Alberta Union of Provincial Employees et al. v. Alberta et al., (2014) 585 A.R. 202 (QB)

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 28, 2014
• Citations: (2014), 585 A.R. 202 (QB);2014 ABQB 97

AUPE v. Alta. (2014), 585 A.R. 202 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.086

Alberta Union of Provincial Employees, Guy Smith and Mike Dempsey (applicants) v. Her Majesty the Queen in Right of the Province of Alberta (respondent) and The Minister of Justice and Solicitor General of Alberta (intervenor)

(1303 17541; 2014 ABQB 97)

Indexed As: Alberta Union of Provincial Employees et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

February 14, 2014.

Summary:

The Alberta Public Service Salary Restraint Act (PSSRA) came into effect on December 11, 2013. The legislation terminated any Compulsory Arbitration Board arbitration between the Alberta Union of Provincial Employees (AUPE) and Alberta. On December 12, 2013, AUPE commenced an action, challenging the constitutional validity of the PSSRA. The new deadline for implementation of the PSSRA was extended to March 31, 2014. On an injunction motion, AUPE sought a stay of the operation of the PSSRA.

The Alberta Court of Queen's Bench, on the three-part legal test for the granting of an interim injunction, ordered an injunction staying the operation of the PSSRA effective March 31, 2014.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employer or employee groups - [See Civil Rights - Topic 2155 ].

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Alberta Public Service Salary Restraint Act came into effect on December 11, 2013 - The applicants sought an injunction staying the operation of the Act, on the basis the legislation breached s. 2(d) of the Charter - The Alberta Court of Queen's Bench reviewed decisions of the Supreme Court of Canada that had recently considered the application of s. 2(d) of the Charter in relation to the rights of workers to engage in collective interaction with government employers - The Court concluded that "As can be seen from the foregoing, Charter, s. 2(d) limits the authority of a government actor to unilaterally impose a contractual structure on workers which it employs. That said, this requirement to permit meaningful group dialogue and bargaining is subject to the Charter, s. 1 limits on that right that may be demonstrably justified in a free and democratic society." - See paragraphs 29 to 32.

Civil Rights - Topic 2157.1

Freedom of association - Limitations on - Regulation of remuneration - [See Civil Rights - Topic 2155 ].

Civil Rights - Topic 8587

Canadian Charter of Rights and Freedoms - Practice - Stay of proceedings or injunction pending litigation of Charter issue - The Alberta Public Service Salary Restraint Act (PSSRA) came into effect on December 11, 2013 - On an injunction motion, the Alberta Union of Provincial Employees (AUPE) sought to stay the operation of the PSSRA on the basis the legislation breached s. 2(d) of the Charter - The absence of a stay would result on March 31, 2014, in the imposition of the 2011 collective agreement on the members of the Crown bargaining unit for a four year term - The Alberta Court of Queen's Bench ordered an injunction staying the operation of the PSSRA effective March 31, 2014 - (1) The effective extinction of AUPE's capacity to engage in collective bargaining and the indicia of bad faith negotiation by Alberta each qualified as a basis to meet the serious issue criterion - (2) AUPE had established that its membership of AUPE, specifically in the Crown bargaining unit, would experience irreparable harm if the proposed injunction was not granted - The Court accepted the expert opinion evidence that the operation of the PSSRA caused ongoing injury to the relationship between AUPE and its membership, affected the morale and workplace conduct of AUPE members affected by that legislation, and that the PSSRA would impede future collective bargaining between AUPE and Alberta - (3) The balance of convenience favored AUPE - The Court gave the greatest weight to the expert opinion evidence of potential damage caused by the legislation to labour relations generally in the public and private sectors and, specifically, in respect to the employer relationship with the members of the Crown bargaining unit - See paragraphs 41 to 116.

Injunctions - Topic 1606

Interlocutory or interim injunctions - General principles - Balance of convenience - [See Civil Rights - Topic 8587 ].

Injunctions - Topic 1803

Interlocutory or interim injunctions - Requirement of irreparable injury - Labour relations - [See Civil Rights - Topic 8587 ].

Labour Law - Topic 5

General principles and definitions - General - Right to bargain collectively - [See Civil Rights - Topic 8587 ].

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, refd to. [para. 16].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 30].

Fraser et al. v. Ontario (Attorney General), [2011] 2 S.C.R. 3; 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, refd to. [para. 30].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 33].

Communications, Energy and Paperworkers Union, Local 707 v. Suncor Energy Inc. et al. (2012), 548 A.R. 195; 2012 ABQB 627, affd. (2012), 539 A.R. 206; 561 W.A.C. 206; 2012 ABCA 373, refd to. [para. 33].

Ominayak et al. v. Norcen Energy Resources Ltd. et al. (1985), 58 A.R. 161; 1985 ABCA 12, leave denied (1985), 58 N.R. 122 (S.C.C.), refd to. [para. 38].

Lubicon Lake Indian Band v. Norcen Energy Resources Ltd. - see Ominayak et al. v. Norcen Energy Resources Ltd. et al.

Chief Bernard Ominayak et al. v. Norcen Energy Resources Ltd. et al. - see Ominayak et al. v. Norcen Energy Resources Ltd. et al.

Edmonton Northlands v. Edmonton Oilers Hockey Corp. (1994), 149 A.R. 92; 63 W.A.C. 92; 1994 ABCA 40, refd to. [para. 39].

Association of Justice Counsel v. Canada (Attorney General) (2012), 295 O.A.C. 147; 117 O.R.(3d) 532; 2012 ONCA 530, leave denied (2013), 447 N.R. 391 (S.C.C.), refd to. [para. 47].

Federal Government Dockyard Trades and Labour Council (Esquimalt, B.C.) et al. v. Canada (Attorney General) (2013), 343 B.C.A.C. 208; 586 W.A.C. 208; 2013 BCCA 371, refd to. [para. 47].

Meredith et al. v. Canada (Attorney General) (2013), 444 N.R. 129; 360 D.L.R.(4th) 352; 2013 FCA 112, refd to. [para. 47].

Telecommunications Workers Union v. Canadian Industrial Relations Board et al., [2005] N.R. Uned. 34; 138 A.C.W.S.(3d) 89; 2005 FCA 83, refd to. [para. 72].

International Longshore and Warehouse Union, Canada et al. v. Canada (Attorney General) et al. (2008), 371 N.R. 357; 159 C.L.R.B.R.(2d) 72; 2008 FCA 3, refd to. [para. 72].

Teamsters Local Union 847 v. Canadian Airport Workers Union et al. (2009), 387 N.R. 36; 2009 FCA 44, refd to. [para. 72].

Bodner et al. v. Alberta et al. (2001), 299 A.R. 150; 266 W.A.C. 150; 2002 ABCA 20, refd to. [para. 73].

Telus Communications Inc. v. Telecommunications Workers Union, [2005] N.R. Uned. 211; 139 A.C.W.S.(3d) 76; 2005 FCA 146, refd to. [para. 75].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 93].

Statutes Noticed:

Public Service Salary Restraint Act, S.A. 2013, c. P-43, generally [Schedule A].

Authors and Works Noticed:

Sharpe, Robert J., Injunctions and Specific Performance (2013), generally [paras. 34, 37].

Counsel:

Patrick Nugent (Nugent Law Office), for the applicants, The Alberta Union of Provincial Employees, Guy Smith and Mike Dempsey;

Hugh J.D. McPhail, Q.C., and D.R. Bokenfohr (McLennan Ross LLP), for the respondent, Alberta;

Roderick Wiltshire and D.N. Kamal (Dept. of Justice and Solicitor General), for the intervener Minister.

This application was heard on January 28, 2014, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment, with reasons, dated February 14, 2014.