January 27, 2015
The labour law community is having an exciting January. First, we got the twin Charter decisions from the Supreme Court last week dealing with freedom of association and collective bargaining. And this Friday we get the much anticipated Supreme Court decision arising from a dispute in Saskatchewan that raises the question of whether the Charter protects any form of a right to strike. I explained the Saskatchewan Court of Appeal’s decision back in 2013.
The Court has been asked to revisit its 1987 ruling in the famous Alberta Reference decision that “freedom of association” in the Charter does not protect any form of a right to strike. There is a feeling in the labour
law community that the SCC will reverse that decision, based on reasoning the Court has applied in decisions over the past decade. Notable is the fact the majority rulings on freedom of association in recent years have agreed with reasoning and approach to freedom of association in the famous dissent of Chief Justice Brian Dickson in Alberta Reference. That reasoning led Dickson to conclude that there was a Charter protected right to strike. In fact, in my opinion, given the language and reasoning of the Court in those decisions, it would be surprising if the Court suddenly slammed on the breaks and did not reverse Alberta Reference.
But even the Court does recognize some form of a right to strike, it is far from clear what that right will look like. It certainly won’t mean that governments can never restrict strikes, but it will place some sort of limit on the right of governments to do so.
To set up the case for readers, I asked one of the lawyers for the Saskatchewan Federation of Labour, Craig Bavis, to describe the issues at stake in the case. Craig is a Partner at the Vancouver law firm Victory Square Law Office, which just happens to be the law firm where both I and my York colleague Professor Sara Slinn practiced law back in the 1990s. [Craig is also a star student in my LL.M program at Osgoode Hall School, which (insert shameless plug here) is gearing up to accept a new cohort starting January 2016.]
Craig’s summary of the case and the issues should prime you for Friday’s SCC decision, which of course I will summarize here once I’ve read it.
Here is Craig’s Guest Blog.
The New Labour Trilogy: Anticipating the Saskatchewan Federation of Labour decision
Craig Bavis, Partner, Victory Square Law Office
Since 2008, a Charter challenge from Saskatchewan has been working its way through the legal system that asks Supreme Court of Canada to revisit its 1987 decision in the Labour Trilogy that the right to strike is not protected by the Charter. Against the background of recent back to work legislation affecting Air Canada workers, postal workers, and teachers, this case, Saskatchewan Federation of Labour et al v. Saskatchewan, has quietly grown in significance and is now eagerly anticipated by the labour community. The SCC has announced that it will release the SFL decision on Friday, January 30.
Background to the Case
Until 2008, Saskatchewan was the only jurisdiction in Canada that did not have essential service legislation. A newly elected government introduced essential service legislation and changed labour laws to shift the balance of power towards the government and employers away from unions. Saskatchewan Federation of Labour, with the support of many other unions, challenged the Public Service Essential Service Act. While the PSESA and its application is complex, the main concern was that it allows employers, in the absence of agreement with their unions, to impose essential service agreements on terms the employers deem appropriate, with very limited rights of unions to review the agreements at the Labour Relations Board.
The unions argued that the PSESA substantially interfered with the freedom of association of workers because it interfered with their right to strike and thus their ability to collectively bargain because they could not put pressure on employers. As an example, the Regina Qu’Appelle Health Region designated 124 out of 125 hospital laundry workers as essential in an essential service agreement. The unions argued that without an ability to effectively strike (or threaten to strike) in such a case, they could not reach fair collective agreements.
It is important to note that the unions were not seeking an unrestricted right to strike. They argued that while any restriction on the right to strike violates the freedom of association, essential services legislation may be justified under section 1 of the Charter if it is a pressing and substantial objective, the restriction is rationally connected to the objective, the means minimally impair worker rights, and the deleterious effects don’t outweigh the salutary effects. In this case, the unions argued that the PSESA was not saved under section 1, in part due to the limitations on the Labour Relations Board to vary employer imposed essential service agreements.
The Trade Union Amendment Act, passed at the same time, changed labour legislation to make organizing more difficult by eliminating card based certification, increased the support required to make a certification application, shortening the validity of union membership cards, making decertification easier, and allowing increased employer communication in organizing campaigns. The unions demonstrated, through expert evidence, the changes had resulted in decreased union certification success.
In Saskatchewan v. Saskatchewan Federation of Labour, the trial judge found that the PSESA violated section 2(d), overruling the Labour Trilogy (although the challenge to the Trade Union Amendment Act was dismissed):
 I am satisfied that the right to strike is a fundamental freedom protected by s. 2(d) of the Charter along with the interdependent rights to organize and to bargain collectively. That conclusion is grounded in Canada’s labour history, recent Supreme Court of Canada jurisprudence and labour relations realities. It is also supported by international instruments which Canada has undertaken to uphold. Governments may enact laws that restrict or prohibit essential service workers from striking, but those prohibitions must be justified under s. 1 of the Charter.
The Government appealed and in Saskatchewan Federation of Labour v. Saskatchewan, the Saskatchewan Court of Appeal found that while the Labour Trilogy had been weakened by the SCC, it continued to be good law, overturning the trial judge’s decision. The Court of Appeal commented that due to the uncertainty as to how the right to strike might be understood, either as free standing or an aspect of collective bargaining, there was sufficient uncertainty that a lower court should leave the matter for the SCC:
… The right to strike might be characterized as an aspect of collective bargaining and, if it is characterized in this way, the existing jurisprudence suggests that strike activity would not be seen as constitutionally protected. In my view, this possibility injects enough uncertainty into the equation that, even if it was open to this Court to take such an approach, Dunmore, Health Services, and Fraser should not be read as granting a licence to overturn what the Labour Trilogy says about the right to strike. That step, if it is to be taken, should be taken by the Supreme Court itself
Needless to say, the SFL appealed this decision to the SCC, which heard the appeal in May of 2014, a few months after it heard Mounted Police Association of Ontario v. Canada (Attorney General) and Meredith v. Canada (Attorney General), which were both released last week. Mounted Police clarified the SCC’s approach to section 2(d), including the need for a purposive, generous, and contextual approach.
Issues to be Decided in the Saskatchewan Case
Importantly, in Mounted Police the SCC stated the role of the freedom of association in balancing labour rights as follows:
 The balance necessary to ensure the meaningful pursuit of workplace goals can be disrupted in many ways. Laws and regulations may restrict the subjects that can be discussed, or impose arbitrary outcomes. They may ban recourse to collective action by employees without adequate countervailing protections, thus undermining their bargaining power. They may make the employees’ workplace goals impossible to achieve. Or they may set up a process that the employees cannot effectively control or influence. Whatever the nature of the restriction, the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining: Health Services, at para. 90.
With this background in mind, and not purporting to speculate what the Court will do in the SFL case, the case poses several issues which Court watchers will be reviewing.
How will the Court apply the test for an infringement of the freedom of association and with what result?
The section 2(d) test set out in Mounted Police would apply as follows: Does the restriction on the right to strike in the PSESA disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining? The extent to which strike ability impacts collective bargaining will be evaluated.
Will the Court comment on a general right to strike, or restrict its comments to the right to strike as it arises in the collective bargaining context?
The SFL case only looks at a right to strike to support bargaining, but there are other contexts in which strikes can arise, such as political protest
How will the Court apply international law?
The SFL relied heavily on the recognition that the right to strike is included in the freedom of association at international law, particularly in decisions of the European Court of Human Rights and the European Convention on Human Rights, an urged the Court to follow that jurisprudence. The SFL also relied on ILO decisions and convention No. 87.
How will the Court evaluate section 1?
If the PSESA does violate the freedom of association, how will the Court evaluate the legislation under section 1? Will the Court talk about alternatives to striking such as interest arbitration?
What does the Court say about overruling precedent?
The Court is being asked to overturn the Labour Trilogy, which will be of interest to constitutional lawyers, in particular what will the Court say about the trial judge not following precedent while the Court of Appeal did?
What about freedom of expression?
The unions argued, as an alternative argument, that the restriction on the right to strike interfered with the freedom of expression, will the Court comment on argument, particularly in light of the Court’s positive comments in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, or restrict the right to strike to section 2(d).
Finally, what about the Trade Union Amendment Act?
This issue, which the unions lost at trial and on appeal, was addressed in written submissions but not touched upon in oral argument or by most intervenors. The Court will have to address whether a move from card based certification to a secret ballot vote violates the freedom of association when it demonstrably results in reduced union certification. The Court may provide further insight into the application of the principles of Ontario (Attorney General) v. Fraser.