Thursday 31 December 2015

2015 Roundup: What a Year it's Been

There are, needless to say, an enormous number of stories and cases that come out in a given year. I don't intend to even attempt to give a thorough or fulsome "year in review" here, but I would like to revisit some of the things I've posted about in 2015.

Essential Services Legislation

In labour law, the year started off with a bang when the Supreme Court released Mounted Police Association of Ontario v. Canada (Attorney General) (which declared that workers have a right to join an independent union), Meredith v. Canada (Attorney-General) (which upheld a government-imposed rollback on wage increases for RCMP officers), and Saskatchewan Federation of Labour v. Saskatchewan (which recognized that workers have a constitutional right to strike and struck down Saskatchewan's essential services law). It's still not clear what impact these cases will have in the long term, though Alberta, at least, engaged in consultation on a new essential services law in October, to bring its law in line with the standards set out in Saskatchewan Federation of Labour.

The Saskatchewan government also introduced amendments to The Public Service Essential Services Act (the Act which had been struck down in Saskatchewan Federation of Labour) which have since been passed by the Legislature (though the new legislation isn't yet in effect). The Saskatchewan Federation of Labour seems to approve of the new law. A summary by employer-side law firm Macpherson Leslie & Tyerman is here; union-side lawyer Greg Fingas discusses the new law here. Perhaps the best summary, though, is this tweet from Eric Adams at the University of Alberta:

That said, MPAO, Meredith, and Saskatchewan Federation of Labour were really just completing the legal journey that began in 2007 with the B.C. Health Services case, and B.C. Health Services, while undoubtedly significant, didn't send Canadian labour relations flying arse-over-teakettle. But unions are undoubtedly more assertive in challenging labour legislation in court; unions in Nova Scotia, for instance, will be launching a Charter challenge against the recently-passed Bill 148, The Public Services Sustainability (2015) Act, which restricts, among other things, wage increases in the public sector. We can expect further challenges to labour legislation, but I suspect (as I've said before) that the overall impact of the 2015 cases will be relatively modest.

Alberta: Bill 6

2015 ended with a bang, too, with much furor (including, apparently, death threats aimed at Premier Rachel Notley) over Alberta's Bill 6, The Enhanced Protection for Farm and Ranch Workers Act, which extends to paid farm workers similar protections as other workers under workplace legislation: occupational health & safety, workers' compensation, labour relations, and labour standards. Bill 6 recently received royal assent on December 11, 2015, but with the significant amendment that the new protections found in Bill 6 will no longer apply to family members or unpaid workers.

(As an aside, I posted a while back about Bill 6 and that post got some traffic from a forum where people were discussing the Bill. The question of OH&S and WCB coverage for farm workers in Saskatchewan came up. Someone kindly posted a link to this blog as a source of information, but with the comment that "...but it's not very clear." A  humbling reminder.)

You said it,
As the Alberta Government's website states:

Who’s affected

Alberta farm and ranch producers with paid employees who are not the owner or related to the owner will be affected by Bill 6.

This means that family members can continue to contribute to farming operations as they always have, and neighbours can still volunteer to help each other out
Still, paid farm workers in Alberta will now probably have the most extensive protections of any jurisdiction in the country. (Though this will still be subject to regulations - which might limit the application of some provisions on farms.) As I mentioned back in November, in Saskatchewan we don't have mandatory WCB coverage for farms, nor are farm workers entitled to many labour standards. Ontario farm workers (including fruit pickers) can't unionize effectively under the misleadingly-titled Agricultural Employees' Protection Act. So it will be interesting to see how Bill 6 develops in 2016 as the Alberta government crafts its regulations.

Federally: Bill C-377 and Bill C-525

Federally, the new Liberal government has blocked, and has promised to repeal, the intrusive (and likely unconstitutional) Bill C-377, which would have required unions to disclose publically (not just to their members) employee salaries, donations to political and social causes, contracts with businesses or other organizations, amounts spent on legal fees and strike support...the list goes on. Bill C-377 was, like the Conservatives' pointless fight over niqabs at citizenship ceremonies, a mean-spirited jab at people and groups that the Conservatives seemed to feel were good political targets. And like the niqab ban, it had effectively no practical value beyond, I suppose, rallying the Conservative base. Professor Adams, again, suggested that the legislation ran afoul of the division of powers between the federal and provincial governments (it's ostensibly a tax measure - federal jurisdiction - but intrudes into the regulation of all unions regardless of jurisdiction); others have suggested that it will undermine solicitor-client privilege (since unions would have to disclose legal fees and, likely, legal representation), infringe upon the privacy of union employees and those dealing with unions, and violate the Charter protections of freedom of association and freedom of expression. Prof. David Doorey pointed out that it singled out unions for greater and more detailed financial disclosure (and, again, public disclosure) than other organizations such as charities. Bill C-377 is a bloody mess, legally, practically, and constitutionally, and should have died the usual ignominious death of a private member's bill. Thankfully, it's on the way out.

Bill C-525, which would have made it harder to unionize (and easier to decertify, i.e. de-unionize) for employees under federal jurisdiction, is also on the chopping block.

Locally: Saskatoon Transit

But in Saskatoon, the dramatic labour dispute between city transit workers and the City of Saskatoon (said dispute being the impetus to start this here blog) ended the year not with a bang, but with (kind of) a whimper: the City of Saskatoon and Amalgamated Transit Workers Union, Local 615, came to an agreement on the compensation owed to the workers who had been illegally locked out. But they still haven't agreed on a contract.

And on a non-labour-related note:

Trinity Western University

Meanwhile, Trinity Western University's quest for a law school continues. In January, the Nova Scotia Supreme Court declared that the Nova Scotia Barristers' Society could not deny accreditation to graduates of a TWU law school. That decision is currently under appeal. Then, in July, the Ontario Divisional Court upheld the Law Society of Upper Canada's decision not to approve accreditation for any law school at TWU unless and until TWU revokes its "Community Covenant" (at least as far as law students would be concerned). That's currently under appeal, too.

Then, a couple of weeks ago, the B.C. Supreme Court quashed the decision of the Law Society of B.C. to refuse accreditation to TWU law grads. No word yet from the Law Society on whether it will appeal.

Regardless, it seems likely that TWU's journey will be to the Supreme Court - again - especially if the various Courts of Appeal come to contradictory conclusions.

And that's it! A brief and limited, but hopefully interesting, year roundup. I didn't get a chance to use Anti-Union Ogre in this post, sadly, so I'll have to settle for this.

Thursday 3 December 2015

Citizenship and Disavowal: the Canadian Citizenship Oath

In 1989, I took the citizenship oath and became a Canadian citizen. The oath hasn't changed much, if at all, since then. Here it is:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
I admit, it didn't feel like that big a deal to me. I'd lived in Canada for fifteen of my seventeen years or so at that point; my accent was long gone; and I didn't remember Scotland at all, since I was about two-and-a-half when my parents moved back to Canada. Taking the oath was affirming what I already knew: that I was, for all intents and purposes, Canadian (albeit with an odd predilection for the pipes-and-drums).

(I saw the Maybole Pipe Band at Culzean Castle a couple of years ago. They were great. (From

I certainly wasn't keen on the monarchy, archaic and outmoded institution that it is, and affirming my allegiance to Queen Elizabeth II - even in her role as Queen of Canada, rather than Queen of the United Kingdom - rankled. I did take the oath, however. It wasn't a political or ideological hill I was going to die on at seventeen and, frankly, as a Canadian-in-all-but-the-paperwork by that stage, I'd long since accepted the anachronistic figurehead of my country. So I gritted my teeth, pledged my allegiance to Good Queen Bess, and became an official Canadian, no foolin'.

No hard feelings, I hope, Your Majesty. (

The citizenship oath made the news during the recent federal election, of course, in the case of Zunera Ishaq, and owing to the Conservative government's bone-headed decision to pander to Islamophobes. That issue, thankfully, appears to have been resolved and Ms. Ishaq was able to become a citizen. She, notably, took no issue with the oath itself; merely the requirement that she uncover her face while taking it.

Recently, though, the Oath made news again when Dror Bar-Natan, an immigrant from Israel, publicly recanted the portion of his citizenship oath that related to the Queen.In fact he's gone so far as to start up a website for those who wish to disavow that portion of their oath that refers to the Queen.

We at have no qualms regarding the second part of the oath, about the laws and the duties. The first and slightly longer part, about the monarchy, we find bitter to swallow, each for her or his own reasons. Hence each of us disavowed that part, in one way or another.

Dr. Bar-Natan specifically stated to the citizenship judge after completing the citizenship ceremony (according to 
I affirm my allegiance, my true allegiance, to Canada and to the people of Canada, yet I wish to disavow the royalty part, and only the royalty part, of the citizenship oath.

This, by the way, is perfectly legal. You can't gain citizenship without saying the oath. But you don't lose your citizenship if you, as Dr. Bar-Natan did, immediately recant that portion of your oath. (See e.g. McAteer v. Canada (Attorney-General), 2014 ONCA 578 (CanLII) at paras. 78-79. You can, in essence, take the oath with your fingers crossed. And then post on

Now, if I may quote Wikipedia here (the very thing I tell my students not to do), the Queen of Canada:

As the, legally and constitutionally, the personification of the Canadian state.
(Though see the comments of Professor Philippe Lagasse, below - it's not quite as simple as that, perhaps.)

And that's the line, more or less, that the courts have taken. You're not really swearing allegiance to a monarch, as such, you're swearing allegiance to our constitutional state. That the state is personified by the monarch is simply set out in our Constitution. If we wanted to become a republic and ditch the monarchy, we could do that. As the majority of the Federal Court of Appeal in Roach (1994) stated:

Against this constitutional background, the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect...The fact that the oath "personalizes" one particular constitutional provision has no constitutional relevance, since that personalization is derived from the Constitution itself.

The Ontario Court of Appeal in McAteer has also taken the position that any oath to uphold the laws of Canada implicitly means allegiance to the Queen and, therefore, a more generic oath would still have the same effect:
Because the Queen remains the head of our government, any oath that commits the would-be citizen to the principles of Canada’s government is implicitly an oath to the Queen. 
The courts, generally speaking, seem to approach this as self-evident; that those who complain about the monarchist portion of the oath misunderstand the oath; that such objections are somehow unreasonable. McAteer, again:

The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Supreme Court of Canada, leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under The Constitution Act, 1867. In that oath, the reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning.
Except that, it seems to me, they keep dancing around the issue that the oath is, explicitly, an oath to "bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada..." Yes, I'm basing this on a "literal plain meaning" interpretation. Perhaps we contract-lawyer types lack the poetic souls of constitutional scholars. We can dress it up in more legalistic or metaphorical terms, but I don't think it's unreasonable of people of strong religious (e.g. their allegiance is to God alone) or political (e.g. republican or anti-monarchist) beliefs to take umbrage at the oath's wording.

That doesn't, of course, render the oath unconstitutional. And legally speaking, such concerns may indeed by conscientious but also legally incorrect. Conscience can be visceral, and hasn't necessarily been to law school.

In 2002, Bryce Edwards (then still a law student, I think) argued in his article "Let Your Yea be Yea: the Citizenship Oath, the Charter, and the Conscientious Objector" (paras. 89-90):

It may be true that many of the objections a claimant raises can be met by careful definition of the meaning of the words "Queen Elizabeth" in the citizenship oath...However, it seems that adjusting the legal significance of the words is untenable...The words, in their plain meaning, indicate a person, Queen Elizabeth. The legal history of oaths of allegiance shows that they arose explicitly in order to bind the conscience of the individual to the sovereign, not to concepts...
It is far from obvious that the meaning of the oath has changed, given that the words have not. The oath taken today is nearly identical to one taken in 1689. Regardless of what judges say, the public and political nature of both citizenship and the citizenship ceremony means that the judiciary is hard-pressed to set the meaning of words in any authoritative way. Not only is it fairer to all involved that the words be given their clear, plain and popularly held meaning, it also is in keeping with the canons of statutory interpretation. The ceremony is more than just a legal one; it is a public ceremony, with personal, religious, social and political ramifications. In this light, the present wording of the oath falls afoul of the objections outlined above and is not saved by semantics.
The (perhaps less-than-careful) distinction between Queen-as-Queen and Queen-as-State drawn by the courts has also been addressed by Professor Philippe Lagassé, who has written extensively on the concept of the Crown, and in 2014 was generally in agreement with the Court's decision in McAteer - but with some caveats. (His blog makes for interesting reading, by the way.) As Professor Lagassé notes:

I am probably being unfair here, but I would have preferred to see a clearer statement that the Crown is the state and that the Queen is the legal personality of the state and the executive, not just symbols of the state and the executive. The distinction may appear trifling, but I’d argue that there’s an important distinction between the Crown and Queen as the state and the sovereign authority versus the Crown and Queen as symbols of the state and sovereign authority.
Nor, he adds, should monarchists be too quick to celebrate McAteer:

So why is this bad news for monarchist and royalists? Because the ruling could be read to mean that the Queen of Canada is a mere legal entity, one that happens to be linked to the British monarch but not necessarily so...
...The finding that the Queen of Canada and Queen Elizabeth II are not necessarily fused as part of the oath, moreover, fuels frustrations with Canada’s citizenship guide. The guide’s description of the oath and the role of the Queen in Canada arguably relies on the notion that the office of the Queen and the Queen as a natural person are synonymous. Weiler and Morgan, on the other hand, are saying that, for the purposes of taking the oath anyway, that’s not the case.

In any event, putting aside whether or not there is a necessary tie between the Canadian Monarchy and the British Monarch, it could well be that, as the Court stated in McAteer, any oath of citizenship is implicitly an oath to the Queen. But that said, if that's the case, then we don't actually need the Queen in our citizenship oath. A more generic oath, such as:

"I swear (or affirm) that I will be loyal to the Dominion of Canada, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.", accordingly, an implied oath to the Queen. Except that it seems that such an oath would be less distasteful to a number of people; nobody seems to be suggesting the rest of the oath is somehow offensive. (Though if you wanted to disavow the whole damn thing, you can do that, too.) So everybody's happy, right? Republicans and monarchists alike?

Australia, also still a Dominion, requires prospective citizens recite this non-monarchist pledge as part of becoming a citizen:

From this time forward, (under God),
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey.

However, when all is said and done, our courts have reaffirmed that the citizenship oath, as it stands, is constitutional. It will be up to Parliament to change the oath. So for now, for those who wish to become Canadian citizens but just can't bear to have an oath to a monarch (even an apparently  metaphorical one) on their conscience, there are two options. One, they can choose not to become citizens. Or two, they can speak the oath and then disavow allegiance to the Queen, as Dr. Bar-Natan recently did.

As for me, I have no intention of disavowing my citizenship oath, in whole or in part.

Still not a big fan of the monarchy, though.