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Court of Appeal hints that right to strike may be protected by the Constitution

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.

Decision of the Court of Appeal

The appeal involved amendments to two pieces of legislation, the Essential Services Act and the Trade Union Amendment Act. The first set of changes introduced restrictions on the ability of public sector workers to engage in strike activity. The second set of changes made it more difficult for unions to obtain certification as bargaining agents and liberalized the scope of permissible communications between employers and their employees.

The province argued that the trial judge erred in striking down Essential Services Act, and the unions argued that the trial judge erred in not striking down the Trade Union Amendment Act.

The Court found the province’s appeal regarding the Essential Services Act had to be allowed. It referred to the 1987 Supreme Court of Canada case in the Labour Trilogy stating that freedom of association did not include the right to strike. This decision had never been overturned. It noted that the Court’s freedom of association jurisprudence had evolved in recent years, but not quite enough to warrant a ruling by the Court of Appeal that the right to strike was protected by section 2(d) of the Charter.

More specifically, the Court found the following.

The early rulings of the Supreme Court of Canada remained controlling precedents which had to be respected by the Court of Appeal. The purpose of the principle was to make sure decisions would be consistent, certain and predictable in the law. After examining the entire jurisprudential background, from the beginning of the Labour Trilogy all the way to the Fraser decision, the court concluded that none of the cases stated that the freedom of association set out in section 2(d) of the Charter includes the right to strike. Though there had been a shift in approach to section 2(d), the Supreme Court has been very careful to indicate it was not dealing with the right to strike. Therefore, the precedents were still to the effect that the right to strike did not fall within the scope of 2(d) of the Charter.

The Court could not ignore the precedent on the strength of a prediction that it would be overturned later at the Supreme Court of Canada. The standard approach was that a lower court would not sidestep a precedent believing that the court that established the precedent would reverse itself.

A court could ignore otherwise binding precedent only if there was a great deal of certainty that the higher court could be expected to reverse itself. In this case, that high level of certainty was not present because the implications of recent decisions were less than clear. What’s more, recent decisions should not be read as granting a license to overturn what the Labour Trilogy states about the right to strike. This step should only be taken by the Supreme Court of Canada itself.

There were still questions about how the right to strike fit with section 2(d) of the Charter, as section 2(d) had been explained and recent cases.

The Court stated, “none of what I have written above is to suggest or presume that, if again confronted directly with the issue, the Supreme Court would not bring strike activity within the ambit of s. 2(d). Such a conclusion can certainly be reached, as indeed it was reached by Dickson C.J in the Labour Trilogy.”

Though Charter rights are to be construed in light of Canadian international law commitments, there was nothing in the relevant international law which could or should lead the Court to depart from what the Labour Trilogy says about the right to strike. Therefore the Court was not persuaded that international law considerations have any meaningful impact on the question of whether the Court of Queen’s Bench was entitled to depart from the Labour Trilogy.

Essential services changes similarly did not offend other aspects of Charter, including freedom of expression (section 2(b)), life liberty and security of the person (section 7), and equality rights (section 15).

Furthermore, the Court concluded that the challenge to changes to the Trade Union Act had to be dismissed. The trial judge correctly found that even though certification would be made more difficult, the Charter was not offended because it did not impair the exercise of associational freedom or any other part.

The Supreme Court of Canada has made it clear that section 2(d) of the Charter does not entrench the details of any particular labour relations regime. Therefore, The Trade Union Act as it read prior to the amendments could not be seen as somehow having defined minimum section 2(d) entitlements with the result that any move away was a denial of freedom of association.

The question was whether the changes infringed the fundamental freedom guaranteed by section 2(d) of the Charter. The test was whether the legislation being challenged substantially interfered with the ability of employees to organize and engage in good-faith bargaining.

With respect to the change involving secret ballots, the Court refused to accept the submission that the decrease in certification success rates interfered with freedom of association. Section 2(d) does not oblige legislatures to build statutory schemes which make certification as easy as possible. Other Canadian jurisdictions use the secret ballot system, and these systems do not substantially impair freedom of association.

With respect to the delay involved with certification votes, while a statutorily prescribed time limit for conducting certification votes could be a preferable approach, the Court was not persuaded that the failure to include such a provision made the legislation itself constitutionally invalid, because discretionary statutory powers could be exercised.

Regarding reduced restrictions for communications between employers and employees, this did not mean that the employer had a license to deter, intimidate and confuse employees at will and interfere with section 2(d) freedoms. The provision represented a middle ground between protecting employees from intimidation and preserving their legitimate right to receive relevant views and information. This provision was in line with similar provisions found in the federally regulated jurisdiction and in other provincial jurisdictions. In these jurisdictions, the record did not indicate that employers enjoyed free reign to coerce or intimidate employees.

The trial judge did not make an error when concluding the changes did not violate freedom of association rights under the Charter, and similarly did not offend freedom of expression, life, liberty and security of the person, and equality rights

Therefore, the Court concluded that the changes were constitutionally valid.

What can employers take from this case?

This decision anticipates that the matter will proceed to the Supreme Court of Canada. There is a good chance that the Supreme Court will have to make a decision that takes into account the recent societal and jurisprudential changes.

Saskatchewan Federation of Labour President, Larry Hubich commented about the Court of Appeal decision:

…we note that the Court acknowledged just how much the law has and continues to evolve. The Court of Appeal noted that the Supreme Court may very well accept that there is a Constitutional right to strike.”

Do you think this was the correct decision? On one hand, the court could be viewed as procedurally doing the right thing so that the 1987 legal principle that had been lingering for years could be properly readdressed and modified at the highest jurisprudential level. But on the other hand, this decision could be viewed as taking away from the important move forward that was made by the trial division when it confirmed that Canada actually had an obligation to acknowledge the constitutional character of the right to strike through the examination of international obligations.

What do you think?

Christina Catenacci
First Reference Human Resources and Compliance Editor

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015. Read more
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2 thoughts on “Court of Appeal hints that right to strike may be protected by the Constitution
  • Hi John,

    Thanks for your comment. Check out paragraph 67 of the decision:

    “Accordingly, none of what I have written above is to suggest
    or presume that, if again confronted directly with the issue, the Supreme Court
    would not bring strike activity within the ambit of s. 2(d). Such a conclusion can
    certainly be reached, as indeed it was reached by Dickson C.J. in the Labour

    Some believe that the Court of Appeal did not wish to create a decision that was in conflict with principles set out by the Supreme Court of Canada in the Labour Trilogy…hinting that any reversal of precedent will have to occur at the Supreme Court of Canada…and this may very well be the case for the court to take the opportunity to revisit its precedents…

  • John Beckman says:

    This is really spin doctoring the decision. My firm appeared at the Court of Appeal for an intervenor the University of Saskatchewan. Whatever the Supreme Court may do
    If leave is granted is anyone guess but the Saskatchewan Court of Appeal’s decision is a clear unambiguous loss for labour. It overturned the Queen’s Bench and said there is no constitutional right to strike. This decision in the highest Court of a Province which has 50 years of socialist government is a resounding loss for Labour
    And the ILO material was of no persuasive weight at all.