Saskatchewan Federation of Labour (in its own right v. on behalf of the unions and workers in the Province of Saskatchewan),, 2015 SCC 4

SUPREME COURT OF CANADA Citation: Saskatchewan Federation of Labour v.

Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245 Date: 20150130 Docket: 35423 Between: Saskatchewan Federation of Labour (in its own right and on behalf of the unions and workers in the Province of Saskatchewan), Amalgamated Transit Union, Local 588, Canadian Office and Professional Employees’ Union, Local 397, Canadian Union of Public Employees, Locals 7 and 4828, Communications, Energy and Paperworkers’ Union of Canada and its Locals, Health Sciences Association of Saskatchewan, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of U.S., its Territories and Canada, Locals 295, 300 and 669, International Brotherhood of Electrical Workers, Locals 529, 2038 and 2067, Saskatchewan Government and General Employees’ Union, Saskatchewan Joint Board Retail, Wholesale and Department Store Union, Saskatchewan Provincial Building & Construction Trades Council, Teamsters, Local 395, United Mine Workers of America, Local 7606, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union and its Locals and University of Regina Faculty Association Appellants and Her Majesty The Queen in Right of the Province of Saskatchewan Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Saskatchewan Union of Nurses, SEIU-West, United Nurses of Alberta, Alberta Federation of Labour, Professional Institute of the Public Service of Canada, Canadian Constitution Foundation, Air Canada Pilots’ Association, British Columbia Civil Liberties Association, Conseil du patronat du Québec, Canadian Employers Council, Canadian Union of Postal Workers, International Association of Machinists and Aerospace Workers, British Columbia Teachers’ Federation, Hospital Employees’ Union, Canadian Labour Congress, Public Service Alliance of Canada, Alberta Union of Provincial Employees, Confédération des syndicats nationaux, Regina Qu’Appelle Regional Health Authority, Cypress Regional Health Authority, Five Hills Regional Health Authority, Heartland Regional Health Authority, Sunrise Regional Health Authority, Prince Albert Parkland Regional Health Authority, Saskatoon Regional Health Authority, National Union of Public and General Employees, Canada Post Corporation and Air Canada

Interveners Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ.

Reasons for Judgment: (paras. 1 to 103) Joint Reasons Dissenting in Part: (paras. 104 to 176) Abella J. (McLachlin C.J. and LeBel, Cromwell and Karakatsanis JJ. concurring) Rothstein and Wagner JJ. saskatchewan federation of labour v. saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245 Saskatchewan Federation of Labour (in its own right and on behalf of the unions and workers in the Province of Saskatchewan), Amalgamated Transit Union, Local 588, Canadian Office and Professional Employees’ Union, Local 397, Canadian Union of Public Employees, Locals 7 and 4828, Communications, Energy and Paperworkers’ Union of Canada and its Locals, Health Sciences Association of Saskatchewan, International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of U.S., its Territories and Canada, Locals 295, 300 and 669, International Brotherhood of Electrical Workers, Locals 529, 2038 and 2067, Saskatchewan Government and General Employees’ Union, Saskatchewan Joint Board Retail, Wholesale and Department Store Union, Saskatchewan Provincial Building & Construction Trades Council, Teamsters, Local 395, United Mine Workers of America, Local 7606, United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial

and Service Workers International Union and its Locals, and University of Regina Faculty Association Appellants v.

Her Majesty The Queen in Right of the Province of Saskatchewan Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Saskatchewan Union of Nurses, SEIU-West, United Nurses of Alberta, Alberta Federation of Labour, Professional Institute of the Public Service of Canada, Canadian Constitution Foundation, Air Canada Pilots’ Association, British Columbia Civil Liberties Association, Conseil du patronat du Québec, Canadian Employers Council, Canadian Union of Postal Workers, International Association of Machinists and Aerospace Workers, British Columbia Teachers’ Federation, Hospital Employees’ Union, Canadian Labour Congress, Public Service Alliance of Canada, Alberta Union of Provincial Employees, Confédération des syndicats nationaux, Regina Qu’Appelle Regional Health Authority, Cypress Regional Health Authority, Five Hills Regional Health Authority, Heartland Regional Health Authority, Sunrise Regional Health Authority, Prince Albert Parkland Regional Health Authority, Saskatoon Regional Health Authority, National Union of Public and General Employees, Canada Post Corporation and Air Canada Interveners

Indexed as: Saskatchewan Federation of Labour v. Saskatchewan 2015 SCC 4 File No.: 35423. 2014: May 16; 2015: January 30. Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. on appeal from the court of appeal for saskatchewan Constitutional law — Charter of Rights — Freedom of Association — Right to strike — Public Service Employees — Staredecisis — Whether right to strike is protected by s. 2(

d) of Charter — Whether prohibition on essential services employees participatingin strike action amounts to substantial interference with meaningful process of collective bargaining and therefore violates s. 2(

d) ofCharter — If so, whether such violation is justified under s. 1 of Charter — Canadian Charter of Rights and Freedoms, s. 2(d) — PublicService Essential Services Act, S.S. 2008, c. P-42.2. Constitutional law — Charter of Rights — Freedom of association — Provincial legislation changing certification processand provisions dealing with communications by employers with employees — Whether legislation violates s. 2(

d) of Charter —Canadian Charter of Rights and Freedoms, s. 2(d) — Trade Union Amendment Act, 2008, S.S. 2008, c. 26. In December, 2007, the newly elected Government of Saskatchewan introduced two statutes: The Public Service EssentialServices Act, S.S. 2008, c. P-42.2 (PSESA), and The Trade Union Amendment Act, 2008, S.S. 2008, c. 26, which became law in May,2008. The PSESA is Saskatchewan’s first statutory scheme to limit the ability of public sector employees who perform essential servicesto strike.

It prohibits unilaterally designated “essential services employees” from participating in any strike action against their employer.These employees are required to continue the duties of their employment in accordance with the terms and conditions of the lastcollective bargaining agreement. No meaningful mechanism for resolving bargaining impasses is provided. The Trade Union Amendment Act, 2008 changes the union certification process by increasing the required level of writtensupport and reducing the period for receiving written support from employees.

It also changes the provisions dealing withcommunications between employers and their employees. In July 2008, the Saskatchewan Federation of Labour and other unions challenged the constitutionality of both the PSESAand The Trade Union Amendment Act, 2008. The trial judge concluded that the right to strike was a fundamental freedom protected by s.2(

d) of the Canadian Charter of Rights and Freedoms and that the prohibition on the right to strike in the PSESA substantially interferedwith the s. 2(

d) rights of the affected public sector employees. He also found that the absolute ban on the right to strike in the PSESA wasneither minimally impairing nor proportionate and therefore was not saved by s. 1 of the Charter. The declaration of invalidity wassuspended for one year. On the other hand, the trial judge concluded that the changes to the certification process and permissibleemployer communications set out in The Trade Union Amendment Act, 2008 did not breach s. 2(d).

The Saskatchewan Court of Appeal unanimously allowed the Government of Saskatchewan’s appeal with respect to theconstitutionality of the PSESA. The appeal against the finding that The Trade Union Amendment Act, 2008 did not violate s. 2(

d) of theCharter was dismissed. Held (Rothstein and Wagner JJ. dissenting in part): The appeal with respect to the PSESA should be allowed. Theprohibition against strikes in the PSESA substantially interferes with a meaningful process of collective bargaining and therefore violatess. 2(

d) of the Charter. The infringement is not justified under s. 1. The declaration of invalidity is suspended for one year. The appealwith respect to The Trade Union Amendment Act, 2008 is dismissed. Per McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis JJ.: The right to strike is an essential part of ameaningful collective bargaining process in our system of labour relations. The right to strike is not merely derivative of collectivebargaining, it is an indispensable component of that right.

Where good faith negotiations break down, the ability to engage in thecollective withdrawal of services is a necessary component of the process through which workers can continue to participatemeaningfully in the pursuit of their collective workplace goals. This crucial role in collective bargaining is why the right to strike isconstitutionally protected by s. 2(d). In Health Services and Support — Facilities Subsector Bargaining Assn. v.

British Columbia, 2007 SCC 27[2007] 2 S.C.R. 391, this Court recognized that the Charter values of “[h]uman dignity, equality, liberty, respect for the autonomy of theperson and the enhancement of democracy” supported protecting the right to a meaningful process of collective bargaining within thescope of s. 2(d). The right to strike is essential to realizing these values through a collective bargaining process because it permitsworkers to withdraw their labour in concert when collective bargaining reaches an impasse.

Through a strike, workers come together toparticipate directly in the process of determining their wages, working conditions and the rules that will govern their working lives. Theability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collectiveaction at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives. The right to strike also promotes equality in the bargaining process.

This Court has long recognized the deep inequalities thatstructure the relationship between employers and employees, and the vulnerability of employees in this context. While strike activityitself does not guarantee that a labour dispute will be resolved in any particular manner, or that it will be resolved at all, it is thepossibility of a strike which enables workers to negotiate their employment terms on a more equal footing. In 1935, the Wagner Act was adopted in the United States, introducing a model of labour relations that came to inspirelegislative schemes across Canada.

This model was adopted in Canada because the federal and provincial governments recognized thefundamental need for workers to participate in the regulation of their work environment. One of the goals of the Wagner model was to

reduce the frequency of strikes by ensuring a commitment to meaningful collective bargaining. The right to strike, however, is not a creature just of the Wagner model. Most labour relations models include it because the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals. Canada’s international human rights obligations also mandate protecting the right to strike as part of a meaningful process of collective bargaining.

Canada is a party to international instruments which explicitly protect the right to strike . Besides these explicit commitments, other sources confirm the protection of a right to strike recognized in international law. And strikes are protected globally, existing in many of the countries with labour laws outside the Wagner Act model.

This historical, international, and jurisprudential landscape suggests compellingly that a meaningful process of collective bargaining requires the ability of employees to participate in the collective withdrawal of services for the purpose of pursuing the terms and conditions of their employment through a collective agreement. The ability to engage in the collective withdrawal of services in the process of the negotiation of a collective agreement is, and has historically been, the irreducible minimum of the freedom to associate in Canadian labour relations.

To determine whether there has been an infringement of s. 2(

d) of the Charter , t he test is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with a meaningful process of collective bargaining. The prohibition in the PSESA on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment meets this threshold and therefore amounts to a violation of s. 2(

d) of the Charter . The breach of s. 2(

d) of the Charter is not justified under s. 1 . The maintenance of essential public services is self-evidently a pressing and substantial objective, but the determinative issue in this case is whether the means chosen by the government are minimally impairing, that is, carefully tailored so that rights are impaired no more than necessary. The fact that a service is provided exclusively through the public sector does not inevitably lead to the conclusion that it is properly considered “essential”.

Under the PSESA , a public employer has the unilateral authority to dictate whether and how essential services will be maintained, including the authority to determine the classifications of employees who must continue to work during the work stoppage, the number and names of employees within each classification, and, for public employers other than the Government of Saskatchewan, the essential services that are to be maintained. Only the number of employees required to work is subject to review by the Saskatchewan Labour Relations Board.

And even where an employee has been prohibited from participating in strike activity, the PSESA does not tailor his or her responsibilities to the performance of essential services alone. The provisions of the PSESA therefore go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike. Nor is there any access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration.

Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Those public sector employees who provide essential services have unique functions which may argue for a less disruptive mechanism when collective bargaining reaches an impasse, but they do not argue for no mechanism at all.

The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, justify the conclusion that the PSESA is not minimally impairing. It is therefore unconstitutional. The Trade Union Amendment Act, 2008 , on the other hand, does not violate s. 2( d ).

The changes it introduces to the process by which unions may obtain or lose the status of a bargaining representative, as well as the changes to the rules governing employer communication to employees, do not substantially interfere with freedom of association. Per Rothstein and Wagner JJ. (dissenting in part): This Court should not intrude into the policy development role of elected legislators by constitutionalizing the right to strike under the freedom of association guarantee in s. 2(

d) of the Charter . The statutory right to strike, along with other statutory protections for workers, reflects a complex balance struck by legislatures between the interests of employers, employees and the public. Providing for a constitutional right to strike not only upsets this delicate balance, but also restricts legislatures by denying them the flexibility needed to ensure the balance of interests can be maintained. Democratically elected legislatures are responsible for determining the appropriate balance between competing economic and social interests in the area of labour relations.

This Court has long recognized that it is the role of legislators and not judges to balance competing tensions in making policy decisions, particularly in the area of socio-economic policy. The legislative branch requires flexibility to deal with changing circumstances and social values. Canadian labour relations is a complex web of intersecting interests, rights and obligations, and has far-reaching implications for Canadian society. It is not the role of this Court to transform all policy choices it deems worthy into constitutional imperatives.

The exercise of judicial restraint is essential in ensuring that courts do not upset the balance by usurping the responsibilities of the legislative and executive branches. Constitutionalizing a right to strike restricts governments’ flexibility, impedes their ability to balance the interests of workers with the broader public interest, and interferes with the proper role and responsibility of governments. Constitutionalizing a right to strike introduces great uncertainty into labour relations: it will make all statutory limits on the right to strike presumptively unconstitutional.

By constitutionalizing a broad conception of the right to strike, the majority binds the governments’ hands and limits its ability to respond to changing needs and circumstances in the dynamic field of labour relations. Constitutionalizing a right to strike enshrines a political understanding of the concept of “workplace justice” that favours the interests of employees over those of employers and even over those of the public. While employees are granted constitutional rights, constitutional obligations are imposed on employers.

Employers and the public are equally entitled to justice: true workplace justice looks at the interests of all implicated parties. In the public sector, strikes are a political tool. The public expects that public services, and especially essential services, will be delivered. Thus unions attempt to pressure the government to agree to certain demands in order that these services be reinstated. Public sector labour disputes are unique in that the government as employer must take into account that any

additional expenditures incurred to meet employee demands will come from public funds. It is incorrect to say that without the right to strike a constitutionalized right to bargain collectively is meaningless. Thethreat of work stoppage is not what motivates good faith bargaining. It is the statutory duty, and after Health Services and Support —Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, the constitutional duty, not the possibilityof job action, that compels employers to bargain in good faith.

The statutory right to strike allows both employers and employees toexercise economic and political power. Now by constitutionalizing only the ability of employees to exert such power, the majoritydisturbs the delicate balance of labour relations in Canada and impedes the achievement of true workplace justice. The conclusion that the right to strike is an indispensable component of collective bargaining does not accord with recentjurisprudence. There is nothing in the concept of collective bargaining as it was defined by this Court in Health Services, Ontario(Attorney General) v.

Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (AttorneyGeneral), 2015 SCC 1, [2015] 1 S.C.R. 3, that would imply that employees have a constitutional right to strike and that employers have aconstitutional obligation to preserve the jobs of those employees. The threshold for overturning prior judgments is high. While the s. 2(d)jurisprudence has developed since the Labour Trilogy, neither this development, nor any change in the circumstances of Canadian labourrelations justifies a departure from precedent.

If anything, developments in the law support a finding that the right to freedom ofassociation does not require constitutionalizing the right to strike. This is because recent s. 2(

d) jurisprudence has already established aright to meaningful, good faith collective bargaining. International bodies disagree as to whether the right to strike is protected under international labour and human rightsinstruments. The current state of international law on the right to strike is unclear and provides no guidance in determining whether thisright is an essential element of freedom of association. A right to strike is not required to ensure the constitutional guarantee of freedom of association.

Therefore, the PSESA,which restricts the ability of public sector workers who provide essential services to strike, does not violate the right to meaningfulcollective bargaining protected under s. 2(

d) of the Charter. The PSESA’s controlled strike regime does not render effectively impossible,nor substantially interfere with, the ability of associations representing affected public sector employees to submit representations toemployers and to have them considered and discussed in good faith. The PSESA facilitates consultation between employers and unionsregarding the designation of essential services and the evidence in this case demonstrates that good faith collective bargaining took place.A violation of s. 2(

d) of the Charter cannot be founded simply on allegations that the legislation does not provide an adequate disputeresolution process; s. 2(

d) does not entail such a right. Moreover, the goal of strikes is not to ensure meaningful collective bargaining, butinstead to exert political pressure on employers. Finally, the statutory balance struck by the Government of Saskatchewan is eminentlyreasonable. Canadian federal and provincial governments have made a constitutional commitment “to provid[e] essential public servicesof reasonable quality to all Canadians” (Constitution Act, 1982, s. 36(1)(c)). As a result, the Government of Saskatchewan cannot subjectitself to arbitral awards that could make it unaffordable to deliver on its undertaking.

It has devised a particular legislative framework inorder to safeguard the continued delivery of essential services to the community during labour disputes. This Court should defer to thegovernment’s policy choices in balancing the interests of employers, employees, and the public. The Trade Union Amendment Act, 2008 does not infringe the right to freedom of association. Cases Cited By Abella J. Overruled: Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313;referred to: Health Services and Support — Facilities Subsector Bargaining Assn. v.

British Columbia, 2007 SCC 27, [2007] 2 S.C.R.391; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada(Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101;Perrault v. Gauthier (1898), 1898 37 (SCC), 28 S.C.R. 241; Canadian Pacific Railway Co. v. Zambri, (SCC),[1962] S.C.R. 609; Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC62, [2013] 3 S.C.R. 733; Gagnon v.

Foundation Maritime Ltd., (SCC), [1961] S.C.R. 435; R.W.D.S.U., Local 558 v.Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; Re Service Employees’ International Union, Local 204and Broadway Manor Nursing Home (1983), (ON SC), 4 D.L.R. (4th) 231; Williams v. Aristocratic Restaurants(1947) Ltd., (SCC), [1951] S.C.R. 762; United Nurses of Alberta v. Alberta (Attorney General), (SCC),[1992] 1 S.C.R. 901; RWDSU v. Saskatchewan, (SCC), [1987] 1 S.C.R. 460; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R.292; Divito v.

Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013] 3 S.C.R. 157; Re Alberta Union of ProvincialEmployees and the Crown in Right of Alberta (1980), (AB KB), 120 D.L.R. (3d) 590; Demir v. Turkey, No. 34503/97,ECHR 2008-V; Enerji Yapi-Yol Sen v. Turquie, No. 68959/01, April 21, 2009 (HUDOC); National Union of Rail, Maritime andTransport Workers v. United Kingdom, No. 31045/10, April 8, 2014 (HUDOC); Attorney-General v. National Labour Court, [1995-6]Isr. L.R. 149; New Histadrut General Workers’ Union v. State of Israel (2006), 25 I.L.L.R. 375; Koach La Ovdim v.

JerusalemCinematheque (2009), 29 I.L.L.R. 329; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug MartLtd., (SCC), [1985] 1 S.C.R. 295; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199; Canadian Union of Public Employees,Local 301 v. Montreal (City), (SCC), [1997] 1 S.C.R. 793; Dunmore v. Ontario (Attorney General), 2001 SCC 94,[2001] 3 S.C.R. 1016; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner),(SCC), [1990] 2 S.C.R. 367.

By Rothstein and Wagner JJ. (dissenting in part) R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156; Reference re PublicService Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; PSAC v. Canada, (SCC), [1987] 1S.C.R. 424; RWDSU v. Saskatchewan, (SCC), [1987] 1 S.C.R. 460; Health Services and Support — Facilities SubsectorBargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2

S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; R. v. Big M Drug MartLtd., (SCC), [1985] 1 S.C.R. 295; Divito v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 47, [2013]3 S.C.R. 157; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Plourde v. Wal-Mart Canada Corp., 2009 SCC 54,[2009] 3 S.C.R. 465; Canadian Union of Public Employees v. Labour Relations Board (Nova Scotia), (SCC), [1983] 2S.C.R. 311; Perfection Foods Limited v.

Retail Wholesale Dairy Worker Union, Local 1515 (1986), (PE SCTD), 57Nfld. & P.E.I.R. 147; David Polowin Real Estate Ltd. v. Dominion of Canada General Insurance Co. (2005), (ONCA), 76 O.R. (3d) 161; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; J.B. v. Canada, CommunicationNo. 118/1982 (1986), U.N. Doc. CCPR/C/OP/2, Selected Decisions of the Human Rights Committee under the Optional Protocol, vol. 2(1990), p. 34; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Turp v.

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Trudeau, Gilles. “La grève au Canada et aux États-Unis: d’un passé glorieux à un avenir incertain” (2004), 38 R.J.T. 1. Valticos, N., and G. von Potobsky. International Labour Law , 2nd rev. ed. Deventer, The Netherlands: Kluwer Law and Taxation, 1995. Verge, Pierre, et Dominic Roux. “L’affirmation des principes de la liberté syndicale, de la négociation collective et du droit de grève selon le droit international et le droit du travail canadien: deux solitudes?”, dans Pierre Verge, dir., Droit international du travail: Perspectives canadiennes , Cowansville (Qc), Yvon Blais, 2010, 437. Weiler, Paul.

Reconcilable Differences: New Directions in Canadian Labour Law . Toronto: Carswell, 1980. Weiss, Manfred, and Marlene Schmidt. Labour Law and Industrial Relations in Germany , 4th rev. ed. Alphen aan den Rijn, The Netherlands: Kluwer Law International, 2008. APPEAL from a judgment of the Saskatchewan Court of Appeal (Klebuc C.J.S. and Richards, Ottenbreit, Caldwell and Herauf JJ.A.), 2013 SKCA 43 , 414 Sask. R. 70, 575 W.A.C. 70, 361 D.L.R. (4th) 132, 280 C.R.R. (2d) 187, [2013] 6 W.W.R. 453, 227 C.L.R.B.R. (2d) 1, 2013 CLLC ¶220-032, [2013] S.J.

No. 235 (QL), 2013 CarswellSask 252 (WL Can.) , setting aside in part a decision of Ball J., 2012 SKQB 62 , 390 Sask. R. 196, 254 C.R.R. (2d) 288, [2012] 7 W.W.R. 743, 211 C.L.R.B.R. (2d) 1, 2012 CLLC ¶220-016, [2012] S.J. No. 49 (QL), 2012 CarswellSask 64 (WL Can.) . Appeal allowed in part, Rothstein and Wagner JJ. dissenting in part. Rick Engel , Q.C. , Craig D. Bavis and Peter Barnacle , for the appellants. Graeme G. Mitchell , Q.C. , Barbara C. Mysko and Katherine M. Roy , for the respondent. Mark R. Kindrachuk , Q.C. , and Sean Gaudet , for the intervener the Attorney General of Canada. Robert E.

Charney and Sarah Wright , for the intervener the Attorney General of Ontario. Caroline Renaud and Amélie Pelletier Desrosiers , for the intervener the Attorney General of Quebec. Keith Evans , for the intervener the Attorney General of British Columbia. Roderick Wiltshire , for the intervener the Attorney General of Alberta. Chantelle MacDonald Newhook , for the intervener the Attorney General of Newfoundland and Labrador. Gary L. Bainbridge and Marcus R. Davies , for the intervener the Saskatchewan Union of Nurses. Drew S. Plaxton , for the intervener SEIU-West.

Written submissions only by Ritu Khullar , Q.C. , and Vanessa Cosco , for the interveners the United Nurses of Alberta and the Alberta Federation of Labour. Written submissions only by Peter C. Engelmann and Colleen Bauman , for the intervener the Professional Institute of the Public Service of Canada. Darryl Cruz and Brandon Kain , for the intervener the Canadian Constitution Foundation. Steve Waller and Christopher Rootham , for the intervener the Air Canada Pilots’ Association. Lindsay M. Lyster , for the intervener the British Columbia Civil Liberties Association.

Written submissions only by Louise Laplante , Nancy Ménard-Cheng and Sébastien Beauregard , for the intervener Conseil du patronat du Québec. John D. R. Craig and Christopher D. Pigott , for the intervener the Canadian Employers Council. Paul J. J. Cavalluzzo and Adrienne Telford , for the interveners the Canadian Union of Postal Workers and the International Association of Machinists and Aerospace Workers. Joseph J. Arvay , Q.C. , and Catherine J. Boies Parker , for the interveners the British Columbia Teachers’ Federation and the Hospital Employees’ Union.

Written submissions only by Steven Barrett and Ethan Poskanzer , for the intervener the Canadian Labour Congress. Andrew Raven and Andrew Astritis , for the intervener the Public Service Alliance of Canada. Patrick G. Nugent and Tamara Friesen , for the intervener the Alberta Union of Provincial Employees. Éric Lévesque and Benoît Laurin , for the intervener Confédération des syndicats nationaux.

Evert van Olst , Q.C. , and Leah Schatz , for the interveners the Regina Qu’Appelle Regional Health Authority, the Cypress Regional Health Authority, the Five Hills Regional Health Authority, the Heartland Regional Health Authority, the Sunrise Regional Health Authority, the Prince Albert Parkland Regional Health Authority and the Saskatoon Regional Health Authority. Paul Champ and Bijon Roy , for the intervener the National Union of Public and General Employees.

Written submissions only by Brian W. Burkett, for the interveners the Canada Post Corporation and Air Canada. The judgment of McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis was delivered by [1] Abella J. — In the Alberta Reference (Reference re Public Service Employee Relations Act (Alta.),(SCC), [1987] 1 S.C.R. 313), this Court held that the freedom of association guaranteed under s. 2(

d) of the Canadian Charter of Rightsand Freedoms did not protect the right to collective bargaining or to strike. Twenty years later, in Health Services and Support —Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 [2007] 2 S.C.R. 391, this Court held that s. 2(d)protects the right of employees to engage in a meaningful process of collective bargaining. The rights were further enlarged in Ontario(Attorney General) v.

Fraser, 2011 SCC 20 [2011] 2 S.C.R. 3, where the Court accepted that a meaningful process includesemployees’ rights to join together to pursue workplace goals, to make collective representations to the employer, and to have thoserepresentations considered in good faith, including having a means of recourse should the employer not bargain in good faith. And, mostrecently, in Mounted Police Association of Ontario v.

Canada (Attorney General), 2015 SCC 1 [2015] 1 S.C.R. 3, the Courtrecognized that a process of collective bargaining could not be meaningful if employees lacked the independence and choice todetermine and pursue their collective interests.

Clearly the arc bends increasingly towards workplace justice. [2] The question in this appeal is whether a prohibition on designated employees participating in strike action for thepurpose of negotiating the terms and conditions of their employment amounts to a substantial interference with their right to a meaningfulprocess of collective bargaining and, as a result, violates s. 2(

d) of the Charter. The question of whether other forms of collective workstoppage are protected by s. 2(

d) of the Charter is not at issue here. [3] The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in oursystem of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund andBob Hepple recognized: The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it todifferent purposes, to transfer it to different places. A legal system which suppresses the freedom to strike puts the workers at the mercyof their employers.

This — in all its simplicity — is the essence of the matter. (Laws Against Strikes (1972), at p. 8) The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to bethe time to give this conclusion constitutional benediction. [4] This applies too to public sector employees. Those public sector employees who provide essential servicesundoubtedly have unique functions which may argue for a less disruptive mechanism when collective bargaining reaches an impasse, butthey do not argue for no mechanism at all.

Because Saskatchewan’s legislation abrogates the right to strike for a number of employeesand provides no such alternative mechanism, it is unconstitutional. Background [5] On December 19, 2007, the newly elected Government of Saskatchewan introduced two statutes which ground thisappeal: The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (PSESA), and The Trade Union Amendment Act, 2008, S.S. 2008,c. 26. They became law on May 14, 2008. [6] Prior to the enactment of The Public Service Essential Services Act, public sector strikes were regulated on an adhoc basis in Saskatchewan.

Without a regime in place, it was often difficult to ensure the adequate provision of essential services duringlabour disputes. In April 1999, for example, 8,400 members of the Saskatchewan Union of Nurses participated in a province-wide strikeand many health care facilities throughout the province lost the capacity to provide critical care to patients. Similarly, in 2001, healthcare employees represented by the Canadian Union of Public Employees withdrew their services, seriously affecting the delivery ofhealth care.

The trial judge noted that [a]s the strike progressed, the impact on health care services became more serious. In the Regina area alone, elective procedures werecancelled, patients were transferred out of province to alternate provincial sites, and there were no admissions to permanent beds,convalescent beds, palliative beds or respite beds. Admissions to long term care facilities were halted. All day support programs andMeals on Wheels programs were cancelled.

Eighty-eight beds at the Regina General Hospital were closed, which left it functioning at 75percent, and 110 beds at the Pasqua Hospital were closed, leaving it functioning at only 54 percent of capacity. Operating room theatreswere reduced from eight to one at the Regina General Hospital, and from seven to one at the Pasqua Hospital, being the only twooperating hospitals in the city.

The women’s health centre was closed and five children’s beds were closed in in-patient rehabilitation atWascana Rehabilitation Centre, in addition to eight adult rehabilitation beds. [para. 147] And from December 2006 to February 2007, the Saskatchewan Government and General Employees’ Union engaged in lawful strikeaction.

A large number of highway workers, snow plow operators, and corrections workers participated, sparking concerns about publicsafety. [7] As a result of these experiences, in 2007 the newly elected provincial government moved to implement an essentialservices labour relations regime in the province. The PSESA is Saskatchewan’s first statutory scheme to regulate and limit the ability ofpublic sector employees who perform “essential services” to strike.

The Act applies to every “public employer” in Saskatchewan and toevery “employee” of a public employer who is represented by a union. [8] Under the PSESA, designated “essential services employees” are prohibited from participating in any workstoppage against their public employer. In the event of a strike, those employees are required to continue “the duties of [their]employment with the public employer in accordance with the terms and conditions of the last collective bargaining agreement”, and areprohibited from refusing to continue those duties “without lawful excuse”.

Contravention of any provision under the PSESA is a

summary conviction offence that could result in an increasing fine for every day the offence continues. [ 9 ] The PSESA sets out a broad definition of “essential services”: s. 2(c) (

i) with respect to services provided by a public employer other than the Government of Saskatchewan, services that are necessary to enable a public employer to prevent: (

A) danger to life, health or safety; (

B) the destruction or serious deterioration of machinery, equipment or premises; (

C) serious environmental damage; or (

D) disruption of any of the courts of Saskatchewan; and (ii) with respect to services provided by the Government of Saskatchewan, services that: (

A) meet the criteria set out in subclause (i); and (

B) are prescribed; [1] [ 10 ] A “public employer” is defined as: s. 2(i) (

i) the Government of Saskatchewan; (ii) a Crown corporation as defined in The Crown Corporations Act, 1993 ; (iii) a regional health authority as defined in The Regional Health Services Act ; (iv) an affiliate as defined in The Regional Health Services Act ; (

v) the Saskatchewan Cancer Agency continued pursuant to The Cancer Agency Act ; (vi) the University of Regina; (vii) the University of Saskatchewan; (viii) the Saskatchewan Polytechnic; (ix) a municipality;

(

x) a board as defined in The Police Act, 1990 ; (xi) any other person, agency or body, or class of persons, agencies or bodies, that: (

A) provides an essential service to the public; and (

B) is prescribed; [ 11 ] A public employer and the union are to negotiate an “essential services agreement” to govern how public services are to be maintained in the event of a work stoppage. In the event that the negotiations break down, the public employer has the authority to unilaterally designate, by “notice”, which public services it considers to be essential, the classifications of employees required to continue to work during a work stoppage, and the names and number of employees in each of the classifications.

Further notice may be given by the public employer at any time, either to increase or decrease the numbers of employees required to maintain essential services. [ 12 ] Where the employer is the Government of Saskatchewan, essential services are prescribed by regulation. [ 13 ] The Saskatchewan Labour Relations Board has limited jurisdiction to review the numbers of employees required to work in a given classification during a strike, but it has no authority to review whether any particular service is essential, which classifications involve the delivery of genuinely essential services, or whether specific employees named by the employer to work during the strike have been reasonably selected. [ 14 ] The second statute at issue in this appeal is The Trade Union Amendment Act, 2008 .

It introduced stricter requirements for a union to be certified by increasing the required level of written support from 25% to 45% of employees; by reducing the period for receiving written support from the employees from six months to three; and by eliminating the automatic certification previously available when over 50% of the employees had given written support prior to the application.

The Saskatchewan Labour Board no longer had any discretion to decide whether a representation vote by secret ballot was needed. [ 15 ] The Trade Union Amendment Act, 2008 also decreased the level of employee support required for decertification. The predecessor legislation, The Trade Union Act , R.S.S. 1978, c. T-17 (repealed by S.S. 2013, c. S-15.1 ), had set out a process by which employees in a bargaining unit could apply to have a union decertified as the bargaining representative.

That provision was changed in The Trade Union Amendment Act, 2008 by decreasing the required level of advanced written support for decertification from 50% plus one to 45%.

The period within which the required written support was to be submitted was reduced from six months to three. [ 16 ] Finally, it was no longer an “unfair labour practice” for an employer to communicate “facts and its opinions to its employees” during the exercise of their rights under The Trade Union Amendment Act, 2008 . [ 17 ] In July 2008, the Saskatchewan Federation of Labour and other unions challenged the constitutionality of both the PSESA and The Trade Union Amendment Act, 2008 .

The Saskatchewan Union of Nurses, the Canadian Union of Public Employees, the Service Employees International Union-West, and the Saskatchewan Government and General Employees’ Union each subsequently commenced separate proceedings challenging only the constitutionality of the PSESA . [ 18 ] Both sets of challenges were decided by the trial judge, Ball J., under s. 2(

d) of the Charter . In his view, the majority decisions in the Alberta Reference had been superseded by this Court’s

interpretation of the scope of s. 2(

d) of the Charter in Health Services and Fraser to include protection for the right to engage in collective action to achieve workplace goals. While recognizing that the Court had not yet directly considered whether strike activity was encompassed by s. 2( d ), Ball J. nonetheless concluded that “the right to strike is a fundamental freedom protected by s. 2(

d) of the Charter ”. [ 19 ] He accordingly found that the prohibition on the right to strike in the PSESA substantially interfered with the s. 2(

d) rights of the affected public sector employees.

He acknowledged that while Canadian and international law supports the restriction or prohibition of strikes by essential services employees, after an extensive and thoughtful analysis, he found that the absolute ban on the right to strike in the PSESA was neither minimally impairing nor proportionate for essentially the following reasons: • Saskatchewan failed to engage in meaningful consultation or negotiation with respect to the PSESA and The Public Service Essential Services Regulations . • Good-faith negotiation in determining essential services designations is not possible under the PSESA since one side has the capacity to impose an agreement. • The definition of “essential services” is “very broad”.

In the absence of an agreement with the Unions about what the definition means, employers are entitled unilaterally to decide what they included. • The definition of “public employer” is also overbroad. There was no evidence that some of the designated public employers

actually employed any employees who were engaged in the delivery of essential services. • The power of public employers during a work stoppage to designate how essential services are to be maintained and by whom was unilateral and required no consultation with the Unions. • The unilateral decision-making power granted to public employers was unnecessary.

There was no explanation for why the Unions were denied any input into naming essential services employees. • The PSESA goes beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike. • Compared to analogous legislation in other Canadian jurisdictions, the PSESA is uniquely restrictive of the right to strike and devoid of both review mechanisms and alternate means of addressing workplace issues. [ 20 ] The declaration of invalidity was suspended for one year. [ 21 ] In his analysis of the second statutory scheme, The Trade Union Amendment Act, 2008 , on the other hand, Ball J. concluded that the legislation did not breach s. 2( d ).

While he acknowledged that the changes to the certification process introduced by The Trade Union Amendment Act, 2008 had the effect of reducing the success rate of union applications for certification, he held that s. 2(

d) does not require the enactment of legislation that ensures that unions succeed easily in their efforts to be certified; “it precludes the enactment of legislation that interferes with the freely expressed wishes of employees in the exercise of their s. 2(

d) rights”. [ 22 ] With respect to the broadened scope of permissible employer communications, Ball J. held that permitting employers to communicate facts and opinions is consistent with the employers’ freedom of expression under s. 2(

b) of the Charter . He concluded that both the purpose and effect of the relevant provision is that employers could only communicate with employees in a manner that does not infringe on the ability of the employees to engage their collective bargaining rights. [ 23 ] The Saskatchewan Court of Appeal unanimously allowed the Government of Saskatchewan’s appeal with respect to the constitutionality of the PSESA , concluding that “[w] hile the Court’s freedom of association jurisprudence has evolved in recent years, it has not shifted far enough, or clearly enough, to warrant a ruling by this Court that the right to strike is protected by s. 2(

d) of the Charter ”. The appeal against the trial judge’s finding that The Trade Union Amendment Act, 2008 did not violate s. 2(

d) of the Charter was dismissed. [ 24 ] I agree with the trial judge. Along with their right to associate, speak through a bargaining representative of their choice, and bargain collectively with their employer through that representative, the right of employees to strike is vital to protecting the meaningful process of collective bargaining within s. 2( d ).

As the trial judge observed, without the right to strike, “a constitutionalized right to bargain collectively is meaningless”. [ 25 ] Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Where essential services legislation provides such an alternative mechanism, it would more likely be justified under s. 1 of the Charter .

In my view, the failure of any such mechanism in the PSESA is what ultimately renders its limitations constitutionally impermissible. Analysis [ 26 ]

Section 2 of the Charter guarantees the following: 2. Everyone has the following fundamental freedoms: . . . (

d) freedom of association. [ 27 ] The trial judge in this case relied on changes in this Court’s s. 2(

d) jurisprudence to depart from the precedent set by the majority in the Alberta Reference . [ 28 ] The recognition of the broader purpose underlying s. 2(

d) led the Court to conclude in Health Services that “s. 2(

d) should be understood as protecting the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining” (para. 87). In reaching this conclusion, McLachlin C.J. and LeBel J. held that none of the majority’s reasons in the Alberta Reference which had excluded collective bargaining from the scope of s. 2( d ) “survive[d] scrutiny, and the rationale for excluding inherently collective activities from s. 2( d )’s protection has been overtaken by Dunmore ” ( Health Services , at para. 36). [ 29 ] This Court reaffirmed in Fraser that a meaningful process under s. 2(

d) must include, at a minimum, employees’ rights to join together to pursue workplace goals, to make collective representations to the employer, and to have those representations

considered in good faith, including having a means of recourse should the employer not bargain in good faith. [30] The evolution in the Court’s approach to s. 2(

d) was most recently summarized by McLachlin C.J. and LeBel J. inMounted Police, where they said: The jurisprudence on freedom of association under s. 2(

d) of the Charter . . . falls into two broad periods. The first period is markedby a restrictive approach to freedom of association. The second period gradually adopts a generous and purposive approach to theguarantee. . . . . . . after an initial period of reluctance to embrace the full import of the freedom of association guarantee in the field of labourrelations, the jurisprudence has evolved to affirm a generous approach to that guarantee.

This approach is centred on the purpose ofencouraging the individual’s self-fulfillment and the collective realization of human goals, consistent with democratic values, asinformed by “the historical origins of the concepts enshrined” in s. 2(d) . . . . [paras. 30 and 46] [31] They confirmed that freedom of association under s. 2(

d) seeks to preserve “employee autonomy against the superiorpower of management” in order to allow for a meaningful process of collective bargaining (para. 82). [32] Given the fundamental shift in the scope of s. 2(

d) since the Alberta Reference was decided, the trial judge wasentitled to depart from precedent and consider the issue in accordance with this Court’s revitalized

interpretation of s. 2(d): Canada(Attorney General) v. Bedford, 2013 SCC 72 [2013] 3 S.C.R. 1101, at para. 42. [33] Dickson C.J.’s dissenting reasons in the Alberta Reference were influential in the development of the more“generous approach” in the recent jurisprudence.

Recognizing that association “has always been vital as a means of protecting theessential needs and interests of working people” (at p. 368), and that Canada’s international human rights obligations required protectionfor both the formation and essential activities of labour unions, including collective bargaining and the freedom to strike, Dickson C.J.concluded that “effective constitutional protection of the associational interests of employees in the collective bargaining processrequires concomitant protection of their freedom to withdraw . . . their services [collectively], subject to s. 1 of the Charter” (at p. 371). (See also Perrault v.

Gauthier (1898), 1898 37 (SCC), 28 S.C.R. 241, at p. 256, and Canadian Pacific Railway Co. v. Zambri,(SCC), [1962] S.C.R. 609, at pp. 618 and 621.) [34] His views are supported by the history of strike activity in Canada and globally. [35] This Court referenced this history in Health Services: In England, as early as the end of the Middle Ages, workers were getting together to improve their conditions of employment. They wereaddressing petitions to Parliament, asking for laws to secure better wages or other more favourable working conditions. Soon thereafter,strike activity began (M.-L.

Beaulieu, Les Conflits de Droit dans les Rapports Collectifs du Travail (1955), at pp. 29-30). [para. 45] [36] In England in the 19th century, strike action was the subject of criminal sanction under the common law doctrine ofcriminal conspiracy, reflected in the Combination Acts of 1799 and 1800. Even when certain forms of trade unionism and collectivebargaining became legal under the Combination Act of 1825, strike activity itself remained criminal: Health Services, at paras. 47-48.

This state of affairs continued in England “until the ‘legislative settlement’ of the 1870s . . . lifted the threat of criminal sanctions from allbut violent forms of behaviour associated with industrial action”: Simon Deakin and Gillian S. Morris, Labour Law (6th ed. 2012), at p.8. [37] British labour law was influential in the development of Canadian labour law prior to the 1940s, but the extent towhich the restrictions on collective action were actually adopted and enforced in Canada appears to be unclear: Health Services, at paras.43 and 50.

As Judy Fudge and Eric Tucker wrote in describing the Canadian experience: The collective dimension of striking was covered by combination law, but just what that law was in early and mid-nineteenth centuryCanada is even more opaque than the status of English master and servant law. However, regardless of the formal law, historians havenot identified a single case in which workers were successfully prosecuted under combination law simply for the act of striking.

It isalso clear that the social practice of workers striking to improve terms and conditions of employment became deeply rooted during thisera. (“The Freedom to Strike in Canada: A Brief Legal History” (2009-2010), 15 C.L.E.L.J. 333, at pp. 340-41) [38] What is known, however, is that workers participated in strike activity long before the modern system of labourrelations was introduced in Canada.

Strikes and collective bargaining were seen to go hand in hand since both “are creatures of workingclass action: working people turned to these methods to improve their lot in industry from the earliest days of nineteenth centuryCanadian capitalism”: Geoffrey England, “Some Thoughts on Constitutionalizing the Right to Strike” (1988), 13:2 Queen’s L.J. 168, atp. 175.

See also Gilles Trudeau, “La grève au Canada et aux États-Unis: d’un passé glorieux à un avenir incertain” (2004), 38 R.J.T. 1;Claude D’Aoust and François Delorme, “The Origin of the Freedom of Association and of the Right to Strike in Canada: An HistoricalPerspective” (1981), 36 Relat. ind. 894; Bryan D. Palmer, “Labour Protest and Organization in Nineteenth-Century Canada, 1820-1890”(1987), 20 Labour 61; Fudge and Tucker. [39] The acceptance of the crucial role of strike activity led to its eventual decriminalization.

In 1872, Parliament beganthe process of eliminating the criminal prohibition against collective action by enacting the Canadian The Trade Unions Act, 1872, S.C.

1872, c. 30. Through a series of legislative reforms, “the taint of criminal liability” had finally been removed from all trade unions inCanada by 1892: George W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at ¶ 1.80. Parliament recognized the importance ofthis legislative reform for workers: [In enacting the 1872 Trade Unions Act], the Canadian Parliament recognized the value for the individual of collective actions in thecontext of labour relations. As Sir John A.

Macdonald mentioned in the House of Commons, the purpose of the Trade Unions Act of1872 was to immunize unions from existing laws considered to be “opposed to the spirit of the liberty of the individual” (ParliamentaryDebates, vol. III, 5th Sess., 1st Parl., May 7, 1872, at p. 392, as cited by M. Chartrand, “The First Canadian Trade Union Legislation: AnHistorical Perspective” (1984), 16 Ottawa L.

Rev. 267, at p. 267). (Health Services, at para. 52) [40] McLachlin C.J. and LeBel J. further explain in Health Services that, [b]efore the adoption of the modern statutory model of labour relations, the majority of strikes were motivated by the workers’ desire tohave an employer recognize a union and bargain collectively with it (D. Glenday and C. Schrenk, “Trade Unions and the State: AnInterpretative Essay on the Historical Development of Class and State Relations in Canada, 1889-1947” (1978), 2 Alternate Routes 114,at p. 128; M.

Thompson, “Wagnerism in Canada: Compared to What?”, in Proceedings of the XXXIst Conference — Canadian IndustrialRelations Association (1995), 59, at p. 60; C. D. Baggaley, A Century of Labour Regulation in Canada (February 1981), Working PaperNo. 19, prepared for the Economic Council of Canada, at p. 57). [para. 54] [41] And in Alberta (Information and Privacy Commissioner) v.

United Food and Commercial Workers, Local 401, 2013SCC 62 [2013] 3 S.C.R. 733, at para. 35, the Court noted that “[s]trikes and picketlines have been used by Canadian unions toexert economic pressure and bargain with employers for over a century”. [42] In 1935, the Wagner Act was adopted in the United States, introducing a model of labour relations that came toinspire legislative schemes across Canada.

This model was adopted in Canada because the federal and provincial governments“recognized the fundamental need for workers to participate in the regulation of their work environment”, and, in doing so, “confirmedwhat the labour movement had been fighting for over centuries and what it had access to in the laissez-faire era through the use of strikes— the right to collective bargaining with employers” (Health Services, at para. 63).

One of the goals of the Wagner model, therefore,was to reduce the frequency of strikes by ensuring a commitment to meaningful collective bargaining. [43] As this Court noted in Health Services, the “unprecedented number of strikes, caused in large part by the refusal ofemployers to recognize unions and to bargain collectively, led to governments adopting the American Wagner Act model of legislation”(para. 54).

In implementing statutorily protected bargaining rights, modern labour relations legislation was “designed to secure a greatermeasure of industrial peace to the public by encouraging collective bargaining and conciliation procedures rather than strikes as a methodof resolving industrial disputes” (Gagnon v.

Foundation Maritime Ltd., (SCC), [1961] S.C.R. 435, at pp. 443-44, perRitchie J.). [44] Modern labour relations legislation in Canada accordingly limited certain forms of strike activities and replaced thefreedom to collectively engage in the withdrawal of services with statutorily protected rights to organize and engage in collectivebargaining.

As Judy Fudge and Eric Tucker noted, this model gave workers collective bargaining protection as a trade-off for limitationsimposed on the freedom to strike: The loss of the freedom to strike for recognition was accompanied by a certification procedure that enabled employees to obtain unionrepresentation through a democratic process, and also imposed on employers a duty to recognize and to bargain in good faith withcertified unions. The loss of the freedom to strike during the life of a collective agreement came with a right to enforce the terms of thatagreement through binding arbitration.

And, of course, the postponement of strikes until after conciliation . . . also came with a statutoryfreeze on terms and conditions. Finally, the new regime also gave workers a right to strike in the Hohfeldian sense, by prohibitingemployers from terminating the contract of employment merely because the worker was on strike. The scope of the right to resumeemployment varies from jurisdiction to jurisdiction, but it protects striking workers’ jobs in most situations. [p. 350] [45] As George W.

Adams writes, “All statutes have a policy commitment to the postponement of the reciprocal rights oflockout and strike until the exhaustion of all settlement mechanisms” (¶ 1.250). The trade-off in the Wagner labour relations model,limiting the ability to strike in favour of an emphasis on negotiated solutions for workplace issues, remains at the heart of labourrelations in Canada. That is not to say it is the only model available, but it is the prevailing model in this country and the one under the s.2(

d) microscope in this case. [46] It is important to point out, however, that the right to strike is not a creature just of the Wagner model. Most labourrelations models include it. And where history has shown the importance of strike action for the proper functioning of a given model oflabour relations, as it does in Wagner-style schemes, it should come as no surprise that the suppression of legal strike action will be seenas substantially interfering with meaningful collective bargaining.

That is because it has long been recognized that the ability tocollectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — isan essential component of the process through which workers pursue collective workplace goals. As Prof. H. D. Woods wrote in hislandmark 1968 report, the “acceptance of collective bargaining carries with it a recognition of the right to invoke the economic sanctionof the strike” (Canadian Industrial Relations: The Report of the Task Force on Labour Relations (1969), at p. 175).

The strike is “anindispensable part of the Canadian industrial relations system” and “has become a part of the whole democratic system” (pp. 129 and176). [47] Bob Hepple writes that “the strike weapon as a last resort is an essential safety-valve, a sanction aimed at achievingmeaningful participation” (“The Right to Strike in an International Context” (2009-2010), 15 C.L.E.L.J. 133, at p. 139). [48] The recognition that strikes, while a powerful form of economic pressure, are nonetheless critical components of thepromotion of industrial — and therefore socio-economic — peace, was also cogently summarized in R.W.D.S.U., Local 558 v.

Pepsi-

Cola Canada Beverages (West) Ltd., 2002 SCC 8 [2002] 1 S.C.R. 156: Labour disputes may touch important sectors of the economy, affecting towns, regions, and sometimes the entire country. The cost tothe parties and the public may be significant. Nevertheless, our society has come to see it as justified by the higher goal of achievingresolution of employer-employee disputes and the maintenance of economic and social peace.

The legally limited use of economicpressure and the infliction of economic harm in a labour dispute has come to be accepted as a legitimate price to pay to encourage theparties to resolve their differences in a way that both can live with (see generally G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at pp. 1-11 to 1-15). [para. 25] [49] As Gilles Trudeau wrote, [translation] “[t]he strike was at the heart of the industrial relations system that prevailedthroughout most of the 20th century . . . in Canada” (p. 5).

Its significance as an economic sanction to collective bargaining — or threatthereof — is what led Dickson C.J. to conclude in the Alberta Reference, as previously noted, that “effective constitutional protection ofthe associational interests of employees in the collective bargaining process requires concomitant protection of their freedom to withdrawcollectively their services, subject to s. 1 of the Charter” (p. 371). [50] The inevitability of the need for the ability of employees to withdraw services collectively was also accepted byMcLachlin C.J. and LeBel J. in R.W.D.S.U., where they recognized that the purpose of strikes — placing economic pressure onemployers — is a legitimate and integral means of achieving workplace objectives: Occasionally, . . . negotiations stall and disputes threaten labour peace.

When this happens, it has come to be accepted that, within limits,unions and employers may legitimately exert economic pressure on each other to the end of resolving their dispute.

Thus, employees areentitled to withdraw their services, inflicting economic harm directly on their employer and indirectly on third parties which do businesswith their employer. [Emphasis added; para. 24.] [51] The preceding historical account reveals that while strike action has variously been the subject of legal protectionsand prohibitions, the ability of employees to withdraw their labour in concert has long been essential to meaningful collective bargaining. Protection under s. 2(d), however, does not depend solely or primarily on the historical/legal pedigree of the right to strike.

Rather, theright to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining. [52] Within this context and for this purpose, the strike is unique and fundamental. In Re Service Employees’International Union, Local 204 and Broadway Manor Nursing Home (1983), (ON SC), 4 D.L.R. (4th) 231 (Ont.H.C.J.), Galligan J. emphasized the importance of strikes to the process of collective bargaining: . . . freedom of association contains a sanction that can convince an employer to recognize the workers’ representatives and bargaineffectively with them.

That sanction is the freedom to strike. By the exercise of that freedom the workers, through their union, have thepower to convince an employer to recognize the union and to bargain with it. . . . If that sanction is removed the freedom is valueless because there is no effective means to force an employer to recognize theworkers’ representatives and bargain with them. When that happens the raison d’être for workers to organize themselves into a union isgone.

Thus I think that the removal of the freedom to strike renders the freedom to organize a hollow thing. [Emphasis added; p. 249.] [53] In Health Services, this Court recognized that the Charter values of “[h]uman dignity, equality, liberty, respect forthe autonomy of the person and the enhancement of democracy” supported protecting the right to a meaningful process of collectivebargaining within the scope of s. 2(d) (para. 81).

And, most recently, drawing on these same values, in Mounted Police it confirmed thatprotection for a meaningful process of collective bargaining requires that employees have the ability to pursue their goals and that, at itscore, s. 2(

d) aims to protect the individual from “state-enforced isolation in the pursuit of his or her ends” . . . . The guarantee functions to protectindividuals against more powerful entities. By banding together in the pursuit of common goals, individuals are able to prevent morepowerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowersvulnerable groups and helps them work to right imbalances in society.

It protects marginalized groups and makes possible a more equalsociety. [para. 58] [54] The right to strike is essential to realizing these values and objectives through a collective bargaining processbecause it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workerscome together to participate directly in the process of determining their wages, working conditions and the rules that will govern theirworking lives (Fudge and Tucker, at p. 334).

The ability to strike thereby allows workers, through collective action, to refuse to workunder imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy ofemployees in their working lives. [55] Striking — the “powerhouse” of collective bargaining — also promotes equality in the bargaining process: England,at p. 188. This Court has long recognized the deep inequalities that structure the relationship between employers and employees, and thevulnerability of employees in this context.

In the Alberta Reference, Dickson C.J. observed that [t]he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers. [p. 368] And this Court affirmed in Mounted Police that . . . s. 2(

d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while alsoenhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(

d) more pertinent than inlabour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful

employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with theiremployer, can they meaningfully pursue their workplace goals.

The right to a meaningful process of collective bargaining is therefore a necessary element of the right to collectively pursueworkplace goals in a meaningful way . . . . [The] process of collective bargaining will not be meaningful if it denies employees the powerto pursue their goals. [paras. 70-71] Judy Fudge and Eric Tucker point out that it is “the possibility of the strike which enables workers to negotiate with their employers onterms of approximate equality” (p. 333). Without it, “bargaining risks being inconsequential — a dead letter” (Prof.

Michael Lynk,“Expert Opinion on Essential Services”, at par. 20; A.R., vol. III, at p. 145). [56] In their dissent, my colleagues suggest that s. 2(

d) should not protect strike activity as part of a right to a meaningfulprocess of collective bargaining because “true workplace justice looks at the interests of all implicated parties” (para. 125), includingemployers. In essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, turnslabour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has beenscrupulously devoted to rectifying.

It drives us inevitably to Anatole France’s aphoristic fallacy: “The law, in its majestic equality,forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” [57] Strike activity itself does not guarantee that a labour dispute will be resolved in any particular manner, or that it willbe resolved at all. And, as the trial judge recognized, strike action has the potential to place pressure on both sides of a dispute to engagein good faith negotiations.

But what it does permit is the employees’ ability to engage in negotiations with an employer on a more equalfooting (see Williams v. Aristocratic Restaurants

(1947) Ltd., (SCC), [1951] S.C.R. 762, at p. 780; Mounted Police, atparas. 70-71). [58] Moreover, while the right to strike is best analyzed through the lens of freedom of association, expressive activity inthe labour context is directly related to the Charter-protected right of workers to associate to further common workplace goals under s.2(

d) of the Charter: Fraser, at para. 38; Alberta (Information and Privacy Commissioner), at para. 30. Strike action “bring[s the] debateon the labour conditions with an employer into the public realm”: Alberta (Information and Privacy Commissioner), at para. 28. Cory J.recognized this dynamic in United Nurses of Alberta v. Alberta (Attorney General), (SCC), [1992] 1 S.C.R. 901: Often it is only by means of a strike that union members can publicize and emphasize the merits of their position as they see them withregard to the issues in dispute.

It is essential that both the labour and management side be able to put forward their position so the publicfully understands the issues and can determine which side is worthy of public support. Historically, to put forward their position,management has had far greater access to the media than have the unions. At times unions had no alternative but to take strike action andby means of peaceful picketing put forward their position to the public.

This is often the situation today. [p. 916] [59] As Dickson C.J. observed, “[t]he very nature of a strike, and its raison d’être, is to influence an employer by jointaction which would be ineffective if it were carried out by an individual” (Alberta Reference, at p. 371). [60] Alternative dispute resolution mechanisms, on the other hand, are generally not associational in nature and may, infact, reduce the effectiveness of collective

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