Friday, February 6, 2015

Canada's New Constitutional Right to Strike

The Supreme Court of Canada finally released its decisions in the major labour law cases of Mounted Police Association of Ontario v. Canada ("MPAO") and Saskatchewan Federation of Labour v. Saskatchewan ("SFOL").

And the terrain of union rights in Canada has now shifted remarkably, with far more substantial rights being interpreted into s.2(d) of the Charter, freedom of association, than ever before.

There's a long history here, and I've written about it before.

Background Reading

Fraser v. Ontario:  Is the Pendulum about to Swing Back? - May 2011 - An examination of the history of labour law and s.2(d) of the Charter, and a commentary on the Fraser case.

The Right to Strike - February 2012 - A primer on the SFOL case, following the initial decision in Saskatchewan.

Ontario Court of Appeal Strikes Down Mountie Union - June 2012 - A primer on the MPAO case, after the appellate decision in Ontario.

Mountie Union Case Update - February 2014 - A follow-up on MPAO.

Labour Law and the Charter - March 2014 - A general history of the application of s.2(d) to union activities.

A Brief History

Allow me to summarize the history as briefly as I can here.  In 1987, the Supreme Court of Canada released three decisions referred to generally as the "Labour Trilogy", which concluded that union activities were not protected by s.2(d) of the Charter.  Despite a strong dissent, the majority felt that freedom of association could not grant collective rights that were not already individual rights.

By analogy, the question was raised as to whether or not there is a constitutional right to collectively golf.  Certainly, government can restrict my right to golf as an individual, without attracting Charter scrutiny.  But if I get three of my friends together to golf, is our activity suddenly constitutionally protected?  The answer, naturally, is no.  Thus, in 1987, the SCC concluded that the Charter did not protect the right to join a union, to bargain collectively, or to strike.

Ontario's Rae government inadvertently prompted the slide away from that.  Agricultural workers in Ontario have traditionally been excepted from our labour relations regime.  The Rae government changed that, extending labour protections to agricultural workers.  They were just starting to get organized when the Harris government changed it back, removing their right to organize and decertifying the unions that had already been certified as bargaining agents for agricultural workers.  The unions challenged this, leading eventually to the SCC's 2001 decision in Dunmore.


Dunmore was the first of five (to date) important decisions incrementally changing the Labour Trilogy doctrine.  The SCC recognized for the first time that freedom of association had to include the right to make collective representations to an employer.

But there's a further problem:  The constitution typically can't be used to compel positive government action.  My freedom of expression means that the government can't take active steps to silence me; it does not mean that anyone has to take steps to facilitate my speech.  Likewise, my freedom of association means that the government can't (subject to certain limits) prevent me from joining a union, but creating a statute that protects me from private sector reprisals for doing so?  That's the kind of positive action that the Charter can't typically require.

The SCC got around that in Dunmore because it was found as fact that the statutory exclusion generated a 'chilling effect' - that telling the private sector "Unions are generally protected, but not in the agricultural sector" sent the message that agricultural unions were illegitimate, tacitly encouraging agricultural employers to take steps against unionization.

The SCC didn't set out the full scope of s.2(d), leaving that for another day, but said that at minimum agricultural workers were entitled to a scheme that protected their right to join an association and to make collective representations to the employer.

B.C. Health Services

The next case in the saga was the 2007 decision in B.C. Health Services.  British Columbia enacted health service reforms without consultation with the unions, including overriding collective agreements by statute in various ways.  The unions challenged this, arguing that there is a constitutional right to collective bargaining - in other words, that B.C. couldn't just override collective agreements and implement new ones by legislative fiat.

The SCC concluded that s.2(d) extends to a constitutional right to good faith collective bargaining.

Because the B.C. government actually actively overrode collective agreements, the Supreme Court didn't have to do any Dunmore-style dancing about chilling effects to warrant subjecting the acts to Charter scrutiny.

And because they didn't have to dance in that fashion, the lines between the government as legislator versus the government as employer became a little blurry, and the decision arguably created a positive obligation on government to take active steps to protect the collective bargaining rights of private sector workers.


After the decision in Dunmore, Ontario's government did the bare minimum suggested by the SCC, giving agricultural workers the right to join an association and make collective representations to the employer.  The unions challenged this, arguing that it still didn't give agricultural workers meaningful associational rights.  It was certainly well short of the robust protections granted to most workers under the traditional North American labour regimes (known as 'Wagner' style labour relations).

The Supreme Court, in one of their weirdest decisions I've seen in a long while, concluded in 2011 that the new statute did not contravene the Charter, because it implicitly contained an obligation for the employer to bargain in good faith.  The right to collectively bargain is a derivative right, only important insofar as it is necessary to facilitate workers meaningfully acting together toward their collective goals.

This drew a line on s.2(d) rights:  There was a right for employees to act collectively, and to be able to do so meaningfully, but no right to a particular mechanism or legislative structure for the collective bargaining - s.2(d) did not enshrine full Wagner-style labour relations protections.

MPAO and SFOL:  Background

Police aren't generally allowed to unionize.  Most police have associations that look a lot like unions, but the RCMP were under a different framework, with an association that was basically created by management itself.

So the Mounted Police Association of Ontario (among others) challenged the prohibition, arguing on the basis of Dunmore that RCMP officers were entitled to act collectively.  The Ontario Court of Appeal rejected the argument following Fraser, finding that the existing in-house system was adequate to give effect to their s.2(d) rights.

As well, Saskatchewan enacted a statute curtailing the right to strike of their civil servants, and the Saskatchewan Federation of Labour commenced a Charter challenge.

Last month, the SCC decided the MPAO case, allowing the appeal and concluding that Mounties do in fact have a right to join a union:  The existing in-house model lacked the 'choice' and 'independence' necessary for employees to meaningfully exercise their associational rights.

A compelling dissent by Justice Rothstein made a couple of potent criticisms of the majority decision:  Firstly, that 'choice' as defined by the majority is actually a component missing from domestic models in which workers have been very effective at exercising collective rights (such as, for example, Ontario's teachers).  He also highlights that Wagner-esque majoritarianism actually deprives significant workplace minorities of having any meaningful 'choice'.  Secondly, that 'independence' is a feature of the Wagner model, but not essential to the meaningful exercise of collective rights, as there are alternative models available which are just effective.

In a nutshell, Justice Rothstein argued that applying the test as set out in Fraser, that a labour relations regime would be constitutionally permissible so long as it didn't render it effectively impossible for workers to act collectively, would lead the court to dismiss the appeal, and that it was deeply inappropriate for the court to resile from a proposition of law established a mere 4 years ago.

(I wonder if he was being intentionally ironic.  In Fraser, Justice Rothstein argued that the 4-year-old precedent of B.C. Health Services was unworkable.  The majority decision in Fraser, authored by the same two judges as in MPAO, responded that Rothstein's criticism was "premature".)

The majority disagreed with Rothstein's interpretation of Fraser, but conceded that some passages in Fraser may have confused the issue.

Which brings us to the recent decision in SFOL, concluding that s.2(d) does indeed extend to a right to strike.

The question as addressed by the majority - authored by Justice Abella - is primarily framed as being whether or not the strike is truly a "necessary component of the process through which workers pursue collective workplace goals".  They answered in the affirmative, and from that everything else falls into place pretty logically.

The reason they answer in the affirmative appears to be more about deference to a broader international consensus rather than because of any actual examination of the importance of the strike to the contemporary Canadian workplace, or the consideration of alternative models.  Justice Abella highlighted the importance of the strike in the historical development of Wagner model labour relations regimes, and also its prominence in certain other countries.  Likewise, the ILO regards the right to strike as being an integral part of freedom of association (though it bears noting that the actual convention on the point to which Canada is signatory does not expressly refer to a right to strike).

The dissent by Justices Rothstein and Wagner makes a number of criticisms of the majority decision.  They argue that the breadth of the majority decision is irresponsible, with potential far-reaching consequences, that in fact there are reasonable alternatives to the right to strike that would preserve the meaningful pursuit of collective workplace goals, and that the majority's reliance on historical and international perspectives is misplaced.


On MPAO, the majority is trying to have their cake and eat it too.  Rothstein is right about the wording of the test in Fraser:
The question here, as it was in those cases, is whether the legislative scheme (the AEPA) renders association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(d) associational right.
There is a fairly easy solution to the disconnect between Fraser and MPAO:  With the cases of B.C. Health Services, MPAO, and SFOL, the issue surrounded the government as employer, whereas Fraser and Dunmore dealt with the government's role in regulating private sector labour relations.  If one concludes that s.2(d) extends to a right to good faith bargaining, that may well tie the government into good faith bargaining with their own employees.  (Whether or not there was a failure to do so in the case of MPAO is a separate issue, perhaps.)  If the government does something that substantially interferes with the pursuit of collective workplace goals, including by its own employees, that's likely to be unconstitutional.

To my mind, however, determining the extent of protections that the government must extend to private sector employees should be a different question.  The 'effectively impossible' language that trickled down from Dunmore alluded to the impact of the omission of agricultural workers.

In other words, if we were to read the case law as saying that the Charter imposes a positive duty on government where the failure to protect a right would make the exercise of that right effectively impossible, but prohibits the government from taking positive action which substantially interferes with collective bargaining rights, then we'd have almost reconciled the results in these cases.

Instead, the majority has hedged, trying to define basic characteristics of a constitutionally acceptable labour relations regime, and in doing so - I agree with Rothstein - has gone well beyond the scope of the truly essential characteristics, and furthermore that these efforts will have the inadvertent result of making perfectly functional labour relations regimes unconstitutional.

The Right to Strike

Some of Rothstein's criticisms in SFOL resonate with me.  I'm not sure I necessarily subscribe to his dire warnings of a slippery slope or catastrophic unforeseen consequences, but when I was reading through Justice Abella's reasons, I was already thinking that the reliance on the historical context is deeply misplaced.  The formative role of strikes in the early 20th century labour movement - sometimes illegal, often not protected, often in response to an employer's refusal to recognize a union - is very different from contemporary Canada, where most labour relations regimes require an employer to recognize a certified bargaining agent, and to bargain in good faith.

A contemporary strike results in significant protections to the workers that didn't exist in the timeframe Abella writes of.  In the 1930s, if all my workers walked out of my factory, I was at liberty to refuse to take them back, and to go hire a new workforce.  Nowadays, the hands of the employer are significantly fettered when dealing with labour disruptions, and if that framework is what the majority is saying is constitutionally protected, it very much tilts the balance of power.

The international context is useful, but not, in and of itself, a reason to adopt the same conclusions that other countries have.  Justice Abella, if your friends Germany and Israel jumped off a bridge, would you do it too?

There must be a mechanism for resolving a bargaining impasse.  That's fairly obvious.  And arbitration has its limits - it isn't necessarily ideal, because it doesn't necessarily reflect all the applicable market realities.  But not being 'ideal' doesn't mean that a requirement to arbitrate instead of strike would necessarily amount to substantial interference to the pursuit of collective workplace goals.  Indeed, some of the strongest unions are in the workforces traditionally barred from striking, like police and fire.  It actually seems quite absurd to suggest that the absence of the right to strike is a substantial interference, in light of the empirical evidence that police are not at all impeded in their pursuit of collective workplace goals.

To be clear, I'm not generally a fan of 'no strike' legislation.  I've opposed movements to designate garbage collection as an 'essential service' - I think it's disingenuous (not to mention inviting a judicial response like this).  I prefer to have unions and employers battle it with regard to their natural economic bargaining power, meaning that they should be able to apply economic pressure through the use of strikes and lockouts.

But I don't think that this is functionally necessary for the exercise of freedom of association, and moreover I don't think it is workable that the Charter now appears to compel the government to enact legislation as to regulate private sector labour relations in a particular way:  That is deeply inconsistent with the principles underlying the overwhelming majority of constitutional jurisprudence (including Dunmore and Fraser), and it unduly restricts our democratically elected representatives.


This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation. If you need legal assistance, please contact him for information on available services and billing.

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