In The Government of theProvince 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
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
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
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 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
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
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
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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