The time has finally come. Today, a Saskatchewan Queens Bench judge, who was once Chair of the Saskatchewan Labour Relations Board, decided that the Charter of Rights and Freedom’s protection of “freedom of association” includes a right to strike. Here is a news story. Moreover, the Saskatchewan government violated this right to strike in passing restrictive “essential services” legislation, and this violation is not saved by Section 1.
Peter Barnacle, legal counsel for CUPE in the case, did a Guest Blog for me back in 2008 when the lawsuit was filed, which gives some background. I also noted in 2010 that the International Labour Organization found that the legislation in question violated Canada’s international law obligations to protect the rights of workers to engage in collective bargaining and to strike. The Queens Bench decision cites the ILO’s decision and Conventions at length, again demonstrating the growing importance of international labour law in Canada. The Saskatchewan Party chastised the ILO, calling it a non-binding organization that is essentially meaningless.
The Court’s Decision
Here is the decision. Read it yourself. Comments and analysis welcome, as always.
The anti-collective bargaining Saskatchewan Party introduced a series of legislation after it was elected in 2007. One piece dealt with “essential services” jobs and their rights to bargain and strike. It required unions and public sector employers to bargain an “essential services” agreement that specifies which workers, and how many of them, must remain at work to ensure the safety of the public. This is common across Canada. However, unlike other provinces, the Saskatchewan legislation said that if the parties can’t agree, the employer can unilaterally decide who gets to strike and who doesn’t, rather than having that matter decided by a neutral tribunal. The legislation also expanded the definition of an “essential service” to almost the entire public sector, including universities. The result of this legislation was that the employer could unilaterally decide who is “essential” and thereby effectively eliminate any possibility of an effective strike, and there was no option for the union to access interest arbitration in that case. It also includes a very broad definition of employers that perform essential services, including universities and even resorts governed by municipal legislation.
The government also introduced a new labour law model for organizing and certification which moved the Saskatchewan model closer to the models already in effect in other provinces, including a move from a card-check model of union certification to a mandatory ballot model. The Court upholds those changes. I am not going to discuss that part of the decision here, because there is too much to say on the more novel “right to strike” issue.
The most interesting part of the case is the court’s treatment of the right to strike. As I note in my introduction to the Charter and Labour Rights, whether “freedom of association” in Section 2(d) of the Charter protects a right to strike has been the elephant in the room since the Supreme Court’s decision in B.C. Health Services. In that decision, the Court said it was wrong when, back in PIPSC v. NWT, it ruled that the Charter did not protect a to collective bargaining, and it proceeded to recognize a new limited right to collective bargaining. Well, the Court had also earlier ruled in the so-called Labour Trilogy (including the lead Alberta Reference decision, 1987) that the Charter did not protect a right to strike. Was that decision now wrong too?
Speculation was that it does, since in B.C. Health Services, the Court said quite clearly that Section 2(d) must be intepreted to provide at least as much protection as afforded by international instruments Canada has endorsed, including ILO Convention 87. There is no doubt that that instrument includes a quite a robust right to strike, and that Canadian governments routinely violate this right by passing back-to-work legislation and by restricting the right to strike for some workers altogether. In fact, there is a stronger argument for a right to strike than a right to collective bargaining, since Canada has ratified Convention 87 (which protects strikes), and has not ratified Conv. 98, which protects collective bargaining.
The Sask. judge was aware of all of this history, and he references the international law’s right to strike extensively in the decision. Justice Ball says the issue is whether Section 2(d) [“freedom of association”] protects “the right of employee acting in concert with other employees to refuse to work for the purposes of promoting their work related issues.” He notes, citing Raynor, that a right to collective bargaining can only operate effectively if it is backed by the threat of economic sanction (Para. 61]. That’s a big claim, and one that may not survive the Supreme Court, in light of its rejection of the finding at the Ontario Court of Appeal level in Fraser that Section 2(d) must include some form of dispute resolution system to deal with break downs in bargaining.
Ball J. relies extensively on Chief Justice Dickson’s strong dissent in Alberta Reference, where he argued that a right to strike is protected by the Charter. This dissent was also cited with approval by the majority in B.C. Health Services and Dunmore, which was another hint that the new Supreme Court was open to the idea of revisiting the right to strike. Justice Ball asks hypothetically whether after B.C. Health and Fraser, a government could pass a law banning all strikes and permitting employers to terminate the employees if they do strike. The Saskatchewan government responded absolutely, yes. The judge disagreed.
Section 2(d) protects a right to strike. Ball says there is a “rule of legal interpretation” that domestic laws are presumed to be interpreted to be in conformity with international law obligations which can be rebutted but only with “irresistible clearness”. He notes an argument that Professor Roy Adams has made: the Government of Canada and of Saskatchewan both accepted in their submissions to the ILO Conventions protect a right to strike, and that Canada is obliged to comply with Conventions it ratifies. The international law is persuasive and clear in protecting a right to strike, and in light of the Supreme Court’s pronouncements that the Charter must provide at least as much protection as that international law, it is clear that Section 2(d) protects a right to strike.
The Sask. Essential Services Legislation Violates the Right to Strike: Ball questions whether the test applied in Fraser and B.C. Health Services–whether the government’s failure to act has created “substantial interference” in the exercise of a protected right to collective bargaining–is appropriate to the issue here, which is a positive act by the state impeding a protected right to strike. However, he says that even if the test is “substantial interference”, it is met here. The legislation is a violation of Section 2(d)’s protection of the right to strike.
The Legislation is Not Saved by Section 1: Section 1 provides a justification defence for governments. If the restriction on the right to strike is warranted in order to protect some greater societal interest, the restriction is permitted. There is a long history explaining how courts are to apply this Section 1 test. But I will cut the chase as it applied in this case. The judge rules that the government’s stated objective, to protect society from interruption of essential services, is pressing and substantial. He also finds that there is no constitutional duty on the government to consult with unions before passing legislation that impacts the collective bargaining process, although the absence of consultation is relevant to assessing whether the legislation passed minimally impairs the right to strike.
On that question, Ball observes that: “Good faith negotiation is not possible when on side has the capacity to simply impose an agreement on the other.” That’s an interesting point, though the Supreme Court doesn’t seem to agree, since that is exactly what agricultural employers can do in Ontario, a model that the Court approved in Fraser. Ultimately the Court rules that the legislation did not impair the right to strike as little as possible. Once you recognize the right to strike, I think that conclusion here is a no brainer. The legislation permits the government (the employer) to unilaterally designate whichever employees it likes as “essential” and thereby remove their right to strike, without having to explain at all why public safety would be threatened if some of those workers struck. A less instrusive model would ensure access to a neutral, “independent dispute resolution process” to review issues related to what work is “essential” and how many workers are needed.
In the end, the Court rules the Essential Services legislation to be unconstitutional, but as is tradition, the government is given 12 months before the the invalidation takes effect to make changes necessary to bring the legislation into compliance. This case will almost certainly be appealed up to the Supreme Court of Canada. Who knows, perhaps it might be heard with the Canada Post case, which also challenges legislation that touches on the rights of workers to strike and have disputes resolved by a neutral, independent process when a strike or lockout is restricted.
For my part, I have noted before that I would prefer Section 2(d) to be interpreted broadly, like we do with section 2(b) freedom of expression, and require the state to defend its restrictions on those rights under Section 1. This case takes that approach. It doesn’t mean that governments can’t restrict strikes when doing so is necessary to protect the public. It just means that the courts will scrutinze whether the government’s actions are really necessary to protect the public, or are really just a partisan or ideological attack on workers’ rights based on the political/economic belief that protecting workers rights harms economic growth.