As we outlined in our previous insight on February 2, 2015, the Supreme Court of Canada found that The Public Service Essential Services Act (the “PSESA”) infringed upon the freedom of association guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms.

The PSESA prevented work stoppages of “essential” unionized public employees in Saskatchewan during a strike or lock-out. As an example, the PSESA would maintain essential services in hospitals in the event of a labour dispute, even if that meant certain unionized employees could not strike or could not be locked out. On January 30, 2015, a majority of the Supreme Court of Canada held that the PSESA was unconstitutional because it did not minimally impair freedom of association and the right to strike.

Following the determination on the constitutionality of the PSESA, the unions involved sought to determine whether damages could and should be awarded as a result of the finding that the PSESA infringed freedom of association.

This question was heard by Justice Ball of the Saskatchewan Court of Queen’s Bench, who was the Justice that first determined the PSESA was unconstitutional, that the Charter provided a right to strike, and whose determination was upheld by the Supreme Court of Canada. Justice Ball released his decision on November 7, 2016.

Justice Ball dealt with two primary issues, addressed separately below.

  • Does the Court have jurisdiction to award damages under section 24 of the Charter where government enacts legislation that is later determined to be unconstitutional?

Justice Ball determined that the Court did have jurisdiction to award damages where government enacts legislation that is later found unconstitutional, but only in the “most unusual cases” where government was clearly wrong, acted in bad faith, or abused its power.

Justice Ball also identified that another component of the jurisdiction question was whether damages could be awarded against government officials exercising their authority under legislation prior to it being declared unconstitutional. Justice Ball found that government agents, such as health regions, will similarly only face damages where there was clear wrong doing, bad faith, or abuse of power. He went further to state that it had not been proven that government agents like the health regions over-designated employees as essential or applied the PSESA in an unconstitutional manner prior to it being found unconstitutional. In conclusion on this issue, he found the Court did not have jurisdiction to award damages based on the manner in which the PSESA was applied by government agents like the health regions when it was valid legislation.

  • If the Court has jurisdiction to award damages, is there a basis for awarding damages due to the unconstitutionality of PSESA?

Justice Ball determined that there was no basis in law or fact to order damages against the Government of Saskatchewan as a result of the PSESA being found unconstitutional.

Justice Ball found that the suspended declaration of invalidity provided by the Supreme Court was a remedy that was fair, effective, proportional, and appropriate.

Further, Justice Ball noted that the Government of Saskatchewan could not have anticipated that the PSESA was unconstitutional prior to it being considered by the court system. He noted for example, that if a five member panel of the Saskatchewan Court of Appeal found the PSESA constitutional, prior to the Supreme Court overruling that decision, it was not “established and indisputable” that there was a right to strike under the Charter.

Finally, Justice Ball also reiterated that there is no Charter remedy against government agents for actions which are a necessary result or effect of legislation, even if that legislation is later deemed unconstitutional.

The full decision is not yet published online, but can be expected shortly under the citation: 2016 SKQB 365.

This is a significant ruling that reinforces the notion that government and its agents should only face damages for legislation later found to be unconstitutional in rare circumstances.