In the past few years, the Supreme Court of Canada has reversed its previous rulings around freedom of association and how that relates to a right to strike by labour unions.
In the past few years, the Supreme Court of Canada has reversed its previous rulings around freedom of association and how that relates to a right to strike by labour unions. Labour lawyers say this move has shifted public perception and how they advise their clients when it comes to labour relations in the country.
Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 was a landmark case that is still influencing decisions made across the country.
The ruling found that the right to strike is an essential part of a meaningful collective bargaining process and not merely derivative of collective bargaining. Because provincial essential services legislation offered no alternative mechanism for employees to exert their right to collective bargaining, the scheme was struck down as unconstitutional.
“The decisions have radically altered the landscape around Charter protections for collective bargaining and the right to strike,” says Andrew Raven, partner with Raven Cameron Ballantyne & Yazbeck LLP in Ottawa.
For example, in 2017, the ruling was cited in International Union of Operating Engineers, Local 793 v. Hermanns Contracting Limited, which found that s. 3(c) of Ontario’s Labour Relations Act was unconstitutional.
Raven says governments got cocky in the wake of the SCC’s 1987 labour trilogy decisions, which resulted in laws such as the ones struck down in Saskatchewan Federation of Labour.
“Frankly, if governments acting as employers or even as legislators had been more measured in some of these cases that have worked their way through the courts, the outcome might have been different,” says Raven.
Sean McGee, partner with Nelligan O’Brien Payne LLP in Ottawa, who leads the firm’s Labour Law Practice Group, says the Supreme Court’s decision was an evolving progression as opposed to a dramatic shift, which traces back to the Supreme Court’s decision about the importance of picketing in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8.
“There are specific rights that have been given that are affecting the practice of labour law, but there is a more indirect effect, which is [that] the Supreme Court has talked about the way labour rights and individuals’ rights and their rights collectively interact with the law,” says McGee.
“It’s a discussion about what the Charter means to the economic and social balances of power in the country,” he says.
McGee says these principles now play out day to day when union lawyers and management-side lawyers appear in front of courts and tribunals and argue the more fundamental questions.
“Strangely enough, they come up more often than you’d think when you’re trying to argue about various points of law because arbitrators, courts and tribunal members want to hear the broader public policy reasons why they should decide in certain ways,” says McGee.
He says that when he represents clients looking for an injunction, it is incumbent to talk to the court about the balance of rights, power and convenience.
“You have to talk about where that social and legal balance has to be put,” says McGee. “When we’ve gone to court to look at injunctions, whether it’s at a provincial level or an injunction over federal lands, we’re talking about these very issues.
“Every labour lawyer has to have a good sense of where this balance is being held, because judges and tribunals are going to want to have this discussion where it’s appropriate and where the question of that balance comes into play,” says McGee.
David Wakely, senior partner with Filion Wakely Thorup Angeletti LLP in Toronto, notes that the crux of the SCC decision in Saskatchewan Federation of Labour was that there were no other dispute resolution means incorporated into the legislation.
Wakely notes that, in Ontario, all essential services have a system of binding interest arbitration that is their own legislation that replaces the right to strike.
“If you look at police agreements, fire agreements or nurse agreements, they’re the richest agreements in the country because this binding interest arbitration has been very kind to them,” says Wakely, who represents management-side clients.
As a result, the Supreme Court decisions have had little effect on the practice in Ontario, Wakely says, and he suspects that because of how well these groups have done under binding interest arbitration, it would be unlikely that they would prefer a return to a right to strike.
George Waggott, a sole practitioner in Toronto, says there is now a greater recognition about the need for a process in negotiations in order to have integrity.
“It’s not just a pendulum swinging back and forth,” says Waggott.
“We’ve actually re-set where the middle is. I think people recognize now that there’s a more broad piece and there does need to be a more proper process to be followed. I don’t think that’s just with public bargaining.”
Waggott says it also applies to how labour boards have interpreted and breathed more life into bargaining processes and the rights to unions.
“All of the substantive aspects of negotiations are now more likely to be scrutinized,” says Waggott. “It doesn’t mean employers like it, but it’s what we face. We have to be a little more sophisticated in how we’re going to deal with the whole process.”
Waggott says that while Saskatchewan Federation of Labour has some aspects that are unique, the bigger part is that there must be a process that, even if there is no right to strike, there has to be a mechanism to get a collective agreement.
Waggott says strikes are more accepted now in terms of public perception, so it makes a difference what the Supreme Court has ruled in terms of the right to strike.
“This makes private sector unions some of the biggest beneficiaries of these decisions,” adds Waggott.
