I’m finally bringing this blog back to labour law, with the news that last Thursday, the Supreme Court of Canada granted leave to appeal a decision raising an interesting and timely question: does the Canadian Constitution protect the right to strike?
Background: The Labour Trilogy, B.C. Health Services and Fraser
The Supreme Court decided three cases on the issue back in 1987, which came to be known as the Labour Trilogy. The question in those cases was whether the guarantee of freedom of association in the Charter of Rights and Freedoms (Charter) included a constitutional right to collective bargaining and to strike. The answer was no, and that answer stood for 20 years.
Then, in 2007, the Supreme Court decided B.C. Health Services. In that case, the province of British Columbia introduced legislation that cancelled important terms of collective agreements in the health care sector, and said that no similar terms could be included in health care collective agreements in the future. In response, the Supreme Court overturned its own previous decisions in the Labour Trilogy and said that the Charter does protect collective bargaining. The Court explained that there’s not much use in having freedom of association, if the government can just pass a law which makes the very purpose of your association pointless. That was what the B.C. government did when it unilaterally cancelled important collective agreement terms. What was the point, then, of health care workers forming an association (a union) to bargain collectively?
What B.C. Health Services did not address was the right to strike. The Court deliberately refused to discuss that question.
Following B.C. Health Services, unions began a number of constitutional challenges to labour laws that they alleged interfered with the right to collective bargaining. The Supreme Court decided to weigh in again in Ontario v. Fraser, a 2011 decision about agricultural workers in Ontario, who are not covered by the Labour Relations Act. They have a separate legal regime which allows them to form associations and have those associations address their employers; the employers have an obligation to listen and respond. But there is no formal duty of collective bargaining, there is no duty to recognize the union as the exclusive representative of the workers, and other protections that most Ontario workers get are absent.
Fraser did not exactly change the law in B.C. Health Services — in fact, the Court was very careful to say that it was applying the principles from that earlier case — but it did clarify B.C. Health Services in a way that looked quite a lot like a retreat. Fraser stressed that from a constitutional point of view, the right to collective bargaining is a derivative right: one that derives from the freedom of association. Therefore, you don’t necessarily get constitutional protection just because the government has interfered with collective bargaining. You only get constitutional protection if the government’s actions (or inaction) make meaningful association effectively impossible. For agricultural workers, since they can form associations and the employers must listen to what the associations say and respond in good faith, workers are able to form meaningful associations. That is good enough under the Charter. Again, however, the Supreme Court did not talk about the right to strike.
Saskatchewan Federation of Labour and the Right to Strike
In 2008, the government of the province of Saskatchewan passed the Public Sector Essential Services Act. It requires employers and unions in the public sector to agree on which of their services are essential, and which employees are required to maintain those services. Any employees who are required to provide essential services will have to continue working during a strike. However, if the employer and the union cannot agree, then the employer is allowed to just impose whatever essential services requirements it wishes. The union can challenge the number of employees who the employer says it needs for essential service, but it cannot challenge whether particular services or particular job classifications are essential.
The Saskatchewan Federation of Labour, along with several public sector trade unions and unionized employees, brought a constitutional challenge alleging that the Essential Services Act violated workers’ freedom of association by denying them the right to strike (along with a number of other challenges). The Saskatchewan Court of Queen’s Bench agreed, based on the principles in B.C. Health Services and Fraser. It found that strikes are integral parts of collective bargaining, so if the Charter protects collective bargaining, it must protect strikes as well.
That decision was overturned by the Saskatchewan Court of Appeal, on a fairly technical but still important ground. The old Labour Trilogy, the Court of Appeal said, found that the Charter does not protect the right to strike. B.C. Health Services and Fraser overturned the Labour Trilogy when it came to collective bargaining, but refused to discuss the right to strike. Therefore, when it comes to the right to strike, the Labour Trilogy is still a binding precedent from the Supreme Court of Canada. It was simply not open to the Saskatchewan courts to refuse to follow it. In the words of the Court of Appeal:
In short, any decision to overturn the Labour Trilogy must be left in the hands of the Supreme Court itself. This is what the doctrine of stare decisis [i.e., the rule of precedent] demands. It follows that the Essential Services Act cannot be struck down on the basis that it limits strike activity contrary to s. 2(d) of the Charter.
After that, how could the Supreme Court say no?
A New Labour Trilogy?
The Supreme Court’s decision last week to grant leave to appeal in Saskatchewan Federation of Labour follows on the heels of granting leave for two other labour law cases, both involving the Royal Canadian Mounted Police. They have never been permitted to unionize, but they have various systems where worker representatives get to participate in committees and councils which help determine their pay. The Ontario Court of Appeal and the Federal Court of Appeal each made recent decisions which denied the Mounties constitutional protection for these types of bargaining activities.
In fact, the Ontario Court of Appeal also found for the employers in two other labour law freedom of association cases in 2012. In those cases, the Supreme Court refused to grant leave to appeal. Our firm actually represented the employer in one of those cases, and I was heavily involved in preparing the arguments. It was an extremely interesting case, and very rewarding (and relieving) that we were successful. When the Supreme Court denied our opponents leave to appeal, we got the impression that the Court, having decided similar issues in 2007 and again in 2011, just didn’t see the need to revisit them so soon.
But now the two Mountie cases and the Saskatchewan Federation of Labour case will be heard by the Supreme Court of Canada in 2014. The Mountie cases are scheduled to be heard in February. It’s unlikely that Saskatchewan Federation of Labour will be ready quite that soon, but I wouldn’t be surprised if the Supreme Court waits until it can release all three decisions together as a new Labour Trilogy. Hopefully, it will be one that clarifies the law for a while, and avoids the volume of litigation on these issues that we’ve seen since B.C. Health Services and Fraser were decided.