In 2007 the Supreme Court of Canada held for the first time that the guarantee of freedom of association in Section 2(d) of the Canadian Charter of Rights and Freedoms extends constitutional protection to collective bargaining. The decision triggered a wave of constitutional litigation that called upon courts and tribunals to determine labour disputes on the basis of constitutional arguments. To date, there has been little consensus on how the freedom of association in the charter should apply in the labour context.
However, it appears that the Supreme Court will seek to establish such a consensus in the near future. Between February and May 2014, the Supreme Court heard appeals in three significant labour cases - Mounted Police Association of Ontario, Meredith v Canada and Saskatchewan Federation of Labour - each of which addresses the constitutional status of a central pillar of Canadian labour law. Notably, Saskatchewan Federation of Labour will consider, for the first time since 1987, whether the charter guarantees a constitutional right to strike.
The Supreme Court will release its decisions in these cases by May 2015. This 'new labour trilogy' of cases will likely clarify - and potentially reshape - how Canadian constitutional law applies to the right to organise, collectively bargain and strike.
The first appeal heard by the Supreme Court addressed the Ontario Court of Appeal's 2012 decision in Mounted Police Association of Ontario.(1) The case rose from a charter challenge initiated by several voluntary associations formed by members of the Royal Canadian Mounted Police (RCMP), Canada's national police force. The challenge targeted the RCMP's Staff Relations Representative Programme - the employee-management consultation process established for RCMP members by regulation - as well as the exclusion of RCMP members from the collective bargaining regime established under public sector labour legislation. Under the programme, RCMP members cannot organise in unions or engage in traditional collective bargaining with RCMP management; instead, the programme provides a forum and elected employee representatives to facilitate a process of consultation with management.
In essence, the applicants' constitutional argument was that the federal government interfered with RCMP members' freedom of association in violation of the charter by failing to provide them with a formal collective bargaining system that would have, among other things, imposed a duty on RCMP management to bargain in good faith over terms and conditions of employment.
At first instance, the Ontario Superior Court of Justice determined that the programme violates the charter. While the court acknowledged that the programme process involves "extensive" collaboration carried out in "good faith" with management, it determined that this process does not satisfy the constitutional requirement of access to a process of collective bargaining. In particular, the court concluded that the programme is not independent of RCMP management and, further, that it does not provide for actual good-faith negotiation between RCMP members and management over terms and conditions of employment – matters that, in the court's view, are the basic collective bargaining protections guaranteed by the charter.
On appeal, the Ontario Court of Appeal overturned the lower court's decision and held that the programme is constitutional. In reaching this conclusion, the appellate court relied on a 2011 Supreme Court decision called Fraser (notably, this decision had been released after the lower court issued its own decision), which held that the constitutional protection for freedom of association will be breached in the labour context only if government action makes meaningful association between workers "effectively impossible".
Applying this test to the RCMP's labour relations system, the court concluded that RCMP members' charter rights have not been violated because it is "not effectively impossible" for them to act collectively to achieve their goals under the status quo. The court reached this conclusion for three main reasons:
- RCMP members have formed their own voluntary employee associations and are not "vulnerable workers" (unlike, for example, agricultural workers).
- The programme includes mechanisms and processes (eg, frequent meetings with senior management) that allow RCMP members to collaborate with and make representations to RCMP management.
- The RCMP Legal Fund (a voluntary fund "established to help its members with various employment-related issues", including employment-related litigation) provides RCMP members with a means of independent representation in respect of workplace issues.
As these avenues enable RCMP members to act collectively to achieve their workplace goals within the RCMP's existing labour relations system, it was the court's view that the government is not constitutionally required to "recognize and negotiate" with the applicant employee associations or otherwise establish for RCMP members a more robust system of collective bargaining or worker-management negotiation.
The Supreme Court heard the appeal of the Ontario Court of Appeal's decision on February 18 2014. Its decision is expected to shed significant light on the types of 'non-traditional' employee association and negotiation structures that are constitutionally permissible.
Just one day after the hearing in Mounted Police Association of Ontario, the Supreme Court heard the appeal of the Federal Court of Appeal's decision in Canada (Attorney General) v Meredith,(2) a case that concerned the unilateral reduction, by the Expenditure Restraint Act, of previously approved wage increases for members of the RCMP.
At first instance, the Federal Court held that this reduction violated RCMP members' freedom of association under the charter. The court reached this conclusion largely on the basis that the federal government did not consult with RCMP members regarding the wage reduction at issue.
However, in a unanimous judgment the Court of Appeal overturned this decision. The court reached this conclusion for four main reasons.
First, the court reasoned that even if the Expenditure Restraint Act affected a matter important to RCMP members' association activity, the Expenditure Restraint Act "did not make it impossible for members to act collectively". In the court's view, this was because RCMP members do not actually bargain collectively with their employer, but only engage (through the Staff Relations Representative Programme) in a consultation process on wage issues through the Pay Council - a body which makes non-binding recommendations to the RCMP commissioner. As such, the Expenditure Restraint Act "did not undo the terms of a collective bargaining agreement nor did it reverse terms negotiated directly with, and agreed to by, the employer".
Second, the court found on the facts that "the associational process continued to function" despite the passage of the Expenditure Restraint Act. This was evidenced by the fact that, following enactment of the statute, the government accepted two changes to RCMP members' compensation based on recommendations made by the Pay Council.
Third, in the court's opinion, the Expenditure Restraint Act did not impose a significant enough prohibition on future associational activity, as the legislation's only post-2010 effect was to limit wage increase to 1.5% for the 2010-2011 fiscal year. In the court's view, this "did not make it substantially impossible for members of the RCMP to exercise their freedom of association in the future".
Finally, the judgment noted without elaboration that "Parliament was not required to consult with the Pay Council or others before enacting" the Expenditure Restraint Act.
For these reasons, the court concluded that the Expenditure Restraint Act did not violate RCMP members' freedom of association under Section 2(d) of the charter.
The Supreme Court heard the appeal of the Federal Court of Appeal's decision on February 19 2014. Hopefully, the court's ultimate decision will clarify how and when the government may intervene in a collective bargaining process without offending the protection for freedom of association in the charter.
The most eagerly awaited of the decisions currently under reserve is the appeal of Saskatchewan Federation of Labour,(3) which the Supreme Court heard on May 16 2014. This appeal considers, for the first time since 1987, whether the protection for freedom of association in the charter includes a right to strike.
The appeal arose from a charter challenge that was initiated in the Saskatchewan Court of Queen's Bench by several unions in respect of labour relations legislation enacted by the Saskatchewan government in 2008.
The Public Service Essential Services Act was the main legislation under attack. This legislation established a 'designated' or 'controlled' strike model, under which public sector employers and unions in Saskatchewan must negotiate essential services agreements that specify the services which are to be maintained in the event of a work stoppage and identify the employees who are required to perform those services. If an employer and union cannot reach an essential services agreement, the employer is entitled to serve a notice on the union that specifies which employees will be required to continue working during a work stoppage. An employee covered by such an agreement or notice is not permitted to participate in the strike.
In essence, the applicants' constitutional argument was that these legislative provisions restrict affected employees' freedom of association in violation of the charter by eliminating their right to strike.
At first instance, the Saskatchewan Court of Queen's Bench granted the application in part and determined that the Public Service Essential Services Act is unconstitutional because it interferes with public sector employees' right to strike in violation of the charter.
In its decision, the court assessed the status of the right to strike in light of the practical role of strikes in collective bargaining, and in light of the Supreme Court's previous finding that Section 2(d) of the charter extends some limited protection to collective bargaining. In particular, the court concluded that the right to strike is a necessary condition of meaningful collective bargaining in practice because it puts pressure on both the employer and employees to resolve a collective bargaining dispute. The court further concluded that Canada's labour history and international labour law support recognition of a constitutional right to strike within Section 2(d) of the charter. On this basis, the court determined that the restrictions that the Public Service Essential Services Act place on public sector employees' ability to strike violate the charter and are of no force and effect.
However, on appeal, the Saskatchewan Court of Appeal determined that the lower court's decision should be overturned and that the Public Service Essential Services Act is constitutional.
In reaching this conclusion, the court relied heavily on the Supreme Court's finding in the 1987 Labour Trilogy that Section 2(d) of the charter does not extend to strike activity. The court emphasised that this finding has not been overturned, and that the Supreme Court took care in recent decisions dealing with the constitutional protection for collective bargaining to state that those decisions did not deal with the right to strike.
On this basis, the court concluded that it was far from certain that the Supreme Court would find that Section 2(d) of the Charter extends to strike activity, and that it was inappropriate for the lower court to have ignored the 1987 Labour Trilogy and ruled that the Public Service Essential Services Act is unconstitutional on this basis. Accordingly, the court found that the Public Service Essential Services Act is constitutional and allowed the Saskatchewan government's appeal in this regard.
While Mounted Police Association of Ontario, Meredith and Saskatchewan Federation of Labour are each based on somewhat narrow facts, the constitutional principles under review in these cases have potentially profound consequences for Canadian labour law. In particular, the Supreme Court's decision in Saskatchewan Federation of Labour regarding the existence of a constitutional right to strike will have serious implications for Canadian labour laws, which generally prohibit strike activity except during very narrow periods in collective bargaining disputes. Further, the Supreme Court's reasoning in this regard could call into question the constitutionality of certain types of legislation that are commonly used in Canadian labour disputes, such as 'back-to-work' legislation that ends work stoppages in industries of national importance.
Notably, the Supreme Court elected to hear these appeals and to rearrange its dockets so that it could do so in close succession. In light of this, it is possible that the court will treat these cases as a 'new labour trilogy' that can serve to redefine the scope of the constitutional protection for the right to organise, collective bargaining and strike activity.
For further information on this topic please contact Christopher D Pigott at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381), fax (+1 416 364 7813) or email (firstname.lastname@example.org). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
(1) Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363, available at www.canlii.org/en/on/onca/doc/2012/2012onca363/2012onca363.html.
(2) 2013 FCA 112, available at www.canlii.org/en/ca/fca/doc/2013/2013fca112/2013fca112.html.
(3) 2013 SKCA 43, available at www.canlii.org/en/sk/skca/doc/2013/2013skca43/2013skca43.html.