Saskatchewan Federation of Labour v. Saskatchewan

Saskatchewan Federation of Labour v. Saskatchewan
Collection
Supreme Court Judgments
Date
2015-01-30
Neutral citation
2015 SCC 4
Report
[2015] 1 SCR 245
Case number
35423
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Saskatchewan
Subjects
Constitutional law
Notes
SCC Case Information: 35423
Decision Content
SUPREME COURT OF CANADA
Citation: Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245
Date: 20150130
Docket: 35423
Between:
Saskatchewan Federation of Labour (in its own right and
on behalf of the unions and workers in the Province of Saskatchewan),
Amalgamated Transit Union, Local 588, Canadian Office and Professional Employees’ Union, Local 397, Canadian Union of Public Employees, Locals 7 and 4828, Communications, Energy and Paperworkers’ Union of Canada and its Locals,
Health Sciences Association of Saskatchewan, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of U.S., its Territories and Canada, Locals 295, 300 and 669, International Brotherhood of Electrical Workers, Locals 529, 2038 and 2067, Saskatchewan Government and General Employees’ Union, Saskatchewan Joint Board Retail, Wholesale and Department Store Union, Saskatchewan Provincial Building & Construction Trades Council, Teamsters, Local 395, United Mine Workers of America, Local 7606, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union
and its Locals and University of Regina Faculty Association
Appellants
and
Her Majesty The Queen in Right of the Province of Saskatchewan
Respondent
- and -
Attorney General of Canada, Attorney General of Ontario,
Attorney General of Quebec, Attorney General of British Columbia,
Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Saskatchewan Union of Nurses, SEIU-West, United Nurses of Alberta,
Alberta Federation of Labour, Professional Institute of the Public Service of Canada, Canadian Constitution Foundation, Air Canada Pilots’ Association,
British Columbia Civil Liberties Association, Conseil du patronat du Québec,
Canadian Employers Council, Canadian Union of Postal Workers,
International Association of Machinists and Aerospace Workers,
British Columbia Teachers’ Federation, Hospital Employees’ Union,
Canadian Labour Congress, Public Service Alliance of Canada,
Alberta Union of Provincial Employees, Confédération des syndicats nationaux,
Regina Qu’Appelle Regional Health Authority, Cypress Regional Health Authority,
Five Hills Regional Health Authority, Heartland Regional Health Authority,
Sunrise Regional Health Authority, Prince Albert Parkland Regional Health Authority, Saskatoon Regional Health Authority, National Union of Public and General Employees,
Canada Post Corporation and Air Canada
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 103)
Joint Reasons Dissenting in Part:
(paras. 104 to 176)
Abella J. (McLachlin C.J. and LeBel, Cromwell and Karakatsanis JJ. concurring)
Rothstein and Wagner JJ.
saskatchewan federation of labour v. saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245
Saskatchewan Federation of Labour
(in its own right and on behalf of the unions and
workers in the Province of Saskatchewan),
Amalgamated Transit Union, Local 588,
Canadian Office and Professional Employees’ Union, Local 397,
Canadian Union of Public Employees, Locals 7 and 4828,
Communications, Energy and Paperworkers’
Union of Canada and its Locals,
Health Sciences Association of Saskatchewan,
International Alliance of Theatrical Stage Employees,
Moving Picture Technicians, Artists and Allied Crafts of U.S.,
its Territories and Canada, Locals 295, 300 and 669,
International Brotherhood of Electrical Workers,
Locals 529, 2038 and 2067,
Saskatchewan Government and General Employees’ Union,
Saskatchewan Joint Board Retail,
Wholesale and Department Store Union,
Saskatchewan Provincial Building & Construction Trades Council,
Teamsters, Local 395,
United Mine Workers of America, Local 7606,
United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial
and Service Workers International Union and its Locals, and
University of Regina Faculty Association Appellants
v.
Her Majesty The Queen in Right of the Province of Saskatchewan Respondent
and
Attorney General of Canada,
Attorney General of Ontario,
Attorney General of Quebec,
Attorney General of British Columbia,
Attorney General of Alberta,
Attorney General of Newfoundland and Labrador,
Saskatchewan Union of Nurses,
SEIU-West,
United Nurses of Alberta,
Alberta Federation of Labour,
Professional Institute of the Public Service of Canada,
Canadian Constitution Foundation,
Air Canada Pilots’ Association,
British Columbia Civil Liberties Association,
Conseil du patronat du Québec,
Canadian Employers Council,
Canadian Union of Postal Workers,
International Association of Machinists and Aerospace Workers,
British Columbia Teachers’ Federation,
Hospital Employees’ Union,
Canadian Labour Congress,
Public Service Alliance of Canada,
Alberta Union of Provincial Employees,
Confédération des syndicats nationaux,
Regina Qu’Appelle Regional Health Authority,
Cypress Regional Health Authority,
Five Hills Regional Health Authority,
Heartland Regional Health Authority,
Sunrise Regional Health Authority,
Prince Albert Parkland Regional Health Authority,
Saskatoon Regional Health Authority,
National Union of Public and General Employees,
Canada Post Corporation and Air Canada Interveners
Indexed as: Saskatchewan Federation of Labour v. Saskatchewan
2015 SCC 4
File No.: 35423.
2014: May 16; 2015: January 30.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for saskatchewan
Constitutional law — Charter of Rights — Freedom of Association — Right to strike — Public Service Employees — Stare decisis — Whether right to strike is protected by s. 2 (d) of Charter — Whether prohibition on essential services employees participating in strike action amounts to substantial interference with meaningful process of collective bargaining and therefore violates s. 2 (d) of Charter — If so, whether such violation is justified under s. 1 of Charter — Canadian Charter of Rights and Freedoms, s. 2 (d) — Public Service Essential Services Act, S.S. 2008, c. P-42.2.
Constitutional law — Charter of Rights — Freedom of association — Provincial legislation changing certification process and provisions dealing with communications by employers with employees — Whether legislation violates s. 2 (d) of Charter — Canadian Charter of Rights and Freedoms, s. 2 (d) — Trade Union Amendment Act, 2008, S.S. 2008, c. 26.
In December, 2007, the newly elected Government of Saskatchewan introduced two statutes: The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (PSESA), and The Trade Union Amendment Act, 2008, S.S. 2008, c. 26 , which became law in May, 2008. The PSESA is Saskatchewan’s first statutory scheme to limit the ability of public sector employees who perform essential services to strike. It prohibits unilaterally designated “essential services employees” from participating in any strike action against their employer. These employees are required to continue the duties of their employment in accordance with the terms and conditions of the last collective bargaining agreement. No meaningful mechanism for resolving bargaining impasses is provided.
The Trade Union Amendment Act, 2008 changes the union certification process by increasing the required level of written support and reducing the period for receiving written support from employees. It also changes the provisions dealing with communications between employers and their employees.
In July 2008, the Saskatchewan Federation of Labour and other unions challenged the constitutionality of both the PSESA and The Trade Union Amendment Act, 2008. The trial judge concluded that the right to strike was a fundamental freedom protected by s. 2 (d) of the Canadian Charter of Rights and Freedoms and that the prohibition on the right to strike in the PSESA substantially interfered with the s. 2 (d) rights of the affected public sector employees. He also found that the absolute ban on the right to strike in the PSESA was neither minimally impairing nor proportionate and therefore was not saved by s. 1 of the Charter . The declaration of invalidity was suspended for one year. On the other hand, the trial judge concluded that the changes to the certification process and permissible employer communications set out in The Trade Union Amendment Act, 2008 did not breach s. 2 (d).
The Saskatchewan Court of Appeal unanimously allowed the Government of Saskatchewan’s appeal with respect to the constitutionality of the PSESA. The appeal against the finding that The Trade Union Amendment Act, 2008 did not violate s. 2 (d) of the Charter was dismissed.
Held (Rothstein and Wagner JJ. dissenting in part): The appeal with respect to the PSESA should be allowed. The prohibition against strikes in the PSESA substantially interferes with a meaningful process of collective bargaining and therefore violates s. 2 (d) of the Charter . The infringement is not justified under s. 1 . The declaration of invalidity is suspended for one year. The appeal with respect to The Trade Union Amendment Act, 2008 is dismissed.
Per McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis JJ.: The right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. Where good faith negotiations break down, the ability to engage in the collective withdrawal of services is a necessary component of the process through which workers can continue to participate meaningfully in the pursuit of their collective workplace goals. This crucial role in collective bargaining is why the right to strike is constitutionally protected by s. 2 (d).
In Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, this Court recognized that the Charter values of “[h]uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy” supported protecting the right to a meaningful process of collective bargaining within the scope of s. 2 (d). The right to strike is essential to realizing these values through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the process of determining their wages, working conditions and the rules that will govern their working lives. The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.
The right to strike also promotes equality in the bargaining process. This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and the vulnerability of employees in this context. While strike activity itself does not guarantee that a labour dispute will be resolved in any particular manner, or that it will be resolved at all, it is the possibility of a strike which enables workers to negotiate their employment terms on a more equal footing.
In 1935, the Wagner Act was adopted in the United States, introducing a model of labour relations that came to inspire legislative schemes across Canada. This model was adopted in Canada because the federal and provincial governments recognized the fundamental need for workers to participate in the regulation of their work environment. One of the goals of the Wagner model was to reduce the frequency of strikes by ensuring a commitment to meaningful collective bargaining. The right to strike, however, is not a creature just of the Wagner model. Most labour relations models include it because the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals.
Canada’s international human rights obligations also mandate protecting the right to strike as part of a meaningful process of collective bargaining. Canada is a party to international instruments which explicitly protect the right to strike. Besides these explicit commitments, other sources confirm the protection of a right to strike recognized in international law. And strikes are protected globally, existing in many of the countries with labour laws outside the Wagner Act model.
This historical, international, and jurisprudential landscape suggests compellingly that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. The ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement is, and has historically been, the irreducible minimum of the freedom to associate in Canadian labour relations.
To determine whether there has been an infringement of s. 2 (d) of the Charter , the test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining. The prohibition in the PSESA on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment meets this threshold and therefore amounts to a violation of s. 2 (d) of the Charter .
The breach of s. 2 (d) of the Charter is not justified under s. 1 . The maintenance of essential public services is self-evidently a pressing and substantial objective, but the determinative issue in this case is whether the means chosen by the government are minimally impairing, that is, carefully tailored so that rights are impaired no more than necessary.
The fact that a service is provided exclusively through the public sector does not inevitably lead to the conclusion that it is properly considered “essential”. Under the PSESA, a public employer has the unilateral authority to dictate whether and how essential services will be maintained, including the authority to determine the classifications of employees who must continue to work during the work stoppage, the number and names of employees within each classification, and, for public employers other than the Government of Saskatchewan, the essential services that are to be maintained. Only the number of employees required to work is subject to review by the Saskatchewan Labour Relations Board. And even where an employee has been prohibited from participating in strike activity, the PSESA does not tailor his or her responsibilities to the performance of essential services alone. The provisions of the PSESA therefore go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike.
Nor is there any access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration. Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Those public sector employees who provide essential services have unique functions which may argue for a less disruptive mechanism when collective bargaining reaches an impasse, but they do not argue for no mechanism at all.
The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, justify the conclusion that the PSESA is not minimally impairing. It is therefore unconstitutional.
The Trade Union Amendment Act, 2008, on the other hand, does not violate s. 2 (d). The changes it introduces to the process by which unions may obtain or lose the status of a bargaining representative, as well as the changes to the rules governing employer communication to employees, do not substantially interfere with freedom of association.
Per Rothstein and Wagner JJ. (dissenting in part): This Court should not intrude into the policy development role of elected legislators by constitutionalizing the right to strike under the freedom of association guarantee in s. 2 (d) of the Charter . The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees and the public. Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained.
Democratically elected legislatures are responsible for determining the appropriate balance between competing economic and social interests in the area of labour relations. This Court has long recognized that it is the role of legislators and not judges to balance competing tensions in making policy decisions, particularly in the area of socio-economic policy. The legislative branch requires flexibility to deal with changing circumstances and social values. Canadian labour relations is a complex web of intersecting interests, rights and obligations, and has far-reaching implications for Canadian society. It is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives. The exercise of judicial restraint is essential in ensuring that courts do not upset the balance by usurping the responsibilities of the legislative and executive branches.
Constitutionalizing a right to strike restricts governments’ flexibility, impedes their ability to balance the interests of workers with the broader public interest, and interferes with the proper role and responsibility of governments. Constitutionalizing a right to strike introduces great uncertainty into labour relations: it will make all statutory limits on the right to strike presumptively unconstitutional. By constitutionalizing a broad conception of the right to strike, the majority binds the governments’ hands and limits its ability to respond to changing needs and circumstances in the dynamic field of labour relations.
Constitutionalizing a right to strike enshrines a political understanding of the concept of “workplace justice” that favours the interests of employees over those of employers and even over those of the public. While employees are granted constitutional rights, constitutional obligations are imposed on employers. Employers and the public are equally entitled to justice: true workplace justice looks at the interests of all implicated parties. In the public sector, strikes are a political tool. The public expects that public services, and especially essential services, will be delivered. Thus unions attempt to pressure the government to agree to certain demands in order that these services be reinstated. Public sector labour disputes are unique in that the government as employer must take into account that any additional expenditures incurred to meet employee demands will come from public funds.
It is incorrect to say that without the right to strike a constitutionalized right to bargain collectively is meaningless. The threat of work stoppage is not what motivates good faith bargaining. It is the statutory duty, and after Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, the constitutional duty, not the possibility of job action, that compels employers to bargain in good faith. The statutory right to strike allows both employers and employees to exercise economic and political power. Now by constitutionalizing only the ability of employees to exert such power, the majority disturbs the delicate balance of labour relations in Canada and impedes the achievement of true workplace justice.
The conclusion that the right to strike is an indispensable component of collective bargaining does not accord with recent jurisprudence. There is nothing in the concept of collective bargaining as it was defined by this Court in Health Services, Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, that would imply that employees have a constitutional right to strike and that employers have a constitutional obligation to preserve the jobs of those employees. The threshold for overturning prior judgments is high. While the s. 2 (d) jurisprudence has developed since the Labour Trilogy, neither this development, nor any change in the circumstances of Canadian labour relations justifies a departure from precedent. If anything, developments in the law support a finding that the right to freedom of association does not require constitutionalizing the right to strike. This is because recent s. 2 (d) jurisprudence has already established a right to meaningful, good faith collective bargaining.
International bodies disagree as to whether the right to strike is protected under international labour and human rights instruments. The current state of international law on the right to strike is unclear and provides no guidance in determining whether this right is an essential element of freedom of association.
A right to strike is not required to ensure the constitutional guarantee of freedom of association. Therefore, the PSESA, which restricts the ability of public sector workers who provide essential services to strike, does not violate the right to meaningful collective bargaining protected under s. 2 (d) of the Charter . The PSESA’s controlled strike regime does not render effectively impossible, nor substantially interfere with, the ability of associations representing affected public sector employees to submit representations to employers and to have them considered and discussed in good faith. The PSESA facilitates consultation between employers and unions regarding the designation of essential services and the evidence in this case demonstrates that good faith collective bargaining took place. A violation of s. 2 (d) of the Charter cannot be founded simply on allegations that the legislation does not provide an adequate dispute resolution process; s. 2 (d) does not entail such a right. Moreover, the goal of strikes is not to ensure meaningful collective bargaining, but instead to exert political pressure on employers. Finally, the statutory balance struck by the Government of Saskatchewan is eminently reasonable. Canadian federal and provincial governments have made a constitutional commitment “to provid[e] essential public services of reasonable quality to all Canadians” (Constitution Act, 1982, s. 36(1) (c)). As a result, the Government of Saskatchewan cannot subject itself to arbitral awards that could make it unaffordable to deliver on its undertaking. It has devised a particular legislative framework in order to safeguard the continued delivery of essential services to the community during labour disputes. This Court should defer to the government’s policy choices in balancing the interests of employers, employees, and the public.
The Trade Union Amendment Act, 2008 does not infringe the right to freedom of association.
Cases Cited
By Abella J.
Overruled: Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; referred to: Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Perrault v. Gauthier (1898), 28 S.C.R. 241; Canadian Pacific Railway Co. v. Zambri, [1962] S.C.R. 609; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733; Gagnon v. Foundation Maritime Ltd., [1961] S.C.R. 435; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; Re Service Employees’ International Union, Local 204 and Broadway Manor Nursing Home (1983), 4 D.L.R. (4th) 231; Williams v. Aristocratic Restaurants (1947) Ltd., [1951] S.C.R. 762; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Re Alberta Union of Provincial Employees and the Crown in Right of Alberta (1980), 120 D.L.R. (3d) 590; Demir v. Turkey, No. 34503/97, ECHR 2008-V; Enerji Yapi-Yol Sen v. Turquie, No. 68959/01, April 21, 2009 (HUDOC); National Union of Rail, Maritime and Transport Workers v. United Kingdom, No. 31045/10, April 8, 2014 (HUDOC); Attorney-General v. National Labour Court, [1995-6] Isr. L.R. 149; New Histadrut General Workers’ Union v. State of Israel (2006), 25 I.L.L.R. 375; Koach La Ovdim v. Jerusalem Cinematheque (2009), 29 I.L.L.R. 329; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367.
By Rothstein and Wagner JJ. (dissenting in part)
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Vriend v. Alberta, [1998] 1 S.C.R. 493; Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465; Canadian Union of Public Employees v. Labour Relations Board (Nova Scotia), [1983] 2 S.C.R. 311; Perfection Foods Limited v. Retail Wholesale Dairy Worker Union, Local 1515 (1986), 57 Nfld. & P.E.I.R. 147; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 76 O.R. (3d) 161; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; J.B. v. Canada, Communication No. 118/1982 (1986), U.N. Doc. CCPR/C/OP/2, Selected Decisions of the Human Rights Committee under the Optional Protocol, vol. 2 (1990), p. 34; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Turp v. Canada (Justice), 2012 FC 893, [2014] 1 F.C.R. 439; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016.
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Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16.
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Constitution Act, 1982, s. 36(1) (c).
Constitution of France, preamble § 7.
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Treaties and Other International Instruments
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APPEAL from a judgment of the Saskatchewan Court of Appeal (Klebuc C.J.S. and Richards, Ottenbreit, Caldwell and Herauf JJ.A.), 2013 SKCA 43, 414 Sask. R. 70, 575 W.A.C. 70, 361 D.L.R. (4th) 132, 280 C.R.R. (2d) 187, [2013] 6 W.W.R. 453, 227 C.L.R.B.R. (2d) 1, 2013 CLLC ¶220-032, [2013] S.J. No. 235 (QL), 2013 CarswellSask 252 (WL Can.), setting aside in part a decision of Ball J., 2012 SKQB 62, 390 Sask. R. 196, 254 C.R.R. (2d) 288, [2012] 7 W.W.R. 743, 211 C.L.R.B.R. (2d) 1, 2012 CLLC ¶220-016, [2012] S.J. No. 49 (QL), 2012 CarswellSask 64 (WL Can.). Appeal allowed in part, Rothstein and Wagner JJ. dissenting in part.
Rick Engel, Q.C., Craig D. Bavis and Peter Barnacle, for the appellants.
Graeme G. Mitchell, Q.C., Barbara C. Mysko and Katherine M. Roy, for the respondent.
Mark R. Kindrachuk, Q.C., and Sean Gaudet, for the intervener the Attorney General of Canada.
Robert E. Charney and Sarah Wright, for the intervener the Attorney General of Ontario.
Caroline Renaud and Amélie Pelletier Desrosiers, for the intervener the Attorney General of Quebec.
Keith Evans, for the intervener the Attorney General of British Columbia.
Roderick Wiltshire, for the intervener the Attorney General of Alberta.
Chantelle MacDonald Newhook, for the intervener the Attorney General of Newfoundland and Labrador.
Gary L. Bainbridge and Marcus R. Davies, for the intervener the Saskatchewan Union of Nurses.
Drew S. Plaxton, for the intervener SEIU-West.
Written submissions only by Ritu Khullar, Q.C., and Vanessa Cosco, for the interveners the United Nurses of Alberta and the Alberta Federation of Labour.
Written submissions only by Peter C. Engelmann and Colleen Bauman, for the intervener the Professional Institute of the Public Service of Canada.
Darryl Cruz and Brandon Kain, for the intervener the Canadian Constitution Foundation.
Steve Waller and Christopher Rootham, for the intervener the Air Canada Pilots’ Association.
Lindsay M. Lyster, for the intervener the British Columbia Civil Liberties Association.
Written submissions only by Louise Laplante, Nancy Ménard-Cheng and Sébastien Beauregard, for the intervener Conseil du patronat du Québec.
John D. R. Craig and Christopher D. Pigott, for the intervener the Canadian Employers Council.
Paul J. J. Cavalluzzo and Adrienne Telford, for the interveners the Canadian Union of Postal Workers and the International Association of Machinists and Aerospace Workers.
Joseph J. Arvay, Q.C., and Catherine J. Boies Parker, for the interveners the British Columbia Teachers’ Federation and the Hospital Employees’ Union.
Written submissions only by Steven Barrett and Ethan Poskanzer, for the intervener the Canadian Labour Congress.
Andrew Raven and Andrew Astritis, for the intervener the Public Service Alliance of Canada.
Patrick G. Nugent and Tamara Friesen, for the intervener the Alberta Union of Provincial Employees.
Éric Lévesque and Benoît Laurin, for the intervener Confédération des syndicats nationaux.
Evert van Olst, Q.C., and Leah Schatz, for the interveners the Regina Qu’Appelle Regional Health Authority, the Cypress Regional Health Authority, the Five Hills Regional Health Authority, the Heartland Regional Health Authority, the Sunrise Regional Health Authority, the Prince Albert Parkland Regional Health Authority and the Saskatoon Regional Health Authority.
Paul Champ and Bijon Roy, for the intervener the National Union of Public and General Employees.
Written submissions only by Brian W. Burkett, for the interveners the Canada Post Corporation and Air Canada.
The judgment of McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis was delivered by
[1] Abella J. — In the Alberta Reference (Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313), this Court held that the freedom of association guaranteed under s. 2 (d) of the Canadian Charter of Rights and Freedoms did not protect the right to collective bargaining or to strike. Twenty years later, in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391, this Court held that s. 2 (d) protects the right of employees to engage in a meaningful process of collective bargaining. The rights were further enlarged in Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, where the Court accepted that a meaningful process includes employees’ rights to join together to pursue workplace goals, to make collective representations to the employer, and to have those representations considered in good faith, including having a means of recourse should the employer not bargain in good faith. And, most recently, in Mounted Police Association of Ontario v. Canada (Attorney General), [2015] 1 S.C.R. 3, the Court recognized that a process of collective bargaining could not