The Alberta Court of Queen's Bench granted an injunction to
prevent an Alberta law from coming into force until a
Constitutional challenge to the law is decided.
The Alberta Public Service Salary Restraint Act
("PSSRA"), which imposes wage rate terms on
roughly 24,000 members of the Alberta Union of Public Employees
("AUPE") for the next four years, was set to take effect
March 31, 2014.
In a blog posted December 9, 2013, we highlighted the ways in
which PSSRA may be challenged pursuant to the Charter
of Rights and Freedoms (the "Charter")
after the law passed on December 4, 2013. PSSRA received
Royal Assent and came into force on December 11, 2013. AUPE filed a
Statement of Claim on December 12, 2013, alleging, among other
things, that PSSRA violated AUPE members' individual
rights to freedom of association.
The Alberta government and relevant AUPE unit had been involved
in collective bargaining since their previous collective agreement
expired March 31, 2013. The parties went to mediation in July 2013,
and steps were taken in October 2013 for the parties to go to
compulsory, binding arbitration in 2014. AUPE was entitled to
compulsory, binding arbitration under the Public Service
Employee Relations Act ("PSERA"), which
also makes it illegal for public employees in Alberta to go on
However, PSSRA, which the Alberta government introduced
in the Legislature in November 2013 with limited debate and without
notice to AUPE, eliminated AUPE's entitlement to compulsory,
binding arbitration with regard to the current round of collective
bargaining. In its Statement of Claim, AUPE sought, among other
things, an interlocutory or permanent injunction preventing the
enforcement of PSSRA and allowing the compulsory, binding
arbitration process to continue.
In his decision (
Alberta Union of Provincial Employees v Alberta, 2014 ABQB 97),
Thomas J cited Ontario (Attorney General) v Fraser, 2011
SCC 20 ("Fraser"), which states freedom of
association in a union context means people have the
Charter-protected right to make collective representations to their
employers, who then have an obligation to consider the
representations in good faith and provide a meaningful bargaining
Thomas J then stated:
 ... Alberta did not meet its obligation to negotiate in
good faith. The timeline and events prior to consideration and
passage of Bill 46 are interpreted by me to conclude Alberta never
intended that the 2013 negotiations with AUPE were to be
In his analysis, Thomas J held that the injunction decision did
not effectively provide a final result in the action, and, as such,
AUPE's threshold to prove "a serious issue to be
tried" was that its case was not frivolous or vexatious on its
merits. The government had argued that the injunction would
effectively decide the action, and, as such, a more substantial
review of the strength of AUPE's PSSRA challenge was
The government also failed to convince the Court that three
recent appellate judgments provide analogous cases in which
legislated limits on government employee salaries were not held to
breach the employees' rights to freedom of association
(Assn. of Justice Counsel v Canada (Attorney General),
2012 ONCA 530, leave denied  SCCA No 430; Federal
Government Dockyard Trades and Labour Council v Canada (Attorney
General), 2013 BCCA 371, leave to the Supreme Court of Canada
sought Nov. 18, 2013; and Meredith v Canada (Attorney
General), 2013 FCA 112, leave to appeal granted Sept. 19,
2013,  SCCA No 263).
Thomas J distinguished the appellate judgments on a number of
grounds, including: negotiations between the Alberta government and
AUPE were ongoing at the time PSSRA was passed,
PSSRA ends the potential for future collective bargaining
between the Alberta government and AUPE for a long period (three
years), and PSSRA nullifies an existing mandatory
After Thomas J's ruling, the Alberta Deputy Premier stated
the government will appeal, adding the government believes there
are errors of fact and law in the decision.
Given the confusion following the Supreme Court of Canada
("SCC") decision in Fraser in 2011 with regard
to what constitutes "good faith" and a
"meaningful" process in the context of union negotiations
with governments, further clarity on this issue from the SCC would
be helpful. If clarity is not provided when the SCC decides the
above referenced appellate judgments (or even if it is), AUPE's
PSSRA challenge may also wind up in front of Canada's
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