January 23, 2015
Professor Roy Adams is one of the leading voices on international labour law, and one of the most vocal advocates of the move towards international labour law evident in Supreme Court of Canada (SCC) rulings in the past two decades. His written work has been cited routinely by the SCC. Roy has written a couple of Guest Blogs on Law of Work in the past, including a submission on the impending ‘right to strike’ case now pending before the SCC and a widely read entry on “Vast Potential of Ontario v. Fraser“, as well as a post on the ILO’s comments on the Fraser case.
It should come as no surprise that Roy has an opinion on the two SCC decisions released last week. I described one of them, Mounted Police Association of Ontario v. Canada on the day it was released. Professor Adams has sent me along his thoughts on the recent decisions. Here are his latest comments on the SCC’s treatment of freedom of association.
Here is Professor Adam’s Post in PDF Format
‘Shall Not be Moved’: The Supreme Court’s MPAO Decision
Professor Roy Adams
In its 2007 Health Services decision the Supreme Court of Canada (SCC) found that the “Freedom of Association guaranteed by s. 2(d) of the Charter includes a procedural right to collective bargaining.” It also declared that earlier decisions under which collective bargaining was excluded from s. 2(d) protection “do not withstand principled scrutiny and should be rejected.” The SCC also stated that “The Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada
Professor Adams: A Supporter of the SCC’s Evolving Approach to Freedom of Association
has ratified.” The Court justified its support for collective bargaining on the basis that it “reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.”
Not only was the majority calling for the shake-up of a settled landscape, it appeared to be calling for a revolution. All of these aspects of the majority decision drew gasps and cries of anguish and horror not only from employer and government spokespeople but also from some high profile academics and some members of the court as well. Friends and colleagues of mine worried that the court would cave in under this pressure.
Many pundits concluded that the critics had successfully intimidated the Court when, in its Fraser decision, it refused to be persuaded by labour-side representatives that it ought to constitutionalize the Wagner-Act Model of labour legislation but instead allowed the Ontario government some leeway to make its Agricultural Employees Protection Act (widely condemned by labour) work. Since Health Services made Labour happy and Fraser didn’t, the court must be backtracking, so the reasoning seemed to go.
Now comes MPAO v. Canada (Attorney General). The majority has not buckled. It has won over two newly appointed justices and has isolated Justice Rothstein, the major SCC critic of the majority’s new course, whose dissenting opinion in this decision sounds, to me at least, a bit desperate.
Although the majority made no reference to its Health Services statement above, by referring positively several times to the reasoning of Chief Justice Dickson in his dissents in the “Labour Trilogy” in which he drew heavily on international law, the majority reinforced the proposition that it continues to find international labour/human rights law to be a persuasive aid to interpretation of s.2(d). The Court’s reliance on international law has caused “bewilderment” in the labour relations community steeped in the pervasive Wagner-Act Model Mode of Regulation. Maybe this decision will force the nay-sayers to take the court seriously and begin to earnestly figure out what international law says and implies for Canadian law and policy.
In MPAO the majority has made clear that it will not incautiously defer to government schemes that offend its new standards. In this specific case it has declared that employee representation plans that employers control or unduly influence do not comply with the constitutional right of all Canadians to Freedom of Association. To qualify for Court protection any legal regime must provide for employee associations independent from management and under the control of the represented – standards well-established in international law. Schemes referred to by the labour movement as “company unions” are properly seen to be internal human resource devices – something quite alien to genuine collective bargaining. Such devices have no legitimate claim to constitutional protection. Although, in his dissent, he mounted a spirited defense of the RCMP representation scheme (and, by implication, of deference to legislatures) Justice Rothstein was unable to persuade any of his current colleagues to join him.
In taking the stand that it did, the majority illustrated what a decision providing “at least as great a level of protection as is found in the international human rights documents that Canada had ratified” might mean. Although international law says that all working people should be able to independently organize and bargain collectively, it allows governments to exclude police and the military. By not allowing the federal government to take that option, the SCC has provided one class of Canadians with protection exceeding international law.
In MPAO, the Court also indicated the sort of exception it might allow to its general standards. Justice Rothstein convincingly argued that Ontario’s new School Board Collective Bargaining Act (which the majority mentioned as an approach it would permit) offends key elements of the majority’s test for determining the authenticity of a bargaining relationship. That scheme was imposed by government and the statute bringing it into existence contains no mechanism for changing bargaining agents. On the other hand, the negotiating arrangement resulted from extensive consultation with all of the relevant independent, member-controlled organizations. Contrary to the situation existing in the ranks of the Mounties, there was no principled opposition to it.
The Court’s companion Meredith decision in which it found acceptable the federal government’s rolling back of RCMP wage increases subsequent to the onset of a global financial crisis, provides further insight into the degree to which the Court might deviate from the letter of international law and the standards set by its previous decisions. In Health Services the Court seemed to institute the principle that changes to collective agreements should be negotiated rather than be imposed by government fiat. Health Services, however, involved major and permanent changes whereas the change under review in Meredith was temporary and the result of unexpected and negative economic developments.
The majority also cleared up ambiguity regarding the legal standard that it would apply to determine whether or not a law violated s. 2(d). In some sections of Fraser the majority seemed to indicate that the test for finding a law or policy unconstitutional was that it made collective bargaining “effectively impossible” while in other sections the standard referred to was “substantial interference.” In MPAO the Court clearly and unequivocally established that the standard is “substantial interference.”
How will the Feds respond to this decision? Will they set up a labour relations regime similar to those of other police forces across the country? That would be the most clear-cut and sensible thing to do. On the other hand the Harper government, no friend of labour, might look to the Agricultural Employees Protection Act in Ontario that the SCC allowed in its Fraser decision. That act permits any independent association to make proposals and, if unsatisfied with the employer’s response, appeal to a special tribunal with somewhat ambiguous powers. To farmworkers with little inherent bargaining power and no history of association, it has been a dead end to date. But to police who, across North America (and indeed the world), have been very resourceful in making use of whatever is available to pursue their interests, it might well be fashioned into a bludgeon that the Tories would dearly regret having put in the hands of the Mounties.
To date Canadian governments have largely acted as if the principles established in Health Services have no practical relevance. They have done nothing to facilitate collective bargaining despite the SCC’s ringing endorsement of it and have instead introduced laws, such as the one in Saskatchewan blatantly restricting the right to strike, that clearly offend international labour/human rights law. They have, in effect, been playing a game of “chicken” with the SCC, betting that the court will not have the fortitude to stand up against the criticism that has been aimed at it. MPAO indicates that the court is stronger than they thought. Will they now conform to their international obligation to “promote” collective bargaining or will they continue to drag their feet and, in so doing, continue to deny the right of all Canadian workers to meaningfully negotiate their conditions of work? If MPAO has not yet convinced them, the SCC’s soon to be released decision regarding the Right to Strike in Saskatchewan should do it – unless, at this late date, the majority buckles.
What do you think of Roy’s take on the decisions? There seems little doubt that if the SCC follows its own reasoning and sticks with the argument that Section 2(d) of the Charter should be interpreted to provide workers with at least the level of protection afforded under international conventions that Canada has ratified, then it must recognize a Charter right to strike next. Do you think the SCC will have the “fortitude”, to use Professor Adams’ word, to make that decision? Interesting times in labour law….