Justice Firestone of the Ontario Superior Court recently decided that back–to–work legislation introduced in 2011 aimed at striking postal workers from the Canadian Union of Postal Workers (“the Union”) was an unjustified violation of the Union’s Charter rights to freedom of association and expression. As a result, the judge retroactively declared the legislation of no force or effect.
On June 26, 2011, the Restoring Mail Delivery for Canadians Act (“the Legislation”) came into force. The Conservative government proposed the Legislation amid growing concerns over the impact of the labour dispute between Canada Post and the Union. At that point, the collective bargaining dispute had already led to rotating strikes and a nation–wide lockout.
The Legislation’s main features prohibited strikes and unilaterally imposed wage increases. The legislation also extended the term of the previous collective agreement, declaring it binding until a new agreement was reached.
To further the resumption of postal services, the legislation prohibited Canada Post from preventing their employees’ return to work and prohibited the Union from engaging in any act that might encourage postal workers’ non-compliance with the resumption of their duties.
The legislation also created a resolution process where an arbitrator would be appointed to settle the remaining issues by final offer selection. This is a “winner take all model” where Canada Post and the Union would submit their final offers to the arbitrator, and require the arbitrator to pick one or the other, without any negotiation or ability for the arbitrator to impose a compromise.
The labour dispute was eventually settled in 2012 when Canada Post and the Union came to an agreement without an arbitrator in place.
In 2015, the Union launched a challenge in Ontario Courts, arguing that the Legislation “was enacted in circumstances that did not justify the interference on constitutional rights.”
Violation of the freedom of association Charter rights
The right to strike is traditionally protected under the Canadian Charter of Rights and Freedoms because of its unique role in the collective bargaining process.
Whether there has been a violation of the right to strike is determined by whether there has been legislative interference with the right to strike that amounts to a substantial interference with the collective bargaining process that the freedom of association right seeks to achieve. Substantial interference is measured by whether there has been a disruption in the balance between employees and the employer.
Canadian jurisprudence recognizes that there will be a violation of freedom of association if the right to strike has been nullified to the point where it substantially interferes with a meaningful process of collective bargaining.
On the facts on this case, Justice Firestone found that there could be no question that the Legislation nullified union members’ right to strike, and that the right to strike had been contributing to a meaningful process of collective bargaining between the parties. The facts showed that the process of collective bargaining was “live”, with offers and counter offers being proposed and considered in good faith by both sides. Justice Firestone noted that there was clearly some prospect of a negotiated solution to the parties’ differences before any legislative intervention was made.
There can also be no doubt that the Legislation disrupted the balance between the parties—as Canada Post hardened its position and sought a more favourable settlement between the time the Legislation was proposed and the time it came into effect.
After finding a violation of the freedom of association right, Justice Firestone found that the violation could not be justified under s. 1 of the Charter—the provision that allows for a right or freedom to be infringed upon if the infringement can reasonably be justified in a free and democratic society. For a violation such as this to be justified, the government’s objectives must be pressing, substantial and rationally connected to the legislation enacted. The legislation must also be minimally impairing. While the government’s objectives to maintain postal service and prevent damage to Canada Post and the broader economy were pressing, substantial, and rationally connected to the prohibition of striking, the legislation was not minimally impairing. This is because the arbitration process imposed by the legislation was not impartial and because it removed the parties’ annual wage increase issue from the collective bargaining process.
Violation of the freedom of expression Charter rights
On the issue of freedom of expression, Justice Firestone found that the Legislation also violated this Charter–protected right. Affidavit evidence of the Union members made it clear that the rotating strikes taking place at Canada Post’s Winnipeg facility were at some level devoted to expressing the Union’s discontent with what it believed were unfair work practices and requirements, and that this expression was clearly aimed at Canada Post and the public. Further, the effect of the strike-prohibition legislation clearly had the effect of infringing their expressive right.
This violation, as with the violation of the freedom of association, could not be saved under s. 1 because in Justice Firestone’s opinion, the Legislation was not minimally impairing. In the judge’s opinion, a complete prohibition on strike activity could not be seen as minimally impairing of the freedom of expression right.
Remedy for violation of Charter–protected freedoms
To remedy these violations, Justice Firestone declared the Legislation unconstitutional and of no force or effect, applicable retroactively.
By: Marty Rabinovitch and Jeffrey Spielgel, Student-at-Law
Devry Smith Frank LLP
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