A New Hope, or a Charter Menace? The New Labour Trilogy's Implications for Labour Law in Canada

AuthorLeila Geggie Hurst
PositionIs a third year J.D. candidate at the University of Victoria Faculty of Law
Pages25-43
APPEAL VOLUME 22
n
25
ARTICLE
A NEW HOPE, OR A CHARTER MENACE? THE
NEW LABOUR TRILOGY’S IMPLICATIONS
FOR LABOUR LAW IN CANADA
Leila Geggie Hurst*
CITED: (2017) 22 Appeal 25
INTRODUCTION..................................................26
I. HISTORICAL OVERVIEW ........................................26
A. Original Labour Trilogy – 1987 ....................................27
B. e Intervening Years............................................29
i. Following the Labour Trilogy: A Divided Court – 1987-2000 ..........29
ii. Shift Towards Chief Justice Dickson’s Model – 2000-2007.............29
iii. A Turning Point – 2007-2014 ..................................31
C. New Labour Trilogy – 2015 .......................................32
i. Mounted Police Association of Ontario v Canada (AG).................32
ii. Royal Canadian Mounted Police v Canada (AG) .....................33
iii. Saskatchewan Federation of Labour v Saskatchewan ...................34
iv. Response to the New Labour Trilogy .............................35
II. REFLECTION AND UNANSWERED QUESTIONS...................35
A. How Will Saskatchewan Federation of Labour Impact Other
Strike-Restricting Scenarios .......................................36
i. Essential Services Legislation and Controlled Strikes .................37
ii. Non-Collective Bargaining Strikes, Including Political Strikes ..........37
iii. Back to Work Laws ..........................................38
B. What Will is Mean for Collective Rights in Canada? ..................39
C. To What Extent Will ese Cases Benet Labour Law in Canada?..........40
i. Does Saskatchewan Federation of Labour Allow Governments
to Continue Undermining Union Power? .........................41
ii. Are Labour Movements Irrelevant for Workers’ Rights? ...............41
iii. Does Charter Litigation Erode the Political Eectiveness
of Labour Movements?........................................42
CONCLUSION ....................................................43
* Leila G eggie Hurst is a third year J.D. candidate at th e University of Victoria Facult y of Law. An
initial draft of this pap er was prepared for a seminar in Advan ced Constitutional Law. She would
like to thank Professor Donna Gres chner for her input and guidance, and the vo lunteers and
editors of Appeal for the ir helpful revisions.
26
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APPEAL VOLUME 22
INTRODUCTION
Over the past thre e decades, the Supreme Cour t of Canada [SCC] has g radually and
haltingly exp anded the Canadian Charter of R ights and Freedoms’ (“the Charter”)
protection of labour rights.1 Recently, more dramatic c hanges in the Charter’s applic ation
to labour law have caused c ontroversy. In this paper, I will demonstrate the bene ts of
the Court’s most recent application of the Charte r section 2(d) freedom of association to
labour movements.2 I a rgue that despite the uncertai nty they have caused, these de cisions
are a necessar y claric ation of decades of incremental progre ss and articu late a helpful
and progressive understa nding of systemic inequalities in labou r law.
e rst section of this p aper provides a historical over view of the interaction bet ween
labour law and the Charte r, starting wit h the original 1987 “Labour Trilogy,” tracking
developments in labour law over the past 30 ye ars, and cul minating in 2015’s “New
Labour Trilogy.” In the paper’s second section, I address some potential criticism a nd
uncertaintie s that remain to be res olved in the wake of these de cisions. Specical ly, I
investigate whether t he right to strike recog nized in Saskat chewan Federation of Lab our
v Saskatchewan (“SFL”) will ex tend to other strike-restr icting scenar ios,3 what the
acknowledgment of collect ive rights under section 2(d) might mean for ot her Charter
rights, and whether t hese decisions ought to be seen as v ictories from a workers-rights
perspective. Ultim ately, I conclude that New Labour Trilogy is a positive shi ft. Any
uncertaint y it causes is a necessary c omponent of a living constit ution that must adapt to
increasingly nua nced understa ndings of rights and equity.
I. HISTORICAL OVERVIEW
e freedom of association under sec tion 2(d) of the Charter is broadly u nderstood as the
freedom “to combine together for the pursuit of common purp oses or the advancement
of common causes.”4 Historically, section 2(d) case law has prima rily revolved around
the protection of labour rights.  is protection has had a n uneven history. During the
drafti ng of the Charter, NDP MP Svend Robinson proposed that section 2(d) be amended
to explicitly state “fre edom of association including the freedom to organiz e and bargain
collectively.”5 is amendment was d efeated in a Special Joint Committee vote of twenty
to two.6 Somewhat ironica lly given the jurisprudenc e that followed, the expla nation
for denying the amendment was t hat “freedom to orga nize and barg ain collectively [is]
covered by the freedom of associat ion already in […] the Charter.”7 e members of
the Special Joint Committee work ing group seemed to have assu med that freedom of
association would obviously enta il the protection of collective bargaini ng rights.8
1 Part I of the Constitution Act, 198 2, being schedule B to t he Canada Act 1982 (UK), 1982, c 11.
2 The title of my paper is inspir ed by the similarly-titled paper by Steve n Barrett & Benjamin
Oliphant, “The Trilogy Strike s Back: Reconsidering Constitut ional Protection for the Freedom
toStrike” (2014) 45:2 Ottawa L Rev 201 [Barrett].
3 Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, [2015] 1 SCR 245 [SFL].
4 Reference re Public Service Employe e Relations Act (Alta), [1987] 1 SCR 313 at 334, 38 DLR (4th) 161
[Alberta Reference].
5 Canada, Special Joint Committee of the Senate an d the House of Commons on the Constitution of
Canada, No. 33 (9 January 1981) at 69 [Canada].
6 Dianne Pothier, “Twenty Years of Labour Law an d the Charter” (2002) 40:3-4 Os goode Hall LJ
369at 371.
7 Canada, supra note 5.
8 There is much to be said abo ut the distinction betwee n freedoms and rights. For the pur pose
of this paper, I will roughly assume that e numerated freedoms have correspo nding rights that
attach, though this may be an ove rsimplication. For furthe r discussion of freedoms, rights ,
and corresponding duties , see Brian Langille, “The Trilogy is a Fo reign Country, They Do Things
Dierently There” (2014) 45:2 Ottawa L Rev 285.

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