The Canadian Charter of Rights and Freedoms - A shield for the collective v11

The Canadian Charter of Rights and Freedoms:

A shield for the union collective?

Public Sector Labour Relations – Business 9037

Memorial University

St. John’s NL, Canada A1B 3X5

Student Name / Number:

Randy Clarke / 009902685

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Table of Contents

Abstract / introduction ...........................................................................................................................1 The Canadian Charter of Rights and Freedoms.....................................................................................2 Reflecting on the Charter – A shield for the union collective?................................................ 2

Overview of Canadian legislation referencing the Charter of Rights and Freedoms ............................4 Methodology and Scope .......................................................................................................... 4 “Charter of Rights and Freedoms” in the legislation ............................................................... 5 Federal jurisdiction .............................................................................................................. 5 Province of Newfoundland and Labrador / Federal jurisdiction ......................................... 5 Northwest Territories ........................................................................................................... 6

Overview of Canadian jurisprudence and literature ..............................................................................6 Freedom of Association ........................................................................................................... 6 A trilogy of failed Charter challenges...................................................................................... 7 PIPSC v. Northwest Territories: Reinforcing status quo ......................................................... 9 Dunmore v. Ontario and the Oakes Test: A rebalancing of rights......................................... 11 Health Services and Support v. British Columbia: An enhanced shield for the collective ... 14 Ontario v. Fraser: Retrenchment or refinement? ................................................................... 20 Saskatchewan v Saskatchewan Federation of Labour: Getting to what is essential.............. 21

Conclusion: A shield for the union collective......................................................................................24 Citations ...............................................................................................................................................26 Appendices...........................................................................................................................................29 Appendix A............................................................................................................................ 29

The Canadian Charter of Rights and Freedoms: A shield for the union collective? 1

Abstract / introduction

This paper briefly revisits the history of the Canadian Charter of Rights and Freedoms

(the Charter), and examines how scholars and practitioners mused over its potential impact on

labour and industrial relations, when it was first passed in 1982. Subsequently, this paper

focuses on Canadian legislation and jurisprudence since this time, to determine what impacts

the Charter may have had on union rights and collective bargaining. Of particular interest are

cases where governments attempted to enact, or enacted legislation that repealed or suppressed

union rights or collective bargaining. This paper endeavours to determine where the Charter

shielded unions and afforded them protection; and where so, examines the level of protection

afforded. This paper is primarily concerned with the outcome of such cases and the tests,

procedures, or processes courts use to determine when the Charter can be used as a shield to

protect union rights and collective bargaining. This paper summarizes findings within its

conclusion, based on observations found from an overview of literature, legislation and

jurisprudence. It is hoped that this paper will contribute to the knowledge of actors and

stakeholders involved with Canadian labour and industrial relations on the topic of the Charter,

and the shielding of union rights and collective bargaining.


The Canadian Charter of Rights and Freedoms

Reflecting on the Charter – A shield for the union collective?

According to Courchene (1984, p. 204), University of British Columbia scientist Alan

Cairns believed an early draft of the Canadian Charter of Rights and Freedoms was intended to

give all Canadians, regardless of locale, equal rights and freedoms that would become part of

the Canadian identity:

At a more profound political level...the Charter was an attempt to enhance and extend the meaning of being Canadian and thus to strengthen identification with the national community on which Ottawa ultimately depends for support. ...The resultant rights and freedoms were to be country-wide [sic] in scope, enforced by a national supreme court, and entrenched in a national Constitution beyond the reach

of fleeting legislative majorities at either level of government. The consequence, and a very clear purpose, was to set limits to the diversities of treatment by provincial governments, and thus to strengthen Canadian as against provincial identities. Rights must not be dependent on the particular place where an individual chooses to reside (Cairns, 1979, p. 354, emphasis added).

The Canadian Act, which included the Constitution Act, was assented into law in 1982.

Within the act was a newly drafted Canadian Charter of Rights and Freedoms (the Charter) that

guaranteed citizens of Canada a number of defined rights and freedoms (Courchene, 1984 and

Khan, 1989). It is important to note that the Charter applies “only to state action”, such as the

passage of legislation (Health Services and Support v. British Columbia, 2007, para. 88).

The ascension of the Canada Act effectively transformed the Canadian constitution. As

stated by Khan (1989, p. 47), the Canadian constitution had been converted into a written

constitution, whereas the British constitution remained unwritten. In 1984, Courchene found

the introduction of the Charter meant that “[t]he British tradition of the supremacy of Parliament

no longer holds with respect to these fundamental rights: there are certain areas where no


legislature may infringe on the rights and freedoms of Canadians” (p. 244). The question this

paper is concerned with is whether such rights include the shielding of union rights and

collective bargaining.

As found above, since the passing of the Canadian Act, Canadian labour relations now

operate under a written constitution where fundamental rights and freedoms take precedent

over legislative acts or ‘common law’. However, whereby the Charter is silent on the matter of

labour relations, and it does not have specific provisions relating to labour relations or

industrial relations, it has been argued that general rights and freedoms have significant

importance in the development and maintenance of labour relations and industrial law –

namely in reference to section 2 (d) of the Charter, known as ‘freedom of association’ (Khan,

1989, pp. 47-48). Although this may be true, the late Chief Justice of Canada, Mr. Laskin

noted:

History and tradition have hallowed what may be termed political civil liberty which is associated with the operation of our parliamentary institutions and which make parliamentary democracy possible and tolerable. The substance of this kind of liberty is freedom of association, freedom of assembly, freedom of utterance, freedom of press, and freedom of conscience and of religion. Crucial as any of there may be to the preservation of the nature of our polity, they are not absolute (Khan, 1989, p. 47, emphasis added).

Section 1 of the Charter states our rights and freedoms are subject “only to such reasonable

limits prescribed by law as can be demonstrably justified in a free and democratic society”

(The Constitution Act, 1982). Whereby the ‘substances’ of political civil liberty are not

absolute, this paper will review Canadian legislation and jurisprudence to determine whether

the Charter has, or can continue to shield union rights and collective bargaining.


Overview of Canadian legislation referencing the Charter of Rights and Freedoms

Methodology and Scope

The electronic database used to explore current Canadian legislation was CanLII. The

database was searched using the ‘advanced search’ tool to locate legislation, including statutes

and regulations, from Canadian provinces, territories, and federal jurisdictions that referred to

the Charter by name. The precise search phrase used was “Charter of Rights and Freedoms”

which yielded 125 results for the provinces and territories, and 25 results for federal

jurisdictions. Results reviewed in this paper should not be viewed as an all-inclusive list, but

as a brief overview of what was available and found to be relevant. Given the breadth and

depth of statutes and regulations in Canada, any broader focus was not plausible.

Results can be found listed in the heading below, with sub-headings used to identify

results by province, territory, or jurisdiction. Within each subheading, the results are reviewed

with a brief overview of potential implications or arguments that could be made. Within the

appropriate context, such implications or arguments may be found relevant where challenged

within the context of the Charter, in terms of protections afforded to unions when faced with

aggressive legislative acts by government(s). Subsequently in this paper, past and current

jurisprudence is reviewed to uncover other arguments and decisions on this topic.

If a locale is not listed below, it may be a search did not yield relevant results, or the

results may have been found irrelevant for the purposes of this paper, or similar legislation

from another locale may have already been analyzed.


“Charter of Rights and Freedoms” in the legislation

Federal jurisdiction

Section 3 (2) (c) of the Statutory Instruments Act states, “it does not trespass unduly on

existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions

of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights” (1985). In my

opinion, one could use the language of this Act to argue the federal government has already

recognized the Charter of Rights and Freedoms takes precedence over other forms of legislation,

even if such legislation happens to be within a federal jurisdiction.

Province of Newfoundland and Labrador / Federal jurisdiction

Section 45 (3) (b) of the Canada-Newfoundland and Labrador Atlantic Accord

Implementation Newfoundland and Labrador Act states, “consistent with the Canadian Charter

of Rights and Freedoms, individuals resident in the province shall be given 1st [sic]

consideration for training and employment in the work program for which the plan was

submitted and a collective agreement entered into by the corporation or other body submitting

the plan and an organization of employees respecting terms and conditions of employment in

the offshore area shall contain provisions consistent with this paragraph” (1990). Section 45

(3) (b) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act

(1988) reads similarly. In my opinion, one could use the language of these Acts to argue the

provinces and the federal government has already recognized the Charter of Rights and Freedoms

applies not only to individual rights, but also to the collective rights of members within a union.


Whereby the above legislation falls within a federal jurisdiction, and applies to the provinces of

Newfoundland and Labrador, and Nova Scotia.

Northwest Territories

Section 53 (2) of the Employment Standards Act states, “The Employment Standards

Officer, or any person acting on behalf of the Employment Officer, has no power to determine any

issue related to the Canadian Charter of Rights and Freedoms” (2007). Section 57 (3) states, “An

Adjudicator has no power to determine any issue related to the Canadian Charter of Rights and

Freedoms”. In my opinion, the language of this Act demonstrates that the Northwest Territories

either acknowledges it holds no jurisdiction over language within the Charter of Rights and

Freedoms, and / or feels such powers would be inappropriate in the hands of appointed territorial

officers and adjudicators. Additionally, one could use the language of this Act to argue that a

territorial government has already recognized the Charter of Rights and Freedoms takes

precedence over territorial legislation.

Overview of Canadian jurisprudence and literature

Freedom of Association

As previously discussed, the Charter is silent on the matter of labour and industrial

relations, and it has been argued general rights and freedoms have significant importance on

development and maintenance of labour relations and industrial law – namely in terms of

‘freedom of association’ (Khan, 1989, pp. 47-48). This is especially true of unions, who self-

identify their purpose of existence, or ‘raison d'être’, to be collective bargaining (Department


of Justice Canada, 2005). According to Department of Justice Canada, unions, as appellants in

the Canadian court system, have traditionally conceded that not all associational activities were

protected under the Charter. Instead they reportedly identify three core labour freedoms as

being associated with collective bargaining: “(1) the freedom to make collective

representations to one's employers; (2) the freedom to negotiate and agree on the terms and

conditions of employment in a collective manner; and (3) the ability to rely on and enforce

those agreements which are collectively concluded” (2005).

Whenever people labour to earn their daily bread, the right to associate will be of tremendous significance. Wages and working conditions will always be of vital importance to an employee. It follows that for an employee the right to choose the group or association that will negotiate on his or her behalf with regard to those wages and working conditions is of fundamental importance. The association will play a very significant role in almost every aspect of the employee's life at work, acting as advisor, as spokesperson in negotiations, and as a shield against wrongful acts of the employer (Professional Institute of the Public Service of Canada v. Northwest Territories, 1990, emphasis added).

A trilogy of failed Charter challenges

On April 9, 1987, the Supreme Court of Canada (SCC) released its first leading

decision on whether the right to strike and bargain collectively were constitutionally protected

rights in Canada. Specifically, the decision determined “whether the provisions of the Public

Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective

Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve

impasses in collective bargaining, were consistent with the Canadian Charter of Rights and

Freedoms” (Reference Re Public Service Employee Relations Act, 1987). A review of the

case reveals the decision was not unanimous. In a four to two decision (where a seventh judge


abstained judgement), it was found that section 2 (d) of the Charter “neither guarantees the

right to strike nor protects the right to bargain” (Khan, 1989, p. 48). Three of the judges stated,

freedom of association only protects “freedom to work for the establishment of an association,

to belong to an association, to maintain it, and to participate in its lawful activity without

penalty or reprisal” (Reference Re Public Service Employee Relations Act, 1987). Judge

McIntyre added:

People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. The group can exercise only the constitutional rights of its members on behalf of those members. It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association. Therefore, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.

According to Khan (1989, p. 49), the decision found, given the range of political,

social, religious and economic associations individuals could choose to join, and the wide

variety of functions entities could choose to serve, it could not be said that section 2 (d) of the

Charter intended such functions to have constitutional protection – especially where such

functions were ‘unlawful’. Findings in two similar cases, released concurrently with this

decision, came to parallel conclusions (RWDSU v. Saskatchewan, 1987 and PSAC v. Canada,

1987). These three cases are commonly referred to as the trilogy (Professional Institute of the

Public Service of Canada v. Northwest Territories, 1990). One could summarize the trilogy by

stating, that simply because a collective deems an explicit function to be the purpose of their

being, this does not guarantee such function will be awarded with constitutional protection.

According to Khan (1989, p. 51), the majority decisions in the trilogy, showed that section 2

(d) of the Charter was narrowly defined by the SCC, and failed to protect a union’s right to

strike or collectively bargain. Khan found such a definition meant freedom of association was


a “hollow right”, “devoid of practical value” that leaves matters of labour relations and

collective bargaining to be decided by legislators, rather than the courts (1989, pp. 51-52).

In the case of RWDSU v. Saskatchewan, Judge Wilson dissented and found, “The

government, in its legislation, forbade any lock-out or strike action. It provided for

compulsory arbitration. The government, in my view, should not automatically respond with a

total strike ban and the institution of compulsory arbitration. In some cases, a partial strike ban

will achieve the government objective…” (1987, para. 70). Judge Wilson recognized,

however, that in some cases, a complete ban might be required where an essential service

existed. He stated past court decisions defined essential services, as a service:

"Whose interruption would endanger the life, personal safety or health of the whole or part of the population" (1987, para. 53). “Essential services initially comprised such things as public utilities, transportation and communications but the legislative definitions have gradually expanded to cover fire-fighters and police and more recently the media, teachers and some classes of public employees” (RWDSY v. Saskatchewan, 1987, para. 57).

Although the Charter challenge had failed in the trilogy, appellants were not alone in

their belief that the Charter should be more broadly defined to protect the collective’s right to

bargain and strike (Langille & Macklem, 2007, pp. 362-363). This was evident by voiced

dissent and a lack of unanimous agreement in the decisions above.

PIPSC v. Northwest Territories: Reinforcing status quo

In Professional Institute of the Public Service of Canada (PIPSC) v. Northwest

Territories (hereinafter referred to as ‘the territory’) (1990), the appellant had previously been

the bargaining agent for a collective group of nurses that had previously been under federal


jurisdiction. Upon transition of jurisdiction, the nurses became employees of the territory and

ceased to be represented by their former bargaining agent, due to legislation that did not permit

the agent to be automatically recognized. In order for the agent to be recognized, it needed to

be certified by the territory, which required legislation to be passed to have them incorporated

by in law. When PIPSC sought incorporation, it was refused by the territory. PIPSC then

applied to the territorial Supreme Court to have a declaration found that such requirements were a

violation of section 2 (d) of the Charter – namely freedom of association. The territorial Supreme

Court heard the case and found in favour of the appellant. Soon thereafter, the territory appealed

the case to the Supreme Court of Canada (Professional Institute of the Public Service of Canada

v. Northwest Territories, 1990).

In the case, the majority decision by the Supreme Court of Canada (SCC) found in

favour of the territory. It cited decisions of the trilogy and found, similarly, the legislation of

the territory did not limit the existence of PIPSC as an organization, nor did it limit an

individual from becoming a member; it only limited the organizations ability to be recognized

by the government. The SCC found that although the Charter gave individuals the right to

‘freedom of association’, such freedoms do not include protection of “collective bargaining for

working conditions” or a right to be recognized by a government as an “official bargaining

agent” (Professional Institute of the Public Service of Canada v. Northwest Territories, 1990).

The SCC found the failure of PIPSC to be recognized by the territory was no different from a

union failing to meet the process of certification in any other jurisdiction. Whereby, as long as

a process for recognition exists, and an association can apply, there is no further requirement.

As read in the decision, “Ultimately, the appellant's arguments on the failure of this legislation

to provide for certification as of right founder [sic] on the fact that since the activity of


bargaining is not itself constitutionally protected, neither is a legislative choice of the

bargainer. The impugned provisions amount to nothing more than a legislated form of a labour

relations [sic] regime based upon voluntary recognition”. Furthermore, the SCC confirmed, as

stated in the trilogy, a government has no obligation, under common law, to bargain at all.

Therefore, “if a government does not have to bargain with anyone, there can be no

constitutional impediment to its choosing to bargain with someone” (Professional Institute of

the Public Service of Canada v. Northwest Territories, 1990) [Note: this case does not have

page numbers or paragraphs; thus, I could not provide particulars for in-text citation].

Dunmore v. Ontario and the Oakes Test: A rebalancing of rights

In Dunmore v. Ontario (2001), the SCC found the Ontario government had breached

section 2 (d) of the Charter when it attempted to pass legislation that would have effectively

stripped agricultural workers of their right to collectively bargain. The SCC stated that under

section 1 of the Charter, a government might be permitted such a violation if it can demonstrate

“an objective that is sufficiently important to justify overriding a Charter freedom” (para. 173)

and if it can “[enunciate] a constitutionally valid reason” (para. 181). However, if a

government cannot demonstrate such an objective and reason, a court may declare offensive

legislation invalid and strike it down. The Oakes test is used to make such a determination.

The Oakes test is a two-part test originally used in the decision of R. v. Oakes (1986).

First, the objective of limiting a Charter right must be sufficiently important, and secondly the

party invoking section 1 of the Charter must show the means is reasonable and justifiable.

Additionally, the second part involves three important components. Component (a) finds


measures must be rational and fair, and designed to achieve the objective in question;

component (b) finds the means should aim to minimize the impairment of any right; and finally

component (c) finds the more severe the impairment of a right, the more important the

objective must be (Heard, n.d.).

In the case of Dunmore v. Ontario, the government was found to have passed part one

of the Oakes test, but failed to meet the requirements of part two.

The government is entitled to provide financial and other support to agricultural operations, including family farms. What is not open for the government to do is to do so at the expense of the Charter rights of those who are employed in such activities, if such a policy choice cannot be demonstrably justified. This they have failed to do. Dunmore v. Ontario (2001, para. 182)

The SCC found that the Ontario Labour Relations Act contained a clause that violated a

group’s right to ‘freedom of association’ and ordered the legislation be amended within

eighteen (18) months. The clause found to be in violation was:

Other associated and relevant statutory provisions referred to in Dunmore v. Ontario (2001,

para. 6) include:

Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A 3. This Act does not apply,

. . . (b) to a person employed in agriculture, hunting or trapping;


Although subtle, this case arguably varied from Reference Re Public Service Employee

Relations Act (1987). In Reference Re Public Service Employee Relations Act, the SCC

determined an entity could not be given greater constitutional rights than an individual.

However, in Dunmore v. Ontario, both individuals and entities were already given increased

rights vis-à-vis the labour relations legislation. This case also arguably differed from

Professional Institute of the Public Service of Canada (PIPSC) v. Northwest Territories (1990),

whereby in the PIPSC case, there was no legislation enacted that required the jurisdiction to

recognize collective bargaining or bargaining agents. In Dunmore v. Ontario, there was

legislation enacted that required Alberta to recognize collective bargaining and certified

bargaining agents.

Thus, when the provincial government amended legislation to exclude agricultural

workers from protections afforded to other individuals and entities, it effectively stripped

Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1

1.(1) The Labour Relations Act, 1995, as set out in Schedule A, is hereby enacted.

80.(1) The Agricultural Labour Relations Act, 1994 is repealed. (2) On the day on which this section comes into force, a collective

agreement ceases to apply to a person to whom that Act applied. (3) On the day on which this section comes into force, a trade union

certified under that Act or voluntarily recognized as the bargaining agent for employees to whom that Act applies ceases to be their bargaining agent.

(4) On the day on which this section comes into force, any proceeding commenced under that Act is terminated.

Canadian Charter of Rights and Freedoms 2. Everyone has the following fundamental freedoms:

. . . (d) freedom of association.


agricultural workers of their right to ‘freedom of association’ while maintaining it for other

groups (Fudge, 2008, p. 30). Section 1 of the Charter states our rights and freedoms are subject

“only to such reasonable limits prescribed by law as can be demonstrably justified in a free and

democratic society.” This appears to be where the provincial government of Alberta erred.

First, it violated Section 1 of the Charter, and second it failed to demonstrate it had grounds do

so when it failed the Oakes test. Thus, the court struck down the amended legislation and

effectively gave agricultural workers back their right to collectively bargain. This case was a

leading SCC decision on the Charter at the time, and left the door open for future challenges

under the right to ‘freedom of association’ (Health Services and Support v. British Columbia,

2007, para. 22).

Health Services and Support v. British Columbia: An enhanced shield for the collective

In Health Services and Support v. British Columbia (2007) the Supreme Court of

Canada (SCC) up-heaved over twenty years of jurisprudence, in what was called a “landmark

decision” when it effectively recognized the right of unions to collectively bargain under the

Charter (Choko, 2011, p. 1113; Fudge, 2008, p. 25 and Heenann Blaikie, 2007, p. 1). Fudge

argued several explanations why the SCC may have departed from previous decisions – such

as the trilogy cases. One explanation was it might have been due to the ever increasing and

“expansive” reading of freedom of expression. Unlike freedom of expression, which has been

widely defined, freedom of association has been narrowly defined historically (Fudge, 2008, p.

26 and Khan, 1989, pp. 51-52). Additionally, Fudge believed international human rights have

been “gaining more traction” with the SCC (p. 26). This appears a safe assumption given


quotes from the decision in Health Services and Support v. British Columbia (2007, para. 20

and 78) which found, “collective bargaining is an integral component of freedom of association

in international law, which may inform the interpretation of Charter guarantees” and that “the

Charter, as a living document, grows with society and speaks to the current situations and

needs of Canadians. Thus, Canada’s current international law commitments and the current

state of international thought on human rights provide a persuasive source for interpreting the

scope of the Charter”. Fudge believed such language was the result of what had been

happening at the political level in subsequent years, whereby governments had been permitted

to monopolize decisions relating to labour, in large part, because of past decisions of the SCC.

Furthermore, recent changes may have been an attempt to enhance protection for the collective,

in the face of increasing pressure (Choko, 2011, pp. 1179-1180). According to Fudge, such

pressures include the increased use of litigation – both domestically and internationally – to

preserve bargaining rights (2008, p. 26).

On January 25, 2002, the provincial Liberal government of British Columbia

introduced Bill 29 just months after being elected into power by a large majority (Health

Services and Support v. British Columbia, 2007 and University of British Columbia, 2001).

The bill was introduced in what was described as a “crucial response to a crisis of

sustainability” in the health care system (Fudge, 2008, p. 27). The bill, once passed, would

nullify many sections of negotiated collective agreements and would have affected clauses

relating to “transfer and reassignment rights, restrictions on contracting out, and layoff and

bumping rights” (Fudge, 2008, p. 27). The bill also proposed to amend language pertaining to

the legislative recognition of successor rights, which was firmly entrenched in several

provincial labour relations acts – such as Newfoundland and Labrador and Ontario (Labour


Relations Act, RSNL 1990, Section 94 and Labour Relations Act, 1995, SO, 1995, Section 68).

Bill 29 was passed within three days of its first reading, despite unions’ willingness to

negotiate a response to the perceived crisis of sustainability, and the need for restructuring

(Fudge, 2008, p. 28).

Following a failed attempt to have the bill thrown out by the Supreme Court of British

Columbia, the unions’ appealed to the Supreme Court of Canada on the grounds the bill was

unconstitutional and violated section 2 (d) of the Charter (Health Services and Support v.

British Columbia, 2007). The SCC heard the case and found that section 2 (d) of the Charter

shields the process of Collective Bargaining. They based their conclusion on four

propositions:

First, a review of the s. 2(d) jurisprudence of this Court reveals that the reasons evoked in the past for holding that the guarantee of freedom of association does not extend to collective bargaining can no longer stand. Second, an interpretation of s. 2(d) that precludes collective bargaining from its ambit is inconsistent with Canada’s historic recognition of the importance of collective bargaining to freedom of association. Third, collective bargaining is an integral component of freedom of association in international law, which may inform the interpretation of Charter guarantees. Finally, interpreting s. 2(d) as including a right to collective bargaining is consistent with, and indeed, promotes, other Charter rights, freedoms and values (Health Services and Support v. British Columbia, 2007, para. 20).

Regarding the first proposition, the SCC found previous cases – such as the trilogy –

failed to shield collective bargaining rights under the Charter and “do not withstand principled

scrutiny and should be rejected” (para. 22). They found that cases, such as Dunmore v.

Ontario, “opened the door” for reconsideration of this view (para. 20).

In conclusion, the SCC found, “the protection of collective bargaining under s. 2(d) of

the Charter 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” (Health Services and

Support v. British Columbia, 2007, para. 86).

Although the SCC was clear that collective bargaining was a shielded right under the

Charter, it was careful to note that such protection only gave unions, and their collective, a

process through which goals could be pursed, and did not guarantee a particular “substantive or

economic outcome”, a specific “model of labour relations”, or a particular “bargaining

method” or set of tools (Choko, 2011, p. 1181, Fudge, 2008, p. 25, Fudge & Tucker, 2009, p.

75 and Health Services and Support v. British Columbia, 2007, para. 91). It did however mean

employees had the right to associate, present their demands collectively and to engage in

discussions in an attempt to achieve workplace goals. It also imposed a duty on the employer

to agree to meet and discuss with bargaining agents, and put constraints on the exercising of

legislative powers in respect to collective bargaining (Health Services and Support v. British

Columbia, 2007, para. 89-90).

It is important to note that where unions refuse to use their right to collectively bargain

to resolve particular issues or disputes, governments – as employers – may have a stronger case

with the courts in defending their use of legislation to end disputes or mandate solutions. In

the case of Newfoundland v. N.A.P.E. (2004), the union was unwilling to revisit previously

negotiated pay equity agreements in the face of a looming “fiscal crisis” (National Association

of Women and the Law, n.d.). In response, the Government of Newfoundland and Labrador

passed legislation effectively eliminating the previous pay equity agreements. This led to a

series of court challenges – the last of which was brought before the SCC. The SCC found the

Government of Newfoundland and Labrador had violated section 2 (d) of the Charter,


however, they found they were justified under section 1; whereby the government had

attempted to minimize any impairment to the collective’s right (see discussion of Oakes test in

Dunmore v. Ontario). Because the union refused to negotiate, the government was found to

have no other means to accommodate its ‘objective’ and ‘reasonable’ requirements

(Newfoundland v. N.A.P.E., 2004, para. 76-97). In the end, the SCC upheld the government’s

decision – in large part because the union refused to negotiate with government (Fudge, 2008,

p. 41).

Beyond the right to collectively bargain, the Health Services and Support v. British

Columbia (2007) case was also concerned with whether legislatures had the power to appeal or

amend collectively negotiated agreements. In this case, the SCC found provisions that did not

substantially interfere with the union’s ability to engage in collective bargaining could be

modified with legislation – whereby it would not be afforded protection under section 2 (d) of

the Charter (Fudge, 2008, p. 33 and Health Services and Support v. British Columbia, 2007,

para. 89-91). For example, it was found that provisions relating to ‘contracting out’, ‘layoffs’,

and ‘bumping’ dealt with matters that would generally be seen as interfering with a unions

ability to engage in collective bargaining, while provisions relating to ‘transfers’ and

‘reassignments’ generally would not (Health Services and Support v. British Columbia, 2007,

para. 128-131). Thus, modifying provisions relating to ‘Contracting out’, ‘layoffs’, and

‘bumping’ would be considered substantial interference, and therefore a violation of section 2

(d) of the Charter. This is because such provisions “deal with matters central to the freedom of

association”, while ‘transfers’ and ‘reassignments’ generally do not (para. 130).


Fudge outlines the test used by the SCC in Health Services and Support v. British

Columbia (2007) to determine if substantial interference occurred; and where so, the process

used to determine whether it was demonstrably justified:

The first part requires the claimant to demonstrate that there has been state interference with the collective bargaining process. The second part requires the claimant to establish that the interference was substantial, which, in turn, involves two inquiries — the first, into the significance of the subject matter interfered with, and the second, into the manner of the interference. Once the claimant has established all of these elements, then the onus shifts to the government to demonstrate that the infringement was demonstrably justified.

Health Services and Support v. British Columbia, stated demonstrably justified reasons are

typically “exceptional” or “temporary” and may involve “essential services, vital state

administration, clear deadlocks and national crisis” (2007, para. 196).

In the end, the government lost the case due to an “absence of supporting evidence to

demonstrate that it had considered other less restrictive means for achieving its objective”

(Fudge, 2008, p. 37). In essence, whereby the unions’ were willing to negotiate a response to

the ‘perceived crisis of sustainability’, the government failed to consider less intrusive

measures – thus failing the established Oakes Test (as originally introduced in Dunmore v.

Ontario). According to Fudge, the government failed to establish that Bill 29 would minimally

impair the Charter rights of union members (2008, p. 37).

Although this case has provided increased clarity and has enhanced shielding of union

rights – in terms of ‘freedom of association’ and the right to collectively bargain – the SCC

hesitated to extend this protection to the right to strike (Choko, 2011, p. 1113). Some have

argued the SCC was flawed in its failure to afford such protection:

The Court simply avoided answering this question, ‘noting that the present case does not concern the right to strike, which was considered in earlier litigation on the scope of the guarantee of freedom of association’. But, what


the Court fails to acknowledge is that it was the Labour Trilogy that decided that freedom of association guaranteed by the Charter did not include the right to strike on the basis of the very same reasoning used to decide that freedom of association did not include collective bargaining — reasoning that the Court rejects as no longer surviving scrutiny (Fudge, 2008, p. 42).

Ontario v. Fraser: Retrenchment or refinement?

A more recent SCC decision, concerning the Charter, and legislation that affected union

rights and collective bargaining, was Ontario v. Fraser (2011). Similar to Dunmore v. Ontario

(2001), this case also involved agricultural workers of Ontario and their right to collectively

bargain. However, unlike Dunmore v. Ontario (2001), when the provincial government

decided to amend legislation in 2011 to exclude agricultural workers from its Labour Relations

Act, it did not completely strip them of their right to collectively bargain – as it had originally

done in 2001. Instead, the government of Ontario decided to introduce a new legislative act

that gave agricultural worker their own, unique set of labour relations provisions. In the end,

the SCC found it was appropriate to exclude agricultural workers from the Ontario Labour

Relations Act.

Although some may see this decision as evidence of retrenchment in terms of

protection afforded by the Charter, I would argue that the government had simply taken what it

had learned in Dunmore v. Ontario (2001), Health Services and Support v. British Columbia

(2007) and other recent decisions, to construct new, refined legislation it felt the SCC would

have no choice but to accept based on its own past tests, procedures and processes it had

identified and defined – as previously discussed. Rather than breaking new ground, I believe

this case only demonstrates that governments have become more adept in assessing the


periphery of what is, and what is not, acceptable and afforded protection under the Charter. I

believe this was also recognized by the SCC in Ontario v. Fraser (2011) when it was stated:

The decision in Health Services follows directly from the principles enunciated in Dunmore. Section 2(d), interpreted purposively and in light of Canada’s values and commitments, protects associational collective activity in furtherance of workplace goals. The right is not merely a paper right, but a right to a process that permits meaningful pursuit of those goals. The principles within Dunmore and Health Services represent good law, should not be overturned and provide resolution in this appeal.

Saskatchewan v Saskatchewan Federation of Labour: Getting to what is essential

In November of 2007, the Saskatchewan Party was elected into power in the province

of Saskatchewan. The Saskatchewan Party – a right leaning, conservative party made up

largely of former progressive conservatives and like-minded individuals (Saskatchewan Party,

2012a and 2012b) – defeated the left leaning incumbent, the Saskatchewan New Democratic

Party. Within six weeks, the new government introduced the Public Service Essential Services

Act (PSESA), and seen it proclaimed into law by May of 2008 (Saskatchewan v. Saskatchewan

Federation of Labour, 2012, para 1).

PSESA applied to all public sector employers of Saskatchewan; namely the civil

service, crown corporations, arms length agencies, regional health authorities, universities and

municipalities (Saskatchewan v. Saskatchewan Federation of Labour, 2012, para 7 and

Matthews Dinsdale, 2012). PSESA was created in an attempt to create a recognized legal

process whereby essential workers could be identified in the event of a public sector strike.

The legislation permitted the negotiation of essential workers; however, if such negotiations

did not yield a satisfactory agreement, power would then shift to the employer – in essence the


government – to deem workers essential. Thus, the government, as policy maker, legislator

and arms-length employer, arguably held the discretionary power to impose any agreement it

saw fit (Public Service Essential Services Act, 2008, section 9 and Matthews Dinsdale, 2012).

In Saskatchewan v. Saskatchewan Federation of Labour, the Queen’s Bench for

Saskatchewan found PSESA violated section 2 (d) of the Charter, and found such violation

indefensible under section 1. On February 6, 2012, Justice Ball ruled the act was

“unconstitutional’ and “of no force or effect” (2012, para 283-284). Justice Ball relied on the

SCC decisions in Health Services and Support v. British Columbia (2007) and Ontario v.

Fraser (2011) in making his ruling (Matthews Dinsdale, 2012). Some, such as Matthews

Dinsdale (2012), argue that cases such as this are evidence that some levels of the courts have

recognized a union’s right to strike, and that recent Charter challenges and decisions are still

“ambiguous” and “require extensive clarification.” I agree with Matthews Dinsdale to a

degree; however, I believe the SCC had not intended for unions to be given an unrestricted or

automatic right to strike, based on their previous decisions in Health Services and Support v.

British Columbia (2007) and Ontario v. Fraser (2011). Although I believe the SCC would have

struck down PSESA, I do not believe their decision would have been on the same grounds as

the Queen’s Bench, nor would the SCC have agreed that section 2 (d) was intended to shield a

union’s right to strike.

If we recall earlier analysis in the case of Health Services and Support v. British

Columbia (2007), the SCC found ‘employees had the right to associate, present their demands

collectively and to engage in discussions in an attempt to achieve workplace goals. It also

imposed a duty on the employer to agree to meet and discuss with bargaining agents, and put

constraints on the exercising of legislative powers in respect to collective bargaining’ (para.


89-90). Additionally, the SCC was concerned with any action that would ‘substantially

interfere’ with the ‘union’s ability to engage in collective bargaining’ (para 89-91). Although

the right or privilege to strike may be consistent with the rights and duties listed above, striking

is not the only tool that can be used to ensure them. The SCC guaranteed a union’s right to

collectively bargain, and not to a particular “substantive or economic outcome”, a specific

“model of labour relations”, or a particular “bargaining method” or set of tools (Fudge, 2008,

p. 25 and Health Services and Support v. British Columbia, 2007, para. 91).

In my opinion, this is where the provincial government of Saskatchewan erred. The

government of Saskatchewan took away the unions right to present demands collectively and

to engage in discussions in an attempt to achieve workplace goals, by effectively placing

constraints on how this could be done, which represented ‘substantial interference’ with the

unions ability to engage in collective bargaining. For example, section 6 of PSESA required

negotiations pertaining to essential workers to be agreed upon within 90 days; otherwise,

power would shift to the employer to deem workers essential. Additionally, the language of

PSESA would have permitted the government of Saskatchewan to monopolize decisions

relating to labour, which according to Fudge, is not the purposeful direction the SCC wishes to

take Canadian jurisprudence (2008, p. 26).

I believe that had the government of Saskatchewan passed similar legislation, which

would have given a neutral third party the right to determine numbers of essentials, the

legislation would likely have passed, under scrutiny of the Charter. Had the legislation not

infringed on the unions’ right to collectively bargain, to the point of substantial interference, I

believe the courts – at least in terms of the SCC – would have found the legislation acceptable

under section 2 (d) of the Charter, or at least defensible, under section 1.


Conclusion: A shield for the union collective

Questions surrounding the impact of the Charter, and whether or not it shields union

rights and collective bargaining, are extremely complex. Not only must one consider the

language of the Charter (where some violations are deemed acceptable, while others are not;

see this papers discussion on the Oakes test), one must also consider the language of competing

pieces of legislation and collective agreements. Add onto this the copious layers of tests,

procedures and processes that may, or may not, apply – depending on the inimitable variables

that materialize in jurisprudence – and you quickly begin to understand why confusion and

perceptions of inconsistency exist.

Based on the review of Canadian legislation and jurisprudence, pertaining to the

Charter and afforded shielding of union rights and collective bargaining, if one wished to

provide a simple explanation on how the Charter, legislation and collective agreement

language relate, it could be said the Charter trumps legislation, and legislation trumps

collective agreement language. However, such is only true when legislation is found to be

valid under the Charter. Otherwise, such legislation could be struck down or declared invalid

by the courts, in essence rendering it silent in terms of its impact on collective agreement

language.

Additionally, one must also consider the intricacies of a particular case at hand. Once

this has been done, it would be advisable to search out the most recent tests, procedures and

processes that would appear to apply – such as those discussed and explored in this paper.

Generally, increased weight should be given to those cases that have been heard before the

SCC, whereby the SCC is the highest court in Canada and rarely strikes down its past decisions


unless it believes they fail to “withstand principled scrutiny” (Health Services and Support v.

British Columbia , 2007, para 22). Lower-level courts can also be considered, but it is

advisable to remember that any decisions breaking new ground or inconsistent with past

rulings of the SCC, may be overturned; especially where lower-level courts may have stretched

an intended interpretation or offended a competing test, procedure or process.

Although it is true that the substances of our political civil liberty are not absolute,

based on Canadian legislation and jurisprudence, the Canadian Charter of Rights and Freedoms

has certainly shielded union rights and collective bargaining. If not for the Charter of Rights

and Freedoms, much of the legislation that has been struck down or declared invalid by the

Supreme Court of Canada to date, would still stand. The Charter is indeed a shield for the

collective; however, it remains to be seen whether the Charter can be also be used as a sword –

in giving the collective, the absolute and unequivocal right to strike.


Citations

Cairnes, A.C. (1979). Recent Federalist Constitutional Proposals: a Review Proposal. Canadian Public Policy - Analyse de Politiques. 5, 348-365.

Canada-Newfoundland and Labrador Atlantic Accord Implementation Newfoundland and Labrador Act, RSNL 1990, c C-2, <http://canlii.ca/t/jzbp> retrieved on 2012-06-02

Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act, SC 1988, c 28, <http://canlii.ca/t/kp7t> retrieved on 2012-06-02

Choko, M. (2011). L'ÉVOLUTION DU DIALOGUE ENTRE LE CANADA ET L'OIT EN MATIÈRE DE LIBERTÉ D'ASSOCIATION: VERS UNE PROTECTION CONSTITUTIONNELLE DU DROIT DE GRÈVE? (French). Mcgill Law Journal, 56(4), 1113-1185. [Translated using Google Translate].

Courchene, T. J. (1984). The political economy of Canadian constitution-making: the Canadian economic-union issue. Public Choice, 44(1), 201-249.

Department of Justice Canada. (2005). The Canadian Charter of Rights Decisions Digest. Retrieved from < http://www.canlii.org/en/ca/charter_digest/index.html> retrieved on 2012-06-02

Dunmore v. Ontario (Attorney General), 2001 SCC 94 (CanLII), [2001] 3 SCR 1016, <http://canlii.ca/t/dlv> retrieved on 2012-06-02

Employment Standards Act, SNWT 2007, c 13, <http://canlii.ca/t/ktjn> retrieved on 2012-06-02

Fudge, J. (2008). The Supreme Court of Canada and the Right to Bargain Collectively: The Implications of the Health Services and Support case in Canada and Beyond. Industrial Law Journal, 37(1), 25.

Fudge, J., & Tucker, E. (2009). "Everybody Knows What a Picket Line Means": Picketing before the British Columbia Court of Appeal. BC Studies, (162), 53-79.


Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 (CanLII), [2007] 2 SCR 391, <http://canlii.ca/t/1rqmf> retrieved on 2012-06-09

Heard, A. (n.d.). The Oakes Test. Retrieved from <http://www.sfu.ca/~aheard/oakes.html>

Heenann Blaikie. (2007, June 8). Labour and Employment in the News. Retrieved from <http://www.heenanblaikie.com/.../Collective+Bargaining+Gains+Charter+Protection +-+B.C.+Health+Services.pdf>

Khan, A. (1989). The Canadian Charter, freedom of association and labour relations. Industrial Relations Journal, 20(1), 47-53.

Labour Relations Act, RSNL 1990, c L-1, <http://canlii.ca/t/l2z8> retrieved on 2012-06-09

Labour Relations Act, 1995, SO 1995, c 1, Sch A, <http://canlii.ca/t/kpdg> retrieved on 2012-06-09

Langille, B., & Macklem, P. (2007). THE POLITICAL ECONOMY OF FAIRNESS: FRANK IACOBUCCI'S LABOUR LAW JURISPRUDENCE. University Of Toronto Law Journal, 57(2), 343-367.

Matthews Dinsdale. (2012). Recent Events Cause Unions to Seek Constitutional Protection for the Right to Strike. In a Flash: Quick Read Memos for Human Resource Professionals. Retrieved from < http://www.mathewsdinsdale.com/recent-events-cause-unions-to-seek-constitutional-protection-for-the-right-to-strike/>

Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66 (CanLII), [2004] 3 SCR 381, <http://canlii.ca/t/1j0tg> retrieved on 2012-06-15

National Association of Women and the Law. (n.d.). Supreme Court of Canada Allows Discrimination Against Women: NAPE v. Newfoundland. Retrieved from <http://www.nawl.ca/ns/en/documents/PE_NAPE_eng.doc>

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Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), 1990 CanLII 72 (SCC), [1990] 2 SCR 367, <http://canlii.ca/t/1fsv1> retrieved on 2012-06-09

PSAC v. Canada, 1987 CanLII 89 (SCC), [1987] 1 SCR 424, <http://canlii.ca/t/1ftnq> retrieved on 2012-06-09

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Appendices

Appendix A

The Oakes Test:

First, the objective to be served by the measures limiting a

Charter right must be sufficiently important to warrant overriding a

constitutionally protected right or freedom.

Second, the party invoking s. 1 must show the means to be

reasonable and demonstrably justified. This involves a form of

proportionality test involving three important components.

a. To begin, the measures must be fair and not arbitrary,

carefully designed to achieve the objective in question and

rationally connected to that objective.

b. In addition, the means should impair the right in question

as little as possible.

c. Lastly, there must be proportionality between the effects of

the limiting measure and the objective -- the more severe the

deleterious effects of a measure, the more important the objective

must be.

This test was developed in R. v. Oakes [1986] 1 SCR 103. The Supreme Court modified it several months later in R. v. Edwards Books & Art [1986] 2 SCR 713; in that case the Court addressed idea of 'impairing as little as possible' and allowed more flexibility to allow a reasonable margin rather than a 'precise line'. Since, the SCC has referred to "margin of appreciation" to allow legislature some room to set the level of impairment. (Irwin Tow v. Quebec [1980] 1 SCR 927,

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