Association of Justice Counsel v. Canada (Attorney General), (2012) 295 O.A.C. 147 (CA)

• Judge: Sharpe, Armstrong and Pepall, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 07, 2012
• Jurisdiction: Ontario
• Citations: (2012), 295 O.A.C. 147 (CA);2012 ONCA 530

Justice Counsel Assoc. v. Can. (A.G.) (2012), 295 O.A.C. 147 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. AU.027

Association of Justice Counsel (applicant/respondent in appeal/cross-appellant) v. Attorney General of Canada (respondent/appellant/respondent in cross-appeal)

(C54656; 2012 ONCA 530)

Indexed As: Association of Justice Counsel v. Canada (Attorney General)

Ontario Court of Appeal

Sharpe, Armstrong and Pepall, JJ.A.

August 7, 2012.

Summary:

In 2009, the federal Expenditure Restraint Act limited compensation increases for the years 2006-2011 for 400,000 federal employees, including Department of Justice lawyers who were members of the Association of Justice Counsel (AJC). The AJC challenged the constitutionality of the Act.

The Ontario Superior Court of Justice, in a judgment reported [2011] O.T.C. Uned. 6435, held that the Act violated freedom of association under s. 2(d) of the Charter by rendering collective bargaining on salary "useless" for the five year period. Except for the provisions limiting salaries for 2006-2007, the Act was justified as a reasonable limit prescribed by law under s. 1 of the Charter because of pressing and substantial objectives associated with the government's need to respond to the global financial crisis of 2008. The Attorney General appealed the finding that the Act violated s. 2(d) and the conclusion that the provisions respecting 2006-2007 were not justified under s. 1. The AJC cross-appealed the finding that the salary increase limitations for 2007 to 2011 were justified under s. 1.

The Ontario Court of Appeal allowed the Attorney General's appeal on the ground that the Act did not violate freedom of association under s. 2(d) of the Charter. Accordingly, it was unnecessary to decide the appeal and cross-appeal respecting s. 1 of the Charter.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employer or employee groups - In 2009, the federal Expenditure Restraint Act limited compensation increases for the years 2006-2011 for 400,000 federal employees, including Department of Justice lawyers who were members of the Association of Justice Counsel (AJC) - When the Act came into force, the AJC and federal government had been engaged in collective bargaining for two years (16 negotiating sessions and five days of mediation) - They were at an impasse, as the AJC wanted salary increases in excess of what the government was willing to pay - There was no complaint that the government failed to bargain in good faith - The AJC challenged the constitutionality of the Act - The trial judge held that the Act violated freedom of association under s. 2(d) of the Charter by rendering collective bargaining on salary "useless" for the five year period - The Ontario Court of Appeal held that the Act did not violate freedom of association under s. 2(d) of the Charter - The court held that "s. 2(d) 'does not require the parties to conclude an agreement or accept any particular terms' and the AJC therefore cannot claim that s. 2(d) was violated because the process of collective bargaining failed to yield an agreement. ... s. 2(d) only protects 'the right to collective bargaining in the minimal sense of good faith exchanges' ... but 'does not impose a particular process' and 'does not guarantee a legislated dispute resolution mechanism in the case of an impasse' ... Accordingly, although the [Act] had the effect of taking wages off the table for the arbitration, that does not, standing alone, amount to an infringement of s. 2(d). ... the validity of the [Act] must be assessed on the basis of whether, at the time it was enacted, the parties had had the opportunity for a meaningful process of collective bargaining. If they had, s. 2(d) is satisfied." - Since the AJC failed to establish that the Act infringed the rights of its members to engage in a meaningful process of collective bargaining, there was no infringement of s. 2(d).

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - [See Civil Rights - Topic 2144.1 ].

Civil Rights - Topic 2157.1

Freedom of association - Limitations on - Regulation of remuneration - [See Civil Rights - Topic 2144.1 ].

Labour Law - Topic 5

General principles and definitions - General - Right to bargain collectively - [See Civil Rights - Topic 2144.1 ].

Cases Noticed:

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. 15].

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. 15].

Meredith et al. v. Canada (Attorney General) (2011), 392 F.T.R. 25; 2001 FC 735, refd to. [para. 20].

Federal Government Dockyard Trades and Labour Council (Esquimalt, B.C.) et al. v. Canada (Attorney General), [2011] B.C.T.C. Uned. 1210; 243 C.R.R.(2d) 158; 2011 BCSC 1210, refd to. [para. 20].

Associations des réalisateurs v. Canada (Procurer général), [2012] J.Q. no. 6770; 2012 QCCS 3223, refd to. [para. 20].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 23].

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161, refd to. [para. 23].

Retail, Wholesale, Department Store Union, Locals 544, 496, 635 and 955 et al. v. Saskatchewan et al., [1987] 1 S.C.R. 460; 74 N.R. 321; 56 Sask.R. 277, refd to. [para. 23].

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201; 2001 SCC 94, refd to. [para. 24].

Mounted Police Association of Ontario et al. v. Canada (Attorney General) (2012), 292 O.A.C. 202; 2012 ONCA 2420, refd to. [para. 32].

Counsel:

Dale Yurka and Kathryn Hucal, for the respondent/appellant/respondent in cross-appeal;

Andrew Lokan, for the applicant/respondent in appeal/cross-appellant.

This appeal and cross-appeal were heard on June 13, 2012, before Sharpe, Armstrong and Pepall, JJ.A., of the Ontario Court of Appeal.

On August 7, 2012, Sharpe, J.A., released the following judgment for the Court.