33 Years Later: Revisiting Section 33 in the Context of the Newly Constitutionalized Right to Strike

• Author: José (Bill) Olaguera
• Position: Is a third year J.D. candidate at the University of Victoria
• Pages: 109-123

APPEAL VOLUME 21

n

109

ARTICLE

33 YEARS LATER: REVISITING SECTION

33 IN THE CONTEXT OF THE NEWLY

CONSTITUTIONALIZED RIGHT TO STRIKE

José (Bill) Olaguera*

CITED: (2016) 21 Appeal 109

INTRODUCTION

Finding a new constitutiona l right is a delicate ta sk, one that the Supreme Court of

Canada (“Supreme Court”) mus t cross a high thre shold to justify. e task is delic ate

because when the bench doe s so, the legislative branch mus t abide by that judge-made

decision, even if it concerns an issue t hat an individua l legislature, wit h its own unique

struggles , might be better positioned to tackle. Restr aint in creating a new constitutional

right is particu larly important in the eld of labour relations, w here legal certainty is not

only desirable, but indeed a keystone in en suring stabilit y and balance w ith respect to

employer and employee rights.

e Supreme Court’s decision in Saskatchewan Federation of Labour v Saskatchewan

(“SFL”)1 engages the ongoing public debate about which branch–t he legislative or the

judiciary–is mo st appropriate to create law. In SFL, the Supreme Court constitutional ized

a new right to strike under Charter section 2(d). is follows very recent Supreme Court

jurisprudence that const itutionalized a r ight to collective barg aining, also under section

2(d), in Mounted Police Association of Ontario v Can ada (Attorney General) (“Mounted

Police”).2 Both decisions impose po sitive duties on employers to bargain in goo d faith

and signify a ne w direction in Ca nadian labour l aw, one that has sparked considerable

controversy. A particular c oncern is that public sector employees (and the government’s

mobilization of public sector employees) perform a key role in ensu ring public safet y.

When these workers have a const itutional right to stri ke, the government’s ability to

legislate on such matters may be u nduly restrained .

* José (Bill) Olaguera is a third ye ar J.D. candidate at the University of Vi ctoria. He will be articling

at McMillan LLP in Vancouver. He would like to thank T imothy Richards, Kathryn Chan and H amar

Foster, QC of the UVic Faculty of Law and T im Pritchard at BLG for their guidance on this topic .

He is also grateful to his wife Jo sephine and to the APPEAL editorial team for h elping bring this

paper to publication.

1 Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 3 WWR 1 [SFL].

2 Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, 380 DLR (4th) 1

[Mounted Police]. A Supreme Court majority (Chief Justice M cLachlin and Justices LeBel, Abe lla,

Cromwell, Karakatsanis a nd Wagner concurring; Justice Rothstein dis senting) armed Health

Services and Fraser and de clared a new constitutional right to enga ge in meaningful collective

bargaining under s. 2(d) of the Char ter. By striking down the Public Ser vice Labour Relations Act,

SC 2003, c 22, s 2, which prevented memb ers of the RCMP from forming unions or e ngaging in

collective bargaining , the court moved Canadian labour law in th e direction of a “generous and

purposive approach” from t he “restrictive approach” previous ly followed (para 30).