Mounted Police Association of Ontario v. Canada (Attorney General)  (Charter of Rights — Freedom of association — Right to collective bargaining)

On appeal from the judgment of the Court of Appeal of Ontario, 2012 ONCA 363, setting aside a decision of MacDonnell J., 96 O.R. (3d) 20. 

RCMP members are not permitted to unionize or engage in collective bargaining. They have been excluded from the labour relations regime governing the federal public service since collective bargaining was first introduced in the federal public service, first, under the Public Service Staff Relations Act (“PSSRA”) and now under the Public Service Labour Relations Act (“PSLRA ”).

Instead, members of the RCMP are subject to a non-unionized labour relations scheme. At the time of the hearing of this appeal, that scheme was imposed upon them by s. 96 of the Royal Canadian Mounted Police Regulations, 1988(“RCMP Regulations”), since repealed and replaced by the substantially similar s. 56 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281.

The core component of the current RCMP labour relations regime is the Staff Relations Representative Program (“SRRP”). The SRRP is the primary mechanism through which RCMP members can raise labour relations issues (excluding wages), and the only form of employee representation recognized by management. The aim of the program is that, at each level of the hierarchy, members’ representatives and management consult on human resources initiatives and policies, with the understanding that the final word always rests with management.

A little over fifteen years ago, the Court held that the exclusion of RCMP members from collective bargaining under the PSLRA ’s predecessor legislation did not infringe s. 2 (d) of the Charter : Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989. That case did not involve a direct challenge to the sufficiency of the entire RCMP labour relations scheme.

Since that decision was rendered, the RCMP labour relations regime has undergone a number of changes that have increased the independence afforded to the SRRP, but none of those changes has substantially altered its purpose, place or function within the RCMP chain of command.

In May 2006, a constitutional challenge was initiated by two private associations of RCMP members whose goal is to represent RCMP members in Ontario and British Columbia on work‑related issues but who have never been recognized for the purpose of collective bargaining or consultation on workplace issues by RCMP management or the federal government. They sought a declaration that the combined effect of the exclusion of RCMP members from the application of the PSLRA and the imposition of the SRRP as a labour relations regime unjustifiably infringes members’ freedom of association.

A judge of the Ontario Superior Court of Justice concluded that s. 96 of the RCMP Regulations, which imposed the SRRP as a labour relations regime, substantially interfered with freedom of association and could not be justified under s. 1 of the Charter . However, the judge also held that the exclusion of RCMP members from the federal public service labour relations regime did not infringe s. 2(d) of the Charter. The Court of Appeal allowed the Attorney General of Canada’s appeal and held that the current RCMP labour relations scheme does not breach s. 2 (d) of the Charter .

Held (6:1) (Rothstein J. dissenting): The appeal should be allowed.

Section 96 of the RCMP Regulations, which was in effect at the time of the hearing of this appeal, infringed s. 2 (d) of theCharter.

Similarly, para. (d) of the definition of “employee” in s. 2(1) of the PSLRA infringes s. 2 (d).

Neither infringement is justified under s. 1 of the Charter . Had s. 96 of the RCMP Regulations not been repealed, it would have been declared to be of no force or effect. The offending provision of the PSLRA is of no force and effect pursuant to s. 52 of the Constitution Act, 1982. This declaration of invalidity is suspended for a period of 12 months.

Per McLachlin C.J. and LeBel, Abella, Cromwell, Karakatsanis and Wagner JJ.:

The s. 2(d) guarantee of freedom of association protects a meaningful process of collective bargaining that provides employees with a degree of choice and independence sufficient to enable them to determine and pursue their collective interests. However, the current labour relations regime denies RCMP members that choice, and imposes on them a scheme that does not permit them to identify and advance their workplace concerns free from management’s influence.

Section 2(d) protects three classes of activities: (1) the right to join with others and form associations; (2) the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities. Viewed purposively, s. 2 (d) guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals. This guarantee includes a right to collective bargaining.

Collective bargaining is a necessary precondition to the meaningful exercise of the constitutional guarantee of freedom of association. It is not a derivative right protected only if state action makes it effectively impossible to associate for workplace matters. That said, however, the right to collective bargaining is one that guarantees a process rather than an outcome or a particular model of labour relations. A meaningful process of collective bargaining is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them.

Choice and independence do not require adversarial labour relations; nothing in the Charter prevents an employee association from engaging willingly with an employer in different, less adversarial and more cooperative ways. However, whatever the labour relations model, the Charterdoes not permit choice and independence to be eroded such that there is substantial interference with a meaningful process of collective bargaining.

This is not a case of a complete denial of the constitutional right to associate. Rather, it is a case of substantial interference with the right to associate for the purpose of addressing workplace goals through a meaningful process of collective bargaining, free from employer control.

The flaws in the SRRP process do not permit meaningful collective bargaining, and are inconsistent with s. 2 (d) of theCharter. That process fails to respect RCMP members’ freedom of association in both its purpose and its effects.

Section 96 of the RCMP Regulations imposed the SRRP on RCMP members for the purpose of preventing collective bargaining through an independent association. Not only are members represented by an organization they did not choose and do not control, they must work within a structure that is part of the management organization of the RCMP and thus lacks independence from management. The SRRP process fails to achieve the balance between employees and employer that is essential to meaningful collective bargaining, and leaves members in a disadvantaged, vulnerable position.

The SRRP also infringes s. 2 (d) in its effects. The relevant inquiry is directed at whether RCMP members can genuinely advance their own interests through the SRRP, without interference by RCMP management. On the record here, they cannot.

Simply put, the SRRP is not an association in any meaningful sense, nor a form of exercise of the right to freedom of association. It is simply an internal human relations scheme imposed on RCMP members by management. The element of employee choice is almost entirely missing and the structure has no independence from management.

The second issue raised by the present constitutional challenge concerns the exclusion of RCMP members from the application of the PSLRA by para. (d) of the definition of “employee” in s. 2(1). This Court, in Delisle, held that the exclusion of the RCMP from the PSSRA , the PSLRA ’s predecessor legislation, did not violate s. 2 (d) of the Charter.

Overturning precedents of this Court is not a step to be lightly taken. However, Delisle was decided before this Court’s shift to a purposive and generous approach to labour relations andDelisle considered a different question and narrower aspects of the labour relations regime than those at issue here. It follows that the result in Delisle must be revisited.

The purpose of para. (d) of the definition of “employee” ins. 2(1) of the PSLRA , viewed in its historical context, violates s. 2 (d) of the Charter. The PSSRA and, later, the PSLRAestablished the general framework for labour relations and collective bargaining in the federal public sector.

In the present case, the infringement of the guarantee of freedom of association cannot be justified under s. 1 of theCharter. Although the government’s objective of maintaining an independent and objective police force constitutes a pressing and substantial objective, the infringing measures are not rationally connected to their objective.

First, it is not apparent how the exclusion of RCMP members from a statutorily protected collective bargaining process ensures the neutrality, stability or even reliability of the Force.

Second, it is not established that permitting meaningful collective bargaining for RCMP members would disrupt the stability of the police force or affect the public’s perception of its neutrality.

While this conclusion is sufficient to dispose of the s. 1 analysis, denying RCMP members any meaningful process of collective bargaining is also more restrictive than necessary to maintain the Force’s neutrality, stability and reliability. The RCMP is the only police force in Canada without a collective agreement to regulate the working conditions of its officers. It has not been shown how or why the RCMP is materially different from the police forces that have the benefit of collective bargaining regimes that provide basic bargaining protections. A material difference between the forces having not been shown, it is clear that total exclusion of RCMP members from meaningful collective bargaining cannot be minimally impairing.

Having found that s. 96 of the RCMP Regulations and para. (d) of the definition of “employee” in s. 2(1) of the PSLRAinfringe the freedom guaranteed to RCMP members under s. 2(d) of the Charter , and that these provisions cannot be saved under s. 1 , the appropriate remedy is to strike down the offending provision of the PSLRA under s. 52 of theConstitution Act, 1982 . This declaration of invalidity is suspended for a period of 12 months. We would similarly strike down s. 96 of the RCMP Regulations were it not repealed.

This conclusion does not mean that Parliament must include the RCMP in the PSLRA scheme. Section 2(d) of the Charterdoes not mandate a particular model of labour relations. Should it see fit to do so, Parliament remains free to enact any labour relations model it considers appropriate to address the specific context in which members of the RCMP discharge their duties, within the constitutional limits imposed by the guarantee enshrined in s. 2(d) and s. 1 of the Charter .

Per Rothstein J. (dissenting):

The language used by the majority creates greater rights, and imposes greater restrictions on the government, than either a plain or generous reading of s. 2 (d) of the Charter can logically provide. The interpretation of a Charter right must be principled and must not be so divorced from the text of the provision as to depart from the foundation of the right. When, in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, and Ontario (Attorney General v. Fraser), 2001 SCC 20, [2001] 2 S.C.R. 3, this Court recognized a derivative right to collective bargaining stemming from the purpose of s. 2 (d) of the Charter , it extended constitutional rights beyond what had previously been accepted. Now, less than four years after Fraser was decided, the majority further expands freedom of association and retreats from the effective impossibility test stated in that case. It also enshrines an adversarial model of labour relations as a Charter right, reversing this Court’s findings in Health Services and inFraser that s. 2(d) does not guarantee a particular model of collective bargaining or a particular outcome.

Section 2 (d) of the Charter protects the right to associate to make collective representations and to have employers consider those representations in good faith. The essential feature of a labour relations regime that allows employees to exercise their constitutional right to make meaningful collective representations on their workplace goals is representativeness. Representativeness is the constitutional imperative required in order to ensure that s. 2 (d) rights are protected in the collective bargaining context and it is only where legislation impairs the right of employees to have their interests advanced honestly and fairly that legislation will be constitutionally deficient.

Neither the choice of the organization representing employees for bargaining purposes nor the independence of that association are necessary to ensure that meaningful collective bargaining can occur. Choice and independence are central to Wagner-style labour relations and, by selecting choice and independence as constitutional requirements for meaningful collective bargaining, the majority mandates an adversarial model of labour relations and precludes others which may be just as or more effective in contributing to meaningful collective bargaining.

So long as employees have recourse to ensure that their views are put forward to management and that their representatives are working in their interests, the labour relations process will not be dominated by management and employees will have the means to work towards their collective workplace goals.

In the case at bar, the context of a national police force led to the adoption of a statutory collaborative labour relations model, the SRRP. The correct standard against which the SRRP should be evaluated is whether the process renders meaningful collective bargaining effectively impossible. Whether the Fraser-mandated effective impossibility test or the majority’s new substantial interference test is applied, it is clear that the SRRP does not infringe s. 2 (d) of the Charter.

Although RCMP members did not choose their associational framework for bargaining purposes, they are able to democratically elect their representatives and those representatives have a statutory duty to represent employee interests. They can be replaced if they fail to uphold that duty. Management also has a constitutional obligation to consider in good faith the representations made on behalf of RCMP members.

In short, the evidence before this Court is that Staff Relations Representatives fairly advance employee interests to RCMP management and thus the SRRP meets the constitutional requirement of representativeness mandated under this Court’s interpretation of s. 2(d).

The purpose of excluding RCMP members from the PSLRA is not to interfere with collective bargaining, but is driven by a legitimate concern that the model imposed under that legislation is ill suited to the national police force. The evolution in the legal understanding of s. 2 (d) since Delislebears no relation to the majority’s finding in that case as to the purpose of the exclusion of RCMP members from thePSLRA ’s predecessor legislation, and thus cannot be used to support revisiting the issues settled in Delisle. AlthoughDelisle was decided before Health Services and Fraserushered in a more expansive approach to labour relations, the jurisprudential developments since do not allow this Court to conclude that the purpose of the exclusion is to deny RCMP members’ associational rights.

Had para. (d) of the definition of “employee” in s. 2(1) of thePSLRA been found to breach s. 2 (d) of the Charter , it would nonetheless constitute a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society and would therefore be justified under s. 1 of the Charter. Parliament is entitled to address concerns that an adversarial RCMP members’ association might order its members to refuse to intervene in certain circumstances involving the labour disputes of others or that belonging to such associations could inhibit members from responding to such situations impartially. The RCMP is materially different from other Canadian police forces. The government must be permitted to organize the Force’s labour relations in view of its distinctive and essential role as our national police force.

Reasons for judgment by the Chief Justice and LeBel J., dissenting reasons by Rothstein J.  Neutral citation:  2015 SCC 1.  No. 34948.

Meredith v. Canada (Attorney General)  (Charter of Rights — Right to collective bargaining — Wage rollback)

On appeal from the judgment of the Federal Court of Appeal, 2013 FCA 112, setting aside a decision of Heneghan J., 2011 FC 735.

The Treasury Board establishes the pay and allowances paid to members of the RCMP. In setting their pay, the Treasury Board considers recommendations developed through the Pay Council, an advisory board composed of representatives of RCMP management and RCMP members.

In June 2008 and in response to recommendations initially made by the Pay Council, the Treasury Board announced salary increases of 3.32%, 3.5% and 2% for RCMP members for the years 2008 to 2010, as well as increases in certain forms of supplemental compensation.

A government‑wide response to a global financial crisis led the Treasury Board to revisit its decision concerning RCMP wages for the fiscal years 2008-10. In December 2008, the Treasury Board communicated to the RCMP Commissioner a revised wage decision providing for salary increases of 1.5% in each of 2008, 2009 and 2010, in line with limits previously announced for the whole of the public sector.

Members of the Staff Relations Representative Program’s (“SRRP”) National Executive Committee and the Pay Council approached Treasury Board officials and members of Cabinet to discuss the wage rollback. All of their proposals for change were rejected.

Finally, in March 2009, the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393 (“ERA ”), was enacted imposing a limit of 1.5% on wage increases in the public sector for the 2008 to 2010 fiscal years. The ERA also prohibited any other increases to compensation but contained an exception for RCMP members permitting the negotiation of additional allowances as part of transformational initiatives within the RCMP.

Meredith and Roach, who are members of the National Executive Committee of the SRRP brought a constitutional challenge on behalf of all members of the RCMP, arguing that the December 2008 decision of the Treasury Board and theERA violate the constitutional right to collective bargaining protected by s. 2(d) of the Charter by rolling back scheduled wage increases for RCMP members without prior consultation.

They did not, however, challenge the constitutionality of the RCMP labour relations process.

A judge of the Federal Court declared that both the Treasury Board’s December 2008 decision and the impugned provisions of the ERA violated s. 2 (d) of the Charter. The judge found that the Pay Council was the only formal means by which RCMP members could collectively pursue goals relating to remuneration with the Treasury Board and that the Treasury Board’s decision and the subsequently enacted ERAmade it effectively impossible for the Pay Council to make representations on behalf of members of the RCMP and to have those representations considered in good faith. Neither violation was found to be saved by s. 1 of the Charter.

The Federal Court of Appeal disagreed. Having found that theERA gave statutory effect to the Treasury Board’s December 2008 decision, and that it was the constitutionality of that Act which was truly at issue, the Court of Appeal found that theERA did not violate the freedom of association of RCMP members. It allowed the appeal.

Held (6:1) (Abella J. dissenting): The appeal should be dismissed.

The ERA does not infringe s. 2(d) of the Charter. Rolling back scheduled wage increases for RCMP members without prior consultation does not infringe their constitutional right to collective bargaining.

Per McLachlin C.J. and LeBel, Cromwell, Karakatsanis and Wagner JJ.:

For the reasons given in the companion case, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (“MPAO”), s. 2(d) of the Charter protects RCMP members’ freedom to associate and pursue their workplace goals through collective bargaining.

In the absence of a true collective bargaining process, RCMP members used the Pay Council to develop recommendations for members’ pay and to advance their compensation‑related goals. The Charter protects that associational activity, even though the Pay Council process is part of the scheme found to be constitutionally inadequate in MPAO.

Despite the deficiencies in the Pay Council process, it nonetheless constitutes associational activity that attractsCharter protection. Interference with a constitutionally inadequate labour relations process may attract scrutiny under s. 2(d).

However, in this case, the ERA did not substantially interfere with the process so as to infringe RCMP members’ freedom of association. The limits imposed by the ERA were shared by all public servants, were consistent with the going rate reached in agreements concluded elsewhere in the core public administration and did not preclude consultation on other compensation‑related issues, either in the past or the future.

Furthermore, the ERA did not prevent the consultation process from moving forward. An exception for RCMP members included in the ERA allowed RCMP members to obtain significant benefits as a result of subsequent proposals brought forward through the existing Pay Council process.

Actual outcomes are not determinative of a s. 2(d) analysis, but, in this case, the evidence of outcomes supports a conclusion that the impact of the enactment of the ERA on the associational activity of RCMP members was minor. Simply put, the Pay Council continued to afford RCMP members a process for consultation on compensation‑related issues within the constitutionally inadequate labour relations scheme that was then in place.

The ERA and the government’s course of conduct cannot be said to have substantially impaired the collective pursuit of the workplace goals of RCMP members. It is therefore unnecessary to comment on the application of s. 1 of theCharter.

Per RothsteinJ.:

There is agreement with the majority that there was no s. 2 (d) violation in this case.

The December 2008 decision rolling back RCMP members’ previously agreed‑to wage increases was an interim measure designed to ensure that the RCMP’s scheduled wage increases would not come into effect before wage restraint legislation could be enacted. That decision was subsequently overridden by the enactment of the ERA . It is therefore the validity of the ERA that is at issue here and the correct framework to analyse its validity is to ask whether the Actrendered meaningful collective bargaining for RCMP members, via the Pay Council process, effectively impossible.

A contextual approach in this case requires an examination of the impact of the ERA on the ability of the Pay Council to engage in good faith exchanges with RCMP management. The ERA did place limits on the wage increases of RCMP members for three fiscal years. However, it did not completely restrict all compensation increases and it did not make collective bargaining effectively impossible for RCMP members.

While the ERA precluded negotiations on the issue of wages for a limited period of time, there were other areas in which the members could see their compensation increase. After the December 2008 decision, members of the Pay Council and SRRP had several opportunities to meet with government representatives about the yet-to-be enacted ERA. These meetings constituted good faith and meaningful consultation that remedied the government’s earlier failure to consult RCMP members.

The constitutionality of the ERA rests on whether its provisions make collective bargaining between the government and RCMP members effectively impossible, not on the manner in which the law was enacted. The restriction on wage increases imposed by the ERA was undoubtedly not the result that RCMP members hoped for. But so long as good faith consultation took place, their dissatisfaction with the result has no bearing on the constitutional analysis. TheERA did not make meaningful collective bargaining effectively impossible.

Per Abella J. (dissenting):

The federal government’s unilateral decision to roll back the agreed-upon RCMP pay increases through the ERA was unconstitutional. The increases themselves were the result of an extensive consultation process with the RCMP. The absence of any meaningful opportunity for the RCMP to make representations about the extent and impact of the rollbacks had the effect of completely nullifying the right to a meaningful consultation process.

An employer cannot unilaterally reduce employees’ wages, and must give them an opportunity to make meaningful representations. The unilateral rollback of the RCMP’s agreed-upon wage increases without any such prior consultation is a substantial interference with the bargaining process. The fact that the rollbacks were for a three-year period and did not preclude discussion on some other issues did not diminish the severity of the breach.

This breach does not survive the s. 1 proportionality analysis. The government’s articulated objectives for the ERA were to reduce wage pressure in the private sector, to demonstrate leadership by showing economic restraint in the use of public funds and to manage public sector wage costs to ensure fiscal stability. Even in the midst of a fiscal crisis, however, there are limits on the extent to which the government can restrain public sector wages that are the subject of collective agreements.

While wage rollbacks may technically be seen to be rationally connected to fiscal stability and responsibility, the refusal to engage in any meaningful form of consultation is not.

Because meaningful consultation took place with almost every other bargaining agent in the core public service, it is clear that less infringing options than a complete absence of negotiations were available to the government. The breach of s. 2(d) cannot therefore be justified under s. 1.

Reasons for judgment by the Chief Justice and LeBel J., concurring reasons by Rothstein J., dissenting reasons by Abella J.  Neutral citation:  2015 SCC 2.  No. 35424.