Last year, the Saskatchewan Court of Queen’s Bench concluded that amendments to the Essential Services Act impeded workers from exercising their fundamental freedom of association, which includes the right to associate and organize, the right to bargain collectively, and the right to strike. Relying on a decision of the International Labour Organization, the Court found that the Act completely and utterly violated section 2(d) of the Canadian Charter of Rights and Freedoms. The Court gave the government one year to amend the legislation, but instead, it appealed the ruling. On April 26, 2013, the Saskatchewan Court of Appeal upheld amendments to the Essential Services Act and ruled that whether or not the Charter protects a right to strike is a matter that should be left to the Supreme Court of Canada to decide.
As predicted, there was an application for leave to appeal Air Canada’s mandatory retirement case to the Supreme Court of Canada; however, without providing any reasons, the Supreme Court of Canada dismissed the application and refused to hear the matter.
The saga of Ontario (Ministry of Labour) v. JR Contracting Property Services, Lootawan and Haniff case has finally come to its conclusion (at least on the merits). Employers would be well-advised to learn from the case how not to engage with Ministry of Labour inspectors in the aftermath of a workplace accident.
Expect application for leave to appeal to Supreme Court of Canada in Air Canada mandatory retirement case
Since the Federal Court of Appeal upheld the mandatory retirement practice for Air Canada pilots, some developments have taken place. First, in the primary Vilven and Kelly case, there will likely be an application filed to obtain leave to appeal to the Supreme Court of Canada regarding the constitutionality of section 15(1)(c) of the Canadian Human Rights Act.
The Air Canada pre-emptive back-to-work legislation saga continues. Now the pilots have challenged the pre-emptive back-to-work legislation in court arguing that it prevents strikes or lockouts, forces the pilots to keep flying, and coerces the pilots to accept a contract imposed by arbitration in a process that is completely skewed given it was designed to favour the airline’s position…
On March 14, 2012, Bill C-33, An Act to Provide for the Continuation and Resumption of Air Service Operations, received third reading in the House of Commons. The goal of the Bill is to require continued service, prohibit strikes and lockouts, extend the previous collective agreement and create a final offer selection scheme to force the parties (the employer and the two unions for the pilots and support staff) to settle their dispute.
After examining Canada’s international labour obligations, Saskatchewan’s Court of Queen’s Bench, has confirmed that section 2(d) of the Charter (the freedom to associate) includes the right to strike. This is something the courts have historically refused to admit in their decisions.
A Quebec workers’ compensation tribunal has ruled that reducing injured workers’ income replacement benefits at the retirement age of 65 is unconstitutional because it discriminates on the basis of age, contrary to both the Quebec Charter of Human Rights and Freedoms (section 10) and the Canadian Charter of Rights and Freedoms (section 15).
The Canadian Human Rights Tribunal has ordered Air Canada to reinstate two pilots, aged 65 and 67, who were forced to retire at age 60.