Nearly 28 years after former Chief Justice Brian Dickson wrote
passionate – yet dissenting – reasons in favour of
extending constitutional protection to the right to strike, the
Supreme Court of Canada has taken up his call. In Saskatchewan
Federation of Labour v. Saskatchewan,1 the Supreme
Court has held that the right to strike is an essential component
of the freedom of association guaranteed by the Canadian
Charter of Rights and Freedoms
At issue before the Court was whether legislation prohibiting
designated employees from participating in strike action amounted
to a substantial interference with their right to participate in
meaningful collective bargaining. Specifically, the Court was asked
to consider the constitutionality of two statutes:
The Public Service Essential Services Act
("PSESA"), which imposed narrow limits on the ability of
public sector employees who perform "essential services"
to strike; and
The Trade Union Amendment Act, 2008
("TUAA"), which imposed changes to the union
certification process and the rules regarding communications
between employers and employees.
The PSESA gave public employers unilateral authority to
determine whether and how essential services are to be maintained
and therefore which employees could not strike. In the view of
Court, the PSESA did not provide for an acceptable review mechanism
or a meaningful dispute resolution mechanism.
The Right to Strike
A majority of the Court found that the PSESA was
unconstitutional and that the ability of employees to take strike
action played a crucial role in meaningful collective bargaining.
The majority also found that the right to strike helped balance the
"deep inequalities" that exist between employers and
employees. The Court held that the right to strike is protected
under s. 2(d) of the Charter.
The majority also confirmed that the broad restrictions in the
PSESA were neither minimally impairing nor proportionate and went
beyond what is reasonably necessary in order to ensure the delivery
of essential services to the community during labour disputes.
Regarding the TUAA, however, the Court held that introducing
amendments to the process by which unions obtain and/or lose
bargaining representative status did not substantially interfere
with the freedom of association.
The largest question that remains from this decision was raised
by Justices Rothstein and Wagner in their dissent: what is the
scope of this new constitutional right to strike? Is this new right
only available to public employees and unionized members of the
private sector? Will governments now have to rationalize existing
statutory limits on the right to strike?
We will be following the impact of this decision closely as
legislatures and employers alike pivot to rebalance the scales of
the Canadian labour ecosystem.
1. 2015 SCC4.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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