The Right to Strike

The lines are drawn for the next great battle of contemporary labour law.

For all of the issues that have arisen in recent labour disputes in Ontario and in the Federal sphere, including the Province designating the TTC as an essential service and the Feds legislatively interfering labour disputes involving Air Canada and Canada Post, this case has arisen in Saskatchewan, and has provided - at the trial level - an answer to a question whose spectre was raised 11 years ago by the Supreme Court in the Dunmore decision:  Does s.2(d) of the Charter of Rights and Freedoms guarantee a right to strike?

The History

In the early Charter jurisprudence, the Supreme Court pretty thoroughly rejected the notion that s.2(d) (freedom of association) protected union-related rights.  However, in Dunmore the Supreme Court overturned those earlier cases, accepting that the freedom of association included the freedom to join unions.

Dunmore was important for a few reasons.  It also has become a precedent for the Charter requiring what is characterized as 'positive government action'.  Traditionally, Charter rights only restricted what a government could do.  Freedom of expression prevents someone from being silenced, but does not require anyone to provide a soapbox.  It means that the government can't force my blog to be shut down (without good reasons), but doesn't require the government to provide hosting for my blog, or to force Blogger to continue to host it.

So how does that apply to a right to join a trade union?  Under a traditional Charter analysis, it would mean that the government can't make it illegal for a group to join a union.  Early in the labour movement, but in days long past, this was the case.  But with most groups these days have statutory rights to join unions, the question took on different dimensions:  Dunmore was about the exclusion of agricultural workers from the labour relations regime, about saying to society at large, "Everyone can join unions...except these guys."  The Court in Dunmore concluded that this had a chilling effect, that the exclusion of one group in itself sent a message to employers that agricultural unionization efforts would be illegitimate, and by doing so the government was interfering with such unionization efforts.  In response, the legislature enacted a law, the AEPA, giving agricultural workers the right to join unions and make representations to employers.  We'll come back to that in a minute.

The next question was what was included with this right to join a union.  Can the employer proceed to ignore  the union anyways, in the absence of a statutory regime telling them otherwise?  Does s.2(d) include not just a right to join a union, but also a right to collective bargaining?  And if so, does that impose a positive obligation on government to protect such a right?

The second case was B.C. Health Services in 2007, and the answer to the question was Yes.  The British Columbia government had legislatively overridden several public sector collective agreements, and the Supreme Court found that this interfered with the associational rights of the individuals involved - a meaningful right to associate means protection of the objectives for which people associate, including collective bargaining.  The case reinforced Dunmore and referenced the discussion from that case of 'underinclusive legislation'.  I've tended to argue that the discussion of positive government action in B.C. Health Services is somewhat misplaced, since we are talking about a case involving the government actually legislatively undermining collective agreements, but I (though I'm probably alone in this) really don't read Health Services as meaningfully expanding the "positive obligations" scope from the extremely limited doctrine set forth in Dunmore.

Then, there was the third case, Fraser, dealing with the AEPA in Ontario.  The objection was that the AEPA didn't obligate employers to actually negotiate in good faith when receiving representations from the union.  The Supreme Court's response, in a remarkable feat of legislative interpretation (see my commentary here), was "Yes it does", finding that good faith obligations could be read into the statute, and that s.2(d) may guarantee a meaningful right of collective bargaining but does not guarantee any particular mode or structure for that collective bargaining.

I am somewhat disturbed by how far Fraser comes from Dunmore's 'the government can't substantially interfere with the right to organize' to 'the government is obligated to enact statutes imposing good faith obligations on employers'.  But that's not for today.

What Now?


Yesterday, the Saskatchewan Court of Queen's Bench released a decision finding that s.2(d) constitutionally guarantees the right to strike.  The facts involve a statute enacted which essentially imposes a wide-spread 'essential service' model, stripping public sector employees of the right to strike.

The Court noted the role of the strike in labour relations.  In the private sector, a strike imposes economic pressure on both sides - the employees aren't making money, but the employer isn't getting labour.  In the public sector, the pressure on the employer is different, usually being political in nature.

It's a lengthy decision, but I will deal with it in very brief terms for now, at the risk of oversimplifying:  The Court views the strike as being a keystone of collective action - without the right to strike, to exert collective pressure against the employer, the right to collectively bargain is meaningless.  Thus, s.2(d) must extend to the right to strike.

Further, Canada's international obligations and participation in ILO conventions tend toward the recognition of a right to strike.

My Thoughts

I'm not an expert in international law.  There are people far smarter than me who have argued either way on this point in the wake of B.C. Health Services, but I dislike the invocation of international law in this context.  It is difficult to accept that an international treaty, which governments can enter into or rescind, can inform the interpretation of the Canadian constitution.

In any event, even if my distaste for the Supreme Court's approach in Health Services is unsubstantiated, the Court in this case takes it further.  You see, the right to strike is not expressly set out in the applicable ILO convention, but rather has been read in by the ILO over time.  Namely, in 1971, the ILO appointed a Committee to inquire into a complaint against Greece, which concluded that the right to strike was implicitly protected by convention 87.  The Saskatchewan Court here pointed out that Canada ratified the treaty in 1972, after that decision made it clear that the Committee on Freedom of Association was taking that position, and therefore it informs the contents of our international obligations, which in turn (following B.C. Health Services) inform the content of our Charter rights.

Okay, let's parse this for a second:  We have freedom of association.  Because, in 1972, we ratified a convention agreeing to protect collective bargaining, that gets lumped in with freedom of association.  And because, in 1971, an international organization concluded that the right to strike was implicitly protected by a right to collectively bargain, that means our constitution must therefore guarantee a right to strike.  Even if I were to put aside the heavy deference on an international organization's interpretation which was not at all informed by Canadian legal principles, this is starting to get a little disturbing for other reasons, but I'll get to that in a second.

The Court also refers to the presumption of conformity with international law, which is a principle of statutory interpretation suggesting that, in the absence of an irresistably clear intention not to comply with international obligations, a law should be read as being consistent with international obligations.

This is true.  I'm quite fond of that principle, actually.  I like international cooperation and multi-lateralism, and I'm fond of the fact that a government is unable to subtly legislate around its international obligations - it can do so, and should be able to do so, but has to admit openly that that's what it is doing.

But it's a rebuttable presumption, premised on the notion that "If the government really wanted to ignore its international obligations, it could have said so expressly."  Moreover, if that's really what the government wanted to do, they can just go and amend the law to do so.  When we're talking about Charter interpretation, that notion no longer exists.  The Charter is there.  It has been there since 1982, and it's nigh-impossible to amend.  If we were talking about international obligations that post-date the Charter, I'd be deeply worried about the Court saying "Well, if they didn't want us to interpret the Charter to include this international obligation, they should have put that in the fine print of the Charter."  Such a conclusion would be absurd.

In this case, of course, the international obligations predate the Charter, but if that's the deciding factor then that worries me for different reasons:  Unlike that of our southern neighbours, the Canadian constitution is a "living tree".  It grows and changes as the society it protects grows and changes.  The intended meaning upon drafting isn't completely irrelevant, but nor is it determinative.  American constitutional interpretation today is rather muddied by the fact that they feel beholden to the ideals, values, and intentions of those who drafted the document, well over two centuries ago.  Two hundred years from now, when our society (and economy and workforce) has grown and evolved in ways that we can't necessarily imagine now, are we going to have to interpret our ongoing constitutional rights and obligations based on what a group of non-Canadians said about a conflict in Greece in 1971?

The answer, almost certainly, is No.  That would be anathema to the entire history of Canadian constitutional jurisprudence.  We leave it to our Courts to interpret and determine the contents of the Charter, and we trust them to consider these questions in meaningful and thoughtful ways.  They cannot defer on questions of constitutional interpretation, and even if you grant that Canada's role in the international community may have some interpretive value, it simply cannot be the case that the Courts' hands can or will be tied in context of constitutional interpretation by the conclusions of an international organization.  Canada can decide for itself whether or not meaningful freedom of association requires a right to strike.  If our Courts find that it does not, that will not abrogate from the government's international obligations to recognize a right to strike anyways...but that's kind of my whole point:  It is an *international* obligation, one that we have taken on and which is subject to our own sovereign statehood.  That alone ought not to make it a constitutional obligation.

Furthermore, I'm not certain that I agree with the conclusion that a strike is necessary for meaningful collective bargaining.  There are alternative models, including interest arbitration, for resolving irreconcilable disputes in bargaining.

There are problems with such arbitration, of course.  Firstly, defining the mandate of the arbitrator can be difficult, directing them in what factors they should consider in coming to a decision.  Secondly, widespread arbitration can result in a disconnect from free market pressures and bargaining power, resulting in wages which are either inordinately high or low with regard to market conditions, because arbitrated results tend to focus strongly on "What are other people getting?".  (That being said, negotiated results often have that dimension, too.)  Arbitration also tends to resist innovation - an arbitrator doesn't want to adjudicate something new between the parties that doesn't exist elsewhere.

Yet I'm not sure that any of these problems are such that they can be said to interfere with meaningful association by definition.  While a statute that puts economic concerns of the employer at the forefront of an arbitrator's mandate would likely do so, a balanced formulation of the mandate is not impossible.  As for the prospect of a break from market conditions, this could be built into the mandate to some extent.  Not a perfect solution, but it's hard to imagine wages skyrocketing out of control, or unionized employees suddenly becoming drastically underpaid.  And the issue of stagnation is troubling, but nor is it one-sided.  If a party wants something new and different, they can still bargain for it, and bargaining may require compromise, on both sides.  A no-strike model would likely have prevented Ford from bullying CUPE into compromising its job security provisions.

In light of Fraser, noting that no specific labour relations model is necessary, I think that the existence of no-strike alternative models which have been effectively used in some contexts will make it difficult for this decision to survive its appeals.

What next?

This will be appealed, likely all the way to the Supreme Court in time.  If it holds up, the consequences will be widespread.  Many of the current Federal government's actions will be seen as ultra vires (outside of their power), interfering with collective bargaining processes.  Back-to-work legislation in general will become presumptively unconstitutional, unless it can be justified under section 1 of the Charter.  Essential services legislation will be the same - most likely, the TTC's essential services designation will be done away with.

I don't like the approach taken by the Federal government to labour issues.  I do think that, where the government is going to step in, a fair alternative is necessary, and that has not been happening.  But, with fair alternatives available, I dislike the notion of an outright prohibition of government interference in labour disputes.  Labour disruptions can and often do have major impacts on the public interest, and I'm not laissez-faire enough to say that we should always just leave it to market pressures to decide who's right.

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