Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., (1990) 112 N.R. 269 (SCC)

• Judge: Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.
• Court: Supreme Court of Canada
• Case Date: Tuesday February 20, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 112 N.R. 269 (SCC);[1990] 5 WWR 385;JE 90-1203;49 CRR 193;[1990] SCJ No 75 (QL);112 NR 269;72 DLR (4th) 1;1990 CanLII 72 (SCC);[1990] 2 SCR 367

Public Service of Can. v. NWT (1990), 112 N.R. 269 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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The Professional Institute of the Public Service of Canada (appellant) v. The Commissioner of the Northwest Territories and the Northwest Territories Public Service Association (respondents) and the Attorney General of Canada and the Attorney General for Ontario (interveners)

(No. 21230)

Indexed As: Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al.

Supreme Court of Canada

Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.

August 16, 1990.

Summary:

The Professional Institute of the Public Service of Canada was the certified bargaining agent for various groups of professionals employed by the federal government, including 32 nurses employed by the federal government in the Northwest Territories (Baffin Zone). On September 1, 1986, the responsibility for health care programs in the Baffin Zone was transferred from the federal government to the territorial government. The nurses were notified that they could elect to become employees of the territorial government. Upon changing employment to the territorial government the nurses ceased to belong to the bargaining unit of the Institute and became eligible for membership in the Northwest Territories Public Service Association, an employees' association which had been incorporated to bargain collectively on behalf of all non-excluded territorial employees by the Northwest Territories Public Service Association Act, pursuant to s. 42(1)(b) of the Public Service Act. The Institute applied for incorporation within the meaning of s. 42(1)(b) for the purpose of representing its former members. The territorial government declined to enact the required legislation. The Institute applied for a declaration that s. 42(1) of the Public Service Act and s. 3 of the Northwest Territories Public Service Association Act were inconsistent with the right to freedom of association as guaranteed in s. 2(d) of the Charter and were therefore of no force and effect.

The Northwest Territories Supreme Court, in a decision reported in 43 D.L.R.(4th) 472, held that s. 42(1) of the Public Service Act violated s. 2(d) of the Charter and was not a reasonable limit within the meaning of s. 1 of the Charter. The Commissioner of the Northwest Territories appealed.

The Northwest Territories Court of Appeal, in a decision reported in [1988] N.W.T.R. 223; [1988] 5 W.W.R. 684; 53 D.L.R.(4th) 530; 41 C.R.C. 230, allowed the appeal.

Two constitutional questions were stated by the Chief Justice to the Supreme Court of Canada, namely: whether s. 42(1) of the Public Service Act infringed the right to freedom of association guaranteed by s. 2(d) of the Charter and, if so, whether s. 42(1) of the Act could be justified under s. 1 of the Charter.

The Supreme Court of Canada, Cory, Wilson and Gonthier, JJ., dissenting, dismissed the appeal and held that s. 42(1) did not infringe s. 2(d) of the Charter. The court, therefore, held that the second question did not need to be answered.

Civil Rights - Topic 2103

Freedom of association - Scope of right - The Supreme Court of Canada, per Sopinka, J., referred to four propositions concerning the scope of the right to freedom of association in s. 2(d) of the Charter: (1) s. 2(d) protects the freedom to establish, belong to and maintain an association; (2) s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; (3) s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals and (4) s. 2(d) protects the exercise in association of the lawful rights of individuals - The court discussed each of these in turn - See paragraphs 21 to 25.

Civil Rights - Topic 2144

Freedom of association - Limitations on - Collective bargaining and the right to strike - The Supreme Court of Canada, per Sopinka, J., held that collective bargaining was not an activity that was, without more, protected by the guarantee of freedom of association - See paragraph 26.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employee groups - Section 42(1)(b) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, defined an "employees' association" as an association of public service employees incorporated by an Act empowering it to bargain collectively - Absent in s. 42(1)(b) was a process for union certification - The Supreme Court of Canada, per Sopinka, J., held that this absence did not violate s. 2(d) of the Charter, where clearly the statutory monopoly created by s. 42(1)(b) had no effect on the existence of a nonincorporated public service union or the ability of any individual to be a member thereof - See paragraphs 28 to 32.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employee groups - Section 42(1)(b) of the Public Service Act, R.S.N.W.T. 1974, c. P-13, defined an "employees' association" as an association of public service employees incorporated by an Act empowering it to bargain collectively - The Supreme Court of Canada, per Sopinka, J., held that the incorporation requirement did not violate the right to freedom of association in s. 2(d) of the Charter - The court held that nothing in the impugned section affected the existence, membership or maintenance of any association - Dickson, C.J.C., noted that s. 2(d) did not guarantee the right to bargain collectively and adhered only to individuals, not to a group such as a trade union - See paragraphs 33 to 38, 41.

Courts - Topic 2287

Jurisdiction - Bars - Where status or standing of party at issue - The Supreme Court of Canada, per Sopinka, J., stated that when the standing of a party is attacked, the courts retain a discretion to decide substantive issues that are fully argued - Notwithstanding arguments respecting standing, a court will in its discretion decide the substantive issues on their merits, if the case clearly raises a question of public importance - See paragraphs 16 to 19.

Labour Law - Topic 4078

Unions - Certification - Union defined - What constitutes an employees' association - [See first and second Civil Rights - Topic 2144.1].

Cases Noticed:

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

Smith v. Attorney General of Ontario, [1924] S.C.R. 331, refd to. [para. 17].

Jamieson v. Attorney General of British Columbia (1971), 21 D.L.R.(3d) 313 (B.C.S.C.), appld. [para. 17].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, dist. [para. 19].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 19].

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161, refd to. [para. 20].

Retail, Wholesale and 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. 20].

R. v. Skinner, [1990] 1 S.C.R. 1235; 109 N.R. 241; 98 N.S.R.(2d) 181; 263 A.P.R. 181, refd to. [para. 46].

Nova Scotia Nurses Union, Devco Local v. Cape Breton Development Corp.(1989), 98 N.R. 119; 58 D.L.R.(4th) 225 (F.C.A.), refd to. [para. 58].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 74].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 26 D.L.R.(4th) 200, refd to. [para. 74].

Statutes Noticed:

Canada Labour Code - see Labour Code.

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 8, 14, 74, 88-89]; sect. 2(a), sect. 2(b) [para. 24]; sect. 2(d) [paras. 1, 4, 6, 8, 10, 13-14, 20-26, 29-30, 32, 34, 38-39, 41-43, 45-48, 52, 57-61, 72-73, 91]; sect. 15(1) [para. 38].

Labour Code, R.S.B.C. 1979, c. 212, sect. 43 [para. 82].

Labour Code, R.S.C. 1985, c. L-2, sect. 25, sect. 26, sect. 27, sect. 28, sect. 29, sect. 30, sect. 31 [para. 81]; sect. 38(1), sect. 39(1) [para. 85].

Labour Relations Act, R.S.M. 1987, c. L-10; C.C.S.M., c. L-10, sect. 40 [para. 82].

Labour Relations Act, R.S.O. 1980, c. 228, generally [para. 28]; sect. 7 [para. 82].

Labour Relations Act, S.N. 1977, c. 64, sect. 37(2) [para. 83].

Labour Relations Code, S.A. 1988, c. L-1.2, sect. 37 [para. 82].

Northwest Territories Public Service Association Act, R.S.N.W.T. 1974, c. N-2, sect. 3 [para. 6].

Public Service Act, R.S.N.W.T. 1974, c. P-13, sect. 3, sect. 5, sect. 7, sect. 15(1), sect. 26, sect. 32, sect. 40 [para. 54]; sect. 42(1) [paras. 6, 8, 14, 16, 19, 43, 91]; sect. 42(1)(b) [paras. 1-3, 5, 9, 13, 27, 30, 32-37, 39, 45, 50, 52, 55-56, 67, 69-75, 80, 89-91]; sect. 42(2) [paras. 5, 53, 55]; sect. 42(6), sect. 43(1), sect. 43(2) [para. 5].

Public Service Staff Relations Act, R.S.C. 1985, c. P-35, generally [para. 28].

Trade Union Act, R.S.S. 1978, c. T-17, generally [para. 28].

Authors and Works Noticed:

Adams, George, Canadian Labour Law: A Comprehensive Text (1985), p. 309 [paras. 76, 83].

Cavalluzzo, Paul, Freedom of Association - Its Effect Upon Collective Bargaining And Trade Unions (1988), 13 Queen's L.J. No. 2-267, p. 272 [para. 49].

Jenks, C. Wilfred, Human Rights and International Labour Standards (1960), p. 49 [para. 63].

Summers, Clyde W., Freedom of Association and Compulsory Unionism in Sweden and the United States (1964), 112 U. Pa. L. Rev. 647 [para. 64].

Counsel:

Catherine H. MacLean and Dougald Brown, for the appellant;

Robert A. Kasting and Bernard W. Funston, for the respondent, the Commissioner of the Northwest Territories;

Andrew J. Raven, for the respondent, the Northwest Territories Public Service Association;

Graham R. Garton, for the Attorney General of Canada;

Robert E. Charney, for the Attorney General for Ontario.

Solicitors of Record:

Nelligan/Power, Ottawa, Ontario, for the appellant;

Department of Justice, Yellowknife, Northwest Territories, for the respondent, the Commissioner of the Northwest Territories;

Soloway, Wright, Ottawa, Ontario, for the respondent, the Northwest Territories Public Service Association;

John C. Tait, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervener, the Attorney General for Ontario.

This appeal was heard before Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ., of the Supreme Court of Canada on February 20, 1990. On August 16, 1990, the Supreme Court of Canada delivered the following decision in both official languages, including the following opinions:

Sopinka, J. - see paragraphs 1 to 39;

Dickson, C.J.C. - see paragraphs 40 to 43;

La Forest, J. - see paragraph 44;

L'Heureux-Dubé, J. - See paragraphs 45 to 51;

Cory, J. (Wilson and Gonthier, JJ.,  concurring), dissenting - see paragraphs 52 to 91.