Did you catch me on Power and Politics last night or on the radio today.   Some of what I said has reappeared in various newspaper and online stories today. Here is the CBC story.
I made only two points yesterday. Firstly, the reference filed by the Minister of Labour to the Labour Board has the effect of automatically suspending the commencement of a strike by Air Canada employees. I explained why in yesterday’s post. Athough there were other opinions being expressed by lawyers yesterday, by the time I was on Power and Politics, the Board has issued a letter saying the strike could not commence, and the union has conceded the point. Some government labour lawyer should be congratulated for recognizing this clever opportunity to temporarily prevent the strike on the basis of a bogus claim that essential health and safety issues are involved.
My second point was that being legally correct, doesn’t make the Minister morally or ethically right. Since you asked, I’ll give a short opinion. I challenge my students to argue why I am wrong, if you think I am.
I think the Government’s actions in filing the reference are cynical and unbecoming of a democratically elected government. It is the sort of
nonsense that we see done in less democratic countries all the time. Here’s why.
The only way that the Minister obtains the result she wants–a temporary suspension of a strike until she can pass back-to-work legislation–was to pretend that Air Canada is an essential ambulance service.  That without Air Canada, Canadians would be put at a medical risk.
She relied on a section of the Code that doesn’t require the Minister to actually prove there is a risk–simply claiming there is one is enough to stop the strike. That’s convenient, because I doubt any such evidence exists. But who cares if the Air Canada-as-essential-medical-service claim is nonsense.  Note that Air Canada’s other brands, like Jazz, service most small centers and Jazz is not impacted by the current bargaining. No sane person could argue that people living in large urban centres depend on Air Canada for their medical needs. It’s all utter nonsense, and everybody knows it. Presumably, that’s why the union and the employer did not bargain an essential services agreement themselves. I assume it never occurred to them that they were an essential ambulance service.
And, seriously, even the Tories don’t really believe that silly argument. It’s all done with a wink and nod. Raitt has been clear all along that the government’s obsession with intervening in Air Canada bargaining is an economic one. That message was repeated again yesterday by Raitt’s Parliamentary Assistant on the Power and Politics segment preceding me. When asked by Solomon about the health and safety issue, she said that the government’s concern was really economic. A nice and unexpected moment of honesty in politics. If the Tories actually thought that Air Canada was an essential ambulance services, they would have raised it early on the bargaining process, not the day before a strike was set to begin.
It would have been more honest for Raitt to just acknowledge that she is exploiting a useful tool available to her under the essential services part of the Code in order to delay the strike til she can pass back to work legislation. To exploit that section, she needs to claim there is a health and safety issue, even though that is not really what the government is concerned about. But politicians don’t operate that way. So she must persist in the embarrassing charade that there are crucial safety issues involved.
My guess is that this silly reference will never actually be decided. Once the back to work legislation is passed, the issue of whether some flights need to continue for health and safety reasons becomes moot. The government will probably withdraw the reference, or the board will dismiss it because it has better things to do with its time. That is why you will hear arguments that this reference is an abuse of process by Raitt.  The Code was not intended to be used as a tool to help governments implement ideological agendas outside of the democratic law-making processes.
So, what we have then is a government pretending that there is a health and safety issue for the sole purpose of fitting itself within a section of the Code that was intended to prevent strikes when there are REAL risks to the public involved. It is a cynical use of law by a government trying to prevent the exercise of core rights established in the rest of the Code. Governments in countries we often criticize for human rights abuses also tend to make bogus claims about the need to protect their citizens from risks in order to justify interfering in their citizens’ rights. As we do with those governments, it is important to point out and condemn when our own governments play games with legal rules in order to advance ideological agendas and restrict human rights, including the right to strike.
Am I wrong?
What are the main points of my argument, and how would you respond or undermine them?
If I am wrong, what do you think of the governments use of the essential service reference power to block a lawful strike?