On the heels of its labour friendly decision in Mounted Police Association of Ontario v. Canada(“MPAO”) which granted RCMP officers the right to unionize (and which our colleagues in Vancouver wrote about here), the Supreme Court of Canada (“SCC”) released its highly anticipated decision in Saskatchewan Federation of Labour v. Saskatchewan2015 SCC 4 (“SFL”). In SFL, the SCC was tasked with determining whether the prohibition on the right to strike for public sector employees the Government deemed “essential service employees” was a violation of section 2(d) of Charter of Rights and Freedoms (“Charter”), which protects the right of freedom of association. This case presented the SCC with the opportunity to revisit whether there is constitutional protection for the right to strike. An issue it decided in the negative almost 30 years ago.

In a surprising move (although perhaps less so given the MPAO decision), the SCC overturned its own precedent and found that the right to strike was protected under the Charter.

What Happened

In 2007, in response to a history of damaging public sector strikes in the health care, highway, snow removal and corrections sectors, the newly elected Saskatchewan Party introduced a series of changes to Saskatchewan’s labour and employment legislation, including introducing the Public Services Essential Services Act (“PSESA”) and amending the Trade Union Act (TUA”). These changes were immediately challenged by a number of unions as a violation of the right to freedom of association under the Charter.

As our colleagues in Vancouver earlier noted :

  1. The PSEA introduced restrictions on the ability of public sector employees who provide essential services to go on strike.
  2.  The amendments to the TUA changed existing labour legislation to make it more difficult for unions to be certified as bargaining agents, and expanded the scope of permissible communications between employers and employees.

The PSESA

The main issues that the unions took with the PSESA (and the subject of the SCC decision) was twofold:

  1. The PSESA gave the government and public sector employers the unilateral power to designate which public sector employees were “essential” and therefore not able to strike.
  2.  Once designated as “essential”, those employees had no meaningful mechanism to review the government’s designation and further had no meaningful mechanism for resolving bargaining impasses.

To sum up the situation briefly – the Saskatchewan government overreached and gave the unions the perfect foil to mount a constitutional right to strike argument.

Under the PSESA, a Saskatchewan public employer had the ability to avoid all inconvenience associated with a strike and designate whoever it chose (this included not only nurses, police and firefighters, but also all employees at casinos and liquor stores) as essential. Those employees did not have a meaningful method of arguing the “essential services” designation or applying any sort of social or economic pressure through a strike. The SCC found that the right to strike is an essential part of a meaningful part of the process of collective bargaining and the removal of that right violated the Charter.

While essential services legislation removing the right to strike is common in many other Canadian jurisdictions, most employees in other jurisdictions have a mechanism for resolving bargaining impasses, such as arbitration. For example, in Ontario, police, fire and health care workers are designated as “essential” and do not have the right to strike, but have access to interest arbitration to resolve the disputes. Under thePSESA, Saskatchewan public sector employees did not have any meaningful dispute resolution mechanism to resolve bargaining impasses and the SCC felt that this restriction went beyond what was reasonably necessary to ensure the continued delivery of essential services. The SCC struck down the PSESA as unconstitutional.

The TUA

While the absolute ban on the right to strike was unconstitutional, the SCC found that changes to the way unions obtain and lose their bargaining representation of employees did not substantially interefere with the freedom to freely create or join associations. In addition, permitting employers to communicate facts and opinions to employees regarding unionization was also permitted, so long as the communication did not infringe upon the ability of employees to engage their collective bargaining rights in accordance with their freely expressed wishes.

Conclusion

The Constitutionalizing of the right to strike in SFL, represents the furthest extension of the right to freedom of association under the Charter and is a complete reversal of almost thirty-years of SCC jurisprudence.

It is important to note, that Justices Rothstein and Wagner wrote a strong dissent, pointing out the many difficulties in finding a constitutionally protected right to strike. They noted that labour relations involves a complex balance between the interests of employers, employees and the public and that the SFL decision, not only tips the balance in favour of unions, but also denies legislatures the flexibility needed to ensure that the balance can be maintained. In addition, the dissent notes that the majority’s reasons in SFL appear to make all statutory limits on the right to strike presumptively unconstitutional, despite the fact that currently all labour legislation carefully regulates the process of how and when employees can strike (for example, not during the term of a collective agreement). Finally, the dissent notes that the majority ignores the fact that by creating a constitutionally protected right to strike, a premium right is created that cannot be exercised by the majority of Canadian workers who are not represented by a union.

Hailed as a great victory by many labour commentators, it is difficult to predict the impact of the SFL decision. Likely, the SFL decision will embolden unions to further challenge other legislative restrictions on the right to strike, such as essential services legislation in other provinces or government introduced back-to-work legislation. While the SFL decision makes clear that an absolute ban on unionized employees right to strike, without any meaningful dispute resolution mechanism is unconstitutional, further guidance from the courts is required in order to determine how much of a restriction (if any) is justified.