May 2 2018
Professor Alison Braley-Rattai of Brock University’s Department of Labour Studies is the recipient of the inaugural Law of Work Best Paper Award for her paper entitled “Canada’s Statutory Strike Models and the New Constitutional Landscape“. I will be in Montreal this week at the annual conference of the Canadian Industrial Relations Association in Montreal to hand out the award, which includes a $500 honorarium. The award is presented annually to the top paper dealing with subject matter related to labour and employment law. Here is the abstract for Alison’s paper:
In 2015, in a case known as SFL v Saskatchewan [SFL] the Supreme Court of Canada (SCC) ruled that the right to strike was included within the Charter of Rights and Freedoms’ guarantee of freedom of association, 2(d). In arriving at this decision, the Court relied heavily upon the pronouncements of the International Labour Organization and its various committees.
Prior to SFL, the parameters of the right to strike were within the exclusive purview of legislatures to determine. To that end, legislatures developed various statutes to regulate strike activity by unionized workers. In their well-known, comprehensive review of strike legislation, Adell, Grant and Ponak categorized these statutes into various models. In view of the decision in SFL, however, it is unclear how well these models can withstand constitutional scrutiny: portions of Québec’s labour code were recently determined to violate the Charter, so too was back-to-work legislation passed by the federal government, in a retroactive Charter challenge. And unions have indicated their intention to challenge other legislation.
My purpose in this article is to examine the constitutionality of these strike models particularly regarding the ways in which Canadian courts are likely to diverge from international labour standards despite the Supreme Court’s clear reliance upon them as a guide to its own Charter jurisprudence. Of course, it is legislation – and not the models per se – that would ever be the subject of a Charter challenge. Nonetheless, an examination of the ways in which these models are typically applied as against the principles that have emerged regarding the right to strike, will clarify the legislative space government actors have, to pass laws that curtail strike action.
Congratulations to Alison.
If you are in Montreal this week, please say hello. I’m also looking forward to seeing and hearing recently retired Chief Justice Beverly Mclachlan and Justice Louis Lebel, who are receiving the Freedom of Association Award presented by Professor Roy Adams.