Saskatchewan Federation of Labour v. Saskatchewan, 2013 SKCA 43

• Judge: Klebuc, C.J.S., Richards, Ottenbreit, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 26, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKCA 43;(2013), 414 Sask.R. 70 (CA)

Sask. Labour Federation v. Sask. (2013), 414 Sask.R. 70 (CA);

    575 W.A.C. 70

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.002

Her Majesty the Queen, in Right of the Province of Saskatchewan (appellant/respondent by cross-appeal/defendant) v. The Saskatchewan Federation of Labour (in its own right and on behalf of the Unions and Workers in the Province of Saskatchewan); Amalgamated Transit Union, Local 588; Canadian Office and Professional Employees' Union, Local 397; Communications, Energy and Paperworkers' Union of Canada and its Locals; Construction and General Workers' Union, Local 180; Grain Services Union; Health Sciences Association of Saskatchewan; International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of U.S., its Territories and Canada and its Locals 295, 300 and 660; International Brotherhood of Electrical Workers, Local 2067; Saskatchewan Government and General Employees' Union; Saskatchewan Joint Board; Retail, Wholesale and Department Store Union; United Mineworkers of America, Local 7606; United Steel, Paper, Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union and its Locals; University of Regina Faculty Association; Larry Hubich; Bob Bymoen; Garry Hamblin; Saskatchewan Provincial Building & Construction Trades Council; Canadian Union of Public Employees, Local 7 and 4828; and Teamsters, Local 395 (respondents/appellants by cross-appeal/plaintiffs) and Advanced Employees' Association and its Locals 101 and 102; Construction and General Workers' Union Local 180; Grain Services Union; International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local 771; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 179; and United Brotherhood of Carpenters and Joiners of America, Local 1985 (respondents/plaintiffs) and Attorney General of Canada; Saskatchewan Union of Nurses; Canadian Union of Public Employees; SEIU-West; Saskatchewan Government and General Employees' Union; Regina Qu'Appelle Regional Health Authority; Cypress Regional 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 Power Corporation; SaskEnergy Incorporated; Saskatchewan Association of Rural Municipalities; Saskatchewan Urban Municipalities Association; City of Regina; University of Saskatchewan; University of Regina; Canadian Association of University Teachers; Canadian Civil Liberties Association; and Saskatchewan Chamber of Commerce (intervenors)

(CACV2242; 2013 SKCA 43)

Indexed As: Saskatchewan Federation of Labour v. Saskatchewan

Saskatchewan Court of Appeal

Klebuc, C.J.S., Richards, Ottenbreit, Caldwell and Herauf, JJ.A.

April 26, 2013.

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 unjustifiably infringed rights and freedoms guaranteed by the Charter.

The Saskatchewan Court of Queen's Bench, in a decision reported at 390 Sask.R. 196, 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 claim for a declaration of invalidity. The Province appealed with respect to the PSES Act. The SFL appealed concerning the TUA Act.

The Saskatchewan Court of Appeal allowed the Province's appeal, and dismissed the SFL's appeal. Both Acts were constitutionally valid. The trial judge erred in finding that the PSES Act was constitutionally invalid. In relation to s. 2(d) of the Charter, the Supreme Court of Canada's decisions in the Labour Trilogy (1987) were still the controlling authorities. The right to strike did not attract Charter protection. The court also rejected the arguments advanced in reliance on ss. 2(b), 7 and 15 of the Charter.

Civil Rights - Topic 9

General principles - Civil rights v. stare decisis - This appeal concerned the constitutional validity of Saskatchewan's Public Service Essential Services Act - The Act introduced restrictions on the ability of public sector workers to engage in strike activity - The issue at the heart of the appeal was whether the Act offended s. 2(d) of the Charter - The Saskatchewan Court of Appeal, in considering the reach of s. 2(d), explained the doctrine of stare decisis and its significance - See paragraphs 29 to 32 - The court stated that "[i]n order to assess what stare decisis means for this appeal, it is necessary to briefly re-travel the road taken by the Supreme Court [of Canada] in applying s. 2(d) of the Charter to the collective actions of employees in the workplace. The journey begins with the so-called Labour Trilogy decided in 1987." - The "final stop" was Ontario (Attorney General) v. Fraser (2011) - In the result, the court stated that "the relevant analysis ultimately both starts and ends with the Labour Trilogy [not expressly overruled in relation to its holdings with respect to the right to strike]. ... As a consequence, ... the controlling Supreme Court precedents are still to the effect that the right to strike does not fall within the scope of s. 2(d) of the Charter." - It followed that the Act could not be struck down on the basis that it limited strike activity contrary to s. 2(d) - See paragraphs 33 to 46 and 68.

Civil Rights - Topic 651.1

Liberty - Limitations on - Right to strike - The Saskatchewan Federation of Labour (SFL) and various unions submitted that the Public Service Essential Services Act (Sask.) violated s. 7 of the Charter - The argument advanced was that the Act anticipated the identification of individual employees who would be required to continue working during a strike, referring to s. 18(2) of the Act - SFL contended that designated employees would be forced, under pain of sanction, to continue working regardless of illness or injury, implicating both liberty and security of the person interests - The Saskatchewan Court of Appeal rejected the argument - "First, no reasonable reading of s. 18(2), and its express use of the phrase 'without lawful excuse', can involve the notion that an employee would be required to continue to work even if he or she is genuinely ill or injured. Second, even if the Act is taken to implicate life or security of the person interests, SFL has not attempted to satisfy the second wing of s. 7, i.e. the requirement that, in order for there to be a breach of the section, the denial of life, liberty or security of the person must occur in a manner which is inconsistent with principles of fundamental justice." - See paragraphs 78 to 83.

Civil Rights - Topic 1852.1

Freedom of speech or expression - Limitations on - Labour legislation - The Saskatchewan Federation of Labour (SFL) and various unions submitted that the Public Service Essential Services Act violated employees' freedom of expression as guaranteed by s. 2(b) of the Charter, because it reduced the number of employees who could participate in the expressive activity of going on strike - SFL substantially constructed its argument on the fact that picketing had been recognized as involving constitutionally-protected expressive activity - The Saskatchewan Court of Appeal was not persuaded that s. 2(b) afforded an effective basis for overturning the Act - The Supreme Court of Canada preferred to assess the constitutional status of the right to strike by reference to the Charter's s. 2(d) guarantee of freedom of association - The essence of the impact of the Act was on the associational, rather than the expressive, dimension of employee conduct - Other appellate courts had also been reluctant to approach the issue by way of a s. 2(b) analysis - Further, the Act did not purport to limit picketing in any way - See paragraphs 72 to 77.

Civil Rights - Topic 2144

Freedom of association - Limitations on - Collective bargaining and right to strike - [See first Civil Rights - Topic 2155 ].

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - Saskatchewan's Public Service Essential Services Act, proclaimed in 2008, introduced restrictions on the ability of public sector workers to engage in strike activity - The Saskatchewan Federation of Labour (SFL) and various unions commenced proceedings to have the Act declared unconstitutional - Their key submission was that the legislation unjustifiably infringed employees' freedom of association as guaranteed by s. 2(d) of the Charter - The trial judge accepted the argument and declared the Act to be of no force or effect - The Saskatchewan Court of Appeal allowed the appeal - "In 1987, the Supreme Court ruled that freedom of association does not comprehend the right to strike. Its decisions on this point have never been overturned. While the Court's freedom of association jurisprudence has evolved in recent years, it has not shifted far enough, or clearly enough, to warrant a ruling by this Court that the right to strike is protected by s. 2(d) of the Charter. Nor does the Essential Services Act offend any of the other Charter provisions referred to by SFL and the unions [s. 2(b), s. 7, and s. 15]. It follows that the Act is constitutionally valid." - See paragraphs 6 and 28 to 68.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - Saskatchewan's Trade Union Amendment Act, proclaimed in 2008, changed provincial labour legislation so as to make it somewhat more difficult for unions to obtain certification as bargaining agents - It also liberalized the scope of permissible communications between employers and their employees - The Saskatchewan Federation of Labour and various unions commenced proceedings to have the Act declared unconstitutional - Their key submission was that the legislation unjustifiably infringed employees' freedom of association as guaranteed by s. 2(d) of the Charter - The trial judge, while accepting that the legislative changes in issue would reduce the success rate of union applications for certification, found that those changes did not violate the freedom of employees to bargain collectively through a union of their own choosing - The Saskatchewan Court of Appeal dismissed the appeal - "The trial judge correctly found that, even though the Act makes certification somewhat more difficult, it does not offend the Charter. Simply put, the Act does not substantially impair the exercise of associational freedom or offend any other feature of the Charter." - See paragraph 7.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour (SFL) and various unions submitted that the Public Service Essential Services Act violated s. 2(d) of the Charter - The Saskatchewan Court of Appeal addressed the relevance of various international instruments - "It is well established that Charter rights are to be construed in light of Canadian international law commitments. ... However, there is nothing in the relevant international law which can or should lead this Court to depart from what the Labour Trilogy [(S.C.C.) (1987)] says about the right to strike. ... There is nothing new in the arguments which SFL and the unions now bring to the table. As a result, I am not persuaded that international law considerations can have any meaningful impact on the question of whether this Court is entitled to depart from the Labour Trilogy." - See paragraph 71.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - Saskatchewan's Public Service Essential Services Act (2008) introduced restrictions on the ability of public sector workers to engage in strike activity - The trial judge found that the right to strike was protected by s. 2(d) of the Charter and declared the Act to be of no force or effect - The Saskatchewan Court of Appeal stated that "the test for determining whether there has been a s. 2(d) breach in the labour context is whether the legislation being challenged 'substantially interferes' with the ability of employees to organize and engage in good-faith bargaining. ... [I]t is important to remember that the freedom guaranteed by s. 2(d) establishes only the minimum substantive content of any labour relations regime. So long as that minimum standard is satisfied, the Legislature is free to arrange matters as it sees fit. This is significant because different governments will have different views of the best public policy in this area." - In the end result, the court allowed the Province's appeal - See paragraphs 102 to 109.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - The Saskatchewan Federation of Labour and various unions commenced proceedings to have the Trade Union Amendment Act (2008), declared unconstitutional - The principal argument was that the Act infringed employees' associational activities guaranteed by s. 2(d) of the Charter - The Saskatchewan Court of Appeal agreed with the trial judge that the Act did not violate s. 2(d) - "While it makes certification somewhat more difficult, it does not substantially impair the exercise of associational freedom" - First, concerning the move from card-based certification to secret ballot votes, s. 2(d) "does not oblige legislatures to build statutory schemes which make certification as easy as possible" - Second, the fact that the Act did not stipulate any time limit for the conduct of certification votes did not make the Act itself constitutionally infirm, "because discretionary statutory powers must be exercised consistently with the demands of the Charter" - Third, s. 11(1)(a), which eased the restrictions on employers' communications with employees, did not interfere with employees' s. 2(d) freedoms - "I am not prepared to accept that the present version of s. 11(1)(a) throws the door open to employer intimidation and deception." - See paragraphs 111 to 121.

Civil Rights - Topic 5650

Equality and protection of the law - Particular cases - Civil or public servants - [See Civil Rights - Topic 5668 ].

Civil Rights - Topic 5668

Equality and protection of the law - Particular cases - Labour legislation - This appeal concerned the constitutional validity of Saskatchewan's Public Service Essential Services Act - The Act introduced restrictions on the ability of public sector workers to engage in strike activity - An argument was that limitations on strike action made unions less effective and that this negatively affected segments of society already facing social and economic disadvantage - The Saskatchewan Court of Appeal held that the Act did not violate s. 15 of the Charter - "The Essential Services Act does, of course, apply only to public sector employees, but I am unable to see how it draws distinctions on any of the bases which animate s. 15. 'Public sector employee' is not a prohibited ground of discrimination." - See paragraphs 84 to 88.

Civil Rights - Topic 8470

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

Courts - Topic 19

Stare decisis - Authority of judicial decisions - Constitutional issues - [See Civil Rights - Topic 9 ].

Courts - Topic 126.1

Stare decisis - Authority of judicial decisions - Courts of superior jurisdiction - Supreme Court of Canada - General - [See Civil Rights - Topic 9 ].

Labour Law - Topic 9727

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

Labour Law - Topic 9727

Public service labour relations - Strikes - Essential services (incl. determination of employees prohibited from striking) - The Saskatchewan Court of Appeal considered the content and scheme of the Public Service Essential Services Act, which came into force on May 14, 2008 - The Act "does not eliminate the right to strike. Rather, it establishes a regime for limiting the number of employees who are allowed to refuse to work in the event of a strike. In other words, the Act implements a 'designated or controlled strike' approach to the regulation of the withdrawal of services by employees" - In the end result, the court concluded that the Act was constitutionally valid - See paragraphs 9 to 17.

Words and Phrases:

Right to strike - The Saskatchewan Court of Appeal considered each of two approaches to the characterization of the "right to strike", for purposes of a constitutional analysis under s. 2(d) of the Charter - See paragraphs 52 to 65.

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 25].

Polowin (David) Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), 199 O.A.C. 266; 76 O.R.(3d) 161 (C.A.), refd to. [para. 30].

Quinn v. Leathem, [1901] A.C. 495 (H.L.), refd to. [para. 31].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 31].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 34].

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

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161, refd to. [para. 34].

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. 34].

Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) et al., [1990] 2 S.C.R. 367; 112 N.R. 269, refd to. [para. 36].

Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989; 244 N.R. 33, refd to. [para. 37].

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. 38].

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. 40].

Fraser et al. v. Ontario (Attorney General), [2011] S.C.R. 3; 415 N.R. 200; 275 O.A.C. 205; 2011 SCC 20, refd to. [para. 44].

Rodriguez de Quijas v. Shearson/American Express Inc. (1989), 109 S. Ct. 1917, refd to. [para. 49].

Fraser et al. v. Ontario (Attorney General) (2008), 242 O.A.C. 252; 92 O.R.(3d) 481; 2008 ONCA 760, refd to. [para. 55].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 73].

Reference Re Sections 193 and 195.1(1)(c) of the Criminal Code, [1990] 1 S.C.R. 1123; 109 N.R. 81; 68 Man.R.(2d) 1, refd to. [para. 73].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, refd to. [para. 73].

Grain Workers' Union, Local 333 v. B.C. Terminal Elevator Operators' Association et al., [2010] 3 F.C.R. 255; 395 N.R. 33; 2009 FCA 201, refd to. [para. 74].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 76].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 76].

R. v. D.B., [2008] 2 S.C.R. 3; 374 N.R. 221; 237 O.A.C. 110; 2008 SCC 25, refd to. [para. 79].

Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 86].

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham - see Peavine Métis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 114].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 126].

R. v. Lindsay (S.P.) et al. (2009), 251 O.A.C. 1; 245 C.C.C.(3d) 301; 2009 ONCA 532; leave to appeal denied [2010] 1 S.C.R. vii; 405 N.R 392; 270 O.A.C. 397 and [2010] 1 S.C.R. xi; 405 N.R 393; 270 O.A.C. 397, refd to. [para. 126].

Statutes Noticed:

Public Service Essential Services Act, S.S. 2008, c. P-42.2, generally [para. 1]; sect. 2(c)(i) [para. 11]; sect. 2(c)(ii) [para. 12]; sect. 7(1) [para. 14]; sect. 9(2) [para. 15]; sect. 10 [para. 16].

Trade Union Amendment Act, S.S. 2008, c. 27, generally [para. 1]; sect. 11(1)(a) [para. 97].

Authors and Works Noticed:

Gibson, Ronald Dale, Stare Decisis and The Action Per Quod Servitium Amisit - Refusing to Follow the Leader, R. v. Buchinsky (1980), 13 C.C.L.T. 309, generally [para. 49].

Lynk, Michael, Labour Law and the New Equality (2009), 15 Just Labour: A Canadian Journal of Work and Society 125, p. 135 [para. 111].

Parkes, Debra, Precedent Unbound? Contemporary Approaches to Precedent in Canada (2007), 32 Man. L.J. 135, generally [para. 49].

Riddell, Chris, Union Certification Success under Voting Versus Card-Check Procedures: Evidence from British Columbia, (1978-1998), vol. 57, no. 4, Industrial and Labour Relations Review 493, pp. 497, 498 [para. 111].

Counsel:

Graeme Mitchell, Q.C., Barbara Mysko and Katherine Roy, for the Province of Saskatchewan;

Craig Bavis and Juliana Saxberg, for the Saskatchewan Federation of Labour;

Larry Kowalchuk, for the Saskatchewan Joint Board, Retail, Wholesale and Department Store Union;

Peter Barnacle, for the Canadian Union of Public Employees;

Drew Plaxton and Heather Jensen, for the Service Employees International Union;

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

Rick Engel, Q.C., for the Saskatchewan Government and General Employees Union;

Ronni Nordal, for the Canadian Association of University Teachers;

Colin Feasby, for the Canadian Civil Liberties Association;

Kathryn Hucal and Mark Kindrachuk, Q.C., for the Attorney General of Canada;

Brian Kenny, Q.C., and Courtney Keith, for SaskPower and SaskEnergy;

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

Erin Kleisinger, for the University of Regina;

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

Leah Schatz, for Regina Qu'Appelle Regional Health Authority, Cypress Regional Health Authority, Five Hills Regional Health Authority, Heartland Regional Health Authority, Sunrise Regional Health Authority, Prince Albert Parkland Regional Health Authority;

Evert Van Olst, for Saskatoon Regional Health Authority;

Lauren Wihak, for the Saskatchewan Chamber of Commerce.

This appeal was heard on November 27 to 29, 2012, before Klebuc, C.J.S., Richards, Ottenbreit, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Richards, J.A., the Court delivered the following judgment, dated April 26, 2013.