For several months, the Saskatchewan Court of Appeal has been deliberating over whether the right to freedom of association in the Charter of Rights and Freedoms guarantees public sector workers the right to strike. This is a question that the Supreme Court has pointedly declined to decide in its recent decisions on freedom of association and collective bargaining. Last Friday, the Saskatchewan Court of Appeal released its long-awaited decision.
We have written about the trial-level decision previously. In that case, the Saskatchewan Court of Queen’s Bench came to the surprising conclusion that the Charter does guarantee this right.
In this litigation the Saskatchewan labour movement, led by its umbrella organization, the Saskatchewan Federation of Labour, challenged certain provisions of essential services legislation that allowed the government to unilaterally deem particular public workers' services as "essential", thus prohibiting strike action at the end of the bargaining process. The trial judge upheld this claim. In addition, the unions argued that various technical amendments to the Trade Union Act were also unconstitutional, because the amendments made it more difficult for unions to certify in the province. This claim was dismissed.
We noted previously that the trial court’s decision on the first question was unexpected, and the Court of Appeal has confirmed that view. It allowed the appeal, and agreed that the right to strike is not protected by the constitution.
The main underlying reason for the Court of Appeal’s decision was that the Supreme Court, in its 1987 decision in the Alberta Reference, had specifically confirmed that the right to freedom of association does not include a right to strike. As noted above, the Supreme Court has consistently specified in later years that it was not dealing with the right to strike, even in cases dealing with other associational rights such as collective bargaining. The Court of Appeal took the simple position that until the Supreme Court reverses its own precedent on this point, lower courts are bound by it. Since the unions will likely seek leave to appeal, this leaves the ball in the Supremes’ court to determine whether now is the time to answer this question.
The Court of Appeal went on to comment on the labour movement’s argument that lower courts could decline to apply the Alberta Reference precedent because in their view, “it appears that the higher court will overrule the precedent in question when and if it has the opportunity to do so.” The Court of Appeal declined to apply this novel argument, noting simply that it is up to the Supreme Court to reverse itself. The Court of Appeal went on to state that contrary to the position of the unions, it is not certain at all that the Supreme Court will reverse this precedent.
I would go farther, and say that it seems highly unlikely, in light of the recent decision in Ontario (Attorney General) v. Fraser and the direction from the Supreme Court in that case regarding the interpretation of freedom of association, that the Supreme Court as currently composed will reverse its own precedent on the right to strike question. In Fraser, the Supreme Court clearly confirmed that the protected right under s. 2(d) is the right to associate and make representations to an employer collectively, but is not a right to any particular model of collective bargaining, or to any substantive outcomes. While no one can fully predict future moves from the Supreme Court, it seems unlikely that a guaranteed right to strike flows from the Fraser decision.
The Court of Appeal also dispensed quickly with the union’s unprecedented suggestion that technical changes to the certification process in Saskatchewan were a breach of the Charter. The unions had even taken the startling position that requiring a democratic secret ballot among employees before certification could be granted is unconstitutional! The Court of Appeal confirmed that policy decisions about thresholds of support and secret ballots were matters within the discretion of the legislature. This part of the decision upheld the trial-level decision, and was a clear application of the precedent in Fraser.
This is a positive decision confirming the primacy of the legislatures in dealing with questions relating to the labour relations regimes in place in Canada. We will let you know the status of any future proceedings before the Supreme Court as soon as information becomes available.