief, the statutes that covered the workers included no express protected right to strike but the courts nevertheless ruled that it might still be a violation of the statute if an employer were to retaliate against workers for striking. In this case, the workers are not covered by any labour statute at all, but the SCC notes that this doesn’t matter because they have a Charter right to strike that can enforced directly in the courts.
All of this interests me greatly because I have been arguing for some time that the s. 2(d) FOA jurisprudence has set us on a trajectory in which we will need to finally address the following conundrum: How is that we have a constitutional right to strike in Canada and yet 85% of private sector workers in this country (those who are non-union) can be terminated for striking?
We are seeing baby steps in the progress towards some form of a “right to strike” for workers outside of formal majority trade unionism in the traditional Wagner model sense. Consider what would happen, for example, if 1000 non-unionized Tim Hortons workers went on strike in Canada because the corporation had refused to bargain with them as a group and then fired some workers who went on strike in protest. What law protects these workers from employer retaliation for exercising their fundamental freedom to associate, engage in collective bargaining, and strike?
Probably not our standard Wagner model labour relations legislation since they aren’t unionized. The Charter? Well, the Tim Hortons employees aren’t directly covered by the Charter like the casino workers since their employer is private. Do they have a Charter “under-inclusive” argument?: that by protecting only workers in a certified, majority trade union (amounting to just 15% of private sector workers), Canadian labour legislation is under-inclusive in its protection of FOA and therefore substantially interferes in the exercise of freedom of association (collective bargaining and striking)?
Canadian labour laws create a safe harbour in which a small minority of privileged workers have a strong “right to strike” in the sense that they cannot be terminated for engaging in a “lawful strike”. But those privileged workers amount to a smaller and smaller percentage of Canadian workers. Everyone else (private sector, non-unionized workers) can still be fired for striking.
A very curious outcome for a country with a much vaulted constitutional right to strike, don’t you think?