Canada: The SCC Monitor (09/02/2015)

The Supreme Court of Canada recently released several judgments that are of interest to Canadian businesses and professions.

In Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, a majority of the Supreme Court upheld the right to strike pursuant to the s. 2(d) freedom of association right under the Canadian Charter of Rights and Freedoms (the "Charter"). It consequently found that The Public Service Essential Services Act, which contained an absolute ban on the right to strike for "essential services employees" was unconstitutional. In its ruling, the majority underscored the importance of the right to strike in promoting equality in labour bargaining processes. This case sends a strong message to policy makers throughout Canada that any legislation limiting the right to strike will come under careful Charter scrutiny by the courts.

The Court also recently heard two RCMP related Charter cases. In the first one, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the Supreme Court ruled that s. 96 of the RCMP Act, along with the Public Service Labour Relations Act , which excludes RCMP members from the definition of "employee", are both unconstitutional and violate s. 2 (d) of the Charter. The Court found that the Staff Relations Representative Program for RCMP members, which is subject to s. 96 of the RCMP Act, infringes s. 2(d) of the Charter by failing to provide RCMP members with any ability to advance their own interests or exercise their freedom to association. Parliament has 12 months to amend the legislation.

In the second case, Meredith v. Canada (Attorney General), 2015 SCC 2, a majority of the Court found that the Expenditure Restraint Act, which was enacted in March 2009 and imposed limits on public sector wage increases from 2008 to 2010, did not infringe on s. 2(d) of the Charter. The majority decision explained that cutting back scheduled wage increases without prior consultation was not an infringement on the right to collective bargaining, noting that RCMP members continued to have a process for consultation about their compensation.

Although the Supreme Court does not hear competition cases often, in Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, a majority of the Court overturned a Competition Tribunal order that had required Tervita to divest its interest in Babkirk Landfill Services Inc., a company it acquired in 2011 in the course of expanding its waste landfill operations. The order was made under s. 92 of the Competition Act (the "Act"), on the grounds that Tervita's acquisition of Babkirk would substantially prevent competition. According to the Tribunal, but for the acquisition, Babkirk would have eventually competed with Tervita in the waste landfill business, even though the company had alternative business plans at the time it was acquired. The Supreme Court affirmed the Federal Court of Appeal's holding that when assessing whether, absent a merger, a potential competitor would enter a market, the Tribunal has discretion to consider a wide range of evidence and determine what would have likely happened on a balance of probabilities. However, the Court also considered the efficiency defence advanced by Tervita under s. 96 of the Act, which says that the Tribunal shall not make a s. 92 Order if the merger is likely to bring about gains in efficiency that outweigh or offset any prevention of competition. The majority ruled that the Commissioner bears a burden to quantify anti-competitive effects when assessing them against efficiencies, and that in the case at bar, the Commissioner had failed to meet its burden, since it was unable to measure the alleged anti-competitive effects of Tervita's acquisition.

Finally, on February 6, the Court released arguably one of the most significant decisions in Canadian legal history in Carter v. Canada (Attorney General), 2015 SCC 5. A unanimous judgment declared the Criminal Code provisions that outlaw assisted suicide (s. 241) and state that no person may consent to death (s. 14) invalid. The Court held that these provisions unjustifiably violate the s. 7 Charter right to life, liberty and security of an individual who (i) clearly consents to end their life and (ii) is suffering from a grievous and irremediable medical condition. The judgment found that people who are grievously and irremediably ill often face the "cruel choice" of either taking their own life prematurely or suffering until death. The Court's order was suspended for 12 months to allow legislators time to respond to its judgment accordingly. Whatever happens in the wake of Carter, the Court has made it clear that nothing in its "declaration of invalidity...would compel physicians to provide assistance in dying" and that in any legislative response, "the Charter rights of patients and physicians will need to be reconciled."

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