Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia

Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia
Collection
Supreme Court Judgments
Date
2007-06-08
Neutral citation
2007 SCC 27
Report
[2007] 2 SCR 391
Case number
30554
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 30554
Decision Content
SUPREME COURT OF CANADA
Citation: Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391,
2007 SCC 27
Date: 20070608
Docket: 30554
Between:
Health Services and Support – Facilities Subsector Bargaining Association,
Health Services and Support – Community Subsector Bargaining Association,
Nurses’ Bargaining Association, Hospital Employees’ Union, B.C. Government
and Service Employees’ Union, British Columbia Nurses’ Union,
Heather Caroline Birkett, Janine Brooker, Amaljeet Kaur Jhand,
Leona Mary Fraser, Pamela Jean Sankey‑Kilduff,
Sally Lorraine Stevenson, Sharleen G. V. Decillia and Harjeet Dhami
Appellants
and
Her Majesty The Queen in Right of the Province of British Columbia
Respondent
‑ and ‑
Attorney General of Ontario, Attorney General of New Brunswick,
Attorney General of Alberta, Confederation of National Trade Unions,
Canadian Labour Congress, Michael J. Fraser on his own behalf
and on behalf of United Food and Commercial Workers Union Canada, and
British Columbia Teachers’ Federation
Interveners
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ.
Joint Reasons for Judgment:
(paras. 1 to 168)
Reasons Dissenting in Part:
(paras. 169 to 252)
McLachlin C.J. and LeBel J. (Bastarache, Binnie, Fish and Abella JJ. concurring)
Deschamps J.
______________________________
health services and support v. b.c.
Health Services and Support – Facilities Subsector
Bargaining Association, Health Services and
Support — Community Subsector Bargaining Association,
Nurses’ Bargaining Association, Hospital
Employees’ Union, B.C. Government and
Service Employees’ Union, British Columbia
Nurses’ Union, Heather Caroline Birkett,
Janine Brooker, Amaljeet Kaur Jhand,
Leona Mary Fraser, Pamela Jean Sankey‑Kilduff,
Sally Lorraine Stevenson, Sharleen G. V. Decillia
and Harjeet Dhami Appellants
v.
Her Majesty The Queen in Right of the
Province of British Columbia Respondent
and
Attorney General of Ontario,
Attorney General of New Brunswick,
Attorney General of Alberta,
Confederation of National Trade Unions,
Canadian Labour Congress,
Michael J. Fraser on his own behalf
and on behalf of United Food and
Commercial Workers Union Canada and
British Columbia Teachers’ Federation Interveners
Indexed as: Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia
Neutral citation: 2007 SCC 27.
File No.: 30554.
2006: February 8; 2007: June 8.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish and Abella JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Freedom of association — Right to bargain collectively — Health and social services delivery improvement legislation adopted by provincial government in response to pressing health care crisis — Legislation affecting health care workers’ terms of employment — Whether constitutional guarantee of freedom of association includes procedural right to collective bargaining — If so, whether legislation infringes right to bargain collectively — Whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d) — Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2, Part 2.
Constitutional law — Charter of Rights — Equality rights — Health care workers — Health and social services delivery improvement legislation adopted by provincial government in response to pressing health care crisis — Legislation affecting health care workers’ terms of employment — Whether effects of legislation on health care workers constitute discrimination under s. 15 of Canadian Charter of Rights and Freedoms — Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2, Part 2.
The Health and Social Services Delivery Improvement Act was adopted as a response to challenges facing British Columbia’s health care system. The Act was quickly passed and there was no meaningful consultation with unions before it became law. Part 2 of the Act introduced changes to transfers and multi‑worksite assignment rights (ss. 4 and 5), contracting out (s. 6), the status of contracted out employees (s. 6), job security programs (ss. 7 and 8), and layoffs and bumping rights (s. 9). It gave health care employers greater flexibility to organize their relations with their employees as they see fit, and in some cases, to do so in ways that would not have been permissible under existing collective agreements and without adhering to requirements of consultation and notice that would otherwise obtain. It invalidated important provisions of collective agreements then in force, and effectively precluded meaningful collective bargaining on a number of specific issues. Furthermore, s. 10 voided any part of a collective agreement, past or future, which was inconsistent with Part 2, and any collective agreement purporting to modify these restrictions. The appellants, who are unions and members of the unions representing the nurses, facilities, or community subsectors, challenged the constitutional validity of Part 2 of the Act as violative of the guarantees of freedom of association and equality protected by the Canadian Charter of Rights and Freedoms . Both the trial judge and the Court of Appeal found that Part 2 of the Act did not violate ss. 2 (d) or 15 of the Charter .
Held (Deschamps J. dissenting in part): The appeal is allowed in part. Sections 6(2), 6(4), and 9 of the Act are unconstitutional. This declaration is suspended for a period of 12 months.
Per McLachlin C.J. and Bastarache, Binnie, LeBel, Fish and Abella JJ.: Freedom of association guaranteed by s. 2 (d) of the Charter includes a procedural right to collective bargaining. The grounds advanced in the earlier decisions of this Court for the exclusion of collective bargaining from the s. 2 (d)’s protection do not withstand principled scrutiny and should be rejected. The general purpose of the Charter guarantees and the broad language of s. 2 (d) are consistent with a measure of protection for collective bargaining. Further, the right to collective bargaining is neither of recent origin nor merely a creature of statute. The history of collective bargaining in Canada reveals that long before the present statutory labour regimes were put in place, collective bargaining was recognized as a fundamental aspect of Canadian society, emerging as the most significant collective activity through which freedom of association is expressed in the labour context. Association for purposes of collective bargaining has long been recognized as a fundamental Canadian right which predated the Charter . The protection enshrined in s. 2 (d) of the Charter may properly be seen as the culmination of a historical movement towards the recognition of a procedural right to collective bargaining. Canada’s adherence to international documents recognizing a right to collective bargaining also supports recognition of that right in s. 2 (d). The Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified. Lastly, the protection of collective bargaining under s. 2 (d) is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter . [22] [39‑41] [66] [68] [70] [86]
The constitutional right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment. Section 2 (d) of the Charter does not guarantee the particular objectives sought through this associational activity but rather the process through which those goals are pursued. It means that employees have the right to unite, to present demands to government employers collectively and to engage in discussions in an attempt to achieve workplace‑related goals. Section 2 (d) imposes corresponding duties on government employers to agree to meet and discuss with them. It also puts constraints on the exercise of legislative powers in respect of the right to collective bargaining. However, s. 2(d) does not protect all aspects of the associational activity of collective bargaining. It protects only against “substantial interference” with associational activity. Intent to interfere with the associational right of collective bargaining is not essential to establish breach of s. 2 (d). It is enough if the effect of the state law or action is to substantially interfere with the activity of collective bargaining. To constitute substantial interference with freedom of association, the intent or effect must seriously undercut or undermine the activity of workers joining together to pursue the common goals of negotiating workplace conditions and terms of employment with their employer. [89‑90] [92]
Determining whether a government measure affecting the protected process of collective bargaining amounts to substantial interference involves two inquiries: (1) the importance of the matter affected to the process of collective bargaining, and more specifically, the capacity of the union members to come together and pursue collective goals in concert; and (2) the manner in which the measure impacts on the collective right to good faith negotiation and consultation. If the matters affected do not substantially impact on the process of collective bargaining, the measure does not violate s. 2(d) and the employer may be under no duty to discuss and consult. If, on the other hand, the changes substantially touch on collective bargaining, they will still not violate s. 2(d) if they preserve a process of consultation and good faith negotiation. Only where the matter is both important to the process of collective bargaining and has been imposed in violation of the duty of good faith negotiation will s. 2(d) be breached. [93‑94] [109]
A basic element of the duty to bargain in good faith is the obligation to actually meet and to commit time to the process. The parties have a duty to engage in meaningful dialogue, to exchange and explain their positions and to make a reasonable effort to arrive at an acceptable contract. However, the duty to bargain in good faith does not impose on the parties an obligation to conclude a collective agreement, nor does it include a duty to accept any particular contractual provisions. In considering whether the legislative provisions impinge on the collective right to good faith negotiations and consultation, regard must be had for the circumstances surrounding their adoption. Situations of exigency and urgency may affect the content and the modalities of the duty to bargain in good faith. Different situations may demand different processes and timelines. Moreover, failure to comply with the duty to consult and bargain in good faith should not be lightly found, and should be clearly supported on the record. [100‑101] [103] [107]
In this case, ss. 4, 5, 6(2), 6(4) and 9 of the Act, in conjunction with s. 10, interfere with the process of collective bargaining, either by disregarding past processes of collective bargaining, by pre‑emptively undermining future processes of collective bargaining, or both. Sections 4 and 5 are concerned with relatively minor modifications to in‑place schemes for transferring and reassigning employees. Significant protections remained in place. While the Act took these issues off the collective bargaining table for the future, on balance, ss. 4 and 5 cannot be said to amount to a substantial interference with the union’s ability to engage in collective bargaining so as to attract the protection under s. 2 (d) of the Charter . However, the provisions dealing with contracting out (ss. 6(2) and 6(4) ), layoffs (ss. 9 (a), 9 (b) and 9 (c)) and bumping (s. 9 (d)) infringe the right to bargain collectively protected by s. 2 (d). These provisions deal with matters central to the freedom of association and amount to substantial interference with associational activities. Furthermore, these provisions did not preserve the processes of collective bargaining. Although the government was facing a situation of exigency, the measures it adopted constituted a virtual denial of the s. 2 (d) right to a process of good faith bargaining and consultation. [128] [130‑132] [134‑135]
The section 2 (d) infringement is not justified under s. 1 of the Charter . While the government established that the Act’s main objective of improving the delivery of health care services and sub‑objectives were pressing and substantial, and while it could logically and reasonably be concluded that there was a rational connection between the means adopted by the Act and the objectives, it was not shown that the Act minimally impaired the employees’ s. 2 (d) right of collective bargaining. The record discloses no consideration by the government of whether it could reach its goal by less intrusive measures. A range of options were on the table, but the government presented no evidence as to why this particular solution was chosen and why there was no meaningful consultation with the unions about the range of options open to it. This was an important and significant piece of labour legislation which had the potential to affect the rights of employees dramatically and unusually. Yet, it was adopted rapidly with full knowledge that the unions were strongly opposed to many of the provisions, and without consideration of alternative ways to achieve the government objective, and without explanation of the government’s choices. [143‑144] [147] [149] [156] [158] [160‑161]
Part 2 of the Act does not violate s. 15 of the Charter . The distinctions made by the Act relate essentially to segregating different sectors of employment, in accordance with the long‑standing practice in labour regulation of creating legislation specific to particular segments of the labour force, and do not amount to discrimination under s. 15 . The differential and adverse effects of the legislation on some groups of workers relate essentially to the type of work they do, and not to the persons they are. Nor does the evidence disclose that the Act reflects the stereotypical application of group or personal characteristics. [165] [167]
Per Deschamps J. (dissenting in part): The majority’s reasons concerning the scope of freedom of association under s. 2 (d) of the Charter in the collective bargaining context are generally agreed with, as is their conclusion that no claim of discrimination contrary to s. 15 of the Charter has been established. However, the analysis relating to both the infringement of s. 2 (d) and the justification of the infringement under s. 1 of the Charter is disagreed with. [170]
Given that this case does not involve a claim of underinclusive legislation, but an obligation that the state not interfere in a collective bargaining process, a “substantial interference” standard for determining whether a government measure amounts to an infringement of s. 2 (d) should not be imposed. Furthermore, since there is no constitutional protection for the substantive outcome of a collective bargaining process, the matter affected is not the threshold issue when a claim is being evaluated under s. 2 (d). Rather, the primary focus of the inquiry should be whether the legislative measures infringe the ability of workers to act in common in relation to workplace issues. In the present context, a more appropriate test for determining whether s. 2 (d) has been infringed can be stated as follows: Laws or state actions that prevent or deny meaningful discussion and consultation about significant workplace issues between employees and their employer may interfere with the activity of collective bargaining, as may laws that unilaterally nullify negotiated terms on significant workplace issues in existing collective agreements. The first inquiry is into whether the process of negotiation between employers and employees or their representatives is interfered with in any way. If so, the court should then turn to the second inquiry and consider whether the issues involved are significant. Only interference with significant workplace issues is relevant to s. 2 (d). [175] [177‑178] [180‑181]
In this case, the freedom of association of health care employees has been infringed in several instances, because ss. 4, 5, 6(2), 6(4) and 9 of the Act (in conjunction with s. 10) interfere with their right to a process of collective bargaining with the employer. Sections 4 and 5 nullify some existing terms of collective agreements, limit the scope of future negotiations and prevent workers from engaging in associational activities relating to the important matter of transfer and assignment of employees. Sections 6(2) and 6(4) nullify past collective bargaining relating to contracting out, thereby rendering the process nugatory, and preclude future collective bargaining on the issue. These provisions concern a significant issue of employment security, and negotiating such issues is one of the purposes of associational activities in the workplace. Lastly, s. 9 makes collective bargaining over specified aspects of layoff and bumping meaningless and invalidates parts of collective agreements dealing with these significant workplace issues. [186‑188] [252]
In enacting Part 2 of the Act, the government’s objectives were to respond to growing demands on services, to reduce structural barriers to patient care, and to improve planning and accountability, so as to achieve long term sustainability. In addition to these general objectives, the specific impugned provisions were designed to provide a more seamless and flexible health care delivery system and develop more cost‑effective and efficient ways to deliver health services in order to improve patient care and reduce costs. The objectives of Part 2 of the Act and of the impugned provisions are important ones. The health care system is under serious strain and is facing a crisis of sustainability. There is little hope that it can survive in its current form. [198‑200]
It is clear from the context of these objectives that while the nature of some of the working conditions that are likely to be affected tends to favour a less deferential approach, substantial deference must be shown in determining whether the measures adopted in this case are justified under s. 1 , in particular, in light of the crisis of sustainability in the health care sector and the vulnerability of patients. Here, the measures provided for in ss. 4, 5, 6(2), 6(4) and 9 of the Act are rationally connected to the pressing and substantial objectives being pursued and, with the exception of s. 6(4), meet the requirements of minimal impairment and proportionate effects. [193] [222‑223]
With respect to minimal impairment, the record shows that the government adopted the impugned measures after considering and rejecting other options that it believed would not meet its objectives. Further, Part 2 of the Act was not aimed directly at the Charter rights of the affected employees. Rather, the goal was to respond to growing demands on services, to reduce structural barriers to patient care and to improve planning and accountability so as to achieve long‑ term sustainability. Section 4 was specifically designed to facilitate the reorganization of health care service delivery by enabling employers to transfer functions or services to another worksite or to another health sector employer within a region. As for s. 5 , it relates to the temporary assignment of an employee to another worksite or another employer. Employees do not lose their employment as a result of ss. 4 and 5 and the regulations adopted pursuant to the Act mitigate the impact of these provisions on employees. Under s. 6(2), contracting out is not obligatory; rather, this provision prohibits collective agreement clauses preventing contracting out. Thus, although union density may be lower when work is contracted out, there is still substantial room for all employees providing non‑clinical services to exercise their right to freedom of association and to engage in a process of collective bargaining, even when certain of those services are contracted out. In the context of the province’s health care crisis, removing prohibitions on contracting out in collective agreements furthered the government’s objective in ways that alternative responses could not. Moreover, the alternative measures considered by the government were problematic in that many may have directly affected other Charter rights. As for s. 9 , it impaired the collective bargaining process in respect of layoffs and bumping, but was limited by a time period. It was adopted as a transitional measure. It did not ban bumping or layoff provisions in collective agreements, but only imposed by legislative means attenuated terms for layoffs and bumping in place of those agreed to in the collective bargaining process. Not only was the impact of s. 9 (d) on workers minimized by safeguards provided for in s. 5 of the regulations made under the Act, but there is also sufficient evidence that s. 9 enabled the government to meet its objectives of making the health care system more sustainable and improving service to patients in ways that other alternatives would not permit. As with s. 6(2) , the history of labour relations in the province strongly suggests that the terms set out in s. 9 could not have been successfully negotiated by health care sector employers and unions. Sections 4 , 5 , 6(2) and 9 are carefully tailored so as to ensure that the government’s objectives are attained while infringing s. 2 (d) as little as possible. They are also a proportionate response to the crisis of sustainability in health care, striking an appropriate balance between the government’s objectives and the freedom of association of employees. [229‑230] [232] [234‑236] [238] [240] [245] [248] [250‑251]
Section 6(4) fails both the minimal impairment test and the proportionate effects test and is unconstitutional. The government has failed to establish by evidence, inference or common sense that the employers’ ability to contract out would be restricted unreasonably by a requirement to consult with the relevant unions beforehand. While s. 6(4) does not, strictly speaking, prohibit consultations on contracting out, declaring that any clause in a collective agreement providing for consultation is void is an invitation to employers not to consult. Taking consultation, which is an important component of the collective bargaining process, off the table is also a disproportionate measure. The marginal benefits of this provision are outweighed by the deleterious effects of denying consultation to affected unions. [242] [249] [252]
Cases Cited
By McLachlin C.J. and LeBel J.
Overruled: 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; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; applied: Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; referred to: Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Perrault v. Gauthier (1898), 28 S.C.R. 241; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Dubois v. The Queen, [1985] 2 S.C.R. 350; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83; R. v. Zundel, [1992] 2 S.C.R. 731; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; R. v. Oakes, [1986] 1 S.C.R. 103; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; Canadian Union of Public Employees v. Nova Scotia Labour Relations Board, [1983] 2 S.C.R. 311; Re United Electrical Workers, Local 512, and Tung‑Sol of Canada Ltd. (1964), 15 L.A.C. 161; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35; Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381, 2004 SCC 66; Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69; Trociuk v. British Columbia (Attorney General), [2003] 1 S.C.R. 835, 2003 SCC 34; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199.
By Deschamps J. (dissenting in part)
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33; R. v. Bryan, 2007 SCC 12; R. v. Oakes, [1986] 1 S.C.R. 103; Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Edwards Books and Art, [1986] 2 S.C.R. 713; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6.
Statutes and Regulations Cited
Canada Labour Code, R.S.C. 1970, c. L‑1 [am. S.C. 1972, c. 18], Preamble.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d), 7 , 15 , 32 .
Conciliation Act, 1900, S.C. 1900, c. 24.
Constitution Act, 1982, s. 52 .
Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2, ss. 3, 4, 5, 6, 7, 8, 9, 10.
Health Sector Labour Adjustment Regulation, B.C. Reg. 39/2002, s. 2(1).
Industrial Disputes Investigation Act, 1907, S.C. 1907, c. 20.
Labour Relations Code, R.S.B.C. 1996, c. 244, ss. 35, 38.
Public Sector Employers Act, R.S.B.C. 1996, c. 384, ss. 3, 6.
Railway Labour Disputes Act, 1903, S.C. 1903, c. 55.
Wartime Labour Relations Regulations, P.C. 1003 (1944).
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law Book, 1993 (loose‑leaf updated October 2006, release No. 26).
Baggaley, Carman D. A Century of Labour Regulation in Canada. Working Paper No. 19, prepared for the Economic Council of Canada. Ottawa: The Council, 1981.
Beaulieu, M.‑L. Les Conflits de Droit dans les Rapports Collectifs du Travail. Québec: Presses universitaires Laval, 1955.
Bernatchez, Stéphane. “La procéduralisation contextuelle et systémique du contrôle de constitutionnalité à la lumière de l’affaire Sauvé” (2006), 20 N.J.C.L. 73.
British Columbia. Debates of the Legislative Assembly, vol. 2, No. 28, 2nd Sess., 37th Parl., January 25, 2002, p. 865.
British Columbia. Debates of the Legislative Assembly, vol. 2, No. 29, 2nd Sess., 37th Parl., January 26, 2002, p. 909.
Brown, Donald J. M., and David M. Beatty. Canadian Labour Arbitration, 4th ed., vol. 2. Aurora, Ont.: Canada Law Book, 2006 (loose‑leaf updated September 2006).
Calvert, John R. “Collective Bargaining in the Public Sector in Canada: Teething Troubles or Genuine Crisis?” (1987), 2 Brit. J. Can. Stud. 1.
Canada. Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. Minutes of Proceedings and Evidence, Issue No. 43, January 22, 1981, pp. 69‑70.
Canada. Task Force on Labour Relations. Canadian Industrial Relations: The Report of Task Force on Labour Relations. Ottawa: Privy Council Office, 1968.
Carrothers, A. W. R., E. E. Palmer and W. B. Rayner. Collective Bargaining Law in Canada, 2nd ed. Toronto: Butterworths, 1986.
Carter, Donald D., et al. Labour law in Canada, 5th ed. Markham: Butterworths, 2002.
Chartrand, Mark. “The First Canadian Trade Union Legislation: An Historical Perspective” (1984), 16 Ottawa L. Rev. 267.
Cornish, W. R. and G. de N. Clark. Law and Society in England 1750‑1950. London: Sweet & Maxwell, 1989.
Coutu, Michel. Les libertés syndicales dans le secteur public. Cowansville, Québec: Yvon Blais, 1989.
Deakin, Simon, and Gillian S. Morris. Labour Law, 4th ed. Oxford: Hart Publishing, 2005.
Forde, M. “The European Convention on Human Rights and Labor Law” (1983), 31 Am. J. Comp. L. 301
Fudge, Judy, and Eric Tucker. Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900‑1948. Oxford: Oxford University Press, 2001.
Fudge, Judy, and Harry Glasbeek. “The Legacy of PC 1003” (1995), 3 C.L.E.L.J. 357.
Gagnon, Robert P., Louis LeBel et Pierre Verge. Droit du travail, 2e éd. Sainte‑Foy: Presses de l’Université Laval, 1991.
Gall, Peter A. “Freedom of Association and Trade Unions: A Double‑Edged Constitutional Sword”, in Joseph M. Weiler and Robin M. Elliot, eds., Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms . Toronto: Carswell, 1986, 245.
Gernigon, Bernard, Alberto Odero, and Horacio Guido, “ILO principles concerning collective bargaining” (2000), 139 Intern’l Lab. Rev. 33.
Glenday, Daniel, and Christopher Schrenk. “Trade Unions and the State: An Interpretative Essay on the Historical Development of Class and State Relations in Canada, 1889‑1947” (1978), 2 Alternate Routes 114.
Health Employers Association of British Columbia. Briefing Document — Collective Agreement Efficiencies (2001).
Hogg, Peter W. Constitutional Law of Canada, student ed. Scarborough, Ont.: Carswell, 2002.
International Labour Office. Committee on Freedom of Association. Report No. 330. Cases Nos. 2166, 2173, 2180 and 2196 “Complaints against the Government of Canada concerning the Province of British Columbia”, I.L.O. Official Bulletin, vol. LXXXVI, 2003, Series B, No. 1.
Kealey, Greg, ed. Canada investigates industrialism: The Royal Commission on the Relations of Labor and Capital, 1889 (abridged). Toronto: University of Toronto Press, 1973.
Klare, Karl E. “Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937‑1941” (1978), 62 Minn. L. Rev. 265.
Laskin, Bora. “Collective Bargaining in Canada: In Peace and in War” (1941), 2:3 Food for Thought 8.
Lipton, Charles. The Trade Union Movement of Canada, 1827‑1959, 4th ed. Toronto: NC Press, 1978.
Morin, Fernand, Jean‑Yves Brière et Dominic Roux. Le droit de l’emploi au Québec, 3e éd. Montréal: Wilson & Lafleur, 2006.
Palmer, Bryan D. Working‑Class Experience: Rethinking the History of Canadian Labour, 1800‑1991, 2nd ed. Toronto: McClelland & Stewart, 1992.
Riddall, J. G. The Law of Industrial Relations. London: Butterworths, 1981.
Rose, Joseph B. “Public Sector Bargaining: From Retrenchment to Consolidation” (2004), 59 IR 271.
Rouillard, Jacques. Histoire du syndicalisme au Québec: Des origines à nos jours. Montréal: Boréal, 1989.
Thompson, Mark. “Wagnerism in Canada: Compared to What?”, in Anthony Giles, Anthony E. Smith and Kurt Wetzel, eds., Proceedings of the XXXIst Conference ‑ Canadian Industrial Relations Association. Toronto: CIRA, 1995, 59.
Tucker, Eric. “‘That Indefinite Area of Toleration’: Criminal Conspiracy and Trade Unions in Ontario, 1837‑77” (1991), 27 Labour 15.
Tucker, Eric. “The Faces of Coercion: The Legal Regulation of Labor Conflict in Ontario, 1880‑1889” (1994), 12 Law & Hist. Rev. 277.
United Nations. Human Rights Committee. Consideration of reports submitted by States parties under article 40 of the Covenant — Concluding Observations of the Human Rights Committee — Canada, U.N. Doc. CCPR/C/79/Add.105, 7 April 1999.
Villaggi, Jean‑Pierre. “La convention collective et l’obligation de négocier de bonne foi: les leçons du droit du travail” (1996), 26 R.D.U.S. 355.
Webber, Jeremy. “Compelling Compromise: Canada chooses Conciliation over Arbitration 1900‑1907” (1991), 28 Labour 15.
Wedderburn, K. The Worker and the Law, 3rd ed. London: Sweet & Maxwell, 1986.
Weiler, Paul C. Reconcilable Differences: New Directions in Canadian Labour Law. Toronto: Carswell, 1980.
Treaties and Other International Instruments
Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 68 U.N.T.S. 17.
Declaration on Fundamental Principles and Rights at Work, 6 IHRR 285 (1999).
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, art. 22(1), (2).
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, Art. 8(1)(c).
APPEAL from a judgment of the British Columbia Court of Appeal (Esson, Low and Thackray JJ.A.) (2004), 30 B.C.L.R. (4th) 219, 243 D.L.R. (4th) 175, [2004] 11 W.W.R. 64, 201 B.C.A.C. 255, 120 C.R.R. (2d) 266, [2004] B.C.J. No. 1354 (QL), 2004 BCCA 377, upholding a judgment of Garson J. (2003), 19 B.C.L.R. (4th) 37, 110 C.R.R. (2d) 320, [2003] B.C.J. No. 2107 (QL), 2003 BCSC 1379. Appeal allowed in part, Deschamps J. dissenting in part.
Joseph J. Arvay, Q.C., and Catherine J. Boies Parker, for the appellants.
Peter A. Gall, Q.C., Nitya Iyer and Neena Sharma, for the respondent.
Robin K. Basu and Shannon Chace‑Hall, for the intervener the Attorney General of Ontario.
Written submissions only by Gaétan Migneault for the intervener the Attorney General of New Brunswick.
Roderick S. Wiltshire, for the intervener the Attorney General of Alberta.
Mario Évangéliste, for the intervener the Confederation of National Trade Unions.
Steven M. Barrett and Ethan Poskanzer, for the intervener the Canadian Labour Congress.
Paul J. J. Cavalluzzo and Fay C. Faraday, for the intervener Michael J. Fraser on his own behalf and on behalf of United Food and Commercial Workers Union Canada.
John Baigent and David Yorke, for the intervener the British Columbia Teachers’ Federation.
The judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Fish and Abella JJ. was delivered by
The Chief Justice and LeBel J. –
I. Introduction
A. Overview
1 The appellants challenge the constitutional validity of Part 2 of the Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2 (“Act”), as violative of the Canadian Charter of Rights and Freedoms guarantees of freedom of association (s. 2 (d)) and equality (s. 15 ).
2 We conclude that the s. 2 (d) guarantee of freedom of association protects the capacity of members of labour unions to engage in collective bargaining on workplace issues. While some of the impugned provisions of the Act comply with this guarantee, ss. 6(2), 6(4) and 9 breach it and have not been shown to be justified under s. 1 of the Charter . We further conclude that the Act does not violate the right to equal treatment under s. 15 of the Charter . In the result, the appeal is allowed in part.
B. The Background
3 This case requires the Court to balance the need for governments to deliver essential social services effectively with the need to recognize the Charter rights of employees affected by such legislation, who were working for health and social service employers. The respondent government characterizes the impugned legislation as a crucial element of its response to a pressing health care crisis, necessary and important to the well-being of British Columbians. The appellants, unions and individual workers representing some of the subsectors of the health care sector affected by the legislation, by contrast, see the Act as an affront to the fundamental rights of employees and union members under the Charter , which they understand as including a collective right to pursue fundamental workplace goals through collective bargaining in respect of terms of employment.
C. The Act
4 The Act was adopted as a response to challenges facing British Columbia’s health care system. Demand for health care and the cost of providing needed health care services had been increasing significantly for years. For example, in the period from 1991 to 2001, the growth rate of health care costs in British Columbia was three times that of the provincial economy. As a result, the government of British Columbia found itself struggling to provide health care services to its citizens. The government characterized the state of affairs in 2001 as a “crisis of sustainability” in the health care system (Respondent’s Factum, at para. 3).
5 The goals of the Act were to reduce costs and to facilitate the efficient management of the workforce in the health care sector. Not wishing to decrease employees’ wages, the government attempted to achieve these goals in more sustainable ways. According to the government, the Act was designed in particular to focus on permitting health care employers to reorganize the administration of the labour force and on making operational changes to enhance management’s ability to restructure service delivery (see British Columbia, Debates of the Legislative Assembly, 2nd Sess., 37th Parl., vol. 2, No. 28, January 25, 2002, at p. 865).
6 The Act was quickly passed. It came into force three days after receiving a first reading as Bill 29 before the British Columbia legislature.
7 There was no meaningful consultation with unions before it became law. The government was aware that some of the areas affected by Bill 29 were of great concern to the unions and had expressed a willingness to consult. However, in the end, consultation was minimal. A few meetings were held between representatives of the unions and the government on general issues relating to health care. These did not deal specifically with Bill 29 and the changes that it proposed. Union representatives expressed their desire to be further consulted. The Minister of Health Services telephoned a union representative 20 minutes before Bill 29 was introduced in the legislative assembly to inform the union that the government would be introducing legislation dealing with employment security and other provisions of existing collective agreements. This was the only consultation with unions before the Act was passed (A.R., at p. 1076).
8 In British Columbia, the collective bargaining structure in the health services is sectoral. Thus, the Act affects labour relations between “health sector employers” and their unionized employees. A “health sector employer”, as defined under the Act, is a member of the Health Employers Association of British Columbia (“HEABC”) established under s. 6 of the Public Sector Employers Act, R.S.B.C. 1996, c. 384, and whose employees are unionized (s. 3 of the Act). The HEABC is an employers’ association accredited to act as the representative of its members in the bargaining process with health sector employees. Members of the HEABC are hospitals and other employers designated by regulation, including employers in the health sector receiving a substantial