Saturday 31 January 2015

What a Week (or so) it's Been: SCC, TWU, and YXE

The last couple of weeks have seen some significant developments on a number of legal fronts.

On January 16, the Supreme Court released its decision in Mounted Police Association of Ontario v. Canada (Attorney General), which granted members of the RCMP the right to have an independent union and, in so doing, reaffirmed that collective bargaining is a constitutional right. On the same day the SCC also released the Meredith decision (Meredith v. Canada (Attorney-General)), another case dealing with the Mounties, where the Court ruled that a unilateral wage rollback by the federal Treasury Board didn't "substantially interfere" with the collective bargaining rights of RCMP members.

I'll admit I got this one completely wrong. Meredith seemed a closer analogue to the 2007 B.C. Health Services case, where the B.C. Liberal government unilaterally changed union bargaining units, changed pay rates and other terms and conditions of employment, and generally disregarded bargained-for collective agreements. (This isn't unusual in B.C. by the way. The B.C. Liberal government has a real hate-on for organized labour, and in particular the B.C. Teachers' Federation, and as a result they've made some questionable decisions. The latest example was about a year ago, where the BCTF was awarded around two million dollars in damages against the B.C. government owing the government's contempt for the Federation and the courts.)

In B.C. Health Services, the Supreme Court declared that the changes made were unconstitutional - they violated the union members' right to collectively bargain, which is protected under s. 2(d) of our Charter of Rights and Freedoms - "freedom of association." So I think I can be forgiven for thinking that the Court would similarly declare the unilateral changes in Meredith also offended workers' freedom of association rights. But the Court didn't, and the B.C. government, by the way, argues that Meredith will help its appeal from the damages award mentioned above.

Meanwhile in Mounted Police Association, the Court expanded upon its interpretation of freedom of association and built upon B.C.Health Services. I didn't think the Court would go as far as it did because in the 2011 Fraser case, the Court had taken (I thought) a step back from B.C. Health Services. I figured the Mounties would win on the unilateral contract changes because of the B.C. Health Services precedent, and figured they'd lose in Mounted Police Association because the principles at play there were more fundamental to the basis of our labour laws - and Fraser had set the bar pretty low for what was needed to protect "collective bargaining". But as I say, my prediction was exactly wrong.

Beyond labour principles, Mounted Police Association also includes, as an almost "throw-away" line, a comment that the Charter protects both individual and collective rights. Whether courts will seize on this obiter comment remains to be seen, but the Court has been hesitant in the past to speak of collective rights; even freedom of association, by definition a right you can't exercise alone, is seen as the right of individuals to act collectively. So we'll see what happens there.

Meanwhile in Nova Scotia, Trinity Western University won a victory in court when the Nova Scotia Supreme Court said that the Nova Scotia Barrister's Society exceeded its jurisdiction in refusing to recognize TWU law degrees. The decision is framed quite narrowly, but it does cast the jurisdiction of Canada's Law Societies as very limited. It seems (according to the decision) that Nova Scotia's Barristers Society should restrict itself to assessing the competence of lawyers only - that the Society shouldn't apply any broader social concerns in making such decisions. As I discussed previously, I take some issue with that - I'm not sure that the court would have come to a similar decision if TWU's discriminatory policy had been based on race rather than sexual orientation - but we'll see what happens during the inevitable appeal.

And back home, the ATU and the City of Saskatoon were back in front of the Labour Relations Board to argue about changes to the pension plan. The Board ruled that the changes - which the City had implemented via bylaw during its illegal lockout of its transit workers - could remain, but that ATU members were exempted from the impact of those changes prior to October 3, 2014, when the City could have legally issued a lockout notice.

But of course the really big news on the labour front is also a Saskatchewan case. The Supreme Court issued its decision in Saskatchewan Federation of Labour v. Saskatchewan, and declared that s. 2(d) of the Charter protects the right of public employees to strike, thereby putting the final nail in the coffin of 1987's Labour Trilogy - three cases that, in my view, completely missed the mark. Good riddance to 'em. Indeed the Court in Saskatchewan Federation of Labour went so far as to declare that the right to strike is an integral and "irreducible minimum" component of collective bargaining. The Saskatchewan government's Public Service Essential Services Act was declared unconstitutional because it allowed public employers to unilaterally decide which employees were considered "essential" - by which it means they can't strike - without any recourse to, say, the Labour Relations Board or an arbitrator if the parties could not agree. And the government had cast its net quite widely - liquor store and casino workers, for instance, were declared "essential."

(I should note that the concept of "essential services" isn't always well understood. I've given presentations where some workers have been quite insulted not to be considered "essential". But of course in this context, being "essential" isn't really a compliment - all it means is you can't go on strike.)
In so doing the government was also  interfering with public sector employees' collective bargaining - because ultimately workers' bargaining power is based on their ability to "vote with their feet", i.e. strike - without recourse such as "binding arbitration" to resolve bargaining impasses. The Court made it clear that if a government is going to take away workers' right to strike, some alternate form of dispute resolution process must take its place.

This doesn't mean, I hasten to add, that a government can't declare certain services essential. Of course it can, and indeed there are a number - such as police, firefighters, and so on - that were considered essential services prior to the PSESA being passed. But the problem here - as was the case in B.C. Health Services - was that the government over-reached. Rather than trying to find a balanced approach to the essential services issue, the Saskatchewan Party let its dislike of the labour movement get the better of it and imposed a one-sided and unnecessarily broad piece of legislation.

As Professor David Doorey said on his blog,, the government brought this loss on themselves:

"In their haste to strip workers of the right to collective bargaining, they overreached, went far beyond what was necessary to protect the public interest to win some small points with their political base, to show that they are 'tough as nails against labour,' and that they could do whatever the hell they liked ..."
I'd tend to agree with Prof. Doorey's analysis - the PSESA had precious little to do with sound labour policy, or even with protecting the public - it was about scoring political points.

Also of interest in Saskatchewan Federation of Labour was the Court's denial of the appeal on the part of the Unions. At trial, Justice Ball of our Court of Queen's Bench had declared the PSESA unconstitutional, which was upheld by the SCC. But he'd also said that the government's changes to The Trade Union Act - now Part 6 of The Saskatchewan Employment Act - did not offend workers' freedom of association. These changes included expanding the ability of employers to communicate with workers who are trying to organize a union; a change from "card certification", where workers vote to certify a union by signing union cards, to "vote certification" where workers must sign cards and succeed in a secret ballot vote; and increasing the percentage of workers who must sign cards in order to get to that vote in the first place. The Supreme Court upheld Justice Ball's decision here, too; probably because finding those amendments unconstitutional would have impugned labour legislation across the country, and would have involved much more detailed Court oversight of labour leglislation.

So what does this mean? Well, obviously the Saskatchewan government now has to re-draft its essential services law to comply with the Court's ruling. But essential services across the country will be examined in detail, I'm sure - the Alberta Federation of Labour, for one, has its eyes on that province's essential services legislation with a view to a possible court challenge. Essential services legislation in health care in Nova Scotia, B.C., Newfoundland and Labrador, and in the federal public sector, may also face challenges. Ad hoc "return to work" legislation, where the government orders striking workers back to work, may be subject to challenges in future based on Saskatchewan Federation of Labour. I'm chewing over what impact this decision has an impact beyond the unionized public sector. I think that the implications will actually be relatively modest.

But really, what Saskatchewan Federation of Labour does - along with, to a lesser extent, Mounted Police Association - is reaffirm that governments should avoid ideological attacks on constitutional rights. Consultation, balance, and sound policy should be the approach.

As a final note, I was going to let this lie  but it set my teeth on edge something awful.

In no particular order:

1) The Supreme Court didn't over-rule essential services; it over-ruled an overly broad piece of legislation.

2) Unless the Saskatchewan government was taking steps to reduce Weston Dressler's bargaining power - which is what it did to public sector employees - the analogy really isn't apt.

3) The Supreme Court - or any court - wouldn't review Dressler's contract on constitutional grounds anyway because the Charter, as a general rule, doesn't apply without government action.

...Though Weston Dressler, like all the Riders, is a member of a union - the Canadian Football League Players Association - so perhaps we should be surprised that the government didn't try to declare the Roughrider players an "essential service", too, in its overly-broad PSESA.

Having performed my quota of Humourless Academic Analysis, I'll end it there.

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