Supreme Court to Consider Whether Right to Strike is Constitutionally Protected
Colleen Bauman outlines the s. 2(d) jurisprudence that may inform the Supreme Court’s decision on the right to strike
In what is proving to be a busy season for labour law at the country’s highest court, the Supreme Court of Canada has just granted leave to appeal in Saskatchewan Federation of Labour et al. v. Saskatchewan. This case will put the issue of whether the right to strike is constitutionally protected squarely before the Court once again.
The case arises out of the Government of Saskatchewan’s enactment in May 2008 of the Public Service Essential Services Act (“PSESA”) and the Trade Union Amendment Act, 2008 (“TUAA”). The PSESA was a controversial piece of legislation that, among other things, broadened the categories of public services defined as “essential” and limited the right of employees providing those services to strike. The TUAA amended provincial labour legislation to make it more difficult for unions to become certified as bargaining agents.
The Saskatchewan Federation of Labour (“SFL”) challenged the constitutionality of both pieces of legislation on the basis that they infringe the guarantees of freedom of association and freedom of expression under the Canadian Charter of Rights and Freedoms.
In 1987, the Supreme Court held in Re: Public Service Employee Relations Act (the “Alberta Reference”), a case involving legislation banning strikes, that the right to strike is not protected by the guarantee of freedom of association s. 2(d) of the Charter. However, since that early labour decision, the Court’s approach to s. 2(d) has evolved.
Notably, in the Alberta Reference and other early cases, the Supreme Court also held that collective bargaining was not protected by s. 2(d). However, the Court’s more recent cases have established that some form of collective bargaining is constitutionally protected under s. 2(d). In its 2001 decision in Dunmore v. Ontario (Attorney General), the Supreme Court held that s. 2(d) protects the freedom of employees to establish independent associations for the purpose of making collective representations to their employer. Next, in its 2007 decision in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, the Court partially reversed its decision in the Alberta Reference and held that s. 2(d) protects “the right of employees to join together in a union to negotiate with employers on workplace issues or terms of employment — a process described broadly as collective bargaining.” More recently, in Ontario (Attorney General) v. Fraser, the Court explained that in order to make collective bargaining meaningful, s. 2(d) requires “a good faith process of consideration by the employer of employee representations and of discussion with their representatives.”
Faced with this evolving landscape of labour rights, a five member panel of the Saskatchewan Court of Appeal held in the SFL case that, although the more recent Supreme Court cases like Health Services and Fraser had significantly shifted the approach to s. 2(d), the Alberta Reference, which explicitly held that the freedom of association does not include the right to strike, was still good law and was binding on the Court of Appeal.
Now that the Supreme Court has granted leave to appeal, it will have the opportunity to consider whether the Alberta Reference is indeed good law with respect to the right to strike or whether the law has evolved since then to include a right to strike under s. 2(d) of the Charter.