Alberta Union of Provincial Employees v Alberta, 2013 ABQB 83

Court of Queen ’ s Bench of Alberta Citation: Alberta Union of Provincial Employees v Alberta, 2013 ABQB 83 Date: 20130206 Docket: 1103-15524 Registry: Edmonton Between: Alberta Union of Provincial Employees Applicant - and - The Government of Alberta and The Attorney General for the Province of Alberta Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Introduction [ 1 ] The Alberta Union of Provincial Employees (AUPE) seeks judicial review of a preliminary arbitration decision that concluded the Union’s policy grievance could not succeed because it was premised on the Board finding that the exclusion of certain categories of employees from the public service labour relations scheme infringed s.2(

d) of the Charter . The Board concluded that there was no breach and that therefore the Union could not succeed in its arbitration and dismissed the grievance solely on the point of law, without an evidentiary hearing. Facts

[ 2 ] Under the Public Service Employee Relations Act , RSA 2000, c. P-43 ( PSERA ), AUPE is the statutorily mandated bargaining agent for all employees of the Crown in right of Alberta, except for those employees excluded from the bargaining unit under s. 12 of the Act, which provides: A person employed by an employer [in enumerated classes of employment] ...shall not be included in a bargaining unit or any other unit for collective bargaining. [ 3 ] AUPE filed a policy grievance in May 2010, alleging that the employer had excluded 6,774 employees from the AUPE bargaining unit and that such exclusion was a breach of s. 2(

d) of the Canadian Charter of Rights and Freedoms (freedom of association) . Among the remedies sought by the Union was a declaration that the employer’s actions violated s. 2(

d) of the Charter or, alternatively, that s. 12 of PSERA breached s. 2(

d) of the Charter . The Union also sought consequential relief requiring Alberta to deduct and remit dues for the disputed employees and a declaration that the employees were members of the bargaining unit. [ 4 ] In May 2011, the Union also served a Notice of Question of Constitutional Law. [ 5 ] A hearing before the Arbitration Board (the Board) was scheduled for May 24, 2011 to deal with preliminary questions.

The initial questions to be determined in this hearing were procedural: the appropriateness of one of the Union’s alternative remedies, the reverse onus provisions of s. 1. of the Charter , and alleged deficiencies in disclosure. Then the Supreme Court of Canada decision, Ontario (Attorney General) v.

Fraser , 2011 SCC 20 was issued in April 2011, reversing the Ontario Court of Appeal decision that was the partial basis of AUPE’s grievance. [ 6 ] In correspondence with the Board and the parties, Alberta, as employer, set out its revised preliminary objections to the grievance, arguing that the decision in Fraser definitively settled the constitutional issues and that the grievance should be dismissed on a preliminary basis.

The Attorney General for Alberta, an intervenor on the constitutional question, asserted that its preliminary objection was analogous to a motion to strike a statement of claim, as resolution of the constitutional question, given the Fraser decision, would render AUPE’s requested relief unavailable. AUPE vigorously indicated that it intended to contest these preliminary objections as premature and unfounded in law.

The Board ’s Decision [ 7 ] The Board concluded, and AUPE does not take issue with these conclusions, that the grievance was arbitrable and that it had jurisdiction to decide the constitutional question before it. AUPE withdrew the non-constitutional issues in the grievance, thus leaving only the constitutional issues and the consequential relief as the subject of the grievance. The parties confirmed that the Board was to make the Preliminary Ruling expeditiously.

The Union member of the Board issued a dissent that did not take issue with the majority’s decision to address the constitutionality of s. 12 of PSERA on a preliminary basis; instead the dissent concluded that because PSERA excluded certain employees and there was no other process providing for a collective bargaining regime, s.2 (

d) was infringed. [ 8 ] The Board summarized the parties’ arguments, both oral and written, including AUPE’s extensive submissions that s. 12(1) of PSERA infringed s. 2(

d) of the Charter . AUPE argued that s. 10 of PSERA provides for a single bargaining unit of Crown employees, and therefore if s. 12 of PSERA was found to be unconstitutional, those formerly excluded employees would fall within the single bargaining unit and AUPE, as the certified bargaining agent for that bargaining unit, would be entitled to union dues. AUPE furher argued that the decision in Fraser had not changed the law, and that s.12 of PSERA prohibited excluded workers from any form of collective bargaining. [ 9 ] The Board summarized AUPE’s argument as follows: The essence of the Union’s constitutional argument is the proposition that

section 12 of PSERA is a categorical prohibition against any form of collective action by the excluded workers, which the Union says breaches s. 2(

d) of the Charter , as interpreted by the Supreme Court of Canada in Dunmore , Health Services [ Health Services and support Facilities Subsector Bargaining Assoc v BC , 2007 SCC

27 ] and Fraser . [ 10 ] The Board then interpreted s. 12 of PSERA , and disagreed with AUPE’s

interpretation of the section. The Union argued that the last seven words in the

section absolutely prohibited the excluded employees from collective bargaining. That

section is repeated here for convenience: A person employed by an employer [in enumerated classes of employment] ... shall not be included in a bargaining unit or any other unit for collective bargaining . (Emphasis added) [ 11 ] The Board undertook a contextual

interpretation of s.12, looking to the

definitions of “bargaining unit”, “unit”, “employee”, “collective bargaining”, “collective agreement” and “bargaining agent” in PSERA , noting that the

definitions were “for the purposes of the Act”. The Board worked through these

definitions to conclude that all s. 12(1) makes clear is “that the persons excluded under s. 12 are not to be part of any other unit or group of “employees” who are entitled to bargain collectively under the structure created by PSERA .” [ 12 ] The Board then looked to the Supreme Court of Canada decision in Fraser , noting that the Court has made it clear that a right to collective bargaining under s. 2 (

d) does not require a specific bargaining scheme. The Court (at para 48) concluded that the question is: ...whether the legislative scheme... renders association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(

d) associational right. [ 13 ] The Board held that Fraser requires the Crown as Employer to consider in good faith any representations made by the workers collectively. That is the extent of the obligation under s. 2(

d) of the Charter . Further, the Board noted nothing in PSERA removes that obligation, and the PSERA employers, as public entities, are directly governed by, and must act in a manner consistent, with the Charter .

The Board concluded that one could not simply assume that the Employer will ignore its obligations under Fraser , and one could presume that the Employers would consider in good faith any collective representations made by the employees. [ 14 ] As a result, the Board concluded there was no Charter breach, and consequently the excluded workers were not members of AUPE’s bargaining unit; there was no breach of the collective agreement; and the Employer had not breached any of the Union’s rights under the collective agreement. As this conclusion disposed completely of the grievance, the grievance was dismissed.

Issues [ 15 ] AUPE asserts the following issues: a. The Board exceeded its jurisdiction by dealing with the merits of the dispute following the preliminary objection to the Board’s jurisdiction, and without allowing the parties a full hearing into the merits of the dispute; b. The Board incorrectly allowed the preliminary objection, analogous to a motion to strike portions of a claim, without applying an appropriate, or any, legal test; c. The Board breached the duty to be fair by deciding the merits of the dispute without a full hearing into the merits of the dispute; and d. The Board erred in its

interpretation and application of s. 12 of PSERA .

[ 16 ] Alberta phrases the issues differently: a. Was there a breach of procedural fairness? b. Did the Board reasonably interpret PSERA ? c. Did the Board correctly interpret and apply s. 2(

d) of the Charter ? d. Did the Board apply a reasonable test to the application before it? [ 17 ] The Alberta Attorney General identified five issues: a. The Notice of Question of Constitutional Law is similar to a civil pleading, as it both defines the constitutional issues to be determined by the tribunal and gives particulars of the arguments to be advanced; b. The Board properly considered the sufficiency of the Notice of Question of Constitutional Law as a preliminary issue; c. The Board’s conclusion that the Fraser decision made it impossible for the Union to prove that s. 12 of PSERA breaches s. 2(

d) of the Charter was sufficient to warrant setting aside the Notice of Question of Constitutional Law or to summarily dismiss AUPE’s constitutional claims. d. The Board’s determination that the Notice is legally insufficient to support the relief sought does not breach procedural fairness, as it similar to a court determining that a claim discloses no reasonable cause of action or a court granting judgment based on admissions in a claim or defence. e. The Fraser decision makes it impossible to assert that s. 12(1) of PSERA infringes s. 2(

d) of the Charter . [ 18 ] While the parties have described the issues differently, essentially the issues can be summarized as follows: a. Did the Board exceed its jurisdiction in choosing to consider the preliminary objections raised by Alberta and the Alberta Attorney General? b. Did the Board breach procedural fairness in deciding the issue on a preliminary basis, rather then going to a full hearing on the merits? c. Did the Board err in deciding the preliminary issue in an analogous manner to a motion to strike or

summary dismissal, and in

particular did the Board apply the correct test to striking the claim? d. Did the Board err in its

interpretation of s. 12(1) of PSERA? e. Did the Board err in its application of the decision in Fraser? Standard of Review [19] AUPE argues that the applicable standard of review is correctness on all issues, asserting that the main issue before the Boardwas a true question of jurisdiction. The preliminary objection at issue before the Board, argues AUPE, was whether the Board hadjurisdiction to hear the grievance, which it determined correctly, but then the Board exceeded its jurisdiction when it decided the meritsof the dispute as part of the preliminary objection.

Further it argues that the correctness standard of review applies to a decision for anon-suit: (Capital Estate Planning Corp. v. Lynch, 2011 ABCA 224; Mallet v. Alberta (Motor Vehicle Accident Claims Act, Administrator), 2002 ABCA 297; International Union of Operating Engineers, Local 955 v. North American MiningInc., 2011 ABQB 24) or to strike pleadings: 783783 Alberta Ltd. v. Canada (Attorney General), 2010 ABCA 226; Mitten v. College ofAlberta Psychologists, 2010 ABCA 159; Heikkila v. Alberta (Appeals Commission for Alberta Workers' Compensation), 2007 ABCA 92; Walton International Group Inc. v.

Rocky View (Municipal District No. 44), 2007 ABCA 21 [20] In Mitten, the Court noted that: If the law is correctly stated, the decision to strike the pleadings must be reasonable: Heikkila v. Alberta (Appeals Commission forAlberta Workers' Compensation), 2007 ABCA 92, 404 A.R. 33 at para. 6. [21] I note that this was not a non-suit application; a non-suit application is brought after evidence has been led by one party, andthe responding party argues that there is insufficient evidence to establish the claim: see Calgary Co-operative Assn. Ltd. v. Calco Club(1992), (AB GAA), 24 LAC (4th) 308 at 317 (Alta. Arb.

Bd.). McFetridge; In the The Law of Evidence in Canada, 3rd ed. (Toronto: Butterworths, 2009), Sopinka and Lederman noted (at p. 184 and 185): When a plaintiff finishes tendering all of his evidence and has completed his case, defence counsel, if so disposed, may move for anon-suit on the ground that there is insufficient evidence to give rise to a reasonable inference in the plaintiff's favour. ... In Alberta, the defendant is not required to elect whether she or he will call evidence. [22] The issue raised by the Board is more closely akin to a motion to strike pleadings or a

summary dismissal. Alberta argues thatthe Board is entitled to deference on all non-Charter aspects of its decision, and that the standard in civil proceedings are different thanthe standards on judicial review. The purpose of grievance arbitration is to secure prompt and final settlements of disputes, thereforearbitrators apply less stringent procedural and evidentiary rules: Newfoundland and Labrador Nurses' Union v. Newfoundland and

Labrador (Treasury Board), 2011 SCC 62 at para 24. Moreover the Supreme Court of Canada has said that arbitrators are not required“to apply equitable and common law principles ... in the same manner as courts of law”: Nor-Man Regional Health Authority Inc. v.Manitoba Association of Health Care Professionals, 2011 SCC 59. [23] In light of these authorities I conclude that the standard of review of the Board’s decision to dismiss the claim isreasonableness. The Board could apply the concepts of

summary dismissal and applications to strike in a manner that was reasonablegiven the arbitration context. [24] Constitutional questions are subject to the correctness standard (Dunsmuir v. New Brunswick, at para 58, Nor-Man at para35) and a true question of jurisdiction is also subject to the correctness standard (Dunsmuir, at para 59; Alberta (Information andPrivacy Commissioner) v.

Alberta Teachers' Association, 2011 SCC 61 at para. 33) Questions of procedural fairness are not subject toa standard of review, but require an assessment of the procedures and safeguards required in a particular situation (Moreau-Bérubé v.New Brunswick (Judicial Council), 2002 SCC 11 at para 74). On the other hand, the Board’s

interpretation of s.12(1) of PSERA issubject to the reasonableness standard (Dunsmuir, para 54; Nor-Man at para 36) Did the Board Exceed its Jurisdiction in Choosing to Consider the Preliminary Objections Raised by Alberta and the AlbertaAttorney General? [25] The Supreme Court of Canada has, on numerous occasions, cautioned courts to interpret questions of jurisdiction narrowly:Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp, (SCC), [1979] 2 SCR 227; Syndicatdes professeurs du collège de Lévis-Lauzon v.

Collège d'enseignement général et professionnel de Lévis-Lauzon, (SCC), [1985] 1 SCR 596, at 606; Alberta (Information and Privacy Commissioner) at para 34. In Alberta (Information and PrivacyCommissioner) Rothstein J, for the majority, suggested (at para 34): Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, thecategory of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review.

However, in theabsence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and wehave not seen such a situation since Dunsmuir, the

interpretation by the tribunal of "its own statute or statutes closely connected toits function, with which it will have particular familiarity" should be presumed to be a question of statutory

interpretation subject todeference on judicial review. (Emphasis added) [26] AUPE suggests that it attended the preliminary hearing to argue the preliminary issue, not the merits of the dispute. It arguesthat the only issue before the Board at the preliminary hearing was whether the grievance was arbitrable and whether the Board has thejurisdiction to determine the constitutional validity of s. 12 of PSERA. Instead the Board interpreted s. 12 of PSERA, interpreted Charterjurisprudence, and dismissed the grievance without giving AUPE the opportunity to lead evidence.

AUPE concludes that the Board wentbeyond the question remitted to it. [27] Alberta notes that AUPE knew that the issue before the Board was the Respondents’ application to the Board to summarilydismiss the grievance because the Fraser decision made the union’s case hopeless. AUPE had narrowed the grievance to the specificquestion of whether s. 12(1) of PSERA violated the Charter. Further the parties did not seek to adduce any evidence on the Charterissue.

AUPE and the Respondents argued the Charter issue thoroughly, and virtually all of AUPE’s submissions at the hearing wereaddressed to the question of whether s. 12 of PSERA breached s. 2(

d) of the Charter. [28] In my view, the Board’s decision to consider whether the Notice of Question of Constitutional Law should be dismissed andthat as a result the grievance must inevitably fail, is not an exceptional situation described in Alberta (Information and PrivacyCommissioner). It involved an experienced arbitration board exercising its discretion to address a preliminary issue raised and arguedbefore it. This was not a question of jurisdiction.

The Board did not commit a jurisdictional error in deciding to dismiss the grievancesummarily on the basis that the constitutional question disposed of the grievance. Did the Board Breach Procedural Fairness in Deciding the Issue on a Preliminary Basis, Rather than Going to a Full Hearing onthe Merits?

[ 29 ] AUPE argues that the Board breached the duty to be fair by not allowing evidence to be lead on the merits of the grievance, and that AUPE attended the hearing with the “legitimate expectation” that the Board was only to hear the preliminary issue. It suggests that it was entitled to a fair hearing on the merits of the grievance. [ 30 ] AUPE was fully aware that both Respondents, Alberta and the Attorney General for Alberta, were taking the position that the grievance should be summarily dismissed because AUPE could not establish that s. 12 of PSERA breached s. 2(

d) of the Charter , given the Supreme Court of Canada’s decision in Fraser . Before the Board, AUPE argued its

interpretation of PSERA and the legal implications of the decision in Fraser . The issue before the Board did not require evidence and could be decided purely on the questions of law raised by the Notice of Question of Constitutional Law. There was no breach of the duty to be fair. Did the Board Err in Deciding the Preliminary Issue in an Analogous Manner to a Motion to Strike or

Summary Dismissal, and in Particular, Did the Board Apply the Correct Test to Striking the Claim? [ 31 ] AUPE argues that Alberta’s preliminary objection is a non-suit motion, and that the Board did not set out the test for a non- suit motion. As noted previously, this was not a non-suit motion, and the legal tests for non-suit are not relevant here. [ 32 ] AUPE also argues that the Board did not set out the test to strike portions of a claim as set out in a number of civil court decisions: Wong v. Leung, 2011 ABQB 688 . These principles can be summarized as: 1.

The Court must assume the facts alleged in the pleadings by the plaintiff are true; 2. The Court must then determine whether those facts disclose a cause of action in law. 3. The test is whether it is “plain and obvious” that the plaintiff’s claim discloses no cause of action. 4. The plaintiff is entitled to a broad reading of the pleadings. 5.

If the pleadings, in light of the existing law, do not disclose a cause of action, the claim should be struck. [ 33 ] Further AUPE argues that the Board did not consider the factual allegations in the grievance, and concludes that it was not “plain and obvious” that the grievance disclosed no cause of action.

AUPE submits that the Board did not have the benefit of full argument on the merits of the dispute. [ 34 ] Alberta argues that the purpose of grievance arbitration is to secure prompt, final and binding dispute settlements, and the hallmarks of grievance arbitration are speed, economy and informality, requiring less stringent procedural and evidentiary rules than court: Newfoundland Nurses (at para 24). [ 35 ] Moreover, in my view, AUPE’s creation of an artificial distinction between whether the Board applied the correct test and whether the decision was reasonable is contrary to the Supreme Court’s most recent jurisprudence.

As the court noted there: I do not see Dunsmuir as standing for the proposition that the "adequacy" of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses - one for the reasons and a separate one for the result ... It is a more organic exercise - the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.

This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at "the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes" (para. 47).

[ 36 ] Alberta further notes that the Supreme Court of Canada in Nor-Man emphasized that labour arbitrators are not bound by the same common law principles as courts and that their decisions must be “informed by the particular context of labour relations” (at para 5). At para 49 and 51-52, the Court noted: Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship.

But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord... Reviewing courts must remain alive to these distinctive features of the collective bargaining relationship, and reserve to arbitrators the right to craft labour specific remedial doctrines. Within this domain, arbitral awards command judicial deference. But the domain reserved to arbitral discretion is by no means boundless.

An arbitral award that flexes a common law or equitable principle in a manner that does not reasonably respond to the distinctive nature of labour relations necessarily remains subject to judicial review for its reasonableness. [ 37 ] In my view this jurisprudence establishes that the Board had a wide degree of flexibility in crafting its response to the Respondents’ application that was “analogous to a motion to strike portions of a statement of claim”.

The Board was not required to set out the common law test for striking a claim. [ 38 ] However it is clear from the Board’s reasons that it did apply a standard to whether the grievance should be “struck”. It noted: In my view, the decision of the majority of the Supreme Court of Canada in Fraser makes it impossible to assert the existence of

section 12 in PSERA breaches

section 2(

d) of the Charter . (Emphasis added) [ 39 ] From that statement and the context of the reasons, it is clear that the Board was applying a standard similar to the “plain and obvious” test at common law.

The Supreme Court of Canada in Dunsmuir and Newfoundland Nurses suggested that courts on judicial review should supplement reasons from the context where necessary: It is important to emphasize the Court's endorsement of Professor Dyzenhaus's observation that the notion of deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision".

In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows: "Reasonable" means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them .

For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal's proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis added.] (David Dyzenhaus, "The Politics of Deference: Judicial Review and Democracy", in Michael Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304) [ 40 ] I conclude that the Board did not fail to apply the appropriate test. Did the Board Err in its

Interpretation of s. 12(1) of PSERA ?

[41] AUPE argues that the Board did not interpret the words of s. 12(1) in “their entire context and in their grammatical andordinary sense harmoniously with the scheme of the PSERA, the object of PSERA, and the intention of the Legislature” as required bythe modern approach to statutory

interpretation (Bell ExpressVu Limited Partnership v Rex, 2002 SCC 42, at paras 26-30). AUPEargues that the inevitable conclusion of interpreting the

section is that the Legislature intended to exclude the enumerated employeesfrom associating for collective bargaining. AUPE essentially asserts that there is only one possible

interpretation of s. 12. [42] AUPE’s argument ignores a further important principle of statutory

interpretation, the presumption of constitutionality. TheSupreme Court of Canada in Application under s. 83.28 of the Criminal Code (Re) noted (at para 35) : Underlying this approach is the presumption that legislation is enacted to comply with constitutional norms, including the rights andfreedoms enshrined in the Charter: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 367. Thispresumption acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legalculture of Canada. Accordingly, where two readings of a provision are equally plausible, the

interpretation which accords with Chartervalues should be adopted: see Slaight Communications Inc. v. Davidson, (SCC), [1989] 1 S.C.R. 1038, at p. 1078; R. v.Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, at p. 660; R. v. Lucas, (SCC),[1998] 1 S.C.R. 439, at para. 66; and Sharpe, supra, at para. 33. [43] If it is possible to interpret legislation in a manner that is constitutional, that approach should be adopted. The Boardinterpreted s. 12's prohibition against including certain employees in any bargaining unit for collective bargaining as referring only tobargaining units and collective bargaining for the purposes of PSERA. This

interpretation suggests that the employees excluded under s.12 would be free to take collective action by making representations to the employer outside of the established labour relations scheme. Iconclude that

interpretation is both reasonable and respects the presumption of constitutional validity. [44] I conclude the Board’s

interpretation of s. 12 of PSERA was reasonable. Did the Board Err in its Application of the Decision in Fraser? [45] AUPE further argues that the Board’s

interpretation of Fraser was incorrect.

Assuming, without deciding, that this issue andthe preceding one can be divided into separate analyses and that the standard of review of this aspect of the decision is correctness, Iconclude that the Board’s decision was correct. [46] AUPE relies on the decision in Dunmore in which the Supreme Court of Canada held that excluding agricultural workersfrom a statutory labour relations scheme, without prohibiting association, could constitute an interference with freedom of association.AUPE asserts that there is a legislative vacuum here and that the legislation is under-inclusive.

In other words, AUPE asserts that theremust be some statutory scheme, even if not a Wagner-type model, for these employees. [47] Alberta argues that AUPE did not allege that any excluded employees were unable to pursue their Charter rights, and thattherefore there was no evidentiary foundation for its assertion that there was a positive Charter obligation. The Alberta Court of Appealin Alberta Union of Provincial Employees v. Alberta (Provincial Health Authorities), 2006 ABCA 356. analysed whether suspension ofunion dues infringed s.2(

d) of the Charter, and in the course of its analysis discussed the requirements for finding a positive Charterobligation on government, holding at (para 38-39): The facts of Dunmore involved exceptional circumstances requiring positive state action. The state had diminished agricultural workers'ability to organize by excluding them from protection against unfair labour practices granted to others. Because the effect of thelegislation was to diminish this fundamental freedom, there was a positive obligation under s. 2(

d) to enact legislation to facilitate theorganization of agricultural workers' associations. The majority judgment in Dunmore, at paras. 24-26, sets out three requirements thatmust be met in order to impose a positive obligation on government: 1. The claim must be grounded in a fundamental freedom, rather than in access to a statutory scheme; 2. The claim must be supported by an evidentiary foundation that demonstrates that exclusion from a statutory regime

substantially interferes with the exercise of a protected s. 2(

d) activity; and 3. The state must be truly accountable for the inability to exercise the fundamental freedom. The union fails to meet these requirements. It does not meet the first part of the test because it seeks access to a statutory dues collectionscheme. As to the second part of the test, exclusion from that scheme is not a substantial interference because s. 114 does not impedeother methods of dues collection. In fact, s. 27 explicitly provides an alternate method.

It is not necessary to consider the third part of thetest because there is no fundamental freedom at issue. [48] Similarly here AUPE is asserting a right to a particular statutory scheme, not an infringement of a fundamental freedom. Inparticular, AUPE has not claimed that any of these employees have been impeded in their attempts to create an association or that theirrepresentations to their employer have not been considered in good faith. Thus AUPE has not met any of the three requirements. [49] Alberta argues that a distinction should be drawn between private and public sector employment.

Public sector employeeshave direct access to the Charter to prevent unfair labour practices and to ensure that an employer engages in good faith consideration ofthe employees’ representations. Therefore there is no positive obligation on Alberta to create a legislative scheme for these employees. [50] In Dunmore, Bastarache J for the majority upheld the conclusion in Delisle v. Canada (Deputy Attorney General), (SCC), [1999] 2 SCR 989 that RCMP officers could be excluded from the Public Service Staff Relations Act, RSC 1985, c.P-35 (at para 21). The Court in Deslisle held that s. 2(

d) protects employees’ right to an independent employee association, but not to aparticular legislative scheme. It further held that because the RCMP members were employed by government, their associational rightswere protected directly under s. 2(d).

Respect for freedom of association therefore did not require that RCMP members be included in aspecific statutory regime (at para 33). [51] Absent the factors set out in Dunmore, as summarised in Alberta (Provincial Health Authorities), there is no positiveobligation for government to provide a particular legislative framework for its employees to exercise their collective rights. [52] I agree with Alberta that AUPE’s claim is seeking a particular statutory scheme, and that the remedies it sought – inclusion ofthe excluded employees in its bargaining unit and the remittance of union dues – makes that apparent.

AUPE’s claim did not allege thatthese employees were deprived of their associational rights under s. 2(d), only that their exclusion from PSERA constituted a breach ofthe collective agreement and the Charter. Even if AUPE had attempted to grieve specific instances in which excluded employees wereunable to pursue collective action, such a grievance would fail as it would not be a dispute under the collective agreement. Under thereasoning in Delisle and Fraser, the excluded employees’ s. 2(

d) rights exist outside of the PSERA legislative framework; the excludedemployees do fall within the single bargaining unit under s. 10 of PSERA; and AUPE is not their bargaining agent. These employeeswould have to invoke the Charter directly if they alleged their rights to organize and engage in good faith discussions with theiremployer were breached. [53] I conclude that the Board correctly interpreted and applied Fraser when it concluded that s. 12 of PSERA did not breach s.2(

d) of the Charter. Conclusion [54] The application for judicial review is dismissed. Heard on the 18th day of October, 2012. Dated at the City of Edmonton, Alberta this 4th day of February, 2013.

Donald Lee J.C.Q.B.A. Appearances: William J. Johnson, Q.C. McGown Johnson for the Applicant Rod Wiltshire Alberta Department of Justice for the Respondent Attorney General for the Province of Alberta Hugh McPhail, Q.C. McLennan Ross for the Respondent Government of Alberta