Saskatchewan Court of Appeal: No Charter Right to Strike Until SCC Says So

April 26, 2013

The much awaited decision of the Saskatchewan Court of Appeal has arrived.  I reviewed the background to this case here.
The Court of Appeal went cautious, and ruled essentially that whether or not the Charter protects a right to strike is a matter that should be left to the Supreme Court of Canada to decide.
Here is the Court’s decision.
On the merits, the Court overruled the lower court ruling finding that the Charter guarantees a right to strike, and that the Government’s restrictive essential services legislation violated that right.  It also dismissed the unions’ argument that changes to the Trade Union Act violated the Charter.
On the Charter issues, essentially, the Court ruled this:

Sask. Court of Appeal Passes the Ball to the Supreme Court of Canada on Right to Strike Issue

The Supreme Court of Canada ruled in the 1987 Labour Trilogy cases that freedom of association in Section 2(d) of the Charter doesn’t guarantee a right to strike.
That line of authority has never been overturned by the Supreme Court.
Therefore, until the SCC overturns itself, it is inappropriate for a lower court to issue a decision that is contrary to SCC precedent.

The Court says that, even if it is true that recent pronouncements by the SCC hint that the SCC might revisit the issue, there is still substantial uncertainty about what the SCC might do when the new strike cases reach the Court.  Although there are some interesting musing on the nature of a constitutional right to strike, the essence of the ruling on the Charter is captured in this quotation:

Accordingly, none of what I have written above is to suggest or presume that, if again confronted directly with the issue, the Supreme Court would not bring strike activity within the ambit of s. 2(d). Such a conclusion can certainly be reached, as indeed it was reached by Dickson C.J. in the LabourTrilogy. My point is no more than that, in light of Dunmore, Health Services and Fraser, the outcome of any deliberation by the Supreme Court on this issue is not wholly clear. In other words, the Court’s recent decisions have not undermined the Labour Trilogy to the point where, even if they were entitled to anticipate the reversal of a binding precedent, either this Court or the Court of Queen’s Bench should disregard what has been decided about the relationship between the right to strike and s. 2(d) of the Charter.
In short, any decision to overturn the Labour Trilogy must be left in the hands of the Supreme Court itself.

The Court of Appeal also upheld the controversial Trade Union Act amendments, which are designed to make it more difficult for unions to organize workers.  The changes include a switch from card check to mandatory ballots, and greater latitude for employers to communicate their opposition to unionization.  The Court ruled, not surprisingly given the Court’s language in Fraser, that a government has considerable latitude in designing labour legislation.  The only limitation is that they cannot design legislation that makes it ‘effectively impossible” for workers to come together and make collective representations to their employer.  In the Court’s view, the new Trade Union Act does not fail against this standard.
There really couldn’t be a more obvious invitation by a Court of Appeal for a case to be referred to the Supreme Court.  The ball is now in the unions’ court.  Will they move on up to the SCC?  My money is on the ‘yes’ bet.