The Supreme Court of Canada’s recent decision in Mounted Police Association of Ontario v Attorney General of Canada (“MPAO“) reboots the Court’s case law on freedom of association. This landmark ruling has significant potential implications for the development of the law and for workers’ rights.

Legal impact of MPAO

For labour and constitutional lawyers, the most significant outcome of the case is the Court’s rejection of the “effective impossibility” test and the confirmation that workers seeking to make their case under section 2(d) of the Charter need only demonstrate that government action has substantially interfered with their right to collective bargaining. The Court also clarified the relationship between collective bargaining and freedom of association, explaining that the freedom of association always requires that workers enjoy a meaningful right to collectively bargain.

Impact on RCMP members

MPAO’s immediate impact for RCMP members is profound. It confirms that RCMP members have a constitutionally protected right to collectively bargain through an independent association of their choosing. While RCMP members are not necessarily entitled to be included in the Public Service Labour Relations Act (“PSLRA”), the Court ruled that their exclusion from this Act violates the freedom of association, noting the RCMP’s long-standing hostility to unionization of the force, including the imposition of the unconstitutional Staff Relations Representative Program. On its face, this would appear to require the Government to provide a statutory regime to protect certain basic rights for RCMP members. While the Court’s previous ruling in Attorney General of Canada v Fraser highlights the limits of this requirement, the decision in MPAO nonetheless underscores the seriousness with which the Court viewed the Government’s approach to associational activity within the RCMP.

Impact on workers’ rights 

This decision has broad potential implications for other workers, although the precise impact in circumstances beyond the RCMP is uncertain. For example, the judgment could open the door for other groups of workers to challenge their exclusion from statutory collective bargaining regimes. Vulnerable workers who have been historically excluded, such as students and casual employees who work for the federal public service, could potentially rely on MPAO to argue that, like RCMP members, the purpose of their exclusion from the PSLRA was to prevent them from engaging in collective bargaining, and therefore that exclusion should be struck down.

Alternatively, these workers could argue that, although they fall outside a statutory bargaining regime, the Government is nonetheless required to bargain with the chosen representatives of these workers, or the representatives of a subgroup of these workers, otherwise known as a minority union. The Court explained in MPAO that it is permissible for the Government to impose a statutory model of representation based on majoritarianism and exclusivity. These groups can argue, however, that there is no reason why such a model would automatically apply where Parliament has not imposed it. Requiring the Government to bargain with subgroups of excluded workers would recognize the constitutional rights of all employees to a process of collective bargaining while respecting Parliament’s right to impose a particular statutory regime if it so chooses.

MPAO further implies that workers who have been excluded from collective bargaining because of the perceived sensitive nature of their work – such as members of management in the federal public service or non-civilian members of the Canadian Armed Forces – are also entitled to a process of meaningful collective bargaining. Although the Government could try to justify certain restrictions to this right under section 1 of the Charter, it cannot simply presume such limits exist. Nor can it avoid providing these workers with the right to be represented through an independent association of their choosing simply because the Government has decided to develop a less adversarial bargaining process.  

Conclusion

MPAO revitalizes the role of the Court as a protector of basic workers’ rights. The significance of this development will depend at least in part on the Court’s pending decision on the right to strike in the Saskatchewan Federation of Labour case, which is scheduled to be released this Friday.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On Thursday, December 11, 2014, Wassim Garzouzi was invited to give a presentation entitled “Introduction to Effective Labour Representation” to the members of the Local Executive Committee of the Ontario Public Service Employees Union, Local 415.

The Discussion dealt with a review of the Colleges Collective Bargaining Act, the CAAT-A Collective Agreement, as well as the roles and obligations of Union Stewards towards their membership.

On January 30, 2015, James Cameron and RavenLaw articling student Daniel Tucker-Simmons gave a presentation to Health Canada employees on the challenges of facilitating a successful return to work for employees off on disability leave.

The presentation, entitled “Navigating the Return to Work: Disability Deserves Dignity”, charted a roadmap for both managers and employees, beginning with the legal framework governing the duty to accommodate employees with disabilities, through to the process of accommodation itself. Focusing on the topic of mental disability, the talk concluded with a discussion on the necessity of destigmatizing mental disability in order to better welcome returning workers into a supportive workplace.

At the request of Health Canada, the presentation was organized by REACH, a nonprofit organization that advocates for equality for persons with disabilities.

David Yazbeck recently celebrated his 10^th year anniversary as the host of the Thursday Morning Special Blend on CKCU FM. The Thursday Morning Special Blend focuses on local arts and rights issues, with plenty of live local music and interesting interviews. David regularly has representatives from the local music community, GCTC, Amnesty International, Rod Phillips on wine, and more.  David started the show in 2004, inspired by his passions for music, other arts, and progressive politics. To celebrate the 10 year anniversary, David hosted a special live show on December 18 at the West End Well Café. You can listen to the 10^th anniversary show here.

“Clearly the arc bends increasingly towards workplace justice”: The Supreme Court of Canada today released a landmark decision in Saskatchewan Federation of Labour v Saskatchewan, ruling that section 2(d) of the Canadian Charter of Rights and Freedoms protects workers’ right to strike. In bold and sweeping reasons on behalf of the Majority, Justice Abella outlined the historical, international, and jurisprudential foundations for this right, emphasizing that a right to strike is indispensable to meaningful collective bargaining.

The case itself dealt with legislation from Saskatchewan that granted public sector employers the unilateral authority to identify which employees were prohibited from participating in a strike because they performed ‘essential services’. This legislation – which closely resembles amendments subsequently made to federal public sector labour law – departed from the conventional approach to essential services legislation across the country, in which independent labour boards possess the authority to determine what services are essential, and which employees are required to perform those services.

The Supreme Court concluded that Saskatchewan’s legislation violates the right to strike as it significantly interferes with a meaningful process of collective bargaining and that this violation cannot be saved by section 1 of the Charter. The Court explained that there is no justification for granting public employers a unilateral right to limit the right of their employees to strike. The Court further held that the legislation in this case went well beyond what was necessary to provide essential services to the public: for example, the legislation permitted employers to require workers to perform non-essential duties, and it failed to provide an alternate dispute resolution mechanism for those workers who are determined to be essential.

RavenLaw congratulates the appellants and their counsel on this historic victory for workers.

Andrew Raven, Andrew Astritis, and Morgan Rowe from our firm represented the Public Service Alliance of Canada, who appeared as an intervener before the Supreme Court of Canada in support of the right to strike.

On Tuesday, January 6, 2015, Wassim Garzouzi participated on a Labour Law Panel at the University of Ottawa alongside co-panelists Graham Clarke of the Canada Industrial Relations Board (“CIRB”) and George Vuicic, of Hicks Morley. Following an arbitration simulation, the panel discussed the practice of labour law and answered questions from students.

The event was organized by Professor Suzanne Bouclin as part of the Dispute Resolution course at the Law Faculty of the University of Ottawa.

On the heels of its recent decision in Mounted Police Association of Ontario,[1] and with more distant roots in its judgments in BC Health Services[2] and Fraser,[3] the Supreme Court of Canada has breathed new life into section 2(d) of the Charter as it relates to the Canadian workplace. The Court’s decision marks a historic moment, not only for workers, but for the continued vitality of the rights protected by the Charter.

In Saskatchewan Federation of Labour v Saskatchewan (“SFL”), the unions challenged legislation granting public employers in the province the unilateral right to declare workers as performing “essential services”, meaning that they could not participate in an otherwise lawful strike. The Supreme Court found that this legislation violated workers’ freedom of association under 2(d) of the Charter: writing for the majority, Justice Rosalie Abella held that the right to strike is an essential part of meaningful collective bargaining and is protected by 2(d), and further held that the essential services regime in Saskatchewan could not be saved under section 1 of the Charter because, among other things, there was no independent check on employers’ unilateral right to prevent workers from striking.

In reaching this conclusion, the Court expressly overruled its prior holding in the Alberta Reference,[4] nearly 30 years earlier, that freedom of association did not protect the right to strike. The analysis of the Court in SFL relies heavily on the dissenting reasons of Chief Justice Dickson in Alberta Reference, adopting his conclusion that “effective constitutional protection of the associational interests of employees in the collective bargaining process requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1 of the Charter.”

The Court’s wholesale endorsement of Chief Justice Dickson’s dissent shows that the Charter is indeed a “living tree”, and the Court is not afraid to permit it to grow and develop over time. In her majority reasons, Justice Abella writes that, in now including the right to strike, “s. 2(d) has arrived at the destination sought by Dickson C.J. in the Alberta Reference”. This language—likening section 2(d) to a kind of traveller—is a bold affirmation that Charter rights are not stagnant and will be interpreted to give effect to their underlying values, even as our understanding and acceptance of those values evolves over time.

In this way, the judgment in SFL can be seen as further validation of the approach in BC Health Services and Canada (Attorney General) v Bedford:[5] when the Court is faced with compelling arguments supported by a strong evidentiary record, it is prepared to revisit its past conclusions in order to give life to the fundamental rights enshrined in the Charter.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

[1] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1

[2] Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27

[3] Health Services, Ontario (Attorney General) v. Fraser, 2011 SCC 20

[4] Alberta Reference (Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313)

[5] Canada (Attorney General) v. Bedford, 2013 SCC 72

On January 7 and 8, 2015, Andrew Astritis appeared in the Supreme Court of Nova Scotia to argue a judicial review application. The application seeks to overturn a decision of an arbitrator on the right of employees to accumulate vacation credits.

The Supreme Court’s recent decision in Saskatchewan Federation of Labour v Saskatchewan (“SFL”) will be remembered primarily for its historic conclusion that freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms includes a protection for workers’ right to strike.

But the comprehensive reasons of the majority also offer strong confirmation of the persuasive role that international law and Canada’s international commitments play when interpreting Charter rights.

International Law and the Charter

In determining that the freedom of association protects the right to strike, the Supreme Court gave significant, substantive consideration to the development of the right to strike within international law.

The Court concluded that there is an emerging international consensus that meaningful collective bargaining requires a right to strike and that this consensus, when combined with similar historical and legal developments, required recognition of the right to strike within the Charter.

That international law plays some role in interpreting Charter rights comes as no surprise. The Supreme Court has long recognized that Charter rights should be interpreted consistently with Canada’s international human rights obligations. As the often-cited passage by former Chief Justice Dickson recognized:

…the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.

Without more specific guidance from the Supreme Court, however, the use of international instruments as interpretive tools has often been stalled by practical questions as to how they may be used and by significant resistance from the provincial and federal governments to their use in the first place.

In fact, before the courts in SFL, many of the government interveners argued that little weight should be given to the status of the right to strike internationally. They argued that the Charter does not incorporate Canada’s international commitments and that there is no obligation to constitutionally protect rights recognized in international law. They also suggested that courts should not rely on international instruments to which Canada is not a party.

Impact of the Supreme Court’s Decision

In its reasons, the Court soundly rejected all arguments to limit the persuasiveness or relevance of international law. Instead, the Court confirmed that international law plays a crucial role in interpreting rights under the Charter.

The Court’s reasons also offer a number of broader lessons about the use of international law going forward.

• First, international law, particularly in areas of growing international consensus, can and should play a central role in informing the evolving content of rights under the Charter. Developments in international law over time are, consequently, relevant when assessing whether to recognize rights in Canada. The Saskatchewan Court of Appeal had previously rejected this position.
• Second, courts should give consideration to a wide range of international instruments, even those which do not formally bind Canada. The Supreme Court looked beyond the well-established sources of Canadian legal obligations, such as international treaties which Canada has ratified, and relied on other authorities whose potential interpretive power had previously been unclear, including decisions of the International Labour Organization’s Committee on Freedom of Association, decisions made under the European Convention on Human Rights, and labour legislation and decisions from other countries.
• Finally, the Court recognized that the expertise of certain specialized international bodies will provide their decisions with “considerable persuasive weight.” The Court made this statement particularly with regards to the ILO’s Committee on Freedom of Association, suggesting that its decisions will continue to guide future labour cases under section 2(d).

Conclusion

While some questions may remain in terms of how to practically apply international instruments as interpretive aids, the above principles – and the Supreme Court’s unequivocal support for their application – provide clear and decisive confirmation that international law considerations will form an essential part of Charter claims going forward.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Our firm is renewing its partnership with the University of Ottawa and continues its commitment and funding to the Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l. Human Rights/Social Justice Internship. This exciting opportunity provides an excellent and meaningful summer work experience to students who are particularly interested in issues pertaining to social justice, human rights or equality rights. This is the 10th consecutive year that this paid internship has been sponsored by RavenLaw.

This is a program that we are very proud of as it gives students excellent experience in these areas but also provides legal support to social justice organizations. This year, the host organizations include the Workers History Museum.

Students seeking information about the internship should contact Chelsea Paradis. If your organization works in the areas of social justice and human rights and you are interested in having an intern in the future, please contact David Yazbeck at 613-567-2901.