Earlier this year, the Supreme Court of Canada delivered a pair
of big wins to Canadian unions. Both judgments relate to public
sector unions, but may have important implications for labour law
more generally. In both cases, the Court has undermined its own
Mounted Police Association of Ontario v. Canada (Attorney
The first case is Mounted Police Association of Ontario v.
Canada (Attorney General). In this case, the Court (per
McLachlin C.J. and Le Bel J. for the six-judge majority; Rothstein
J. dissenting) held that a legislative ban preventing members of
the Royal Canadian Mounted Police from unionizing was
unconstitutional because it infringed the right to freedom of
association under Charter s. 2(d).
The majority considered that the legislated human relations
scheme substantially interfered with the right to associate because
the scheme was not chosen or controlled by RCMP members, was not
independent from management, and did not permit meaningful
collective bargaining. The majority expressly overturned the
Court's previous decision in Delisle v. Canada (Deputy
Attorney General),  2 S.C.R. 989, which held that the
exclusion of RCMP members from the application of federal public
sector labour relations legislation did not violate
Charter s. 2(d). In so doing, they cited the Court's
recent shift to a purposive and generous approach to labour
A more fulsome summary of the judgment can be found here, on the
British Columbia Employment Advisor blog.
Saskatchewan Federation of Labour v. Saskatchewan
The second case is Saskatchewan Federation of Labour v.
Saskatchewan. In this case, the Court (per Abella J. for
the five-judge majority; Rostein and Wagner JJ. dissenting in part)
considered provincial legislation limiting the ability of
"essential services" public sector employees to strike.
Both the majority and dissent agreed that the legislation was
unconstitutional because it granted unilateral authority to
government to determine which employees were providing
"essential services" and because the legislation provided
no meaningful alternative review mechanism, such as
The majority also went further and held that the right to strike
is protected by Charter s. 2(d). In the majority's
view, this was a logical extension of precedent because the right
to strike is essential to a meaningful process of collective
bargaining. Rothstein and Wagner JJ. strongly disagreed. In their
view, the Court's own precedent does not support a right to
strike under Charter s. 2(d).
A more detailed discussion of the background to this decision
can be found here, on the British Columbia Employer Advisor blog. A
more detailed summary of the Supreme Court of Canada's judgment
is available here, on the Ontario Employer Advisor blog.
There are strong dissenting judgments in both cases. In the
Saskatchewan Federation of Labour case, Rothstein and
Wagner JJ. expressed concerns about uncertainty, because
constitutionalizing a right to strike implies that all statutory
limits on the right to strike are unconstitutional. Moreover, they
noted that the new constitutional right is one that can only be
exercised by unionized workers. In the Mounted Police
case, Rothstein J. also raised concerns about the continual
expansion of the constitutional right to freedom of association and
claimed the majority's decision enshrined an adversarial model
of labour relations as a Charter right.
These cases have two important implications. First, we can
expect the issue of statutory limits on strikes to be litigated
further in light of the Saskatchewan Federation of Labour
case. Second, these cases seem to indicate that the Court is
perhaps more willing than ever to reverse its own precedents, at
least in relation to the expansion of certain constitutional
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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