Canada: Supreme Court Of Canada Declares The Right To Strike Is Constitutional

On January 30, 2015, the Supreme Court of Canada held that Canadian public sector employees have a constitutionally protected right to strike. January's landmark 5:2 majority ruling in Saskatchewan Federation of Labour v Saskatchewan declared Saskatchewan's Public Service Essential Services Act ("PSESA") invalid.  This decision reverses the 1987 Supreme Court decision of Reference re Public Service Employee Relations Act (Alta.) ("Alberta Reference"), which held that the right to strike (and also the broader right of collective bargaining) were not constitutionally protected.

PSESA came into force in 2008, and limits the ability of public sector employees performing "essential services" to strike. Where a public employer and union cannot negotiate an essential services agreement to regulate how public services will be carried out during a strike, under PSESA the public employer can unilaterally designate which public services are essential, which groups of employees are required to continue working, the number of people in said groups that are required to continue working, and even the names of the specific individuals.  (Where the employer is the Government of Saskatchewan, essential services are designated by regulation.)

Canada's Movement Towards a Right to Strike

The Saskatchewan Federation of Labour challenged the constitutionality of PSESA in 2008. In the trial judge's decision released in 2012, the trial judge conducted a thorough review of the development of the law since 1987 and concluded that freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms ("Charter") did protect the right to strike, and that PSESA violated s. 2(d). This finding was unanimously reversed by the Saskatchewan Court of Appeal in 2013.

The Supreme Court of Canada took a similar approach to the trial judge and traced the development of national and international jurisprudence, as well as a number of international treaties of which Canada is a signatory, to explain how the law in Canada has moved away from the Supreme Court of Canada majority in the Alberta Reference decision.

Relying on the Supreme Court of Canada's 2007 decision in  Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia ("Health Services") recognizing the protection of collective bargaining under s. 2(d), the majority held that the right to strike is an essential part of collective bargaining because "without the right to strike, "a constitutionalized right to bargain collectively is meaningless'" (para 24, with reference to comments of the trial judge).

The Supreme Court majority upheld the trial judge's decision, finding that PSESA substantially interfered with the freedom of association provided under s. 2(d) of the Charter and that the impairment was not minimal or proportionate to justify it under s. 1. The ruling noted:

Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Where essential services legislation provides such an alternative mechanism, it would more likely be justified under s. 1 of the Charter. In my view, the failure of any such mechanism in the PSESA is what ultimately renders its limitations constitutionally impermissible. (para 25)

The Invalidity of PSESA

The majority held that PSESA violated s. 2 of the Charter because it prohibited designated employees from striking, and that this impairment was more than minimal for a number of reasons:

• No evidence was provided to support the province's position that ensuring the delivery of essential services required unilateral authority (para 90);
• There is no dispute resolution process for a bargaining unit to challenge the unilateral designations of the employer (para 92), and the Saskatchewan Labour Board has no authority to review the unilateral designations made by the employer (para 89);
• The designated employees working during the strike were not restricted to essential duties, but rather were required to perform their duties under the collective bargaining agreement (essential or non-essential) (para 91); and, in particular,
• There is no meaningful dispute resolution process, such as arbitration, to resolve breakdowns in negotiations between employer and the bargaining unit (para 93).

The majority concluded that the impairment of PSESA could not be justified under s. 1 of the Charter and PSESA was therefore invalid, but suspended the declaration of invalidity for one year to provide the province time to amend the legislation.  In light of the court's comments above, noting that an alternative dispute resolution may likely have saved the PSESA under the s. 1 analysis, it is expected that any amendments made by Saskatchewan legislators will include an arbitration clause.

Conclusion

This decision is important for public sector employers whose workforce is comprised of essential workers who may not have the right to strike. The decision will have less of an impact on unionized private sector employers where the right to strike exists.

Of critical importance is how this decision will be used in subsequent legal challenges at a future date. Many provinces have removed the right to strike and replaced this option with mandatory interest arbitration procedures. In some high profile critical disputes, the government has legislated employees back to work with terms and conditions of employment. Obviously, this most recent decision may be used to dilute such options in the future.

As well, the court makes a number of observations about the collective bargaining regime generally, and it may well be that the obiter dictum comments of the court become the foundation for novel legal challenges in the future.

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