On January 30, 2015, the Supreme Court of Canada released its decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, further expanding the content of freedom of association under section 2(d) of the Charter in the labour relations context by finding that the right to strike is constitutionally protected. This decision follows on the heels of two other decisions addressing the scope of section 2(d) that were released on January 16, 2015:  Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 and Meredith v. Canada (Attorney General), 2015 SCC 2.

The Supreme Court of Canada had been asked to consider the constitutionality of two pieces of Saskatchewan legislation that came into effect in 2008: The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (“PSESA”) and The Trade Union Amendment Act, 2008, S.S. 2008, c. 26 (“TUAA”). The PSESA prohibited workers designated by the government as “essential service employees” from engaging in strike activity. The TUAA made changes to the union certification process.

Several unions challenged the constitutionality of both the PSESA and the TUAA. The trial judge found that the changes to the certification process set out in the TUAA did not breach the freedom of association guarantee in section 2(d) of the Charter. However, the trial judge determined that the right to strike is protected by section 2(d) of the Charter, such that the prohibition on the right to strike in the PSESA substantially interfered with the employees’ section 2(d) rights. The PSESA was not saved by section 1 of the Charter because the ban on the right to strike was not minimally impairing or proportionate. The government’s appeal to the Saskatchewan Court of Appeal regarding the PSESA was allowed.

A majority of the Supreme Court of Canada allowed the unions’ appeal regarding the PSESA and held that its prohibition on strike activity violated section 2(d) of the Charter. The Supreme Court of Canada held that the right to strike is “an indispensable component” of collective bargaining that is constitutionally protected. The majority noted the importance of the ability to strike to the promotion of equality between employees and the employer in the collective bargaining process. The prohibition on the right to strike in the PSESA was held to be a substantial interference with the right to freedom of association and therefore breached section 2(d) of the Charter.

The majority also held that the means that the government had chosen to restrict strike activity under the PSESA were not minimally impairing because the legislation permitted public sector employers to unilaterally determine which employees must continue to work during a work stoppage, even if their responsibilities were not solely the provision of essential services. The Court was also concerned with the legislation’s failure to include an alternative dispute resolution process to adjudicate such issues, such as arbitration. As a result, the PSESA was held not to be saved by section 1 of the Charter and was consequently declared unconstitutional.

On the other hand, the TUAA was not held to violate section 2(d) of the Charter because the changes to union processes that it contained did not substantially interfere with the guarantee of freedom of association.