Thursday 11 December 2014

Trinity Western's Upcoming Court Challenges: Some Thoughts

[UPDATE: Mere hours after I posted this, the B.C. government revoked its consent for TWU's law school, citing uncertainty due to the refusals by various Law Societies to recognize TWU law degrees. This isn't the end of it; the province has stated that TWU can re-apply after the legal challenges are done, and we can probably expect a court challenge to the B.C. government's decision, too.]

It's been well over a month since my last post; between the end-of-term scramble, preparation of exams, trying to get an article written, preparation for next term, and so on, it hasn't been easy to get back to belabouring things. Oh, and this post is (yet again) one that does not deal specifically with labour law. I'll get back to The Saskatchewan Employment Act soon. Promise.

In a little less than a week, on December 16th, Trinity Western University ("TWU") is going to court in Nova Scotia to present its argument that the Nova Scotia Barrister's Society acted illegally in refusing to recognize law degrees granted by the university. That argument is going to be broadcast online; see the link above.

So here I am, wading into this issue. I don't pretend this post is a definitive or comprehensive answer to the debate, nor do I pretend to know what the courts will do with TWU's court challenges. But it's been in the news and I've been thinking a lot about it; so here we go.

(I'll note that there have been some recent employment law-related issues regarding TWU. One TWU graduate in B.C. received an offensive, anti-Christian response to a job application; that's clearly discriminatory on the part of the employer. Though that story gets even more bizarre, as it seems unclear whether the company in question even exists. That's nothing to do with the law school, though.)

TWU, you see, wants to open a law school, and since it announced its intentions in 2012 it's caused a debate within the legal community and elsewhere.

For those who haven't been following the debate, TWU describes itself as "Canada's leading Christian university," and TWU's version of Christianity doesn't hold with equal marriage or with sexual relations between people of the same sex. Gay people are welcome to attend, TWU assures us, so long as they're not actually in same-sex relationships or in same-sex marriages, despite the fact that same-sex marriages are now perfectly legal in Canada.

As an aside, keep in mind that while homophobia has a long and less-than-honourable tradition within Christianity (and indeed other religions), times are changing - faster than many of us anticipated. Maclean's magazine had as a headline that "Lawyers vote against Christian law school", and TWU certainly bills itself as "Canada's leading Christian university" but there are other voices within the Christian faith. The United Church of Canada allows its clergy to perform same-sex marriages. The Anglican Church of Canada allows same-sex relationships to be "blessed" though it does not seem to allow actual marriage between people of the same sex. 

As part of its interpretation of Christian doctrine, TWU requires that all students at TWU must sign a Community Covenant Agreement which includes the following:

"In keeping with biblical and TWU ideals, community members voluntarily abstain from the following actions:
  • communication that is destructive to TWU community life and inter–personal relationships, including gossip, slander, vulgar/obscene language, and prejudice
  • harassment or any form of verbal or physical intimidation, including hazing
  • lying, cheating, or other forms of dishonesty including plagiarism
  • stealing, misusing or destroying property belonging to others
  • sexual intimacy that violates the sacredness of marriage between a man and a woman
  • the use of materials that are degrading, dehumanizing, exploitive, hateful, or gratuitously violent, including, but not limited to pornography
  • drunkenness, under-age consumption of alcohol, the use or possession of illegal drugs, and the misuse or abuse of substances including prescribed drugs
  • the use or possession of alcohol on campus, or at any TWU sponsored event, and the use of tobacco on campus or at any TWU sponsored event."
Students can be subject to discipline if they breach the Covenant.

Of course it's the "sexual intimacy" clause that's the problem, especially now that same-sex marriage is legal in Canada. There's no question this policy is discriminatory.  Unmarried people are not to have sex, regardless of orientation; that's not a problem. Married opposite-sex couples can have sex; but married same-sex couples can't. And there's the rub.  

In addition, beyond the discriminatory distinction between different types of married couples, there's the general disapproval and condemnation of homosexual relationships. The Scriptural basis for the portion of the Covenant dealing with gay sexual relationships sounds pretty, well, extreme to modern ears. It's set out in a footnote in the full document - Romans 1:26-27.

Romans 1:26-27: "For this cause God gave them up unto vile affections: for even their women did change the natural use into that which is against nature:
And likewise also the men, leaving the natural use of the woman, burned in their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet." (Text is taken from the King James Version, here.)
The Covenant is based on the idea that same-sex relationships are "vile"; "against nature"; a result of burning lust; "unseemly"; an "error" deserving of "recompence". More modern language (from the New International Version) is perhaps a bit less over-the-top but still pretty damning.

Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.
So, no longer "vile", but "shameful", "unnatural", worthy of "due penalty".

Because of its Covenant, TWU hasn't had an easy go of it, despite early preliminary approvals across the country. Several law societies in Canada have now refused to recognize law degrees from TWU. In April, the Law Society of British Columbia recognized Trinity Western's law degree. But in a referendum in October, the members of the Law Society (i.e. lawyers) voted 74% to reverse that decision. The Law Society subsequently ratified that vote, and recognition of a TWU law degree is now in doubt in its home province. The Nova Scotia Barrister's Society has voted to recognize TWU law degrees only if TWU exempts law students from the Covenant or amends the Covenant generally; that decision is the subject of the previously-mentioned court challenge. New Brunswick, like B.C., initially voted to recognize TWU degrees, but subsequently voted to reverse that decision and the NBLS Council will decide whether to confirm that reversal on January 9. TWU has launched another court challenge to a decision by the Law Society of Upper Canada (i.e. Ontario) refusing to recognize TWU Law degrees. Saskatchewan and Manitoba's Law Societies seem to have put their accreditation "on hold". Alberta's Law Society seems to have delegated its decision to the national Federation of Law Societies, which granted preliminary approval to TWU in December of 2013.

(Note that refusal by law societies to recognize a TWU law degree is distinct from B.C. allowing TWU to have a law school in the first place. Even if every Law Society in the country refuses to recognize a TWU law degree, people can still graduate from TWU Law with their Juris Doctor ("J.D.") degree. But if a provincial Law Society won't recognize those degrees, then these TWU graduates might need to seek additional training prior to being admitted to that province's Bar. Elaine Craig, a law professor at Dalhousie University in Halifax, has suggested that TWU law grads could pursue accreditation through the National Committee on Accreditation, which deals with accreditation of lawyers who got their law degrees outside of Canada or whose training is in civil law (like in Quebec) rather than common law (like in every other Canadian jurisdiction).)

As with so many issues, the Covenant is not as simple as it may seem at first blush. TWU points out that gay students will be welcome at the new law school, so long as they do not engage in sexual activity. Bryan Sandberg, a gay TWU student, writes about how he feels loved and accepted at TWU.  And TWU has its supporters - some reluctant, others less so. Anna Wong, a litigator in Ontario, wrote regarding Ontario's decision that
After much intellectual wrangling with my feminist values, I have come to conclude that as distasteful and discriminatory as the community covenant is, the LSUC’s decision appears equally distasteful and discriminatory in effect. By denying accreditation to Trinity Western, the law society categorically denies its graduates the chance to practise in Ontario because they decided to exercise their freedom of religion to live by their Christian ethos and attend a private Christian university that reflects those values as set out in the community covenant without giving them an opportunity to demonstrate they have the legal and ethical competency to provide legal services.
Now, I take some issue with Ms. Wong's comments; it seems to me that TWU law grads could apply for admission under an accreditation process, or (as the Nova Scotia Barrister's Society suggests  in its brief) seek admission on a case-by-case basis, depending on the rules of that province's Law Society. That's not a full answer to her concerns, of course, but it's something.

Professor Dwight Newman, one of my colleagues at the College, argued earlier this year that opponents of TWU Law are desperate to avoid diversity "in legal academic thought in Canada".

And I've seen a few comments circulating around the Internet suggesting that this is really about law schools not wanting another competitor entering the fray - another law school means more competition for articling positions and jobs for graduates of existing schools. I'll file that one as an overly cynical misunderstanding of the situation, as is suggesting - from the other side - that TWU's hard-line against homosexuality is actually all about fundraising.

I have to admit I'm profoundly uncomfortable with the Covenant. For me, just as with the debate over gay marriage generally, I keep coming back to this basic question: if the limitations on sex or marriage were based on race rather than sexual orientation, would we even be having this discussion?

Okay, hang on, I hear you saying. Did you just bring racism into this debate? Why not just talk about Hitler, apply Godwin's Law to the discussion, and be done with it?

Well, I raise it because, as I said, this is the point I have kept coming back to. It's not that long ago that mixed-race marriages were prohibited in numerous states in the U.S. (they weren't declared unconstitutional until 1967. And people found religious justification for U.S. aniti-miscegenation laws, too, a taste of which is summarized here. And lest you think it's a relic of the past, you can read a current version of Scriptural support for anti-miscegenation at If you're really interested you can find the website - I'm not including a link because the website. while dressed up in scholarly and sympathetic language, is deeply racist, and I don't want to directly increase its traffic even in a small way.

If a university in Canada wanted to open a law school, but stated something like: "We accept and welcome students of all ethnicities, and those students may mingle socially. However, based on Scriptural and sociological reasons, students are expected to have romantic, marital, and/or sexual relationships only with students of the same ethnicity", there's just no way that would fly.

I honestly cannot think of a principled approach that would lead me to say that any university in Canada, regardless of whether it's a professional college or not, would be allowed to forbid its students from marrying outside their own race - whether or not that prohibition was based on Scripture or not.

And in terms of balancing Charter rights - here, equality rights under s. 15, and religious freedom under s. 2(a) - it seems to me that promoting acceptance (or preventing exclusion) of a historically excluded and persecuted minority should take precedence over the right to exclude based on freedom of religion. Neither right or freedom is absolute, but on balance, I'll err on the side of inclusion. And let's not forget that evangelical Christian students can already attend any law school in the country; another point to consider in the balancing of rights.

Now, that's my personal take on it. The legal situation's more complicated.

Why Precedent May Not Carry the Day

TWU had similar difficulties with its Education program. In the late 90's, the B.C. College of Teachers insisted that, in order to be admitted as teachers, TWU grads had to take additional training through Simon Fraser University.  TWU went to the Supreme Court of Canada and successfully challenged the B.C. College of Teachers' decision not to fully recognize TWU's education degree; Justice L'Heureux-Dube wrote a very strong dissent. The majority in the Supreme Court held that the BCCT's decision was unconstitutional - there was no evidence that TWU grads would discriminate against LGBT students, said the majority of the Court, and if they did, they would be subject to discipline, whether by their employer or by the College.

That's a pretty solid win for TWU, and given the ruling in the "Teachers Case", TWU's interim president can be forgiven for expressing surprise at the push-back against the law school.

But I think there are some differences here that may change the picture. The Teachers Case is definitely an important precedent for TWU, but it won't necessarily carry the day for them. Since 2001, the law has changed significantly in two spheres: recognition of same-sex marriage; and judicial review of decisions made by administrative tribunals. A third reason is that the reasons given by the Law Societies are not the same as those in the Teachers Case.

Prior to the vote in B.C., Thomas Berger, a prominent lawyer and former B.C. Supreme Court Justice, wrote a powerful comment on the "brooding conscience of the law", on the strong dissent by Justice L'Heureux-Dube in the Teachers Case, and why the result now, regarding TWU's law school, should be different than in 2001. In the article I mentioned earlier, Elaine Craig also notes the different legal context relating to the treatment of LGBT people in Canada.

First, and most importantly, in 1996 (when the BCCT made its initial decision) and in 2001 (when the SCC ruled on the Teachers Case), same-sex marriage had not yet been recognized in most of the country.

In 2004, the Supreme Court decided the Reference re Same-Sex Marriage case ([2004] 3 S.C.R. 698), which held that Parliament could extend the capacity to marry to same-sex couples. This decision came in the wake of lower court decisions in five provinces (including Ontario and Saskatchewan) and one territory, all of which had ruled that restricting marriage to heterosexual couples was discriminatory. In 2005, the Civil Marriage Act became law and same-sex marriages became legal across Canada. In the criminal law context, the Supreme Court has seemingly put a nail in the coffin of the "gay panic" defence in 2010 in R. v. Tran (which Craig mentions in her article), stating at para. 34 that "it would not be appropriate to ascribe to the ordinary person the characteristic of being homophobic if the accused were the recipient of a homosexual advance" - though some argue that this defence may still linger in some cases.

And here in Saskatchewan, our Court of Appeal has ruled that marriage commissioners cannot refuse to conduct marriages for same-sex couples. In another case originating in Saskatchewan, the Supreme Court in the recent Whatcott decision adopted Justice L'Heureux-Dube's dissent from the Teachers Case in stating that discriminating against same-sex sexual conduct can be a "proxy for attacks" on same-sex individuals themselves (p. 525).

Second, Law Societies, like the BCCT, are "administrative tribunals", and their decisions are subject to "judicial review" (I mentioned judicial review in passing in relation to the LRB regarding the transit lockout decision). But Law Societies may be held to a more forgiving standard. The BCCT, in deciding not to grant full certification to TWU education grads, was held to the standard of "correctness" - in other words, it was given no deference by the court. The Supreme Court stated (p. 804):

[The BCCT's] expertise does not qualify it to interpret the scope of human rights nor to reconcile competing rights. It cannot seriously be argued that the determination of good character, which is an individual matter, is sufficient to expand the jurisdiction of the BCCT to the evaluation of religious belief, freedom of association and the right to equality generally...The absence of a privative clause, the expertise of the BCCT, the nature of the decision and the statutory context all favour a correctness standard.
...The existence of discriminatory practices is based on the interpretation of the TWU documents and human rights values and principles. This is a question of law that is concerned with human rights and not essentially educational matters.
But the legal framework's changed, here, too.  Administrative tribunals now have not only the ability but a duty (R. v. Conway, [2010] 1 S.C.R. 765) to consider Charter remedies and factors - assuming the remedy is within the tribunal's power and jurisdiction in the first place. It may be arguable in this case whether the mandate of the Law Societies extends to considering Charter and discrimination issues, but there's no question the Courts' approach to administrative tribunals has changed since 2001.

There's also a decision ((Dore v. Barreau du Quebec, [2012] 1 S.C.R. 395) which held that the courts should take a more "flexible" approach in reviewing decisions by tribunals that relate to Charter issues. The Court in Dore did hold that administrative tribunals have to balance Charter values with their various statutory objectives or mandates - though Dore refers specifically to Charter applications relating to individual applicants. Again, a more deferential stance by the Courts. But, that said, those Law Societies who have refused to recognize TWU's law degrees may have a problem if it can be shown they didn't fully consider the Charter rights and freedoms at play here, though by all indications the discriminatory effect of the Covenant, on one hand, and freedom of religion, on the other, seem to have been considered by all of the Law Societies concerned.

There's also the fact that Law Societies involve, well, lawyers. The Supreme Court in the Teachers Case based its decision, in part, on the expertise of the BCCT. While TWU had argued that schoolteachers aren't qualified to adjudicate human rights issues (p. 802), the Court didn't go quite this far, but did hold that the BCCT as a body didn't have expertise on human rights issues (p. 804) and noted that the BCCT had asked for a legal opinion prior to making its decision. I suspect that this argument would be harder to make when dealing with Law Societies.

Third, and finally (whew!), the Law Societies who have refused to recognize TWU law degrees seem to be raising different issues than those raised in the Teachers Case. You can read the Nova Scotia Barrister's society Brief of Law here; at paras. 29-31 the Brief states:

"The concern is not to keep Evangelical Christians out of the profession in this Province. Instead, the goal is to ensure that LGB persons, as a historically disadvantaged minority, do not experience unnecessary barriers to entry, and are not made unwelcome in the legal and judicial professions in Nova Scotia. The Society cannot approve the de facto reservation of all of the spaces in one of only 19 common law schools in Canada exclusively for heterosexual persons...The Society's concern is not with the beliefs of its members, but with the diversity of the profession...
"...The BC Teachers case was argued largely on the basis that teachers trained at TWU would not be qualified to teach in the public school system because of the risks of discriminatory conduct flowing from their belief that same-sex sexual acts are "sinful", "an abomination", and "contrary to nature".
"This is not the basis for the Society's refusal to recognize TWU's law degree. The Society's refusal is based on its need to act in the public interest by promoting diversity in the profession."
Whether this will fly, I don't know, but again, we see here a different argument, and a different context, than what was before the Court in 2001.

That's not to say, however, that the Teachers Case won't carry the day for TWU. It may. And even with the changes I've mentioned, it would still be open to the Courts to say that the Law Societies in this case don't have the jurisdiction or the statutory mandate to consider these issues. Or that the decisions weren't made in the right fashion or for the right reasons.

TWU could exempt law students from its Covenant, but I don't see how it can do that without either turning its back on its religious doctrine or without alienating its backers and donors. It seems unlikely at this point (considering B.C.'s experience) that the Law Societies will back down in the face of their membership, either.  Ultimately, it will probably fall to the Supreme Court of Canada to (again) rule on this still-controversial issue. 

Thursday 6 November 2014

Parks, Panhandling, Poverty, and Public Spaces

This post is based on a lecture I gave to my Property Law class a few weeks ago during Poverty Awareness Week. I figured I'd dust it off because a recent story out of Fort Lauderdale, Florida, has received a lot of attention in the last couple of days. So I'm going to start with a few comments, move on to Fort Lauderdale, and then bring it back to Canada and the Canadian Charter of Rights and Freedoms. I'll be dealing primarily with the use of public spaces by or for the benefit of the homeless - panhandling; distribution of food; the use of parks.

Now, I hasten to add that while I teach first-year property law, I don't consider myself an expert in the field, nor am I by any measure an expert on homelessness or poverty. But regardless, the law as it relates to homelessness and the use of public spaces by the poorest among us is a fascinating topic and it raises significant political, legal, and public policy questions about what kind of society we want to live in, and how the law shapes that society.

Let's start with the famous quote by Anatole France in his book The Red Lily:

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.”
As in many areas of the law, "equality" isn't always all that "equal". Just as (for instance) a restriction on strikes affects unions significantly more than a restriction on lockouts affects employers, bylaws that restrict the use of public spaces for sleeping, eating, panhandling, and so on obviously affect the homeless far more than they do those of us with homes to go to. As Jeremy Waldron notes in his article "Homelessness and the Issue of Freedom" (1991), 39 U.C.L. Rev. 295:

…[E]ach of us has at least one place to be in a country composed of private property, whereas the homeless person has none....
The streets and subways…are not for sleeping; sleeping is something one does at home. The parks are for recreations like walking and informal ball-games…Parks are not for cooking or urinating; again, these are thing one does at home.
On a less elevated level, who can forget the recent furor over a post by Chris Beavis, co-owner of Winston's Pub in downtown Saskatoon, that many in Saskatoon took as targeting the homeless?

(Facebook post retrieved from

Which brings us to the latest headlines. Fort Lauderdale, like some other American cities, has passed a bylaw that restricts where people can feed the homeless. Specifically, you're not allowed to feed homeless people within 500 feet of residential properties (which I assume includes downtown condos, for instance), and you can have no more than one food site per city block.


(One of several signs that were part of a previous campaign by Fort Lauderdale to discourage panhandling. Fort Lauderdale spent over $26,000.00 USD on the campaign. You can still see similar signs gathering dust in some Saskatoon business' windows, for that matter.)

Recently, Arnold Abbot, a 90-year old advocate for the homeless, and two Christian pastors were charged with violating the Fort Lauderdale ordinance by setting up a table and distributing food to the homeless, as they had done for years. Coverage has been extensive, including by the CBC, the Independent, heck, even by Fox News.
(From the Independent, link above. Seriously, he's 90 and he's been feeding the homeless in the name of his deceased wife since 1991. And now he's facing up to 60 days in jail.)

Unfortunately I haven't been able to track down the actual language of the city ordinance (bylaw), as Fort Lauderdale's online list of ordinances is currently only to September 5  at the time of writing. However, it appears that this is only one of several ordinances recently passed by the city which have the goal of removing homeless people from public view. These include restrictions on "camping" (preventing people from sleeping or eating in a public space with their belongings) and allowing the City to confiscate the belongings of a homeless person if that person doesn't pack up their things.

Fort Lauderdale's ordinances, like those in other U.S. cities, extends beyond what we have in Saskatoon. But Saskatoon, just like every other city in Canada, does regulate activities by people in public spaces. For instance:

We have a panhandling bylaw (#7850) that defines panhandling (s. 3), sets out that people may panhandle except as prohibited by the Bylaw (s. 4), and then restricts the manner in which someone panhandles (s. 5): you may not panhandle in a "coercive manner", you may not panhandle while intoxicated, and you may not panhandle on a bus, for instance.

Our Bylaw also restricts the venue - where you may panhandle (s. 6): you may not panhandle within 8 metres of the doorway to a liquor or beer and wine store; nor can you panhandle within 10 metres of an ATM, a bus stop, a bus shelter, or a doorway to a bank, credit union, trust company. Why 8 m for a liquor store, but 10 for a bank? Who knows? Why these particular types of businesses? In the case of banks, credit unions, and ATMs, it's probably because by definition people are going there to deal with money - so it would be prime panhandling turf.

(Many cities have similar restrictions, but not identical ones. The City of Kamloops, for instance, has the same restrictions as Saskatoon but adds that you also can't panhandle within 10 ms of a movie theatre, church, or place of worship; also that you can't panhandle after sundown.)

Similarly, we have The Recreation Facilities and Parks Usage Bylaw, 1998 (Bylaw No. 7767) that restricts the use of parks. Like Anatole France and Jeremy Waldron would not doubt point out, many such restrictions are not really restrictions for those of us who have other homes to go to; we'll never need to worry about violating them. I'll mention two specific restrictions:

  1. "No person shall erect a temporary structure in a Park without a permit from the City." (s. 12). If a person fails to remove such a structure after being warned, the City may remove and dispose of the structure. So: no tents, no lean-tos, technically even a cardboard-box-and-blanket might qualify.
  2. "No person shall sleep in a Park between the hours of 9:00 p.m. and 6:00 a.m." So, you may not erect a shelter in a park, and you may not sleep there overnight. 
These restrictions are notable because the City of Victoria had similar restrictions in their parks bylaw. The City repealed the restrictions on sleeping in parks, but its bylaw still prohibited temporary structures. That prohibition on temporary shelters was ruled unconstitutional in Victoria (City) v. Adams, 2009 BCCA 563. In Adams, the number of shelter beds were wholly inadequate compared to the numbers of homeless people (anywhere from a quarter to a third of the city's homeless could get beds on a given day). The B.C. Court of Appeal ruled that because (a) being outdoors without adequate shelter at night and/or in inclement weather was a health risk and (b) anywhere from two-thirds to three-quarters of the city's homeless would not be able to access homeless shelters, it violated the Charter rights of the homeless to life, liberty, and security of the person. (Section 7 of the Canadian Charter of Rights and Freedoms.)

 (Mark Ralston/Getty Images from here. The "Red Tent" campaign was started after the Adams decision to highlight homelessness in Canada.)

Note that the decision does not go so far as to guarantee a positive "right to shelter" in Canada. It speaks only to a "negative" right not to have one's efforts to make shelter interfered with. And even that is somewhat limited; I think Adams is an important case, but I think its potential application is actually quite limited.

Is Saskatoon's bylaw similarly unconstitutional? It would depend very much on the number of homeless people in the city, and their access to shelters, in my view. The Adams decision is based heavily on the number of homeless people vs. the number of available shelter beds. A restriction on temporary shelters in parks would not, in itself, be automatically unconstitutional, by this reasoning; someone would have to show (as in Adams) that many of Saskatoon's homeless citizens have no realistic option but to sleep outside. And Saskatoon's weather is a lot more extreme than Victoria's.

The City's 2011 report on homelessness in Saskatoon suggested that at the time there were around 287 emergency shelter beds in the city, as well as 387 "transitional housing facility" (longer-term housing) units, and 4,800 "supportive housing facility" units. A "snapshot" survey from 2008 in the same report counted 260 homeless people (p. 4) but notes that it is estimated that for every one homeless person seen on the street, there are four that are "hidden" - people who couch-surf, who live in cars or abandoned buildings, and so on. But regardless, it would seem - at least on the face of it - that the number of homeless people vs. the number of available shelter spaces is not so dire here as it was in Victoria in 2009.

(And as an aside, the B.C Supreme Court recently granted an injunction to evict homeless people who had set up camps in a Vancouver park. While the section 7 Charter argument wasn't before the Court at this stage, the Court did consider the availability of shelter spaces and accepted that the number of spaces were "roughly commensurate" (para. 43) to the number of people in the park.)

What about bylaws like the one recently passed in Fort Lauderdale? Those would probably be constitutional, too, here in Saskatoon. To satisfy the test set out in Victoria (City) v. Adams, you'd have to establish that homeless people had no other realistic option to feed themselves - that soup kitchens, shelters, and so forth were not up to the task of keeping people from starvation.

But in the end, property law isn't about "things". It's about rights, and that means it's about power. The ability to exclude citizens, including homeless citizens, from public spaces; or to restrict what they can do there; brings the political aspects of law into full view. Just because something is constitutional or legal does not mean it is just.

The Universal Declaration of Human Rights states:
“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”
Our Charter (unlike some constitutional documents, like s. 26 of South Africa's Bill of Rights) includes no right to housing. (It doesn't include a constitutional right to property, either, but that's a whole 'nother kettle of fish.) The courts can provide perhaps some limited recourse for the homeless through constitutional litigation or other legal avenues. But when it comes right down to it, the law is what we make it, and it is no answer to simply say "it is the law." It is we, as citizens, through our elected officials, who define the type of society we want.

Tuesday 28 October 2014

Saskatoon Transit: The Final(?) Chapter (plus some Ghomeshi)

It feels a bit odd to be writing this post (probably the last one) about the Saskatoon Transit situation, because, first, this blog was started, at least in part, because of the lockout; second, because it all seems a distant memory now that Transit is running again; and third, because of the bizarre news of Jian Ghomeshi's dismissal from the CBC over "sex allegations" (to use the Toronto Star's wording), which I think we can all agree is a much more lurid story than the minutiae of Saskatchewan labour law. Regardless, I'm going to ignore the Ghomeshi story as others have already written about the legal aspects of that case. For example:

Professor David Doorey's comments on the labour and employment law aspects of Ghomeshi's firing are on his blog, The Law of Work, here. In particular: could the CBC fire Ghomeshi for off-duty conduct? And can Ghomeshi bring an action against his former employer in tort, or is he limited to a grievance under his collective agreement?

Professor Brenda Cossman, meanwhile, writes about BDSM and the law of consent in the criminal law context (under Canadian law you can't consent to bodily harm, for a start) for the Globe & Mail, here.

Finally Howard Levitt, an employer-side labour lawyer, characterizes Ghomeshi's lawsuit against the CBC as "hopeless", here. Of course, Levitt being Levitt, he takes the opportunity to go after unions in general, because that's what he does. "How's the weather today, Howard?" "Terrible, and you know who's to blame? Unions." So while Levitt's basic legal analysis may have some merit, take his comments in general with a huge grain of salt. And by "salt" I mean "bias."

Anyway. On to The Saskatchewan Employment Act, which has nothing to do with BDSM, at least not overtly. Reading my analysis of this particular specific point may qualify as masochism on your part, mind.

So, here's a thumbnail sketch of the situation:

  1. The City locked out its transit workers while an outstanding, unrelated, Unfair Labour Practice application was still pending before the Labour Relations Board.
  2. The Board ultimately ruled that the lockout was illegal, because the SEA makes it illegal for an employer to lock out, or for a union to strike, when there is "any application" pending before the Board.
  3. The City argued that the application had nothing to do with collective bargaining or the lockout, and that any application should be read in a more narrow sense than the plain language would suggest.
  4. The Board, in my view rightly, did not accept the City's argument and enforced the law as it is plainly written.
Meanwhile, as I've mentioned before, the Saskatoon Star-Phoenix has argued that the SEA needs to be changed in this regard. Which is ironic, given that the Saskatchewan government implemented numerous restrictions on strikes and lockouts in 2013 - such as a requirement to bargain to an impasse (which employers already had, but unions didn't), to respect a 14-day "cooling off period" prior to striking or locking out, and to attend mandatory mediation/conciliation - and the Star-Phoenix seemed to think the new legislation was just fine.

I don't mean to single out the Star-Phoenix here, but that's my big issue with the outcry - such as it is - about these provisions. Restrictions on strikes and lockouts, apparently, are fine. But one employer makes one bad call, and all of a sudden the legislation must be changed.

Employers argued in 1993 that these restrictions should be removed entirely. CUPE in 2012 suggested the restrictions could be tweaked (both mentioned here).  On the other hand, Larry Hubich, President of the Saskatchewan Federation of Labour, has commented that he believes the statutory restrictions should not be changed.

Note, again, that we're dealing with limitations on both employers (6-62(1)(l)) and unions (6-63(2)(b)) in the SEA.

So let's take a look at why these statutory limitations are there.

These provisions have been around since 1944, when The Trade Union Act, 1944 was proclaimed. At the time - and up until 1983 - Saskatchewan's labour legislation didn't prohibit strikes during the term of a collective agreement. The law has since changed in that regard. Now every piece of labour relations legislation in the country has the so-called "peace obligation", which set out that there is to be no strikes or lockouts while a collective agreement is in force. But, again, our labour laws have been revised in 1983, 1993, 2008, and 2012, and no change was made to these statutory limitations on strikes and lockouts.

Because a union could strike, and an employer could lock out, at any time, it was important to prevent either side from using economic pressure to subvert Board processes - from using a strike or lockout to cause the other side to hesitate or be coerced into pursuing its rights before the Board. (RWDSU v. Westfair Foods Ltd., [1993] S.L.R.B.D. No. 32, at p. 16 (Quicklaw)).

Okay, so historically, that was the purpose of the prohibition. What about now? Strikes and lockouts are now forbidden during the term of a collective agreement.

But, once a collective agreement has expired, strikes and lockouts are back on the table. And as the Board pointed out in Re Pepsi-Cola Canada Beverages (West) Ltd., [1997] S.L.R.B.D. No. 58 at para. 13 (Quicklaw):

...In this context, ss. 11(1)(j) and 11(2)(b) [now ss. 6-62(1)(l) and 6-63(2)(b) of the SEA] of the Act can be seen to play a role in containing disputes by not allowing a dispute that has been referred to the Board to become the subject matter of industrial action, although such action otherwise may be permitted under the Act. The prohibition contained in ss. 11(1)(j) and 11(2)(b) of the Act not only prevents the parties from upping the ante in a dispute that is already before the Board, as was suggested as its purpose in the Westfair Foods Ltd. case, supra, it also prevents certain issues from causing unnecessary or protracted industrial action.
Therefore, the risk remains. Contract negotiations can take months or, sometimes, years, especially with big employers. Applications can arise out of collective bargaining (for example, allegations of failure to bargain in good faith, or an employer communicating improperly directly with its employees), or they may be unrelated, but either way may be sufficiently serious that they need to be resolved before a contract can be finalized (as in Pepsi-Cola, above). Or, there may be completely unrelated applications which are not a barrier to finalizing a contract, as was the case with Saskatoon Transit. Either way, these provisions help maintain industrial peace.

And that, I think, is why they've been kept in, rightly or wrongly. It may be that these restrictions actually favour employers, because restrictions on strikes are more cumbersome on unions than restrictions on lockouts are on employers, and the majority of ULP applications are brought by unions, too. Regardless, these provisions "keep the peace", so to speak, in the industrial realm.

The value of the current language is certainty. The City of Saskatoon's arguments were flawed, in my view, because they flew in the face of the plain language of a pretty well-known statutory restriction. But on the policy level, they were also flawed because all of a sudden you're asking the Board to rule on what applications are "relevant" and what aren't. With such uncertainty it'll take an LRB hearing to determine if a particular application is a bar to a strike or lockout, or not. 

(Yes, it took an LRB hearing this time, but the City made a bad call. That happens. Given how public this has been, do you think anyone will make that mistake again?)

There's no question the legislation could be changed. Other jurisdictions in Canada don't have the same language in their various Acts. But I don't think the answer is just to add the words "relevant to collective bargaining" or somesuch to ss. 6-62(1)(l) and 6-63(2)(b). That's going to make things more complicated and uncertain.

Limiting strikes and lockouts to certification applications - to prevent an employer from locking out its employees just because they are trying to unionize, for instance - would be an option. The B.C. Labour Relations Code sets out:

32  (1) If an application for certification is pending, a trade union or person affected by the application must not declare or engage in a strike, an employer must not declare a lockout, and an employer must not increase or decrease rates of pay or alter a term or condition of employment of the employees affected by the application, without the board's written permission.
Similar language to our prohibition, but limited to certification applications; it doesn't include Unfair Labour Practices.(Other jurisdictions have similar prohibitions regarding strikes and lockouts when there's a pending certification application, though with different language.)

That's kind of what CUPE suggested in 2012: specifically exclude most Unfair Labour Practice applications from triggering the statutory prohibition on strikes and lockouts. Other types of applications (like certification applications) would continue to be included.

At the absolute minimum, I think a prohibition on strikes and lockouts while a certification application is pending must remain within the Act, because that is one of the most vulnerable times for both workers and their unions of choice. Now, that may fall under another type of unfair labour practice - a prohibition on using intimidation or coercion to keep an employee from exercising his or her rights under the SEA (s. 6-62(1)(a)) - but this is important enough that I think specific protections are required. And "recognition strikes" - where workers had to go on strike to get employers to recognize the union - are exactly what we've tried to get away from with our labour relations model.

But what if an employer refuses to bargain in good faith with the union representing its employees? That would have been an ULP under the old Trade Union Act (s. 11(1)(c)) and continues to be so under the SEA (s. 6-62(1)(d)). A union could bring an ULP application before the Board requiring the employer to begin to bargain in good faith; and you don't necessarily want an employer to be able to lock-out its workers in retaliation for their exercising their rights under the Act.

But of course the Union is also tying its own hands in such a scenario. Now the Union has to rely upon the LRB to resolve things; it can't strike to force the employer to bargain, either. Whether this is a desirable outcome or not depends a great deal on your policy goals. Saskatchewan governments of all political stripes have seemed to feel that they like the language as is. (Rightly or wrongly.)

Retaliatory strikes or lock-outs could be dealt with by making it illegal to lock out or strike for the purpose of influencing the other side to withdraw any pending application. Again, though, there would be a new subjective element (and therefore further uncertainty) in these prohibitions. Careful legislative drafting would be needed.

But given how rarely this situations arise; given that the present language is certain, and than many of the potential changes would create uncertainty; given that the statutory prohibitions do still have some value; maybe changes aren't all that urgent at all. A bit of a tempest in a teapot; I'd suggest that the government, if it embarks upon changing the law, should keep in mind why the provisions are there in the first place, and ensure that any changes are done in such a way that meaningful collective bargaining is protected and promoted.

Now, having said all that, what'll happen if/when the Court rules on the City's judicial review application? I haven't the foggiest. Judges have disagreed with me in the past and will disagree with me into the future, I'm sure.

Were the Court to overturn the LRB decision, if nothing else, at least I'd get one more blog post out of it.

Tuesday 21 October 2014

Saskatoon Transit: A Response to the Star-Phoenix's editorial.

In an op-ed piece today, the Saskatoon Star-Phoenix opined  on not only the city's "convoluted" response to the lockout and to media questions, but also on our old friend, s. 6-62(1)(l) of The Saskatchewan Employment Act which I've blogged about previously. The Star-Phoenix says, among other things:

This section of the employment act, which was the board's basis to deem illegal the lockout and council's changes to ATU's defined-benefit pension plan, warrants a rethink by the government. The provision would seem to open the door to employee groups engaged in contract talks filing trivial complaints with the LRB as a way to hamstring employers, especially when it takes the board months to issue a decision.
I'll say at the outset that I actually do think the provisions need a rethink, but I also think that the concerns raised by the Star-Phoenix are a bit one-sided. For a start, remember that s. 6-63(1)(b) puts a corresponding limitation on unions' ability to strike, so this would also allow - to use the S-P's words - "employers or employer groups engaged in contract talks filing trivial complaints with the LRB as a way to hamstring unions..."

As I've mentioned previously, these are at best "equal opportunity" restrictions. At worst, they actually affect unions more than they affect employers. I think there's an unfortunate tendency in this case to portray the legislation as somehow "pro-union", because in this case it worked to the Amalgamated Transit Union's advantage. But to somehow suggest that those awful unions might abuse the terms of the SEA to their advantage, without mentioning that employers might do the same, seems a dubious and troublesome omission.

That said, I think the S-P's concerns are also exaggerated, for the following reasons.

First, this provision has been in the SEA and its predecessor, The Trade Union Act, since 1944. That's 70 years, and while hypothetical concerns have consistently been raised about these statutory restrictions, they've always, it seems, been just that - hypothetical. No flood of abusive or frivolous Unfair Labour Practices appears to have occurred. And, indeed, there doesn't seem to be any suggestion in this case that the ATU filed their application to defeat a potential lockout. (That's not to say they didn't, but I've seen no evidence or argument to that effect.)

Second, the Labour Relations Board has control over its own process, and it can deal with frivolous applications expediently. Section 6-111 (1)(p) of the SEA grants the Board the power "to summarily dismiss a matter if, in the opinion of the board, there is a lack of evidence or no arguable case"; s. 6-111(1)(q) allows the board to "decide any matter before it without holding an oral hearing." Applications for summary dismissal are generally done via letter - a full hearing is not necessary - and the Board is able to dismiss frivolous matters just as the Courts can.

Third, remember that for these provisions to apply, a matter must be "pending". That means more than simply filed, in my view. The Board, in my opinion, would need to have at least started to consider the matter, but not yet given its decision. It would take a canny, even psychic, union (or employer) to file an application that would:
  1. Survive an application for summary dismissal;
  2. Be filed early enough that a preliminary or full hearing of the matter would commence; but
  3. Be filed late enough that the Board could not render a timely decision;
 all so that the other side's opportunity to strike or lockout would be delayed.

As the S-P points out, in this case the outstanding application was "pending" for several months. This is unusual, in my experience, though the Board does have six months (s. 6-116(1)) to render a decision.

Fourth, and finally, keep in mind that these restrictions don't just apply to the other side. They also apply to the party filing the application. "Any application", right? So a union that files an application to block a lockout - which is a bit of a paper tiger in any event - would also be blocking its own ability to take strike action.  (Heck, I remember early in my career being told not to file an Unfair Labour Practice application on behalf of a union, because that would interfere with the union's ability to strike. As I say, this provision has been around for a long while, and it goes both ways.)

And the ability to strike is much more important to a union's bargaining power than the ability to lockout is to an employer's.

These restrictions have been around, and been subject to criticism, for literally decades. This isn't a new argument, nor has the statutory language in this regard changed. That doesn't mean the language shouldn't be changed now; but it should be done in a careful and measured way, and in a manner that promotes better and more effective collective bargaining, not as a knee-jerk response just because it once happened to benefit a union.

I think I've drawn enough water from this well. My plan for the next (and probably last) blog post on this topic is to look at the reasons behind these provisions of the SEA - why we have them in the first place. And then, barring new developments on the judicial review front, I'll move on to other legal topics of interest. Gasp!

Monday 20 October 2014

Saskatoon Transit: Judicial review and a bit of statutory history

So the saga of the ongoing Saskatoon Transit contract negotiations continues.

Mayor Don Atchison has now said he wants to take the matter to judicial review, according to the CBC:
Atchison said the city solicitor told council they were on safe legal ground when the first lockout notice was issued just over four-weeks ago. If they didn't believe it was legal, he said they wouldn't have gone ahead with the lockout. 
He said he's asking for a judicial review of the Saskatchewan Labour Relations Board's decision that the first lockout was illegal. He does not know when the decision will come out.
Prof. Dionne Pohler, in an interview with the Saskatoon Star-Phoenix, had hoped (as I think did many of us) that the LRB ruling would promote fresh bargaining, not a continuation of hostilities.
University of Saskatchewan assistant professor Dionne Pohler applauded city council's decision [to end the lockout].
"I have to say I'm very pleased. It shows the city is willing to take a step forward. I would hope the union would respond accordingly," said Pohler, who specializes in labour-management relations.
She said it's hard to tell whether this means an agreement is any closer. There could be a deal at any time, but there could also be more job action from either side.
She said there had been an escalation of resentment and a souring of relationships in the past month, but the weekend's events could cause everyone to take a fresh look at the issues.
But it looks like the City intends to pursue further litigation, which is too bad.

I won't repeat my previous discussion about the relevant sections of The Saskatchewan Employment Act except for a quick reminder that the lockout was declared illegal because there was an application "pending before the board" when the lockout notice was given, and that's forbidden under the SEA.

Keep in mind, however, that this provision is neither "pro-union" nor "pro-employer". Both sides are prevented from imposing a lockout or changing terms and conditions of employment (employers) or from striking (workers). On the other hand, most applications are brought by unions, and most industrial action is in the form of a strike rather than a lockout, so this limitation may actually hamper unions, in the big picture, more than it would hamper employers.

Also keep in mind, again, that these situations just don't come up that often. This has been a dramatic couple of weeks, but it's pretty rare for a situation like this to arise.

That said, here's a fun fact: the sections that prevent a strike or lockout while "any application is pending before the Board" - s. 11(1)(j) and 11(2)(b) of the old Trade Union Act, and s. 6-62(1)(l) and 6-63(1)(b) of the new Saskatchewan Employment Act - have been before the Legislature at least twice before, when revisions to the legislation were being considered, and both times, the provision was left "as is".

In 1993, the "Priel Committee" compiled the "Report of Committee Considering Proposed Amendments to the Trade Union Act." This was after the NDP had returned to power, and was considering changes to the old legislation. At that time the Committee noted:

Sections 11(1)(j) and 11(2)(b) make it an unfair labour practice for an employer and a trade union respectively to lockout or strike while an application is pending before the Labour Relations Board. Business takes the view that pending applications may have nothing whatsoever to do with the matters in dispute which give rise to a potential strike or lockout and can be the subject of abuse. Business takes the view, therefore, that section 11(1)(j), section 11(2)(b) and section 11(3) of the Act should be deleted.
[Emphasis added. Pages 44-45 of the Report, cited in CUPE's submissions in 2012, referenced below.] 
Okay, in 1993 employers wanted the provisions gone. The language wasn't changed. Then, in 2012 with a Conservative government in power (okay, fine, "Saskatchewan Party"), Saskatchewan undertook a new consultation process regarding changes to labour legislation. And lo and behold, in the Canadian Union of Public Employees' submissions to the government, what do we find? The above paragraph from the Priel Report. Oh, and:
 We observe that the filing of unfair labour practices can be used as a manipulation of the other parties' rights. A union expecting to be locked out or the employer expecting to be struck can file a complaint. This would then prevent the respondent's access to their statutory rights in a way that defeats rather than advances collective bargaining. ...
...CUPE supports a refinement to this provision that would limit its application. CUPE proposes an exception to sections 11(2)(b) and 11(1)(j) so that they do not include LRB proceedings commenced under any part of Section 11.
(CUPE submissions, p. 139-140, full document here)
 Remember this is a union putting this forward. I won't comment on whether I think CUPE's proposals would be a good thing or not; that's a question for another time (...or for a future blog post, maybe).

Now, given the Saskatchewan Party's general lack of love for the labour movement (and for collective bargaining overall), I rather suspect that CUPE's submissions were given little consideration and that the "consultation" was more of a fig leaf for the government than anything. In fact, given that (as I mentioned above) these limitations may affect unions more than employers, the SaskParty may well have decided they like having these provisions. But, still, the government had again been told by at least one party: these provisions are in the legislation. You can change them.

Once again, no change. The Saskatchewan Employment Act was proclaimed in 2013. Ss. 11(1)(j) and 11(2)(b) of the TUA became ss. 6-62(1)(l) and 6-63(1)(b) of the SEA.

If the City pursues judicial review of the LRB decision, the question will be whether the LRB's interpretation of the SEA was "reasonable". In my view, it was (though I hasten to add we still don't have the Board's written reasons for why it ruled as it did). The Board has the jurisdiction, responsibility, and expertise to interpret its governing statute. It's owed deference in its decision. And in my view, finding in the City's favour would have flown in the face of the plain language of the legislation, and would have flown in the face of the fact that the Legislature has apparently - at least twice - refused to change the section in question.

Whether ss. 6-62(1)(l) and 6-63(1)(b) are good or bad for labour relations is not the point. That's for the Legislature to decide. And the Legislature has decided at least three times  (in 1944 when it proclaimed The Trade Union Act, 1944; in 1993; and in 2013) that these sections were to stay. It should be up to the Legislature to change them.

Friday 17 October 2014

Saskatoon Transit: the results are in

Unfortunately I don't have time for a lengthy blog post regarding the Labour Relations Board's order ending the City's lockout of its transit workers. But I did want to post something about it; after all, I've been waiting for this Order for a while.

First, I should note that we don't have the Board's reasons as yet. The Board (as I thought they might) clearly made it a priority to release its decisions quickly. So we have an Order, but not the reasons for why that order was made.

In any event, here's  thumbnail sketch of what the Order says. I'm paraphrasing here; this isn't the actual text of the Order, obviously.

  1. The ULP filed in April was "pending" for the purposes of s. 6-111(2)(a) of the SEA. The Board had considered (remember the "deemed pending" section?) the file during an "in camera" meeting on June 3, and it was therefore pending from June 3 to October 3 (the date of the hearing and Order in that matter).
  2. As a result three actions by the City were found to have been illegal: the lockout notice, the lockout itself, AND the unilateral changes to the City pension plan.
  3. The ULP from April (the Board found) is no longer pending.
Wow. Pretty much a solid win for the ATU.

What does that mean? Well, the Board goes on to order:

  1. The City must end the lockout.
  2. The City must pay compensation to the locked out workers for the period during which the said application was pending before the Board.
  3. The City and the ATU are to meet to discuss the quantum (amount) of monetary losses arising from the lockout (and which the City must pay), with leave to return to the Board for a ruling if they can't reach agreement on that point.
  4. The Board does not make any definitive Order on what happens to the changes to the City pension plan. Rather, the City and the Union are to make further submissions to the Board on this issue.
Pretty straightforward, but there are a couple of points here. First, note that the compensation does not appear to be full back pay for the locked out workers from September 20th to today. Instead, it seems to be compensation only up to October 3. A Solomonic decision by the board - a victory for the Union, for sure, but some comfort to the City that the locked out workers will only get around two weeks' back pay, rather than a month's. As I discussed previously, full back pay would have given the Union a big advantage in bargaining. This decision certainly helps the Union's position, but it looks like the workers are still out their pay from October 4 onwards.

The question of what the Board can do regarding the City's changes to its bylaws re; the pension plan is another open question. Further argument will be forthcoming; the Board has broad powers to order a variety of remedies but it may not have the power to order the City to re-amend a Bylaw. We'll have to see what happens there.

Finally, this doesn't resolve the question of the appraisals of the pension plan; or the merits of each side's position. And the City could now re-lockout its workers, if it wished. This was a win for the ATU, no question, but labour unrest may yet continue.

As I touched on previously, the City has no right to "appeal" the decision as such, but they can apply to the Court of Queen's Bench for "judicial review". In that case the Court has the jurisdiction to decide whether the Board's decision was "reasonable" or not, and the Court should, generally speaking, defer to the LRB on matters within the Board's jurisdiction. Doesn't mean a Court won't overturn the LRB's decision - Courts can and have done so - but the Board has some latitude in interpreting its governing legislation (the SEA). Again, I don't want to bog down things with a discussion about administrative law principles, but suffice to say the City has the right to put this decision before the Courts. I'm not sure it would be to anyone's benefit for the City to do so, but we may see further litigation on this point.

Thursday 16 October 2014

Saskatoon Transit: "Slightly Pregnant" and Partial Revocation of Lockouts

Earlier today, Saskatoon Mayor Don Atchison said (here) that returning some of the City's locked-out workers to their jobs in order to provide scaled-down bus service (as City Councillor Darren Hill has proposed here) sounded "like someone saying they're slightly pregnant." In the Mayor's view, "[y]ou're either in a lockout, or you're not."

I'm not sure if the Mayor means the City shouldn't bring some of its workers back, or that the City can't. If the former, from the City's perspective, the Mayor might be right. If he means the latter, he's almost certainly wrong.

Partial revocation of the lockout - bringing some workers back to work while other workers remain locked out - is a tactic that would be open to the City. Nothing in The Saskatchewan Employment Act says that a lockout can't be partially or fully revoked by an employer. The City could move from a total lockout of all transit workers to a partial lockout of just some of them; just as it could have done the reverse, locking out some workers and then moving to a full lockout later.

The parties could also negotiate a deal for some workers to return, as happened in 2007 - during a strike, not a lockout, but the principle's the same - when striking members of SGEU agreed to return to work to operate snowplows during a terrible blizzard (as recounted here).

Similarly, strikes need not involve all striking workers at all times. The "rotating strike" is a tactic of long standing in labour relations - not that long ago, members of the Health Sciences Association of Saskatchewan used rotating strikes during their dispute with their employers back in 2011 (as mentioned here).

(The interaction between rotating strikes and partial lockouts can get pretty damned complex. See, for instance, the scenario that played out in B.C., where the B.C. Teachers Federation commenced rotating job action and the employer retaliated with a partial lockout, briefly summarized here.)

In theory, in the context of a strike, striking workers could even walk off the job en masse and then, some time later, have a number of them propose to return to work. It's difficult to see what advantage this tactic would have for a union (I don't see how it could do anything but doom the strike to failure), but it's something that could be done.

But in either case, the other side doesn't have to accept it. An employer faced with rotating strikes could impose a lockout. A union faced with a partial lockout (or partial end to a lockout) could call a strike. (The ATU got a 90%+ strike mandate from its members earlier this year.)

But the main reason why it's not common for an employer (in the case of a lockout, as we have here) or workers (in the case of a strike) to "downgrade" from a total lockout or strike to a partial one is that it can drastically reduce bargaining power..

In the case of a strike, workers' bargaining power comes from their ability to "vote with their feet" and withdraw their labour. Pressure on the employer comes from the fact that - barring the use of "replacement workers", which is a whole other story - the employer's operations are shut down. In the private sector, that hits the pocketbook. In the public sector, it causes public unrest and political pressure. So the union's strength comes from the strength of the withdrawal, and a partial return to work is usually going to weaken that position. In fact during protracted strikes some employers do try to lure striking workers back to work in order to weaken the strikers' resolve and lessen the impact of the strike. "Solidarity" is the watchword of the labour movement for a reason.

But in the case of a lockout, it can weaken an employer's bargaining position, too. It can make the employer look hesitant - if a partial return-to-work is needed, why did the employer impose a total lockout in the first place? Is the employer really ready for a protracted labour dispute? And lifting the lockout on some workers would reduce financial pressure on the locked out workers and on their union's resources. (The fact that some workers will remain locked out would still be an issue, of course - nothing says an employer would have to allow all locked out workers an equal opportunity to return to work - but there are ways to deal with that, on the union side.)

It also sends the ball back into the union's court; the union would now have the option of calling a strike - pulling whatever workers were back on the job - at a time where the union would be at an advantage.

But all of that being said, there's no question the City could implement a partial return to work. (It could just voluntarily end the lockout entirely, too, but that doesn't seem very likely.) It could try to negotiate terms of a partial return to work with the ATU (which, from the City's perspective, would certainly have to include a no-strike promise from the ATU), as Councillor Hill suggested he might try to do. There are reasons why the City might not want to do so - and reasons why the Union might not want its members to return.

But "you're either in a lockout, or you're not" is a very simplistic way to look at this situation, and it's misleading to suggest a lockout - or a strike - has to be an all-or-nothing affair.

And of course there's still the question of whether the lockout is legal in the first place, which would render much of this moot. The City seems to be hunkered down and waiting for the decision of the LRB before it makes any new moves.

(As an aside, it rings a bit hollow for Mayor Atchison to say that City Council "gives direction" but does not get "involved in negotiations", given that it was City Council that voted to make unilateral changes to the municipal pension plan. Attempting to pass the buck to the City's human resources department (or legal department) is poor form, in my opinion; does City Council the Mayor back the City's play or not?)

[I had originally referenced City Council in the above paragraph, but since it's the Mayor who said it, it seemed unfair to tar all of Council with the same brush. If any Councillors have made similar comments, I'd make the same comment about them, obviously.]

Tuesday 14 October 2014

Saskatoon Transit: When is An Application "Pending"?

I've been following the Tweets from reporters at the LRB for most of today, thereby ensuring that I'll probably be working on class prep until midnight or so. Oh well. There's a bewildering flurry of arguments, legal points, and evidence from today - the extent of damages and/or backpay that should be ordered; whether the ATU had in fact agreed to changes to the pension plan; whether it mattered that the outstanding ULP was irrelevant to the lockout; and so on. I'm not going to attempt to sort through all that.

There is, however, one point I want to address: When is an application "pending"?

As I mentioned previously, s. 6-62(1)(l) of The Saskatchewan Employment Act makes it an Unfair Labour Practice for a Union to strike, or an Employer to lock out, while "any application is pending" before the Labour Relations Board.

I had assumed that it wasn't an issue whether an application was pending in this case. The ULP regarding the discipline of a bus driver was filed in April; I had assumed it had already gone to its full hearing and that the parties were just waiting for a decision. But looks like I was wrong.

(Article on the disciplinary hearing here. Note that it appears that the bus driver who had been disciplined did not present his testimony to the Board until the same day as the Order - October 3.)

If a hearing had commenced, there'd be no question that it was "pending", by virtue of s. 6-111(2)(a):

(2) For the purposes of this Part:
(a) An application is deemed to be pending before the board on and after the day on which it is first considered by the board at a formally constituted meeting until the day on which the decision of the board is made....

Now, note, that's deemed to be pending. That doesn't mean that's the only time an application is "pending". But if a hearing has commenced, that's guaranteed to be a "formally constituted meeting" so the "deemed" bit kicks in.

Why is this important? Well, imagine my surprise on Twitter today:

[Patricia Warwick is counsel for the City.]

Wait, what? Well, as mentioned above, the formal full hearing of the disciplinary ULP maybe wasn't held until October 3rd. Okay, on the face of it, that doesn't look good for the Union's position.  On the other hand:

[...and Gary Bainbridge is counsel for ATU.]

ATU counsel is of course correct - s. 6-111(2)(a) isn't exhaustive, and just because a hearing on the merits of a case wasn't convened doesn't mean that an application can't be pending. Further, if 6-111(2)(a) was meant to mean just "once a hearing has commenced", it would have been easy enough for the Legislature to have said so.

So, for instance, where a preliminary objection had been heard, but the full hearing had not commenced, that application was nonetheless found to be "pending". (R.W.D.S.U. v. Canadian Linen Supply Co. Ltd., LRB File No. 150-89.) Where an application for rescission/decertification was before the Board and the Board had ordered a vote, that application was "pending" until the final decision - an application remains pending until either granted or dismissed. (Re Beautiful Plains Villa, LRB File No. 221-88.)

I don't know if there have been any preliminary applications or objections before the Board on the disciplinary ULP, though it's unusual for an ULP - especially a disciplinary one - to remain "on the books" for some five months without getting to hearing. I suspect there has been at least some Board involvement with the file prior to October 3rd.

But it seems clear that a matter can be "pending" even if the main hearing on the merits has not begun. What's important - as Mr. Bainbridge argued - is that the Board has "considered" the matter (which would bring the application under 6-111(2)(a) - though, again, it's possible for a matter to be "pending" even if s. 6-111(2)(a) doesn't apply). And "considered" is a broad term. It probably doesn't mean that an application has simply been filed, because that could lead to all manner of abuses (with frivolous applications being brought purely to frustrate a strike or lockout). But it also doesn't mean, as the City seems to suggest, that a full hearing must have been convened.

Anyway, long story short, the question of what is "pending" is squarely before the Board. These latest updates haven't really changed my opinion of the matter - I still think the Union has a decent shot here - but much will depend on the specifics of the disciplinary ULP.

It's been a frustrating experience to be on the outside looking in, I admit. I would love to get my hands on the LRB file regarding that disciplinary ULP, for instance. If anyone knows what actually went down with that ULP and is willing to share, feel free to contact me. (I've avoided contacting counsel for ATU or the City about my posts here while the matter is ongoing.)

Sunday 12 October 2014

Saskatoon Transit Lockout: What's at Stake (and what isn't) in the ATU LRB application

My previous (and first-ever!) post on this blog talked about the Saskatoon Transit lockout, and why the Amalgamated Transit Union - which represents the City of Saskatoon's transit workers - was, and will be again, arguing before the Labour Relations Board that the lockout was illegal. Needless to say, labour nerd that I am, I'm awaiting the Labour Relations Board's decision on the application with bated breath. But here's the bad news.

Bad news the first: we probably won't get the LRB decision on Tuesday. The hearing of the ATU application is set to be argued on Tuesday, Oct. 14, and Wednesday, Oct. 15. It's likely argument will go through to Wednesday, and even then, the LRB may not give its decision that day. That said, I suspect the Board will render its decision and issue an Order as soon as it can (as it did with the interim Order of Sept. 26). The Labour Relations Board hasn't hesitated to act swiftly when workers or unions engage in illegal strike action. One would assume that they would act equally swiftly to shut down an illegal lockout, if they decide in favour of the Union.

But - sadly - we probably won't see the written reasons for that decision for some time after that. Which is really only an issue for law wonks like myself (sigh) - and of course for the losing side, who might decide to apply for judicial review. 

[There's no right of appeal, as such, from a decision of the LRB. But our Court of Queen's Bench retains jurisdiction to review Board decisions based on principles of administrative law. But that's a whole 'nother kettle of fish. Point is, if one party's dissatisfied with the result and they think it's worth trying to get the Board's decision overturned, then they do have recourse to the Courts and litigation may continue.] 

Bad news the second: As I mentioned in my previous post, this decision won't, in itself, end the dispute between the parties. A fresh lockout - or a strike by ATU - may commence. And the application, needless to say, won't say anything about the merits of each side's position in bargaining generally. In my view, it's not really relevant to this application whether the City misrepresented the state of the pension fund (as the ATU and, now, CUPE's national office, allege); nor is it relevant whether the ATU's wage demands are reasonable. This application is really only concerned with whether the City's lockout notice was legal.

[CUPE National's allegations about the City and the pension plan are here. I don't pretend to know the truth of the matter.]

That's not to say the application is meaningless. In fact, it has the potential to have a significant impact on ongoing bargaining. 

On the one hand, the ATU has a lot riding on this application. They've got a strong case, in my view, but few things are certain in litigation and this isn't a guaranteed win for the Union. It's possible the LRB may yet find that the purpose and intent behind The Saskatchewan Employment Act requires a more restrictive reading of s. 6-62(1)(l) (which I summarized last time) than the statute's plain language would suggest. If the LRB finds that the lockout notice was legal, that can't help but take wind out of the ATU's sails, both with the public and with its members. 

On the other hand, the City has a lot riding on this application, too - perhaps more than the Union. If the ATU is successful, the City is almost certainly going to be on the hook for almost a month of back pay (from the date of the lockout - September 20th - to the date of the Order). That has the potential to strengthen the Union's position quite dramatically, I'd think. ATU members have been off work for almost a month and some of them will no doubt be starting to feel the financial pinch - they've been subsisting on strike pay from their Union, and strike pay is usually a small fraction of a worker's regular wages. But if the ATU's application is successful, those members will potentially have almost a month's pay coming to them. Even if they're subsequently locked out again, in some ways it'll be a blank slate - the City's economic pressure to date wasted, which will no doubt irritate even those city residents who are sympathetic to the City in this dispute.

And this is just regarding the lockout. The Board has broad powers to grant remedies, and it has already enjoined the City from doing any further unilateral changes to its pension plan. What if the LRB determines that the City's unilateral changes to the pension plan were also illegal, for the same reasons?

[An aside: I was asked at one point whether the ATU's application is "just a bargaining tactic." To this I will say two things: one, a Union or an Employer is perfectly entitled to rely upon its legal rights, and the protections of the SEA, regardless of motivation - just as the City would have been had the ATU gone on strike before the outstanding Unfair Labour Practice application had been dealt with. And second, and perhaps more importantly - the City's lockout, in itself, is a bargaining tactic. Indeed, the lockout (and the strike) is the quintessential bargaining tactic, where one side attempts to use economic force and social pressure to get its way. So this application may well be a bargaining tactic but that's because at this point, almost everything is.]

But both sides should be nervous about public opinion. Public sector disputes are different from private sector disputes in that the profitability of the employer isn't really at stake in the public sector. As such, the court of public opinion is the main pressure point. And this application, in itself, isn't going to bring a final resolution to the ongoing dispute between the City and the ATU. The ongoing struggle for public support will continue.

Professor Dionne Pohler, of the Johnson-Shoyama School of Public Policy at the U of S, suggested early in the lockout that (and here I'm paraphrasing) both sides could find a way to meet in the middle and come to a satisfactory resolution. Prof. Pohler also notes, however, that public pressure at that point (Sept. 23) had not risen to the level where it would have an impact on the parties. It's now three weeks later and public pressure is mounting. At risk of being a bit Pollyanna-ish, here's hoping that regardless of which side prevails before the LRB, the application serves as an incentive for both parties to do exactly what Prof. Pohler suggests and negotiate a resolution where they both get most of what they want.

Professor Pohler's comments are found in an interview here.

[As a further aside, I suggested last time, based on City HR Director McInnes' comments, that the City's motivation for issuing the lockout notice in the first place was to prevent a labour dispute during winter. A bit of additional reading seems to bear this out; Councillor Charlie Clark, in what I think is a very well-written statement of his views on the situation, says the same thing, here.]

[And as a last, self-aggrandizing link, my brief interview with Global TV is found here. Apparently I'm an expert. Sweet!]