Written by David Doorey
Lawyer Gurvir Sangha posed an intriguing question on his Twitter account this weekend:
Of course that got me thinking about the worst SCC decision in labour and employment law. A number of potential candidates immediately jump to my mind.
There’s certainly a strong case for Re Alberta Reference from 1987. That’s the lead case in the infamous “Labour Trilogy” that ruled that the freedom of association is mostly an empty vessel that doesn’t protect a right to strike. This decision, which the SCC overturned more recently in Saskatchewan Federation of Labour, initiated a nearly 20 year no-fly zone in Section 2(d) jurisprudence in labour law. It includes gems like this:
The rights for which constitutional protection is sought‑‑the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer‑‑are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise.
Justices LeDain, La Forest, Beetz, Re Alberta Reference
Any case in which the dissent is more famous and enduring than the majority decision deserves to be in the running for the worst decision ever.
Dolphin Delivery, decided a year earlier, ruled that the Charter does not apply at all to court orders, in this case an injunction prohibiting peaceful secondary picketing. In a 1990 article, Professor David Beatty described the case as being grounded on an “egregious mistake” and as “infamous” for turning “the entire organization of our system of government and the place of the Constitution on its head”.
Then there is the 2011 decision in Ontario v. Fraser, which ruled that the Conservative’s cynical Agricultural Employees Protection Act complied with Section 2(d) freedom of association notwithstanding that it did not include any system for recognizing majority union representation, did not impose a duty to bargain on employers similar in scope to collective bargaining legislation across Canada, and did not include a right to strike or any access to interest arbitration. Fraser struck many in the labour law community as particularly devastating because it appeared to stop in its tracks the momentum towards a more robust freedom of association that had been building in cases like BC Health Services and Dunmore.
It’s notable that not every one blasted Fraser. On this very blog, Professor Roy Adams wrote about the “Vast Potential of Ontario v. Fraser“. A new case is working its way up the judicial ladder that challenges the exclusion of the right to strike from the AEPA. If that case reaches the SCC, it will be Fraser, Part Deux. What the SCC will do with a case like that is anyone’s guess.
Along the same lines, there is a definitely a pro-labour bias in the list so far. Management and government counsel, for example, may have an entirely different list. Some people may long for a simpler time before BC Health Services and SFL, when Section 2(d) of the Charter protected neither collective bargaining nor a right to strike. Those two cases may be on their list. It would be great to get this alternative perspective on the worst SCC cases in the field. In employment law, I’d think that more than a few employer counsel might point to Wallace v. United Grain Growers for example, which opened a floodgate resulting in almost every wrongful dismissal lawsuit including a claim for thousands of dollars in “Wallace” bad faith dismissal damages. The SCC quickly pulled back the reins in Honda v. Keays by at least requiring some evidence of harm.
Employers also no doubt hate the uncertainty that is now associated with notice of termination clauses. I doubt that you can blame this on Machtinger v. HOJ, which clarified that parties cannot contract out of Employment Standards notice requirements and if a contract provides for less notice than legislation requires it is void and common law reasonable notice is substituted. However, that general principle has evolved since 1992 in ways that employer counsel have certainly found to be unpredictable, with all sorts of notice clauses that appear to take account of employment standards being struck down.
Professor Claire Mumme nominated Evans v. Teamsters. Don’t get me started!
Evans is the decision in which the SCC ruled that employees may be required to accept a job with the employer that just wrongfully dismissed them as a form of mitigation of the employer’s breach of contract. I think you can argue that Evans itself is not nuts, because the facts were pretty distinct: the parties had a good working relationship AND IMPORTANTLY had agreed to the length of notice/mitigation that would be involved.
But I argued when Evans was released that courts would screw it up and start applying the reasoning as a general principle to cases involving indefinite term contracts requiring “reasonable notice” of termination. As I ranted in this 2011 blog post called Is Employment Law Losing Touch with Common Sense?, when applied to a contract requiring reasonable notice, the Evans requirement to mitigate with the contract breaching former employer is coco-loco.
What other decisions would you include on the list of the worst SCC decisions ever in labour and employment law? I’m sure I’ve only scratched the service in this post.
David Doorey, “The Worst Supreme Court of Canada Decision in Labour & Employment Law” Canadian Law of Work Forum (August 24 2020): https://lawofwork.ca/?p=12943
