Saskatchewan Federation of Labour v. Saskatchewan,

• Jurisdiction: Saskatchewan
• Judge: Ball, J.
• Neutral Citation: 2012 SKQB 62
• Citation: (2012), 390 Sask.R. 196 (QB),2012 SKQB 62,1982 CanLII 2324 (FCA),[2012] 7 WWR 743,211 CLRBR (2d) 1,390 Sask R 196,390 SaskR 196,(2012), 390 SaskR 196 (QB),390 Sask.R. 196
• Date: 06 February 2012
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Sask. Labour Federation v. Sask. (2012), 390 Sask.R. 196 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. FE.039

The Saskatchewan Federation of Labour (in its own right and on behalf of the Unions and Workers in the Province of Saskatchewan per attached Schedule A) (plaintiffs) v. Her Majesty the Queen, in Right of the Province of Saskatchewan (defendant) and Saskatchewan Union of Nurses, Canadian Union of Public Employees, Service Employees International Union (West), Saskatchewan Government and General Employees' Union (union intervenors) and Regina Qu'Appelle Regional Health Authority, Cypress Health Authority, Five Hills Regional Health Authority, Saskatoon Regional Health Authority, Heartland Regional Health Authority, Sunrise Regional Health Authority, Prince Albert Parkland Regional Health Authority, Saskatchewan Urban Municipalities Association, Saskatchewan Association of Rural Municipalities, City of Regina, City of Saskatoon, University of Saskatchewan, University of Regina, Saskatchewan Power Corporation, and SaskEnergy Incorporated Employer (intervenors)

(2008 Q.B.G. No. 1059; 2012 SKQB 62)

Indexed As: Saskatchewan Federation of Labour v. Saskatchewan

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

February 6, 2012.

Summary:

The Saskatchewan Federation of Labour (SFL) and the intervenor unions challenged the constitutional validity of the Public Service Essential Services Act (PSES Act) and the Trade Union Amendment Act (TUA Act) on the basis that they infringed rights and freedoms guaranteed by the Charter in a manner that could not be demonstrably justified under s. 1 of the Charter. The challenges to the validity of the legislation required the court to determine the extent to which the Charter protected collective action by employees, including the interdependent freedoms to organize, to bargain collectively and to strike, and to balance those protections with the need to ensure the effective delivery of essential services to the community by public sector employees.

The Saskatchewan Court of Queen's Bench concluded that the PSES Act infringed upon the freedom of association of employees protected by s. 2(d) of the Charter, in a manner that could not be justified under s. 1 of the Charter. Accordingly, the PSES Act was declared to be of no force or effect, with the declaration of invalidity suspended for a period of 12 months. The court concluded that the TUA Act did not infringe the Charter, and dismissed the plaintiffs' claim for a declaration of invalidity.

Civil Rights - Topic 1852.1

Freedom of speech or expression - Limitations on - Labour legislation - The Saskatchewan Federation of Labour and the intervenor unions claimed for a declaration that some or all of the provisions of the Trade Union Amendment Act (2008) were constitutionally invalid - The changes to the certification process introduced by the Act increased the initial threshold for demonstrating employee support to 45%, substituted secret ballot votes for automatic certification based on support cards, and reduced the validity of support cards to three months - The Saskatchewan Court of Queen's Bench considered the changes in the context of the amendment to s. 11(1)(a) of the Trade Union Act, which prohibited unfair labour practices - The statement in the amended s. 11(1)(a) that an employer was not precluded from stating fact and its opinions to its employees was consistent with s. 2(b) of the Charter - The provisions of the Act did not infringe on the freedom of employees to organize in and bargain collectively through a trade union of their own choosing, nor did they enable employers to interfere with those protected freedoms by exercising their own freedom of expression under s. 2(b) of the Charter - See paragraphs 271 to 279, 285.

Civil Rights - Topic 2144

Freedom of association - Limitations on - Collective bargaining and right to strike - The Saskatchewan Court of Queen's Bench considered the limitations on the freedom to strike generally - "The critical question is the extent to which the protected freedom to strike can be restricted. It is well established in Canadian and international law that, within certain parameters, the right to strike may be curtailed for employees engaged in the delivery of truly essential services to the community ... In summary, Canadian and international law supports the restriction or prohibition of strikes by essential services employees provided that it is based on a minimal and proportional analysis and, where strike action is substantially abrogated, accompanied by a fair and adequate dispute resolution scheme" - See paragraphs 123 to 130.

Civil Rights - Topic 2144

Freedom of association - Limitations on - Collective bargaining and right to strike - [See fourth, fifth, eighth, ninth and tenth Civil Rights - Topic 2155 ].

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour (SFL) and the intervenor unions challenged the constitutional validity of the Public Service Essential Services Act (PSES Act) and the Trade Union Amendment Act (TUA Act) on the basis that they infringed rights and freedoms guaranteed by the Charter in a manner that could not be demonstrably justified under s. 1 of the Charter - The Saskatchewan Court of Queen's Bench stated that "Although the PSES Act and the TUA Act were introduced and enacted by the legislature at the same time, they are discrete pieces of legislation" - Accordingly, the court considered each Act separately - See paragraphs 5 to 13, and 223 to 235.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour and the intervenor Unions challenged the constitutional validity of the Public Service Essential Services Act - The Unions argued that the Act deprived employees of a meaningful right to strike, thereby infringing s. 2(d) of the Charter, and that the infringement could not be justified under s. 1 of the Charter unless the Act provided access to independent dispute resolution processes with respect to: (1) the overall settlement of wages and other terms and conditions of employment; and/or (2) whether public employer designations of essential service employees required to work during a strike were justified - The Unions relied on three proceedings that had already occurred in other forums - The Saskatchewan Court of Queen's Bench summarized those proceedings and the manner in which they had influenced the scope and structure of this action - See paragraphs 14 to 48.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - Following the enactment of Saskatchewan's Public Service Essential Services Act, five different proceedings were instituted, all challenging the constitutionality of the legislation - Two of the proceedings were actions commenced by statements of claim, while three were applications for judicial review - The Saskatchewan Court of Queen's Bench summarized those proceedings - See paragraphs 49 to 52.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour (SFL) argued that the Public Service Essential Services Act (PSES Act) infringed upon rights and freedoms guaranteed by ss. 2(b), 2(c), 2(d), 7 and 15 of the Charter - The Saskatchewan Court of Queen's Bench treated the associational activity by employees for the purpose of achieving collective bargaining goals as part of freedom of association guaranteed by s. 2(d) - "First, since I have decided that the PSES Act infringes on freedom of association under s. 2(d) of the Charter in a manner that cannot be saved by s. 1, it will be unnecessary for me to address the other arguments advanced by the SFL. Second, it is my view that this case does not directly engage, either factually or legally, issues related to picketing or the right to assemble for the purpose of promoting political or social change or equality rights. Rather, it raises the issues of whether the right to strike, as an essential element of collective bargaining, is protected by the fundamental freedom of association declared by s. 2(d) of the Charter and if so, the extent to which that right can be limited under s. 1 of the Charter to ensure the delivery of essential services to the community. Expressed another way, if the right to strike is protected by s. 2(d) of the Charter, lawful strikes are not those that are permitted by legislation, but those that are not prohibited by legislation that can be justified under s. 1 of the Charter" - See paragraph 53.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour and the intervenor unions challenged the constitutional validity of the Public Service Essential Services Act - The Saskatchewan Court of Queen's Bench, for the purposes of the Charter analysis under s. 2(d), took the term "strike" to mean the refusal to work by employees, acting in concert with other employees, for the purpose of promoting their work related issues - In the end result, the court found that the Act was unconstitutional because it infringed on rights and freedoms protected by s. 2(d) of the Charter to such an extent that it could not be saved under s. 1 of the Charter - Accordingly, the court declared the Act to be of no force or effect, with the declaration of invalidity suspended for 12 months - See paragraphs 57 to 59.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Court of Queen's Bench considered the Supreme Court of Canada's decisions addressing the extent to which s. 2(d) of the Charter protected the right to associate to achieve collective goals - See paragraphs 65 to 92.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - In assessing whether the Public Service Essential Services Act was compliant with s. 2(d) of the Charter, the Saskatchewan Court of Queen's Bench addressed the relevance of various international instruments - The court found that "Canada is a party to international treaties and instruments that recognize and protect the freedom of workers to organize, to bargain collectively and to strike. Those instruments are relevant and persuasive sources for the interpretation of the Charter, which should generally be presumed to provide protection at least as great as Canada has undertaken to provide internationally. Whether or not Canada's international obligations directly bind the Government of Saskatchewan, they are nonetheless highly important in assessing whether provincial labour relations legislation is Charter compliant" - In the end result, the court found that the Act was unconstitutional because it infringed on rights and freedoms protected by s. 2(d) of the Charter to such an extent that it could not be saved under s. 1 of the Charter - See paragraphs 100 to 114.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour (SFL) and the intervenor unions challenged the constitutional validity of the Public Service Essential Services Act - At issue was whether the right to strike, as an essential element of collective bargaining, was protected by the fundamental freedom of association declared by s. 2(d) of the Charter and if so, the extent to which that right could be limited under s. 1 of the Charter to ensure the delivery of essential services - The Saskatchewan Court of Queen's Bench concluded that "I am satisfied that the right to strike is a fundamental freedom protected by s. 2(d) of the Charter along with the interdependent rights to organize and to bargain collectively. That conclusion is grounded in Canada's labour history, recent Supreme Court of Canada jurisprudence and labour relations realities. It is also supported by international instruments which Canada has undertaken to uphold. Governments may enact laws that restrict or prohibit essential service workers from striking, but those prohibitions must be justified under s. 1 of the Charter" - In the end result, the court found that the Act was unconstitutional because it infringed on rights and freedoms protected by s. 2(d) of the Charter to such an extent that it could not be saved under s. 1 of the Charter - See paragraph 115.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Court of Queen's Bench, in its "minimal impairment" analysis under s. 1 of the Charter, compared the Public Service Essential Services Act (PSES Act) and other essential services regimes in Canada - "It is enough to say that no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly, and as significantly, as the PSES Act. No other essential services legislation is as devoid of access to independent, effective dispute resolution processes to address employer designations of essential service workers and, where those designations have the effect of prohibiting meaningful strike action, an independent, efficient, overall dispute mechanism. While the purpose of all other essential services legislation is the same as the PSES Act, none have such significantly deleterious effects on protected rights under s. 2(d) of the Charter" - The court found that the PSES Act transferred all of the power previously held by the unions to the public employers - Considered in its entirety, its provisions did not satisfy the minimal impairment requirement of s. 1 of the Charter - See paragraphs 194 to 222.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour and the intervenor unions challenged the constitutional validity of the Public Service Essential Services Act - The Act empowered a broad spectrum of public employers to require employees providing essential services to work during a strike - It also empowered them to unilaterally decide whether the services provided by those employees were "essential" - The Saskatchewan Court of Queen's Bench determined that the rights to bargain collectively and to strike were protected by s. 2(d) of the Charter - The Act infringed on those rights "by empowering all public sector employers to make non-reviewable decisions that can effectively preclude the capacity of their employees to engage in meaningful strike action, and thus to engage in meaningful collective bargaining" - The infringements could not be demonstrably justified under s. 1 of the Charter - The Act "does not contain a dispute resolution process enabling employees to address the propriety of unilateral employer essential services designations. It does not provide compensatory access to an impartial and effective dispute resolution process for those employees whose capacity to engage in meaningful strike action is effectively abrogated. And it contains provisions that are incompatible with the 'controlled strike' model on which the legislation is based and which do not facilitate the continued delivery of essential services to the community during a labour dispute. These are serious flaws. Although the benefits that accrue from the statutory limitations on the rights to bargain collectively and to strike are significant, they are clearly outweighed by their deleterious effects on the employees affected" - See paragraphs 116 to 222, 280 to 282.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See fourth, ninth and tenth Civil Rights - Topic 2155 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See fifth Civil Rights - Topic 2155 ].

Civil Rights - Topic 8470

Canadian Charter of Rights and Freedoms - Interpretation - International law - [See seventh Civil Rights - Topic 2155 ].

Labour Law - Topic 7525

Industrial relations - Strikes - Strike defined - [See fifth Civil Rights - Topic 2155 ].

Labour Law - Topic 7525

Industrial relations - Strikes - Strike defined - The Saskatchewan Court of Queen's Bench stated that a "strike" was one of three interdependent elements of collective bargaining, and discussed the "critical role" played by strikes in the collective bargaining process - See paragraphs 60 to 64.

Labour Law - Topic 9727

Public service labour relations - Strikes - Essential services (incl. determination of employees prohibited from striking) - [See eighth Civil Rights - Topic 2155 ].

Words and Phrases:

Strike - The Saskatchewan Court of Queen's Bench discussed the meaning of the term "strike" for labour relations purposes - See paragraphs 57 to 59.

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 5, footnote 1].

Canadian Union of Public Employees, Local 3967 v. Regina Qu'Appelle Health Region and The Attorney General for Saskatchewan (2010), CanLII 5199 (L.R.B.), refd to. [para. 46].

Saskatchewan Federation of Labour v. Saskatchewan (2010), 365 Sask.R. 296; 2010 SKQB 286, refd to. [para. 50, footnote 11].

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, consd. [para. 55, footnote 12; para. 67, footnote 19].

Crofter v. Handwoven Harris Tweed Co. v. Veitch, [1942] 1 All E.R. 142 (H.L.), refd to. [para. 60, footnote 15].

Service Employees International Union, Local 204 v. Broadway Manor Nursing Home (1983), 4 D.L.R.(4th) 231 (Ont. Div. Ct.), refd to. [para. 60, footnote 15].

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, consd. [para. 67, footnote 18].

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, consd. [para. 67, footnote 20].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; 38 D.L.R.(4th) 161, consd. [para. 67, footnote 21].

Reference Re Public Service Employee Relations Act (Alta.) - see Reference Re Compulsory Arbitration.

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; 38 D.L.R.(4th) 277, refd to. [para. 68, footnote 22].

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161; 38 D.L.R.(4th) 249, refd to. [para. 68, footnote 23].

Retail, Wholesale and Department Store Union, Locals 544, 496, 635 and 955 et al. v. Saskatchewan et al., [1985] 5 W.W.R. 97; 39 Sask.R. 193 (C.A.), refd to. [para. 73, footnote 24].

R. v. Hape (L.R.), [2007] 2 S.C.R. 292; 363 N.R. 1; 227 O.A.C. 191; 2007 SCC 26, refd to. [para. 101, footnote 32].

Reference Re Marriage Act (2011), 366 Sask.R. 48; 327 D.L.R.(4th) 669; 2011 SKCA 3, refd to. [para. 133, footnote 44].

Saskatchewan Health-Care Association et al. v. Saskatchewan Union of Nurses et al. (1999), 176 Sask.R. 179 (Q.B.), consd. [para. 144, footnote 48].

Saskatchewan Health-Care Association et al. v. Saskatchewan Union of Nurses et al. (1999), 182 Sask.R. 248; 177 D.L.R.(4th) 235 (Q.B.), consd. [para. 145, footnote 49].

R. v. Videoflicks et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 35 D.L.R.(4th) 770, refd to. [para. 151, footnote 50].

R. v. Edward Brooks and Art Ltd. - see R. v. Videoflicks et al.

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1; 127 D.L.R.(4th) 1, refd to. [para. 151, footnote 51].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 166, footnote 53].

Regina Police Association v. Regina Board of Commissioners, 23 C.L.R.B.R.(2d) 200, refd to. [para. 215, footnote 77].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 252, footnote 92].

Lavigne v. Ontario Public Service Employees' Union et al., [1991] 2 S.C.R. 211; 126 N.R. 161; 48 O.A.C. 241; 81 D.L.R.(4th) 545, refd to. [para. 257, footnote 93].

R. v. Advance Cutting & Coring Ltd. et al., [2001] 3 S.C.R. 209; 276 N.R. 1; 2001 SCC 70, refd to. [para. 257, footnote 94].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 58 D.L.R.(4th) 577, refd to. [para. 272, footnote 106].

Saskatchewan Federation of Labour et al. v. Saskatchewan (Attorney General) et al. (2010), 346 Sask.R. 252; 477 W.A.C. 252; 2010 SKCA 27, refd to. [para. 278, footnote 112].

Statutes Noticed:

Public Service Essential Services Act, S.S. 2008, c. P-42.2, sect. 2(c) [para. 8]; sect. 7 [para. 10]; sect. 9 [para. 11]; sect. 10 [para. 12]; sect. 14, sect. 15, sect. 16, sect. 17, sect. 18 [para. 118]; sect. 20 [para. 119].

Trade Union Amendment Act, S.S. 2008, c. 27, sect. 11(1)(a) [paras. 235, 271].

Authors and Works Noticed:

Adams, Roy J., The Supreme Court, Collective Bargaining and International Law: A Reply to Brian Langille, 14 C.L.E.L.J. 317, generally [para. 107, footnote 35].

Adell, Bernard, Grant, Michel and Ponak, Allen, Strikes in Essential Services (2011), generally [para. 7, footnote 2].

Canada, International Covenant on Economic, Social and Cultural Rights: Report of Canada on the Implementation of Articles 10-12 of the Covenant (1982), p. 1-8 [para. 32, footnote 10].

Canadian Labour and Employment Law Journal, 333-53 [para. 60, footnote 15].

England, Geoffrey, Evaluating the Merits of the 2008 Reforms to Collective Bargaining Law of Saskatchewan (2008), 71 Sask. L. Rev. 307, pp. 311 [para. 107, footnote 35]; 337 fn. 35 [para. 126, footnote 39].

Freedom of Association - Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (5th Ed. 2006), p. 581 [para. 179, footnote 54].

Fudge, Judy and Tucker, Eric, The Freedom to Strike in Canada: A Brief Legal History (2010), 15 Can. Labour and Employment L.J. 2, pp. 333 to 353 [para. 60, footnote 15].

Gib, Van Ert, Using International Law in Canadian Courts (2nd Ed. 2008), pp. 130 [para. 101, footnote 32]; 335 fn. 32 [para. 107, footnote 35].

Haiven, Larry and Haiven, Judy, The Right to Strike and the Provision of Emergency Services in Canadian Health Care (2002), generally [para. 126, footnote 39].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), vol. 2, pp. 44-8 to 44-10 [para. 82, footnote 29].

Kahn-Freund, Otto, Labour and the Law (3rd Ed. 1983), p. 292 [para. 60, footnote 15].

Langille, Brian, A., Can We Rely on the ILO? (2006-2007), 13 C.L.E.L.J. 363, generally [para. 107, footnote 35].

Langille, Brian A., The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It, [2009] 54 McGill L. J. 177, generally [para. 55, footnote 12].

Rayner, Wesley B., Canadian Collective Bargaining Law (2nd Ed. 2007), pp. 2 [para. 60, footnote 15]; 46 [paras. 57, 60, footnotes 13, 15].

Sweptson, Lee, Human Rights Law and Freedom of Association: Development Through ILO Supervision (1998), vol. 137, International Lab. Rev. 169, p. 172 [para. 103, footnote 34].

Weiler, Paul, Reconcilable Differences - New Directions in Canadian Labour Law (1980), c. 7 [para. 93, footnote 31]; p. 66 [para. 60, footnote 15].

Counsel:

Larry Kowalchuk and Craig Bavis, for the Saskatchewan Federation of Labour et al.;

Juliana Saxberg, for the Saskatchewan Government and General Employees Union;

Peter Barnacle, for the Canadian Union of Public Employees;

Drew Plaxton and Adam Touet, for the Service Employees International Union (West);

Graeme G. Mitchell, Q.C., Barbara C. Mysko and Katherine M. Roy, for the Government of Saskatchewan (Attorney General);

Gary Bainbridge and Marcus Davies, for the Saskatchewan Union of Nurses;

Leah Schatz, Shannon Whyley and Robert Frost-Hinz, for Cypress Regional Health Authority, Five Hills Regional Health Authority, Heartland Regional Health Authority, Prince Albert Parkland Regional Health Authority, Regina Qu'Appelle Regional Health Authority and Sunrise Regional Health Authority;

Evert Van Olst, for the Saskatoon Regional Health Authority;

Brian Kenny, Q.C., and Jana Linner, for SaskEnergy Incorporated and Saskatchewan Power Corporation;

Michelle Ouellette, Q.C., and Dean Stanley, for the University of Saskatchewan;

Robert G. Kennedy, Q.C., for the City of Regina, the City of Saskatoon, Saskatchewan Urban Municipalities Association, Saskatchewan Association of Rural Municipalities;

Erin Kleisinger, for the University of Regina.

This claim was heard before Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 6, 2012.