The (Non-)Right of Employers to be Non-Union

 [This post sat in the Drafts folder for a good long while - this blog has been much-neglected - but I hope to get it back up and running.]

The issue of an employer's right to remain non-union has been in the news recently. In Nova Scotia, Egg Studios (in the midst of a bitter labour dispute with IATSE Local 849) stated in an opinion piece that:

We have the protected right, under the Charter of Rights and Freedoms, to remain union-free. However, interpretive laws designed by overzealous labour experts make it difficult to enjoy that freedom. We are hamstrung by our own success, vilified by those who whisper angelic phrases at night, and steal our businesses in the day.

I've got no horse in the race as to whether Egg Studios is union or not, but I'm not clear on what Charter right Egg Studios bases this claim. Freedom of conscience...maybe? It's not freedom of association; bargaining with someone isn't "associating" with them, unless you define "association" so broadly that it becomes meaningless.

Certainly not a Charter right to property. We (unlike the Americans) don't have constitutional protection of property rights, though property rights do have a quasi-constitutional status under Canadian law and do have explicit protection under a variety of provincial legislation. (As an aside, did you know that Alberta has a property rights advocate? I sure didn't.)

But even if we did, those rights aren't being affected - at least not directly - by the requirement to bargain collectively.

In Ontario, furniture manufacturer Gingrich Woodcraft shut down operations after its workers voted to unionize.  Why? Because, said the company, its owners are Christians and their religion teaches them not to engage in collective bargaining.

...Well, that's not quite how they phrased it. Specifically, the company said (from the CBC article, above):

"We are required by scripture to 'live peaceably with all men,' and not to use force to gain what we want or for what is required to succeed."

 Why that means they can't bargain with a union, well, I don't know. I suppose this means that they're opposed to strikes and lockouts, but...have they never fired an employee? Have they never had to negotiate a contract with an employee? Have they never had to renegotiate a contract when a valuable employee demanded a raise? It's not like the common law, individual, contract of employment is free of conflict. But in most cases, it does give the employer significantly more bargaining power than the employee.

Why is this an issue? Well, most labour relations statutes make it an unfair labour practice for an employer to interfere with selection of a union. The Saskatchewan Employment Act, for instance, sets out as follows, among other possibly relevant provisions:

6‑62(1) It is an unfair labour practice for an employer, or any person acting on behalf of the employer, to do any of the following:

 (a) subject to subsection (2), to interfere with, restrain, intimidate, threaten,
or coerce an employee in the exercise of any right conferred by this Part;...

 (g) to discriminate with respect to hiring or tenure of employment or any term or condition of employment or to use coercion or intimidation of any kind,including termination or suspension or threat of termination or suspension of an employee, with a view to encouraging or discouraging membership in or activity in or for or selection of a labour organization or participation of any kind in a proceeding pursuant to this Part;...

(i) to interfere in the selection of a union;

(k) to threaten to shut down or move a plant, business or enterprise or any part of a plant, business or enterprise in the course of a labour-management dispute;

(n) before a first collective agreement is entered into or after the expiry of the term of a collective agreement, to unilaterally change rates of pay, hours of work or other conditions of employment of employees in a bargaining unit without engaging in collective bargaining respecting the change with the union representing the employees in the bargaining unit;

Note that (k) is about threats to close or move an operation - not the actual closure itself. Of course an employer can shut down or move its operations if it so chooses; but if it does so to avoid unionization - which Gingrich clearly has done - then that's a problem.

But beyond that, it's pretty clear that firing someone for union activity - which is what Gingrich Woodcraft has done to its employees - is clearly meant to interfere with the workers' exercise of their rights (i.e. their right to form a union).

Even the Globe & Mail, hardly a bastion of labour activism, weighed in suggesting that Gingrich Woodcraft "doesn't have a prayer". And the G&M's probably right - the Ontario Labour Relations Board has previously held that an employer has no right to remain non-unionized, as an employer is obviously not required to join the union: Labourers’ International Union of North America, Local 1059 v. Roger Good, 2010 CanLII 47146 (ON LRB).

Still, why wouldn't an employer have a right to remain non-union? Well, the practical reason is pretty obvious: a lot of employers, faced with unionization, would no doubt find a deeply-held (perhaps previously unknown) conscientious belief that unions are somehow morally wrong - the number of born-again Objectivists would no doubt skyrocket. But on a more principled level, the right to unionize is a worker's right; the default under our system is a non-union workplace, so workers have a right to change that under trade union legislation (and now, following Mounted Police Association, under the Charter too, it seems). Employers may not be enthusiastic about negotiating with a union, but a right to remain non-union (putting aside the various techniques employers can use to defeat organizing drives) undermines the entire system.

And it's difficult to see how being obliged to negotiate with a collective bargaining agent instead of individual employees offends a Charter, or indeed any, right. "I don't want to pay my employees more" or "I don't want my employees to have a say in their working conditions" are hardly cries that will inspire people to man the barricades. Though they will perhaps inspire people to look for convenient legal excuses or justifications to avoid unionization.

Unions on the Hill 2: Union space and parliamentary bylaws

Right, so. Last time I discussed the prevalence of "union space" clauses in collective agreements. I also mentioned that the Liberals and Conservatives believe - or say they believe, at least - that such a clause runs afoul of Parliamentary bylaws preventing the use of caucus space for the "benefit" of a person or organization.

For reasons that follow, I think the Liberal and Conservative argument here is nonsensical. To interpret the provision as strictly as these parties suggest would disallow any number of otherwise entirely proper uses of caucus offices.

Now, again, I'm not suggesting that one can cloak otherwise illegal or improper activity under a "union space" clause. But I've seen no evidence presented that UFCW Local 232 or the federal NDP are doing anything improper with the office space granted - other than, apparently, granting it in the first place.

The Language in the Bylaw



Recall the Bylaw itself:
  

7(1)...a Member may not use funds, goods, services and premises provided by the House of Commons for the benefit of any person, association or organization, or for the promotion of a product, service or event of any person, association or organization.

If we take the Liberal and Conservative interpretation of the Bylaw, the Bylaw serves to prevent any union space clause being in any collective agreement on the Hill. It wouldn't just prevent a union office. It would, using this same reasoning, prevent a union bulletin board (that's using "premises" for the "benefit" of a person (the workers) or an association (the union), after all) or, for that matter, preventing union representatives from meeting with their members within the workplace at all (again - using "premises" for the "benefit" of the workers within the workplace).

For that reason alone, in my view, the Liberal/Conservative line here is absurd. The intention of the Bylaw is to prevent influence-peddling and diversion of Parliamentary resources for private benefit. UFCW 232 - that represents federal NDP office staff - has its own offices off the Hill. The Local represents staff of the federal NDP across the country - not just in the House of Commons.

But it goes further. What about, for example, occupational health and safety committees, which employers are required to maintain under the Canada Labour Code? If they meet within the offices of the party, isn't that using "premises" for the "benefit" of people working in the workplace? (Lest you think the comparison is a stretch, keep in mind the Code also imposes statutory requirements upon employers, such as requiring them to abide by collective agreements and to recognize and bargain with their employees' union of choice.)

Union representation is - or should be seen as - just as much a part of the legal landscape of working life as is occupational health and safety legislation. But the Liberals and Conservatives (neither of whom, of course, have unionized staff) seem to view a union chosen by a group of workers as somehow foreign; unwelcome; improper. And the interpretation these parties put forward regarding this parliamentary bylaw seems far too narrow and completely misses the logic and purpose of labour relations in a unionized workplace.

I mean, really, it seems to keep coming back to our old friend Ogre.

What about the Charter?

Following Mounted Police, Saskatchewan Federation of Labour, and B.C. Health Services, labour rights have finally been granted "constitutional benediction" - to borrow a phrase from Justice Abella in Saskatchewan Federation of Labour. Surely preventing a union from meeting with its members, maintaining a bulletin board, or having an office within the workplace - all of which would contravene Parliamentary bylaws, if you believe the Liberals and Conservatives here - must violate the Charter?

Well, yes, probably. While it could certainly be argued that workers can engage in "meaningful collective bargaining" without a union space clause, I think the stronger argument is that the message forbidding union space sends - telling workers that their union is not allowed to communicate with them within the workplace - is a much greater affront to labour rights than it might at first appear.

But that's not the end of it. Because we're talking about a union space clause in the House of Commons, we have to deal with the question of Parliamentary privilege - the idea that Parliaments and Legislatures can make certain decisions without fear of judicial review. So, for instance, the right of a Legislature to forbid television cameras was not subject to review by the Courts. Parliamentary privilege is not unlimited, but it extends pretty far - to anything necessary for the functioning of Parliament. Labour relations may well fall under that category - meaning that the Charter might not apply if Parliament chooses to forbid union space clauses.

This isn't a topic I feel particularly qualified to write about, so I'll just say that Parliamentary privilege might apply here. But as one constitutional scholar I canvassed noted, it's not the end of an issue just because that issue's not subject to Charter analysis. Hopefully sound labour relations policy and sensible politics will prevail in this case.

Unions on the Hill, Part 1: "Union Space" clauses

The New Democratic Party of Canada's political staff is unionized, and the employer (i.e. the NDP) provides office space for their staff's union, pursuant to a collective agreement between the parties - what I'll call a "union space" clause. It doesn't appear that extra office space is granted by Parliament for this purpose - the union office seems to be within the Leader's office space - though I stand to be corrected on that point. And this is only an issue for the NDP, as none of the other parties (including the Greens and the BQ) have unionized staff.

The federal Liberal Party's house leader, Dominic Leblanc, takes issue with this collective agreement clause, saying a union space clause somehow "blurs lines" on the Hill. The Conservatives have piled on, filing a complaint with the parliamentary Committee on Internal Economy (the meetings of which are generally held "in camera"). Several unions have fired back in response to the Liberal and Conservative criticism, as has the NDP itself.

It all combines to make this sound very controversial. From a labour relations standpoint, it isn't. Union space clauses are incredibly common. I'm more surprised when a collective agreement - regardless of the employer - doesn't have a union space clause of some sort.  But that is, of course, not the whole story. We have to consider Parliamentary bylaws and, possibly, the question of Parliamentary privilege. But that's for next time.

For today, we'll deal with the labour relations aspects of this tempest in a teapot.

The relevant clause of the collective agreement in question, between the federal NDP and its parliamentary staff, apparently reads as follows:

Caucus will provide office space for CEP Local 232.

I say "apparently", by the way, simply because the collective agreement isn't readily available online, as far as I can see, so I'm quoting from the CTV news story linked above.

NDP national staff used to be represented by the Communications, Energy and 

Paperworkers Union Local 232.  They're now represented by United Food and 

Commercial Workers, Local 232 (from ufcw232.ca).

This shouldn't even be an issue. It's very common for unions to negotiate "union space" clauses in their collective agreements. In some cases, it's merely a bulletin board that's to be used exclusively for union postings, such as in this collective agreement between SEIU-West and Canadian Blood Services:

18.01The Employer shall provide the Union with a bulletin board for the exclusive use of the Union. This bulletin board shall be placed so that employees covered by this agreement shall have ready access to it. The Union shall have the right to use this space to post notices of meetings and any other notices as may be of interest to the employees. All notices posted shall bear the signature of a Union official.

In others, as with my own union (the University of Saskatchewan Faculty Association), it extends to office space and meeting space:

 10.5.1 The Employer agrees to provide the Association with reasonable office space, adequate telephone service, and reasonable use of the internal postal service of the University. A charge will be levied by the University for telephone and external postal services that are not otherwise paid for by the Association.

 10.5.2 The Employer shall provide the Association, free of charge, with suitable meeting rooms on the Employer's premises for the conduct of Association business subject only to normal scheduling requirements and the payment of any extra costs that may be incurred in making special arrangements

(That's from our last Collective Agreement, found here if you're interested; but the current version has similar language.)

(Represent!)

Or it can include both, as in this agreement between the Canadian Union of Public Employees and Saskatchewan Association of Health Organizations:

37.06 The Employer(s) agrees to provide the Local of the Union with office space (where possible), the size and location of which shall be discussed between the Local of the Union and the Employer.

37.07 The Employer(s) shall provide bulletin board(s) which shall be placed so that all Employees will have ready access to them and upon which the Local of the Union shall have the right to post notices of meetings and such other notices as may be of interest to the Employees.

The reasons for such clauses are pretty obvious. They allow the union to communicate openly and freely with union members in the workplace. It's also a recognition that the union has a right to be there; that the workers' choice to be represented should be respected by the employer. And of course once it's in a collective agreement, the employer is contractually obliged to comply with the clause.

A union's use of bulletin boards and union space isn't unlimited - you can't hide behind a union space clause if you post defamatory material, for instance - though unions are generally given some latitude in how they choose to use them.

Over and above the union space issue, it's also very common for NDP staff to be unionized. For example, the Saskatchewan NDP's staff is represented by the Canadian Office and Professional Employees Union, Local 397). The B.C. NDP's staff is represented by the B.C. Government Employees' Union.

(Indeed it's common for union staff to have their own union (COPE 397 also represents staff at the University of Regina Faculty Association as well as staff at Service Employees' International Union here in Saskatchewan; staff at SGEU were represented by the Communications, Energy, and Paperworkers Union, Local 481 - now represented by UNIFOR 481, following a merger of the CEP and the Canadian Auto Workers).)

And that's an important point, I think. NDP staffers and union staffers may work for union-friendly employers (ostensibly), but they are still workers and employees. They can have disputes with their employers, just like in any workplace. They sometimes need help with harassment complaints or workplace conflicts, just like in any workplace. They may file grievances. Sometimes they go on strike (for example staff at the Saskatchewan Government Employees' Union struck in 2007; there was some suggestion back in 2010 - though I haven't found further confirmation beyond a single "scuttlebutt" news article - that B.C. NDP constituency assistants took a strike vote in 2010).

When they unionize, these workers and employees get the same rights (subject to some limitations such as essential services legislation) as every other unionized worker - to organize, to collectively bargain, and to strike, as we saw in Mounted Police Association, B.C. Health Services, and Saskatchewan Federation of Labour - which includes the right to, if they choose, collectively bargain for union space. That's true whether the union is public or private; whether the employer gets its funding from government or not.

And I'm not suggesting union space clauses are, or should be, somehow mandatory; only that it's problematic to forbid  a union and employer from negotiating one.

Notably, there doesn't seem to be any suggestion that either UFCW Local 232 or the NDP have used the office for improper purposes. Rather, the Liberals and Conservatives are complaining that the union has union space within the workplace at all. This is also an important point, as I don't wish to be seen as giving either the union or the employer carte blanche to do whatever they want with the space. I'm assuming here that the office is used for exactly the purpose intended - to facilitate union communication with and representation of its members within the workplace.

But that's not the end of the issue. In labour relations a "union space" clause is entirely uncontroversial. It shouldn't be controversial here, either, in my view, but the Liberals and Conservatives believe (or at least they are alleging) that this violates a clause within Parliament's member Bylaws:

7(1)...a Member may not use funds, goods, services and premises provided by the House of Commons for the benefit of any person, association or organization, or for the promotion of a product, service or event of any person, association or organization.

 ...And that's what I'll be addressing next time.

A few brief thoughts on the "notwithstanding clause" in labour law.

Saskatchewan's Premier is prepared to use the "notwithstanding clause"- section 33 of The Charter of Rights and Freedoms - to prevent constitutional review of his government's essential services legislation. That was a month ago, and again this post is a bit dated.

To be honest, I was waiting to see if the federal government was going to use the notwithstanding clause in its return-to-work legislation regarding the CP Rail strike last month, but that legislation seems never to have hit the floor of the Commons.  (Strangely enough, the government didn't seem as eager to intervene in a CN Rail lockout around the same time. While the CP Rail strike - called by a union - showed a "reckless disregard" for the economy and Canadians, said the Minister of Labour, I didn't see similar rhetoric from the Minister on the CN lockout - imposed by an employer. Why that is, I leave to the reader's speculation.)

Whatever you may think of the Premier's reasons for or the merits of using the notwithstanding clause, it does suggest that recognition of the right to strike may re-start a debate around s. 33 that started in Saskatchewan in 1986 and ended almost as soon as it began.

Section 33 reads as follows:

 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

 (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

 (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

 (5)  Subsection (3) applies in respect of a re-enactment made under subsection (4).

Section 33 only applies to (as you can see) sections 2 and 7 to 15 of the Charter. Because that list includes the fundamental freedoms under section 2 (conscience, religion, expression, assembly, association), and because The Public Service Essential Services Act violated s. 2(d) - freedom of association - the notwithstanding clause does have potential application.

It wouldn't be the first time the Saskatchewan government has used the notwithstanding clause. In 1986, the Conservative government of the day introduced The SGEU Dispute Settlement Act (S.S. 1984-85-86, c. 111)(the "SDSA") to end a four-month strike by the Saskatchewan Government Employees Union. The Saskatchewan Court of Appeal had recently ruled that return-to-work legislation regarding the province's dairy workers had infringed those workers' right to strike (though the Supreme Court subsequently reversed that decision as part of the infamous Labour Trilogy) so the SDSA invoked the notwithstanding clause in s. 9 - in fact, the government invoked two notwithstanding clauses:

9(1) pursuant to subsection 33(1) of the Canadian Charter of Rights and Freedoms, this Act is declared to operate notwithstanding the freedom of association in paragraph 2(d) of the Canadian Charter of Rights and Freedoms.

(2) This Act operates notwithstanding The Saskatchewan Human Rights Code, particularly section 6 of that Act.

The first, obviously, is what most people think of when one mentions the "notwithstanding clause." But Saskatchewan also has fundamental freedoms within its Human Rights Code, including freedom of association:

6 Every person and every class of persons shall enjoy the right to peaceable assembly with others and to form with others associations of any character under the law.

Section 44 of the Code is the provincial "notwithstanding clause" - allowing legislation to operate even if it violates the Code.

The legislation did much more than order an end to the strike. It imposed a collective agreement on government workers (s. 7), imposed fines on workers who refused to end the strike (s. 8), and even declared that employees refusing to end the strike could be dismissed for cause (s. 8(5)). But no constitutional review of the legislation was possible - which probably didn't change much, given the results in the Labour Trilogy, specifically the "Alberta Reference", where the majority stated with almost breath-taking brevity (the majority decision is a mere four paragraphs long, though admittedly it makes reference to and approves Justice McIntyre's much longer reasons) that the rights to collectively bargain and to strike were entirely unworthy of constitutional protection.

John Gormley, perhaps predictably, figures use of the "notwithstanding clause" is a sound strategy regarding The Public Service Essential Services Act. Professor Dwight Newman here at the College disparages SFL v. Saskatchewan as the court "gone astray" and suggests SFL may actually "trigger a process of reducing the role of the Supreme Court of Canada in constitutional interpretation", by encouraging governments to make use of s. 33 in back-to-work legislation.

As far as Prof. Newman's point, it seems to me that prior to SFL - or at least prior to 2007's B.C. Health Services decision, anyway, when unions started to press their luck in court more - there was no constitutional litigation regarding [EDIT: right-to-work] return-to-work legislation because, in the Labour Trilogy, the Court had firmly quashed any hope that s. 2(d) might serve as a "brake" on government over-reach in that context. The idea that there's a real distinction between a world where governments pre-emptively use s. 33 to prevent judicial review of back-to-work legislation, and a world where there's no constitutional review of back-to-work legislation because there's no right to strike at all, seems a bit academic.

But that's regarding return-to-work legislation, which by its very nature is temporary. Using it to insulate a permanent piece of legislation like the PSESA is a different matter - the notwithstanding clause has to be renewed in five years and a change in government means potentially that the s. 33 over-ride will lapse. And if the government had decided to add contractual or bargaining unit changes under such legislation, as Saskatchewan did in 1986, what happens then? Do those contractual terms or bargaining unit changes become void? Does it matter if there has been a subsequent successful contract negotiation? Those matters wouldn't offend the right to strike, but they may offend the right to collectively bargain and the right of a group of workers to choose which union will represent them, which were recognized in B.C. Health Services and in Mounted Police Association.

I'm not going to be surprised if governments decide to, as a matter of course, invoke s. 33 in return-to-work legislation. There may be some political backlash but probably (I would suggest) no more so than one already sees with back-to-work legislation in general.

I think governments must be cautious, however, if they wish to go beyond return-to-work and use s. 33 on labour relations legislation generally. First, as I've said before and no doubt will have to say again, governments can still draft essential services legislation. They just have to be balanced in so doing. Using the notwithstanding clause seems an over-reaction to what is almost a non-problem. (That's assuming a particular piece of essential services legislation genuinely is about preserving health and safety, and not just about reducing public sector unions' bargaining power. Again, whether this is the case or not regarding the PSESA, I leave to the reader.)

And second, use of s. 33 isn't permanent. It has to be renewed. Imposing potentially unconstitutional changes to collective bargaining relationships, or changes to bargaining units or union representation rights, and then sweeping those changes under the rug with s. 33 in hopes that it will fall on the next government to deal with them, seems politically unwise and contrary to both labour stability and meaningful collective bargaining - both of which are, at least ostensibly, foundations of Canadian labour law.

As a final note, I thought the Globe & Mail op-ed by Professor Eric Adams from U of Alberta on Mounted Police Association and SFL was really well-done and I find myself in complete agreement with it. I'll just reproduce the last paragraph here:

Certainly these decisions mean that courts will hear more cases involving the freedom to associate, and governments will be forced to more frequently justify prohibitions on the right to strike as a reasonable limit in a free and democratic society. But just as these decisions will not revolutionize labour relations, they will not overturn the proper role of judges in our constitutional order. Balancing rights and freedoms against broader public goals in a democratic society is never easy, but that is the role the Constitution has assigned governments in legislating and the judiciary in supervising that legislation against constitutional standards. Ignore the cries of distress about the constitutional right to strike, that is just the Charter going to work, as it must, as it should.

SFL v. Saskatchewan: Collected Reactions, and LabourWatch's Understandable Frustration

SFL v. Saskatchewan predictably sparked a lot of discussion. This post, by the way, was written - more or less - a couple of weeks ago. So time has marched on, and this post is therefore a bit dated, but rather than discard it I figured I'd post it anyway.

Steven Barrett and Ethan Poskanzer at Sack Goldblatt Mitchell, a union-side labour firm, reviewed the decision and  suggest in conclusion that

The majority opinion, firmly rooted in Canadian labour history, international law and Canadian constitutional jurisprudence, will no doubt have ripple effects for many years to come.

Omar Ha-Redye, a lawyer in Toronto, reviewed the decision and suggested that the language of the majority in SFL doesn't necessarily mean a right to strike per se but, rather, a right to a meaningful dispute resolution mechanism. That might be a strike, but it could be something else.

David Doorey, in his article I referenced last time, mentioned a lot of the questions that remain - what does this mean, if anything, for those in the private sector or not in a union at all? Or for public sector workers excluded from labour legislation? Or for Ontario agricultural workers who, in Fraser, were told they didn't have a right to any particular dispute resolution process - but a strike (said the Supreme Court) would qualify as just that?

Murray Mandryk at the Regina Leader-Post stated that this is a loss that Premier Wall should take seriously.. In an editorial, the Leader-Post took the position that an essential services statute was necessary, but that the government had rushed into things.

Premier Wall, of course, followed up his "hey, look, football!" joke which I mentioned last time with a comment that the government was considering using the "notwithstanding clause" in order to pass legislation that violated workers' constitutional rights - despite the fact that even after the SFL decision,  you can still have essential services legislation, you just have to craft it a bit better than was done last time.


Meanwhile,, I appeared very briefly on John Gormley Live, a local radio talk show, to discuss the SFL v. Saskatchewan case. John is no friend of labour, but he's very personable and I don't think I came across as too much of a stumbling boob, so I'll call it a win.

The guest immediately before my segment was John Mortimer, president of LabourWatch, a non-profit, anti-union organization whose membership is anti-union employer groups and management-side law firms. LabourWatch's website is all phrased in carefully neutral language, but once you scratch beneath the surface and notice code like "being union free", their gleeful posting of decertification applications where their name is mentioned, the fact that there's no comparable information there on how to become unionized, and, well, the fact that its membership is anti-union employer groups and management side law firms, makes it pretty clear that LabourWatch isn't really about balance or "informed choices".

(Frankly, I'm not sure why Mr. Mortimer and his group think their odd form of "help" is needed. In 2014, only around 30% of Canada's non-agricultural paid workers belonged to unions, but that's a bit misleading in itself because the number in the private sector is much lower - around 17%, as Justice Rothstein noted in his dissent in SFL - but in the public sector the rate's around 70%, hence the overall 30% unionization rate. But apparently 30% is still too high for LabourWatch, and on and on we go.)

Anyway, Mr. Mortimer seemed notably angry during his appearance. Because unions. You know how it is.

(I picture LabourWatch's reaction to SFL being kind of
like Ogre in Revenge of the Nerds.)

Yet during my few minutes of fame rambling, I opined that the implications of SFL really aren't that huge in terms of Canadian labour legislation overall. It's huge for the public sector, of course. Essential services legislation across the country will need to be reviewed and there may be Court challenges. Return-to-work legislation, where the government passes ad hoc legislation to order strikers back to work, may be subject to challenge. Maybe even common law injunctions against strikes may be more difficult to obtain with a constitutional right to strike in play.

But I don't think SFL opens the door to widespread re-working of Canadian labour law. I don't fully agree with my friend Greg Fingas who suggested:

Meanwhile, some question will also arise as to the new rules setting limiting the availability of job action under the Saskatchewan Employment Act, SS 2014, c S-15.1 ("SEA"). While the SEA's restrictions are primarily process-oriented, they too might run afoul of a substantial impairment threshold - both in general terms, and particularly if they prove unduly onerous under the circumstances of a particular planned strike.

Or at least - I agree the question might be raised, I just don't think a challenge would be successful. The Court in SFL has admittedly made it clear labour law is all about trade-offs; if you infringe on a union's right to strike or collectively bargain, there should be some alternate process, such as binding arbitration, in place. But the amendments to The Trade Union Act were held not to offend the Charter of Rights and Freedoms. In my view the Court has made it pretty clear that it's just not that interested in micromanaging government labour policy. And some of the requirements under the SEA - like mandatory mediation or conciliation - have been present in the modern Canadian model of labour relations since the 1940's. Not every labour relations statute has it or has had it, but it's not like this is all that new. I don't see the courts stepping into this type of minutiae in labour policy, despite its willingness to intervene when labour legislation goes too far.

Never say never, I suppose. I got it wrong on Mounted Police and Meredith, as I mentioned last time, and I'm sure there are union-side lawyers chewing over how to use those decisions to their client's best interests. But I don't think we're looking at a wholesale judicial reconstruction of our labour law in the wake of SFL, and that's why I suggested that the ramifications of SFL will be somewhat limited, especially outside the public sector.

So with all that in mind, why, I wondered, is LabourWatch so angry? What was I missing?

 It took a conversation with my colleague Professor Ken Norman to make things fall into place. Ken commented that he figured SFL meant that U.S.-style so-called "right-to-work" legislation, and the kind of anti-labour efforts that we saw in Wisconsin a few years ago, would now have more trouble crossing the U.S. border. ("Right-to-work", by the way, has precious little to do with workers' rights and everything to do with preventing meaningful collective bargaining, as we'll see.)

The Supreme Court's been pretty consistent at upholding the compromises and trade-offs inherent in our labour law - sometimes only barely, sometimes for different reasons within the same judgment,  but pretty consistently. In Lavigne v. OPSEU, the Court  upheld the "Rand Formula" - mandatory payment of union dues by those covered by a collective agreement. In RWDSU v. Pepsi-Cola, it recognized the importance of picket lines but also set guidelines around what kind of behaviour on the part of strikers was impermissible. In R. v. Advance Cutting and Coring, it upheld the ability of the Quebec government to require mandatory membership in one of five unions in the construction industry.  In Bernard v. Canada, the Court upheld the right of  a union to obtain contact information for its members so that it could properly represent them.

Much of this came about because of a recognition by the Court of the trade-offs within Canadian labour law. In every Canadian jurisdiction, when a majority of workers within a proper bargaining unit elect to certify a union as their bargaining agent, that union is the only one with rights to represent that bargaining unit. As a result, the union has a duty to "fairly represent" all workers within that unit - whether they voted for the union or not, whether they come to union meetings or not, whether they try to decertify their workplace or not. And because a union has that statutory duty, the trade-offs such as mandatory union dues and provision of contact information are necessary to fulfill it.


And there's the rub. LabourWatch and its funders and members are all about right-to-work laws. Mr. Mortimer was very clear on that during his interview - right-to-work legislation like they have in many U.S. states was the answer to all our labour woes, but (he complained) no politician seemed willing to take that step (other than perhaps characters like former Ontario Tory leader Tim Hudak or the Wild Rose Alliance in Alberta). LabourWatch desperately wants American-style right-to-work laws where workers who are covered by collective agreements don't have to pay union dues.

But here's the problem. Under many right-to-work schemes (if not all, because this is about weakening workers' bargaining power, remember?) those not paying dues still benefit from the collective agreement, and this creates a huge "free rider" problem within the bargaining unit. And under such schemes the union often still retains a duty to fairly represent non-members and non-dues-paying workers. But by allowing and, indeed, encouraging free riders, you're thereby reducing the ability of unions to pay staff, hire lawyers, pay strike pay, etc., which in turn makes those workers who do become members or pay dues see less value for their money, which encourages them to decertify, and so on. Groups like LabourWatch know this.

There are things to dislike about our current system, and you don't need to be anti-union to feel that way. There have been a number of union-friendly voices who are critical of our current model and have suggested reform. But just cutting out one part of it, as LabourWatch suggests - one part that helps fuel the "engine" of the system, at that - isn't the answer. While these moves are often dressed up in high-sounding language like "employee choice" or, indeed, "right to work" itself, it's really about weakening unions - without, I hasten to add, changing anything else in the legal regime. So let's be clear: just slapping a "right-to-work" amendment to the existing system is a clear signal that you're not interested in "balance".

But SFL v. Saskatchewan, taken with the January 16th Mounted Police Association case, has  established (suggested Ken, and I agree with him) that implementing right-to-work legislation won't be easy in Canada. You can't arbitrarily declare that workers can't have independent union (Mounted Police Association). You can't strip unions of their ability to represent their members or to collectively bargain (which is what right-to-work would do) (SFL v. Saskatchewan). You can't impose arbitrary, one-sided amendments; you need to consider what workers are gaining, and what they're losing, and you need to respect.the workers' constitutional labour rights.

And I think that's why this case annoyed John Mortimer so much. There'll be no overturning Lavigne v. OPSEU now. No wonder LabourWatch is grouchy.

For my part, when I was talking about the limited impact of SFL, I was thinking purely in terms of using SFL v. Saskatchewan as a "sword" - to try to challenge existing laws. I didn't really think of its uses as a "shield" - trying to defend against American-style labour laws or against attempts to turn our provinces into Scott Walker's Wisconsin. So maybe SFL's ramifications are more significant than I thought.

...Unless, of course, a government implements such legislation, but insulates it from constitutional review by using the "notwithstanding clause" in s. 33 of the Charter. But that's a (more timely) discussion for next time!

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, lawofwork.ca, 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.

Here is an essential service in Sask that the Supreme Court cannot overturn. http://t.co/8AbaZMLz5W pic.twitter.com/gxDr7YgIIG
— Brad Wall (@PremierBradWall) January 30, 2015

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.

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 faithandheritage.com. 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.