Tuesday, December 4, 2012

Right to Strike--Lawyer Craig Bavis' report on the hearing before the Saskatchena Court of Appeal

Here's an update on the Saskatchewan right to strike case that was argued before the Saskatchewan Court of Appeal last week.  Counsel for the Saskatchewan Federation of Labour Craig Bavis of Victory Square Law Office provided the update.

The appeal consisted of a 5 judge panel ( Klebuc (Chief Justice), Richards, Ottenbreit, Caldwell and Heroufand), approximately 24 lawyers: 3 parties (the AG, SFL et al, and RWDSU), 4 union intervenors, 2 national intervenors (CCLA and CAUT), the AG of Canada, and approximately 12 employer intervenors including health authorities, crown corps, municipalities, and universities, and the Chamber of Commerce. The appeal record was approximately 19,000 pages, the common book of authorities over 200 authorities, and we filed a total of 21 intervenor and party facta. While there were dozens of arguments and perspectives on various issues, the three most significant issues were:

1. Is the right to strike a statutory or legislative dispute resolution system?

2. Is test for a violation of section 2 freedoms uniform or should the courts apply a different test, substantial interference, for breaches of 2(d)?

3. In applying the substantial interference test, does the court evaluate the overall impact of the restriction on an aggregate basis, or on an individual basis?

1. While there is no doubt that there was a freedom to strike at common law, the AG argued that the incorporation of the right to strike into the Wagner Act model, along with additional protections such as right to reinstatement at the end of a strike, transformed it into a derivative, statutory right. The SCC in Fraser at para 41 noted that 2(d) does not guarantee a “legislated dispute resolution mechanism”. Counsel for the AG consistently stated that Fraser said no “dispute resolution mechanism” which included strikes. The Unions argued that a “legislated dispute resolution ” meant a legislated process such as interest arbitration, mediation, or conciliation, which were not guaranteed, meaning that unions retained a right to strike.

2. The Unions forwarded an approach to evaluating restrictions on the right to strike under section 2(d) consistent with the approach taken by the courts in evaluating breaches of the freedom of religion and expression: a low threshold at the infringement stage with appropriate justification tests at section 1. It does not make sense that there should be different tests, that of substantial interference per Health Services or effective impossibility per Fraser, for associational freedoms than the other fundamental freedoms. Section 1 and the Oakes test, is where restrictions on the right to strike, such as in the case of essential services, should be justified. The AG strongly resisted this as contrary to Fraser and Health Services and the nature of the right to strike as merely derivative of freedom of association, like collective bargaining.

3. If the correct test for finding an infringement is that of “substantial interference”, the AG submitted that the Court need only to look and at the impact of the law at the macro level. If the majority of public sector unions achieved collective agreements under the legislation, then there was no substantial inference, even if some unions experienced difficulty. The Unions argued that the test must apply to each bargaining unit and if the right to strike of one union was substantially interfered with then the legislation was unconstitutional, regardless of the success of other unions.

The Court was well aware of the significance of this issue (given that they assigned 5 judges) and that there are similar right to strike cases going ahead with Air Canada and Canada Post and the back to work legislation brought by the federal government that will get to trial in Ontario in 2013. The Court will make this decision a priority, but did not commit to when it would issue a decision, likely March or April 2013.

1 comment:

Unknown said...

Thanks Carmela. The Trial Judge's decision is 2012 SKQB 62 and can be found on Canlii at http://canlii.ca/t/fq1gt