Canada: Freedom Of Expression: Union Voice May Be Stronger…

Last Updated: August 6 2014
Article by Michelle McCann

In The Government of the Province of Alberta and The Alberta Union of Provincial Employees 2014 ABCA 197 (CanLII), the Alberta Court of Appeal found it was unconstitutional to order union leadership to make statements encouraging members to end a wildcat strike and to prohibit a union from making statements in support of a wildcat strike.


In April 2013, Correctional Officers at an Alberta correctional facility walked off the job to protest the suspension of two union members who had voiced health and safety concerns about working conditions.  Union members at other correctional facilities followed suit.  The next day, the Alberta Labour Board ("the Board") issued a directive ordering striking union members to stop their illegal strike activity.  The Board further directed the union to take steps to notify its members of the directives and to make every reasonable effort to bring the illegal strike to an end.

The strike continued and expanded.  The employer brought a court application seeking an order for contempt and other relief. The chambers judge found the union was in contempt of the Board directive and that its efforts to comply with the directives were "wholly inadequate" and "an insult". In addition to imposing escalating fines should the strike continue, the chambers judge issued the following remedial orders:

  • The union must remove all references to solidarity or support for the strike from its website.
  • The union and its officers were prohibited from publishing any statements in solidarity with the strike on any website or social media.
  • Union leadership, specifically the President, Vice-President, and Chair of the striking local, were ordered to sign and publish on the union website a statement encouraging members to follow the Board directives and specifically to cease their strike and return to work immediately.
  • The union was prohibited from publishing the video news reports it created on its website or elsewhere.

The union appealed to the Court of Appeal ("the Court").

What did the Court of Appeal say?

The Court of Appeal ("Court") upheld the finding that the union was in contempt, but found the remedial orders in breach of the Charter right to freedom of expression, which protected the union's ability to make statements, and its freedom from being forced to express a particular message.

Breaches of the Charter can be justified under Section 1 if the right is limited in such a way that can be demonstrably justified in a free and democratic society.  Generally, courts apply what is known as the "Oakes" test, a three-step test to determine if the breach is necessary and proportional.

However, the Court said the Oakes test was poorly suited to the review of discretionary decisions by administrative decision makers and instead applied the Dagenais Mentuck test, an analysis which had previously been applied in the context of publication bans and other discretionary decisions that limit public access to the judicial process.

The Dagenais Mentuck test

The Dagenais Mentuck framework established that a publication ban should only be ordered when evidence demonstrates that it is necessary to prevent a serious risk to the proper administration of justice, reasonable alternative measures will not prevent the risk and the salutary effects of the ban outweigh the deleterious effects on public rights and interests, including the right to free expression and efficacy of the administration of justice.

The Court considered evidence showing the union had disregarded and defied a board directive, the strike had left insufficient trained correctional staff at certain facilities, there was some prisoner unrest and some inmates were not making it to court appearances, all of which was interfering with the administration of justice.

The Court also stated that, in the absence of additional evidence, the interference was not so serious and dangerous as to justify its permanently limiting the free expression of the union, and struck the orders on the grounds lesser measures were called for.

What This Means to You

This is not a good decision for unionized employers.

While the union was still found in contempt and required to pay significant damages, this decision gives unions more freedom than they have historically enjoyed to actively support the illegal activity of their members.  Going forward, union leaders are likely to feel less limited in the statements they can make supporting such illegal activity.

It is also likely boards and courts will be more cautious about issuing orders that require a union to say, or stop saying, anything specific, and will consider the high bar established in the Dagenais Mentuck framework when considering requests for such orders.

We will be monitoring this decision to see whether it goes to the Supreme Court of Canada for further consideration.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Michelle McCann
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