2011 QCCA 1247, 2011 QCCA 1247

Unofficial English Translation Québec (Procureur général) c. Confédération des syndicats nationaux (CSN) 2011 QCCA 1247 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-018310-078 (500-17-019190-043, 500-17-019524-043, 500-17-019726-044) (500-17-019731-044, 500-17-019736-043, 500-17-019737-041) (500-17-019744-047, 500-17-019943-045, 500-17-025388-052) 500-09-018313-072 (500-17-025387-054, 500-17-025388-052, 500-17-025391-056) (500-17-025392-054, 500-17-025393-052, 500-17-025403-059) (500-17-025410-054, 500-17-025457-055, 500-17-025473-052) DATE: July 8, 2011 CORAM: THE HONOURABLE J.J.

MICHEL ROBERT, C.J.Q. YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. No.: 500-09-018310-078 ATTORNEY GENERAL OF QUEBEC APPELLANT / INCIDENTAL RESPONDENT – Respondent v. CONFÉDÉRATION DES SYNDICATS NATIONAUX (CSN) et al. RESPONDENTS / INCIDENTAL APPELLANTS – Applicants and CENTRALE DES SYNDICATS DU QUÉBEC (CSQ) et al. FÉDÉRATION DES TRAVAILLEURS DU QUÉBEC (FTQ) SYNDICAT QUÉBÉCOIS DES EMPLOYÉS DE SERVICE 298 CENTRALE DES SYNDICATS DÉMOCRATIQUES (CSD) et al. CENTRALE DES PROFESSIONNELLES ET PROFESSIONNELS DE LA SANTÉ (CPS) et al. ASSOCIATION PROFESSIONNELLE DES TECHNOLOGISTES MÉDICAUX DU QUÉBEC (APTMQ) et al.

FÉDÉRATION DES TRAVAILLEURS ET TRAVAILLEUSES DU QUÉBEC et al. CANADIAN UNION OF PUBLIC EMPLOYEES et al. FÉDÉRATION DES INFIRMIÈRES ET INFIRMIERS DU QUÉBEC (FIIQ) ASSOCIATION DES TECHNICIENS EN DIÉTÉTIQUE DU QUÉBEC (ATDQ) SYNDICAT DES ERGOTHÉRAPEUTES DU QUÉBEC (SEQ) et al. RESPONDENTS / Applicants and SYNDICAT DES PROFESSIONNELLES ET DES PROFESSIONNELS DU GOUVERNEMENT DU QUÉBEC et al. RESPONDENTS / Applicants and interveners

and SYNDICAT PROFESSIONNEL DES DIÉTÉTISTES ET NUTRITIONNISTES DU QUÉBEC (SPDNQ) RESPONDENT / Applicant and LABOUR RELATIONS BOARD RESPONDENT / Respondent and HEART INSTITUTE et al. IMPLEADED PARTY / Impleaded party No.: 500-09-018313-072 ATTORNEY GENERAL OF QUEBEC APPELLANT / Respondent v. CONFÉDÉRATION DES SYNDICATS NATIONAUX (CSN) et al. CENTRALE DES SYNDICATS DU QUÉBEC (CSQ) et al.

FÉDÉRATION DES TRAVAILLEURS DU QUÉBEC (FTQ) SYNDICAT QUÉBÉCOIS DES EMPLOYÉS DE SERVICE 298 CENTRALE DES SYNDICATS DÉMOCRATIQUES (CSD) SYNDICAT DES EMPLOYÉ(E)S DU CENTRE D’ACCUEIL LA SPIRALE (C.S.D.) SYNDICAT DES EMPLOYÉS(ES) DES SERVICES DE RÉADAPTATION DU SUD- OUEST ET DU RENFORT (CSQ) et al. ASSOCIATION PROFESSIONNELLE DES TECHNOLOGISTES MÉDICAUX DU QUÉBEC (APTMQ) et al. ALLIANCE DU PERSONNEL PROFESSIONNEL ET TECHNIQUE DE LA SANTÉ ET DES SERVICES SOCIAUX-APTS (CPS-APTMQ) CENTRE HOSPITALIER UNIVERSITAIRE DE MONTRÉAL (CHUM) et al. CENTRALE DES PROFESSIONNELLES ET PROFESSIONNELS DE LA SANTÉ (CPS) et al.

CENTRE D’ACCUEIL NAZARETH INC. et al. FÉDÉRATION DES INFIRMIÈRES ET INFIRMIERS DU QUÉBEC (FIIQ) et al. CANADIAN UNION OF PUBLIC EMPLOYEES et al. SYNDICAT QUÉBÉCOIS DES EMPLOYÉES ET EMPLOYÉS DE SERVICE, LOCAL 298 (FTQ) SYNDICAT PROFESSIONNEL DES DIÉTÉTISTES ET NUTRITIONNISTES DU QUÉBEC (SPDNQ) RESPONDENTS / Applicants and LABOUR RELATIONS BOARD RESPONDENT / Respondent and CENTRE D’ACCUEIL NAZARETH INC. et al. CENTRE DE RÉADAPTATION LIZETTE-DUPRAS HEART INSTITUTE et al. CONSEIL DES SYNDICATS HOSPITALIERS DE MONTRÉAL INC. et al. SAINTE-JUSTINE HOSPITAL et al. DOUGLAS HOSPITAL et al.

CONSEIL DES SYNDICATS HOSPITALIERS DE MONTRÉAL INC. et al. IMPLEADED PARTY / Impleaded party

RECTIFICATORY JUDGMENT [ 1 ] Clerical errors were inadvertently included in the judgment issued by the Court on July 6, 2011, and must be corrected to render two of the conclusions of the disposition consistent with the other conclusions thereof and with the reasons. [ 2 ] FOR THESE REASONS, THE COURT: [ 3 ] RECTIFIES its judgment dated July 6, 2011; [ 4 ] SUBSTITUTES paragraph 104 of the disposition with the following: [104] ALLOWS the appeal and DISMISSES the incidental appeal; [ 5 ] SUBSTITUTES paragraph 105 of the disposition with the following: [105] SETS ASIDE the trial judgment except for the second conclusion of its disposition; J.

J. MICHEL ROBERT, C.J.Q. YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A. Mtre Michel Déom and Mtre Patrice Claude Bernard, Roy For the Attorney General of Quebec Mtre Gérard Notebaert and Mtre Guy Martin Pépin, Roy For the CSN et al. Mtre Louis Ménard Lavoie, Ménard For the FTQ and the SQES 298 Mtre Ronald Cloutier For the CUPE Mtre Helena P. Oliveira Lamoureux, Morin, Lamoureux For the SPGQ Mtre Marie-Christine Dufour Poudrier Bradet For the CSQ et al., CPS, ATDQ and SEQ et al. and APTMQ et al.

Mtre Pierre Grenier Melançon, Marceau, Grenier, Sciortino For FIIQ, CSD, Syndicat du centre d'accueil La Spirale and SPDNQ et al. Mtre Jean-François Lemay (absent) Dunton Rainville For the Heart Institute et al. Dates of hearing: April 21 and 22, 2009 Québec (Procureur général) c. Conférence des syndicats nationaux (CSN) 2011 QCCA 1247 COURT OF APPEAL CANADA

PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-018310-078 (500-17-019190-043, 500-17-019524-043, 500-17-019726-044) (500-17-019731-044, 500-17-019736-043, 500-17-019737-041) (500-17-019744-047, 500-17-019943-045, 500-17-025388-052) 500-09-018313-072 (500-17-025387-054, 500-17-025388-052, 500-17-025391-056) (500-17-025392-054, 500-17-025393-052, 500-17-025403-059) (500-17-025410-054, 500-17-025457-055, 500-17-025473-052) DATE: July 6, 2011 CORAM: THE HONOURABLE J.J. MICHEL ROBERT, C.J.Q. YVES-MARIE MORISSETTE, J.A. MARIE-FRANCE BICH, J.A.

No.: 500-09-018310-078 ATTORNEY GENERAL OF QUEBEC APPELLANT / INCIDENTAL RESPONDENT – Respondent v. CONFÉDÉRATION DES SYNDICATS NATIONAUX (CSN) et al. RESPONDENTS / INCIDENTAL APPELLANTS – Applicants and CENTRALE DES SYNDICATS DU QUÉBEC (CSQ) et al. FÉDÉRATION DES TRAVAILLEURS DU QUÉBEC (FTQ) SYNDICAT QUÉBÉCOIS DES EMPLOYÉS DE SERVICE 298 CENTRALE DES SYNDICATS DÉMOCRATIQUES (CSD) et al. CENTRALE DES PROFESSIONNELLES ET PROFESSIONNELS DE LA SANTÉ (CPS) et al. ASSOCIATION PROFESSIONNELLE DES TECHNOLOGISTES MÉDICAUX DU QUÉBEC (APTMQ) et al. FÉDÉRATION DES TRAVAILLEURS ET TRAVAILLEUSES DU QUÉBEC et al.

CANADIAN UNION OF PUBLIC EMPLOYEES et al. FÉDÉRATION DES INFIRMIÈRES ET INFIRMIERS DU QUÉBEC (FIIQ) ASSOCIATION DES TECHNICIENS EN DIÉTÉTIQUE DU QUÉBEC (ATDQ) SYNDICAT DES ERGOTHÉRAPEUTES DU QUÉBEC (SEQ) et al. RESPONDENTS / Applicants and SYNDICAT DES PROFESSIONNELLES ET DES PROFESSIONNELS DU GOUVERNEMENT DU QUÉBEC et al. RESPONDENTS / Applicants and interveners and SYNDICAT PROFESSIONNEL DES DIÉTÉTISTES ET NUTRITIONNISTES DU QUÉBEC (SPDNQ) RESPONDENT / Applicant and LABOUR RELATIONS BOARD RESPONDENT / Respondent and HEART INSTITUTE et al.

IMPLEADED PARTY / Impleaded party No.: 500-09-018313-072 ATTORNEY GENERAL OF QUEBEC APPELLANT / Respondent v. CONFÉDÉRATION DES SYNDICATS NATIONAUX (CSN) et al. CENTRALE DES SYNDICATS DU QUÉBEC (CSQ) et al. FÉDÉRATION DES TRAVAILLEURS DU QUÉBEC (FTQ) SYNDICAT QUÉBÉCOIS DES EMPLOYÉS DE SERVICE 298 CENTRALE DES SYNDICATS DÉMOCRATIQUES (CSD) SYNDICAT DES EMPLOYÉ(E)S DU CENTRE D’ACCUEIL LA SPIRALE (C.S.D.) SYNDICAT DES EMPLOYÉS(ES) DES SERVICES DE RÉADAPTATION DU SUD- OUEST ET DU RENFORT (CSQ) et al. ASSOCIATION PROFESSIONNELLE DES TECHNOLOGISTES MÉDICAUX DU QUÉBEC (APTMQ) et al.

ALLIANCE DU PERSONNEL PROFESSIONNEL ET TECHNIQUE DE LA SANTÉ ET DES SERVICES SOCIAUX-APTS (CPS-APTMQ) CENTRE HOSPITALIER UNIVERSITAIRE DE MONTRÉAL (CHUM) et al. CENTRALE DES PROFESSIONNELLES ET PROFESSIONNELS DE LA SANTÉ (CPS) et al. CENTRE D’ACCUEIL NAZARETH INC. et al. FÉDÉRATION DES INFIRMIÈRES ET INFIRMIERS DU QUÉBEC (FIIQ) et al. CANADIAN UNION OF PUBLIC EMPLOYEES et al.

SYNDICAT QUÉBÉCOIS DES EMPLOYÉES ET EMPLOYÉS DE SERVICE, LOCAL 298 (FTQ) SYNDICAT PROFESSIONNEL DES DIÉTÉTISTES ET NUTRITIONNISTES DU QUÉBEC (SPDNQ) RESPONDENTS / Applicants and LABOUR RELATIONS BOARD RESPONDENT / Respondent and CENTRE D’ACCUEIL NAZARETH INC. et al. CENTRE DE RÉADAPTATION LIZETTE-DUPRAS HEART INSTITUTE et al. CONSEIL DES SYNDICATS HOSPITALIERS DE MONTRÉAL INC. et al. SAINTE-JUSTINE HOSPITAL et al. DOUGLAS HOSPITAL et al. CONSEIL DES SYNDICATS HOSPITALIERS DE MONTRÉAL INC. et al.

IMPLEADED PARTY / Impleaded party JUDGMENT [1] This is an appeal and incidental appeal from a judgment [1] rendered on November 30, 2007, by the Superior Court, District of Montreal (the Honourable Madam Justice Claudine Roy), which held to be unconstitutional the A ct respecting bargaining units in the social affairs sector and amending the Act respecting the process of negotiation of the collective agreements in the public and

parapublic sectors [2] because it interfered with the freedom of association guaranteed under the Canadian Charter of Rights and Freedoms [3] (the Canadian Charter ) and the Quebec Charter of human rights and freedoms [4] (the Quebec Charter ), but which did not hold

section 9 of the Act respecting the National Assembly [5] or

section 182 of the Standing Orders of the Assembly to be unconstitutional . [2] The case is particular in that twice – once while the parties' actions were pending before the Superior Court and again before the Court of Appeal – the Supreme Court of Canada ruled in landmark cases on the scope of the freedom of association enshrined in paragraph 2(

d) of the Canadian Charter . The first of these leading cases, Health Services and Support v. B.C. [6] (" Health Services ") was rendered on June 8, 2007, almost six months before the Superior Court rendered its judgment in judicial review setting aside the decision of the Labour Relations Board, but over two years after the latter decision was rendered. The second, Ontario (Attorney General) v. Fraser [7] (" Fraser ") was rendered on April 29, 2011, several months after the appeal to this Court was taken under reserve.

Fraser provides many valuable clarifications regarding the meaning of Health Services , which, according to general consensus, had appreciably reorganized the concept of freedom of association circulated up to that point in Canadian case law. In this case, the Court of Appeal is the first court to have the opportunity to study these two judgments and draw the requisite conclusions therefrom.

It is both possible and highly likely that, had the Labour Relations Board and the Superior Court had these clarifications at hand, they would have nuanced and even substantially reworked their analyses of the issues raised in this file. In any event, they cannot be criticized for failing to anticipate the extent of the clarifications provided by the Supreme Court of Canada in 2007 and again in 2011.

Ultimately, however, the central and convoluted issue raised in the principle appeal involving the limits placed on the legislature by the constitutional guarantee of freedom of association must be decided in light of these two landmark cases. I. Chronology of facts and proceedings [3] On December 17, 2003, after a debate that was abbreviated via

section 182 of the Standing Orders of the Assembly , the Quebec National Assembly passed the A ct respecting bargaining units in the social affairs sector and amending the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors (" Bill 30 "), which was assented to the following day and which has since gradually come into force. In essence, Bill 30 modifies the union scheme applicable to employee associations and employers in the social affairs sector.

First, as an exception to the Labour Code [8] and rather than leaving the determination of bargaining units in the hands of employee associations and employers (under the direction of the Labour Relations Board [9] ), the statute defines the configuration of the only bargaining units that may henceforth be constituted by the institutions in this sector.

Section 4 of the statute, reproduced below, [10] defines the four types of units that will henceforth include all the employees of this sector. [4] Bill 30 then decrees specific terms regarding certification, namely in the event of the integration or assignment of organizational activities, or their merger; it also provides a transitional scheme to favour the replacement of old structures with new ones in every institution in the sector.

Regarding the collective agreement negotiation process, the statute mandates the stipulations to be negotiated and agreed to at a local or regional level rather than at a national level, thereby creating exceptions to sections 25 and 44 of the Act respecting the process of negotiation of the collective agreements in the public and parapublic sectors [11] (the " Act respecting the process of negotiation ").

The statute also sets out an arbitration scheme in the event the parties cannot agree, incorporating, among other things, the “final offer” decision-making principle. [5] After Bill 30 was passed, the respondents brought various actions. Some of the respondents brought motions for declaratory judgment challenging the validity of the statute, while others brought a number of applications before the Labour Relations Board also challenging the validity of the statute. Here is the Labour Relations Board’s

summary of the proposals submitted by the respondents in the context of any one of their actions: [12] 3.1 Bill 30 is unconstitutional because it was passed in violation of the fundamental constitutional precepts underlying democracy.

Section 9 of the Act respecting the National Assembly (R.S.Q. c. A-23.1) and

section 182 of the Standing Orders of the Assembly , which allow the usual rules governing the National Assembly's procedure to be suspended and to impose a "gag", are contrary to the Constitution Act, 1867 (A.A.N.B.) , (R.S.C. 1985, app. II, No. 5) (" Constitution Act, 1867 ") and to

section 21 of the Charter of human rights and freedoms (R.S.Q. c. C-12) ( Quebec Charter ). 3.2 Bill 30 interferes with the freedom of association of the employees to whom it applies by imposing a reorganization of the bargaining units, which results in the disappearance of existing associations and forces employees in the social affairs sector to join forces, irrespective of their wishes or common interests. This freedom of association is guaranteed under the Canadian Charter of Rights and Freedoms ,

Schedule B,

Part I, of the Canada Act, 1982 , c. 11 (U.K.),

section 2 (" Canadian Charter ") and the Quebec Charter . 3.3 Bill 30 also interferes with freedom of expression by preventing employees, individually and collectively, from freely expressing their opinions and claims through unions that are truly the result of their will to associate. 3.4 Bill 30 interferes with the right to equality without discrimination by imposing on employees of the social affairs sector, which is mainly made up of women, or on some of the specific groups among them, a union representation scheme that is prejudicial and demeaning to them. 3.5 Bill 30 is contrary to

section 23 of the Quebec Charter because, for certain matters subject to local or regional negotiations, it imposes an arbitration process before tribunal (the arbitrator-mediator) that does not present sufficient guarantees of impartiality and independence. [ 6 ] Some of the respondents argued that Bill 30 is contrary to

section 46 of the Quebec Charter . [ 7 ] On May 23, 2005, the Labour Relations Board dismissed this challenge, a decision that was the subject of multiple applications for judicial review, which were heard by the trial judge at the same time as the motions for declaratory judgment. [ 8 ] On November 30, 2007, the Superior Court allowed the respondents' contestation and held that Bill 30 substantially interfered with paragraph 2(

d) of the Canadian Charter and with

section 3 of the Quebec Charter in that it [translation] "obliges some employees to

associate with unions that are not compatible with their aspirations and their concept of associational life" [13] by forcing them to join forces with other employees or, conversely, by preventing them from associating with those employees for certification purposes. The judge was also of the view that the legislature’s imposition of bargaining levels on some of the collective agreement stipulations constitutes both significant and unacceptable interference with and fettering of the exercise of freedom of association. Moreover, the judge found that these breaches were not justified by

section 1 of the Canadian Charter or 9.1 of the Quebec Charter .

Although the legislature did pursue a pressing and substantial objective through Bill 30 and an overall rational connection between the objective sought and the measures enacted can be recognized, the statute interferes with freedom of association in a way that cannot be characterized as minimal, [translation] "exceeds the objectives sought", [14] and fails to meet the requirement of proportionality between the beneficial and prejudicial effects of the statute. [ 9 ] The trial judge dismissed the grounds of contestation based on freedom of expression (which she deemed not to be truly at play here), the right to equality guaranteed under the charters (since the evidence did not show that the purpose of the statute or its effect discriminated against employees in the social affairs network, who are mainly women), and the right to fair and reasonable work conditions pursuant to

section 46 of the Quebec Charter (this provision being beyond judicial review according to Gosselin v. Quebec (Attorney General) , [15] and the evidence in fact failing to show that the work conditions of the employees at issue were unfair, unreasonable or unsafe). [ 10 ] Finally, after considering whether Bill 30 was passed in breach of the fundamental constitutional principles governing the operation of legislatures and that of the Quebec National Assembly in particular, the trial judge dismissed the respondents’ ground of contestation on this issue. In her view,

section 182 of the Standing Orders of the Assembly , which enables the gagging of parliamentary debates regarding the passage of a statute, was validly adopted pursuant to

section 9 of the Act respecting the National Assembly , is the result of that institution's exclusive privilege to determine its own operation, and does not breach the Constitution Act, 1867 or

section 21 of the Quebec Charter . It is noteworthy that the Labour Relations Board had previously come to the same conclusion, without ruling specifically on the argument related to

section 21 of the Quebec Charter . [ 11 ] The Attorney General appeals from the Superior Court judgment as it concerns the finding that freedom of association has been interfered with, whereas several respondents, by way of incidental appeals, attack the dismissal of the ground based on the invalidity of

section 182 of the Standing Orders of the Assembly and

section 9 of the Act respecting the National Assembly . II. Analysis [ 12 ] The Court will first rule on the validity of

section 182 of the Standing Orders of the Assembly , a provision that was promulgated pursuant to

section 9 of the Act respecting the National Assembly . We will then examine whether or not Bill 30 complies with paragraph 2(

d) of the Canadian Charter and

section 3 of the Quebec Charter , which guarantee freedom of association. If need be, we will consider

section 1 of the Canadian Charter and

section 9.1 of the Quebec Charter and the legitimacy of the measures introduced by Bill 30 in a free and democratic society. The issues related to freedom of expression, the right to equality, and fair and reasonable work conditions will be briefly touched upon. 1. Validity of Bill 30 and fundamental principles of parliamentary debate [ 13 ] The bill that led to Bill 30 was introduced in the National Assembly on November 11, 2003. The Parliamentary committee on social affairs held special consultations on December 4 and 5, 2003, hearing various persons, groups, and organizations.

The Committee filed its report on December 9, 2003. The very next day, a majority of the National Assembly passed the bill in principle. Two days later, on December 12, the same parliamentary committee undertook a detailed review of the bill, ending it abruptly when they reached

section 25 when, on December 15, 2003, relying on

section 182 of the Standing Orders of the Assembly , government house leader Jacques Dupuis, claiming emergency, tabled a motion without notice to suspend the National Assembly's usual rules of procedure and limit the length of the debate respecting the bill to thirty minutes. [16] This motion was adopted by a majority vote on December 16. That same day, the Parliamentary committee on social affairs tabled an incomplete report. On December 17, after a thirty-minute debate, a majority of the National Assembly passed the bill into law.

Bill 30 received assent on December 18. [ 14 ] Is this manner of cutting the parliamentary debate short contrary to the constitutional rules on the matter, thereby resulting in the nullity of the statute passed in those circumstances, or does it fall under the umbrella of parliamentary privilege, the exercise of which cannot be subject to judicial review? [ 15 ] We have reproduced the

preamble and

section 9 of the Act respecting the National Assembly , as well as sections 182 and 183 of the Standing Orders of the Assembly : The Act respecting the National Assembly (as in effect in 2003)

Preamble WHEREAS the people of Québec have a deep attachment to democratic principles of government; WHEREAS the National Assembly is, through the elected representatives who compose it, the supreme and legitimate organ by which those principles are expressed and applied; WHEREAS it behooves this Assembly, as the guardian of the historical and inalienable rights and powers of the people of Québec, to defend it against any attempt to despoil it of its rights and powers or to derogate from them; WHEREAS it is befitting, therefore, that the perdurance, the sovereignty and the independence of the National Assembly be affirmed, and that its proceedings be protected against all interference, HER MAJESTY, with the advice and consent of the National Assembly of Québec, enacts as follows:

... 9. The rules of procedure of the Assembly are established by the Assembly, and it alone has authority to see that they are observed. The Standing Orders of the Assembly (as in effect in 2003) [translation] 182. Suspension of certain rules — The Government House leader or a minister may move a motion to suspend any rule of procedure provided in paragraphs 2 and 3 of

section 179. The motion must provide the reason for the suspension, and if necessary, the rule that will apply. Such motion is discussed in a limited debate. It may not be amended not divided. 183. Urgency — The motion does not require prior notice if the reason given is urgency. [ 16 ] As for

section 179 of the Standing Orders of the Assembly , which refers to

section 182, it states : 179. Sources — The proceedings of the Assembly shall be conducted in accordance with: (1) the statutes; (2) these Standing Orders and the rules for the conduct of proceedings; (3) such other orders as the Assembly may from time to time make. [ 17 ] The respondents contend that the suspension of parliamentary debates provided for in the rules of procedure, as permitted by

section 182 of the Standing Orders of the Assembly , is a measure not found elsewhere in Canada and that is not necessary to the operation of the National Assembly. It therefore cannot be considered a component of the privilege to control its own debates, which belongs to parliaments descended from the British tradition, which our law inherited through the Constitution Act, 1867 . Nor can it be considered a privilege in itself. The radical nature of this measure goes against the principles on which parliamentary democracy is built in Canada, and particularly in Quebec.

Also, it violates the members' right to speak, especially that of opposition members, and it breaches the right of any citizen to address a petition to the National Assembly under

section 21 of the Quebec Charter . Since

section 182 of the Standing Orders of the Assembly is unconstitutional, it must be considered of no force or effect, as should

section 9 of the Act respecting the National Assembly , since it was through that provision that

section 182 was adopted. [ 18 ] The Labour Relations Board and the Superior Court both ruled against the respondents on this point, finding that the matter falls entirely and exclusively under the National Assembly's privilege to regulate its proceedings and, consequently, its own debates, meaning that it has the option of cutting them short if it deems that to be opportune and that its decisions in this respect are not reviewable by the courts.

The Superior Court pointed out that: [translation] [188] In the present case, there is no doubt that the National Assembly's privilege to exercise exclusive control over its debates exists; it is one of the privileges specifically identified by the Supreme Court of Canada in the previously cited judgments. [189] Controlling the debates includes the possibility of suspending the usual rules of procedure, and the courts cannot intervene on this issue. [190] The respondents argue that the Court may rule on the necessity of the scope of the privilege, as opposed to its exercise .

They submit, by way of comparison, the rules of procedure of the other Canadian legislative assemblies, which restrict or limit the use of the gag. [191] The rules in force in the other Canadian legislative assemblies vary. Whether concerning motions to suspend the rules or motions for closure, they sometimes require the vote of at least two-thirds of the members, or even unanimity. Sometimes, they permit the president of the assembly to reject these motions if he or she deems them to interfere with the rights of the minority. [192] Suspending the usual rules is central to controlling the debates.

The whens, whys and wherefores of that suspension do not fall within the ambit of the courts. The applicants indirectly ask the Court to intervene on the appropriateness of adopting the rules in question, which courts cannot do. [193] The applicants also argue that suspending the rules of procedure of the National Assembly violates another parliamentary privilege: freedom of speech.

According to them, since the motion to suspend the rules of procedure can be adopted by a simple majority, this rule imposes an end to the debates on the parliamentary minority with no check or any possibility for the President of the National Assembly to intervene, thereby unduly limiting the freedom of speech of minority members. [194] Only the National Assembly can decide if the freedom of speech of its members should be limited or restricted. It is a question stemming from the interaction of two categories of privilege over which the courts have no say. [ 19 ] As for the argument concerning

section 21 of the Quebec Charter and every citizen's right to petition the National Assembly to redress a grievance, the Superior Court wrote: [translation]

[196] The motion passed on December 16, 2003, suspended sections 62 to 64 of the Standing Orders. It is

section 64 of the Orders thatsets out that any person may, through a member, address a petition to the National Assembly. [197] The applicants argue that adopting the motion prevented citizens from addressing a petition to the National Assembly, contrary tothe right guaranteed under

section 21 of the Quebec Charter: 21. Every person has a right of petition to the National Assembly for the redress of grievances. [198] There is no evidence that the applicants or any other person actually attempted to submit a petition. [199] Since the National Assembly is acting with respect to a subject included in its constitutional privileges, the Quebec Charter,which has quasi-constitutional status, cannot be relied upon to challenge the manner in which the Assembly acted. One part of theConstitution cannot be used to repeal another [footnote 115: N.B. Broadcasting Co. v. Nova Scotia, supra note 107 at 373 and 390]. [200] Therefore,

section 21 of the Quebec Charter cannot be used to limit the National Assembly's exclusive privilege to control itsdebates. The National Assembly has the exclusive power to determine how and when a petition will be presented and debated [footnote116: Michaud v. Bissonnette, J.E. 2006-1228 (C.A.) at paras. 52–62 (Motion for leave to appeal to the Supreme Court refused, SCC2006-11-23)]. [201] The Court dismisses the application to have

section 9 of the Act respecting the National Assembly,

section 182 of the StandingOrders of the Assembly, and the statute declared unconstitutional and of no force or effect because their passage was in breach of theright of citizens to petition the National Assembly. [20] In the view of the Court, the incidental appeal must be dismissed for the reasons expressed by the Superior Court and by theLabour Relations Board before it. [21]

Section 9 of the Act respecting the National Assembly does indeed enshrine one of the established and acknowledged categoriesof parliamentary privilege,[17] that is, control over proceedings and, therefore, over the debates that take place in that context. To borrowfrom the Supreme Court of Canada[18] (per McLachlin J., for the majority): As a general proposition, can unwritten constitutional privileges inherent to our legislative bodies be justified on the ground ofnecessity?

Putting the matter differently, can our legislative bodies function properly, clothed only with those powers expressly conferredby our written constitutional documents? The answer to this question must, in my view, be negative. The importance of the unwrittenconstitutional right, for example, to speak freely in the House without fear of civil reprisal, is clear. Among the specific privileges which arose in the United Kingdom are the following: (

a) freedom of speech, including immunity from civil proceedings with respect to any matter arising from the carrying out of the dutiesof a member of the House; (

b) exclusive control over the House's own proceedings; (

c) ejection of strangers from the House and its precincts; (

d) control of publication of debates and proceedings in the House. Erskine May, supra, provides convincing justifications for each of these privileges: see pp. 84, 90–91, 171–73, and 85–86respectively. The need for the right of freedom of speech is so obvious as to require no comment. Nevertheless, it is worth underliningthe element of free speech which touches on the privilege here asserted. Free speech in the House includes the right to undisturbedspeech.

If activities in the gallery disturb debate, whether because of noise, lights, or for whatever other reason, the House hastraditionally possessed the right to remove the disturbance, even if this entails excluding the person or persons responsible. The right of the House to be the sole judge of the lawfulness of its proceedings, is similarly evident; Erskine May states that thisright is "fully established".

In settling or departing from its own codes of procedure "the House can `practically change or practicallysupersede the law'" (p. 90). [Emphasis added.] [22] As Binnie J. also reminds us on behalf of the Supreme Court in Canada (House of Commons) v. Vaid:[19] 9. Proof of necessity is required only to establish the existence and scope of a category of privilege. Once the category (or sphere ofactivity) is established, it is for Parliament, not the courts, to determine whether in a particular case the exercise of the privilege isnecessary or appropriate.

In other words, within categories of privilege, Parliament is the judge of the occasion and manner of itsexercise and such exercise is not reviewable by the courts: “Each specific instance of the exercise of a privilege need not be shown to benecessary” (New Brunswick Broadcasting, at p. 343 (emphasis added)). ... 10. “Categories” include freedom of speech (Stopforth v. Goyer (1979), (ON CA), 23 O.R. (2d) 696 (C.A.), at p.700; Re Clark and Attorney-General of Canada (1977), (ON SC), 17 O.R. (2d) 593 (H.C.); U.K. Bill of Rights of1689, art. 9; Prebble v.

Television New Zealand Ltd., [1995] 1 A.C. 321 (P.C.); Hamilton v. Al Fayed, [2000] 2 All E.R. 224 (H.L.));control by the Houses of Parliament over “debates or proceedings in Parliament” (as guaranteed by the Bill of Rights of 1689) includingday-to-day procedure in the House, for example the practice of the Ontario legislature to start the day’s sitting with the Lord’s Prayer(Ontario (Speaker of the Legislative Assembly), at para. 23); the power to exclude strangers from proceedings (New BrunswickBroadcasting; Zündel v. Boudria (1999), (ON CA), 46 O.R. (3d) 410 (C.A.), at para. 16; R. v. Behrens, [2004] O.J.

No. 5135 (QL), 2004 ONCJ 327); disciplinary authority over members (Harvey; see also Tafler v. British Columbia (Commissioner ofConflict of Interest) (1998), (BC CA), 161 D.L.R. (4th) 511 (B.C.C.A.), at paras. 15-18; Morin v. Crawford (1999), (NWT SC), 29 C.P.C. (4th) 362 (N.W.T.S.C.)); and non-members who interfere with the discharge of parliamentaryduties (Payson v. Hubert (1904), (SCC), 34 S.C.R. 400, at p. 413; Behrens), including immunity of members fromsubpoenas during a parliamentary session (Telezone; Ainsworth Lumber Co. v.

Canada (Attorney General) (2003), 226 D.L.R. (4th) 93,2003 BCCA 239; Samson Indian Nation and Band). Such general categories have historically been considered to be justified by theexigencies of parliamentary work. [Emphasis added, save where otherwise indicated.] [23] It follows that it is up to the parliamentary assembly, the Quebec National Assembly in this case, to establish, whether generallyor occasionally, the equilibrium between the various categories of parliamentary privilege that is exclusively its own, which may includechoosing to restrict its scope from time to time.

Indeed, if the privilege of control over its debates is to be meaningful, the Assembly mustbe able to govern and sometimes even limit the freedom of speech of its members: this regulation is an integral part of the privilege withwhich the Assembly has been constitutionally endowed, without which its work would be hindered or even prevented. It is reflected, forexample, in the rules set out in sections 209 and 210 of the Standing Orders of the Assembly: 209.

Allocation of time — Except as otherwise provided,no Member may speak twice to any question before the Assembly; nor may hespeak for more than ten minutes to aformal motion or for more than twenty minutes to any other matter: Provided that the mover of a motion, the Prime Minister, and the leader of any other parliamentary group, or their representatives, mayspeak for up to one hour each to a substantive motion and for up to thirty minutes each to a formal motion. 210. Length; speaking time — Except as otherwise provided, a limited debate shall last for not more than two hours.

The Presidentshall apportion this time among the several parliamentary groups, after he shall first have conferred with the House leaders thereof and inso doing he must have regard to the presence of independent Members; [24] The Standing Orders of the Assembly also limit speeches by prescribing a general rule with respect to their relevance (section211). [25] These types of provisions (relevance, time limits on the right to speak, the number of interventions, and so forth) are foundwithin most parliamentary rules in force in the other provinces or in Parliament. [26] The measure disputed by the respondents in this case is consistent with these general provisions.

The exceptional shortening ofthe parliamentary debates, which is in some ways the reverse of filibustering[20] or which seeks to prevent it, cannot be consideredanything but a necessary measure for the operation of the Assembly, directly connected to said operation. Because it is included in the"protected sphere of parliamentary privilege",[21] the exception prescribed in

section 182 of the Standing Orders of the Assembly is notsubject to judicial review.[22] In other words, because the measure is included in the parliamentary privilege of control over the debates,the courts, whatever their thoughts as to the appropriateness or political legitimacy of that measure, may not interfere with the choicesmade by the Assembly[23] that belong to "[its] legitimate sphere of activity".[24] The rule in this case being related to the very exerciseof its legislative and deliberative activities,[25] the Assembly is sovereign. [27] The fact that the Quebec National Assembly was, at least at the time that Bill 30 was passed, one of the rare Canadianlegislative entities allowing an exception such as the one under

section 182 of the Standing Orders of the Assembly[26] and allowing thatsuch an exception be adopted by a simple majority of the votes does not in any way justify a judicial review:[27] this unique feature inQuebec is simply an expression of the sovereignty of a parliamentary institution with regard to controlling the debates that are inherent tothe exercise of its legislative function. [28] The argument relative to

section 21 of the Quebec Charter should also be rejected. This provision reads as follows: 21. Every person has a right of petition to the National Assembly for the redress of grievances. [29] This right must not be construed as a bar to the National Assembly's privilege to control its debates, which includes shorteningthem. While we understand that the respondents' argument rests, inter alia, on the idea that the rights-holders mentioned in

section 21 arein such cases deprived of the opportunity to submit their petition in a timely fashion – that is, before a bill is passed – there is nothing tostop them from submitting those petitions at a later time. It would be unduly adding to

section 21 to read therein that the right to submitpetitions to the National Assembly must be exercised before a bill is passed into law. The grievances for which remedies may be soughtpursuant to this provision are not, it should be said, limited to bills of law. As for the rest, just as when applying the Canadian Charter,the Quebec Charter cannot take precedence over an acknowledged parliamentary privilege, and it falls to the National Assembly todetermine whether the standards are compatible. In Harvey v. New Brunswick (A.G.),[28] McLachlin J. (as she then was) found that: ... The courts may review

an act or ruling of the legislature to determine whether it properly falls within the domain of parliamentaryprivilege. If it does not, they may proceed with Charter review. If it does, they must leave the matter to the legislature. This approachpreserves parliamentary privilege and the principle of the separation of powers, while at the same time assuring the protection of theright under s. 3 of the Charter not to be excluded from public office on grounds unrelated to the need of the legislature to maintain orderand the integrity of its processes. [30] These comments can be applied to

section 21 of the Quebec Charter. Indeed, this is exactly the way the Court ruled in Michaudv. Bissonnette,[29] when it decided that: [translation] [52] The judge in first instance concluded that the Superior Court could not compel the National Assembly, under

section 21 of theCharter to rule on a petition; its action on a petition comes under the National Assembly's inherent privilege of controlling its own

proceedings. [ 53] The appellant argued that petitioning was a favour before the passage of the Charter in 1975. It became a new right of a quasi- constitutional nature when it was enshrined in the Charter , in

section 21 . That

section now has normative value and must be applied. [54] The respondent contended that the passage of

section 21 of the Charter did not repeal the National Assembly's privilege of controlling its proceedings without outside interference. [55] In my view,

section 21 of the Charter does not have the scope conferred on it by the appellant.

Section 21 reads as follows: 21. Every person has a right of petition to the National Assembly for the redress of grievances. [56] A number of authors quoted by the judge in first instance define a petition as an official request to an authority to obtain the redress of some wrong: Raymond Guillien and Jean Vincent, Lexique des termes juridiques , Dalloz, 13th ed., 2001: [TRANSLATION] Petition (constitutional law). A non-contentious proceeding that a member of the public may address in writing to parliamentary assemblies to denounce abuse by an administration, advocate a legislative amendment, etc.

Proceeding seldom used today. Joseph R. Nolan and Jacqueline M. Nolan-Haley, Black's Law Dictionary , 6th ed. (The Publisher's Editorial Staff, 1990): [IN ENGLISH] Petition . A written address, embodying an application or prayer from the person or persons preferring it, to the power, body, or person to whom it is presented, for the exercise of his or their authority in the redress of some wrong , or the grant of some favor, privilege, or license. A formal written request addressed to some governmental authority.

The right of the people to petition for redress of grievances is guaranteed by the First Amendment, U.S. Constitution. John A. Yogis, Canadian Law Dictionary , 2nd ed., Barron's Educational Series, Inc.: Petition . A prayer (formal request) from a person or group to a power or person for the exercise of his authority in the redress of some wrong. In old English law, a petition was addressed to the King and later to the Chancellor in a situation where a case was beyond the ordinary writ system. In present day, a divorce proceeding is started by petitioning the court.

Robert Marleau and Camille Montpetit, House of Commons Procedure and Practice , House of Commons, Ottawa (Chenelière/McGraw– Hill: Montréal/Toronto): Simply defined, a petition is a formal request to an authority for redress of a grievance . Public petitions, addressed to the House of Commons and presented to the House by its Members, constitute one of the most direct means of communication between the people and Parliament.

Certainly, it is among the most ancient; the act of petitioning has been described as “the oldest of Parliamentary forms", "the fertile seed of all proceedings of the House of Commons”. [57] Contrary to the appellant's claims, the right of petition is a very old right the exercise of which is subject to the privileges of the National Assembly .

The judge in first instance clearly summarized the state of the right: [TRANSLATION] [62] In response to that argument, it should be borne in mind that the right of citizens to address a petition to parliament for redress of a grievance existed well before it was codified in the Charter in 1975: All authorities agree that the right of petitioning parliament for redress of grievances is acknowledged as a fundamental principle of the constitution.

It has been uninterruptedly exercised from very early times and has had a profound effect in determining the main forms of parliamentary procedure. (Speaker Gaspard Fauteux, Debates, June 18, 1947 at 4275, in Robert Marleau and Camille Montpetit, House of Commons Procedure and Practice, House of Commons, Ottawa, Chenelière/McGraw-Hill: Montréal /Toronto at 923). [63] The exercise of this very old right has always been subject to or delimited by the privileges of the National Assembly. [58] Passage of

section 21 of the Charter was not debated at all by a parliamentary committee.[footnote omitted] It merely reiterates the historical principle and cannot breach the National Assembly's inherent privilege enacted, moreover, in

section 42 of the Act respecting the National Assembly :[footnote omitted] 42. The Assembly has the power to protect its proceedings against all interference. [59] Thus, the advent of

section 21 of the Charter did not create a new right.

Furthermore, without specific Charter language to the contrary, the Charter cannot breach one of the inherent parliamentary privileges that arose in the United Kingdom,[footnote omitted] since these privileges have constitutional status. [60] McLachlin J. stated the following in New Brunswick Broadcasting Co. in this regard:[footnote omitted] I cannot, however, follow my colleague Cory J. in concluding that "the Charter should apply to the actions of the legislative assembly" (p. 401), if he means by this that the Charter should apply to all of the actions of the legislative assembly.

Absent specific Charter language to the contrary, the long history of curial deference to the independence of the legislative body, and to the rights necessary to

the functioning of that body, cannot be lightly set aside, even conceding that our notions of what is permitted to government actors havebeen significantly altered by the enactment and entrenchment of the Charter. The legal reason why curial deference to the action of theHouse of Assembly here in issue should be preserved is set out below. [Emphasis added.] [61] Professors Brun and Tremblay[footnote omitted] dealt specifically with the scope of

section 21 of the Charter. Theyconcluded that the courts cannot ensure it is applied. Only the National Assembly has that right: [TRANSLATION] . . . Similarly,

section 21 of the Charter of human rights and freedoms, R.S.Q., c. C-12, which sets forth the right of all persons topetition the National Assembly, may be applied only by the National Assembly itself: see orders 62 et seq. of the Standing Orders of theNational Assembly, and the October 24, 2000 decision of the President of the National Assembly in regard to the petition JacquesDubreuil sought to present. . . . . . . What we have seen in this regard with respect to the Canadian Charter (in I.B.) is also true for the Québec Charter, so that, forexample, it would be prohibited for the courts to try to ensure the application of

section 21 of the Charter, under which all persons maypetition the National Assembly. [Emphasis added.] [31] For all of these reasons, we must find that Bill 30 was lawfully passed, and

section 182 of the Standing Orders of the Assemblyand

section 9 of the Act respecting the National assembly are in compliance with the Canadian constitution. 2. Validity of Bill 30 with regard to freedom of expression, the right to equality and the right to fair and reasonable workconditions [32] Does Bill 30 interfere with freedom of expression (section 2(

d) of the Canadian Charter and

section 3 of the Quebec Charter)and the right of employees to equality (section 15 of the Canadian Charter and

section 10 of the Quebec Charter)?

The respondentsargued at trial that it did, claiming that the statute should be declared invalid on these grounds as well as on the breach of freedom ofassociation. [33] Neither the Superior Court nor the Labour Relations Board before it accepted these submissions, deeming that the case did notinvolve freedom of expression or the right to equality but was connected to freedom of association instead. [34] With respect to freedom of expression, the Superior Court dismissed the respondents' grounds as follows: [translation] [403] The Court is of the view that the present case raises what is fundamentally a question of interference with freedom of association,not freedom of expression. [404] The employees remain free to express themselves even if they must do so through new bargaining units, around local bargainingtables, through other associations, or before other jurisdictions. [405] This argument is rejected. [35] For its part, the Labour Relations Board explained that: [translation] [344] Freedom of association and freedom of expression are closely related concepts, as the Supreme Court confirms in S.D.G.M.R,local

section 558 v. Pepsi Cola Canada Beverages (West) Ltd, 2002 SCC 8 , [2002] 1 S.C.R. 156 at 173: Free expression is particularly critical in the labour context. As Cory J. observed for the Court in U.F.C.W., Local 1518 v. KMart CanadaLtd., (SCC), [1999] 2 S.C.R. 1083, “[f]or employees, freedom of expression becomes not only an important but anessential component of labour relations” (para. 25). The values associated with free expression relate directly to one’s work.

A person’semployment, and the conditions of their workplace, inform one’s identity, emotional health, and sense of self-worth: Reference RePublic Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; KMart, supra. Personal issues at stake in labour disputes often go beyond the obvious issues of work availability and wages. Working conditions, likethe duration and location of work, parental leave, health benefits, severance and retirement schemes, may impact on the personal lives ofworkers even outside their working hours.

Expression on these issues contributes to self-understanding, as well as to the ability toinfluence one’s working and non-working life. Moreover, the imbalance between the employer’s economic power and the relativevulnerability of the individual worker informs virtually all aspects of the employment relationship: see Wallace v. United Grain GrowersLtd., (SCC), [1997] 3 S.C.R. 701, at para. 92, per Iacobucci J. Free expression in the labour context thus plays asignificant role in redressing or alleviating this imbalance.

It is through free expression that employees are able to define and articulatetheir common interests and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause:KMart, supra. As Cory J. noted in KMart, supra, at para. 46: “it is often the weight of public opinion which will determine the outcomeof the dispute”. (paras. 33 and 34, at 173 and 174). [345] Bill 30 does not violate the freedom of expression constitutionally protected by the charters.

We cannot accept the argument thatimposing the creation of four bargaining units will prevent the collective exercise of freedom of expression because some unions may seetheir certifications revoked and others may fail to obtain the certification that would allow them to collectively exercise the free

expression of their members. [346] We reiterate that Bill 30 does not prohibit the creation of associations. Nor does it directly limit the freedom of expression, whether individual or collective, of employees in the social affairs sector. [347] The argument of "ideological constraint" raised by Bastarache J. in Advance Cutting , supra , in support of the argument relative to the right not to associate, cannot be separated from the context in which that case was considered. In that case, the employees were statutorily obligated to join an association.

That is not the case here, although the collective labour agreements may provide for such an obligation and a general rule in the code (section 47) states that the employees of a bargaining unit must contribute to the financing of the certified association, whether or not they are members of that association. [348] To posit as principle that the freedom of expression of employees is compromised if they must contribute to the financing of the certified association or, more generally, if they are represented by a bargaining agent other than the one they would have chosen, questions the very foundation of union representation in Quebec and especially the monopoly on representation that is its cornerstone. [349] The free expression of individual and collective opinions and of the claims of employees or groups of employees from the health sector is not compromised by the mere fact that these persons are included in a bargaining unit with others, or even that they belong to an association that includes persons that do not share all of their views or even all of their interests. [350] This situation is no different than those of some groups that, although they may have some specific interests resulting from their professional affiliation, religious or political convictions or even their gender, must deal with other groups within a single bargaining unit, or even a single association. [351] The rules governing union democracy, which are not limited to the mere issue of decisions taken following a majority vote, are not incompatible with the defence and promotion of distinct interests, or with the freedom of expression of individuals and groups.

Moreover, certified associations are statutorily compelled to treat their members equally (section 47.2 of the Code ), which prohibits them from acting "in bad faith or in an arbitrary or discriminatory manner" toward their members or other employees included in a bargaining unit that they represent. [352] Bill 30 , by imposing particular rules for the creation of bargaining units, does not modify the general framework for certification provided under the Code .

This framework is not included in the applicant-unions' statements of unconstitutionality. [ 36 ] On the issue of the right to equality, the Superior Court found that: [translation] [406] The applicants argue interference with the right to equality in breach of

section 15 of the Canadian Charter and

section 10 of the Quebec Charter . [407] In Law v. Canada (Minister of Employment and Immigration) ,[footnote omitted] the Supreme Court of Canada recalls the purpose of section 15(1):[footnote omitted]

(4) In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

(5) The existence of a conflict between the purpose or effect of an impugned law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The determination of whether such a conflict exists is to be made through an analysis of the full context surrounding the claim and the claimant. [408] It also defines human dignity:[footnote omitted] ... the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination. Human dignity means that an individual or group feels self-respect and self-worth.

It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits.

It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. ... [409] There will be a violation of the right to equality if the evidence shows that: ▪ the goal or effect of the statute is to impose a differential treatment between the plaintiff and other persons; ▪ the differential treatment is based on one or several of the enumerated or analogous grounds; ▪ the statute has a discriminatory goal or effect, within the meaning of the equality guarantee.[footnote omitted] [410] The applicants argue that: ▪ the statute imposes a differential treatment because it deprives employees from the health and social services network of the general scheme applicable to employees subject to the Labour Code with respect to, among other things, the composition of the bargaining units and the subjects that must be negotiated locally or regionally; ▪ this difference is based on gender, since women represent a clear majority in the network (79.1%), and on professional status.

They deem the health and social services network to be a vulnerable group based on professional status ;

▪ the new measures adopted interfere with the dignity of the union members. [411] In Health Services , the Supreme Court of Canada heard and rejected similar arguments. The comments of the Supreme Court can be directly applied to the present cases:[footnote omitted] [165] The courts below found no discrimination contrary to s. 15 of the Charter . We would not disturb these findings.

Like the courts below, we conclude that the distinctions made by the Act relate essentially to segregating different sectors of employment, in accordance with the long-standing practice in labour regulation of creating legislation specific to particular segments of the labour force, and do not amount to discrimination under s. 15 of the Charter . The differential and adverse effects of the legislation on some groups of workers relate essentially to the type of work they do, and not to the persons they are.

Nor does the evidence disclose that the Act reflects the stereotypical application of group or personal characteristics.

Without minimizing the importance of the distinctions made by the Act to the lives and work of affected health care employees, the differential treatment based on personal characteristics required to get a discrimination analysis off the ground is absent here. [412] The statute creates a differential treatment between persons subject to the Act and those subject to the Labour Code . [413] The differential treatment is not based on an enumerated or analogous ground: ▪ The differential treatment is not based on gender. The Act applies equally to all men and women.

The mere fact that the difference affects more women than men is not enough to find that the difference exists because of the gender of the employees. ▪ In Baier v. Alberta ,[footnote omitted] professional status was not considered an ground analogous to those enumerated in

section 15 of the Canadian Charter . [footnote omitted] [414] The differential treatment is based on the characteristics of the job sector in which the employees work.

The evidence does not show that the professional status of the employees in the network (which includes several professions) constitutes an immutable characteristic or that it affects a distinct and isolated minority. [415] Finally, the statute does not reveal any stereotypical application of the alleged characteristics of the employees of the network, nor does it have the effect of promoting the opinion that these employees are less worthy of being recognized or valued in our society. [footnote omitted] [416] The statute does not interfere with the human dignity of the employees, which is the fundamental purpose of the protection offered under section 15(1) of the Canadian Charter or

section 10 of the Quebec Charter . [417] This argument is rejected. [ 37 ] The Labour Relations Board had also concluded that there was no interference with the right to equality. [ 38 ] These twin conclusions on freedom of expression and the right to equality are not disputed by the respondents, whose seven factums do not broach the subject.

It would not be opportune for the Court to consider these issues, which the parties themselves have abandoned, except to indicate that it would have agreed with the Superior Court and the Labour Relations Board and that it would have made their reasons its own. [ 39 ] The same can be said of the argument made by some of the respondents before the Superior Court and the Labour Relations Board regarding

section 46 of the Quebec Charter . On this matter, the Superior Court wrote: [translation] [418] The applicants argue that the statute also interferes with

section 46 of the Quebec Charter . [419] This provision states that: 46. Every person who works has a right, in accordance with the law, to fair and reasonable conditions of employment which have proper regard for his health, safety and physical well-being. [420]

Section 46 is an integral part of economic and social rights. Barring exceptions, these rights apply only "in accordance with the law". [421] As the Supreme Court of Canada explains in Gosselin v. Québec (Attorney General) ,[footnote omitted] economic and social rights are not subject to judicial review: 92 In all these cases, the rights provided are limited in such a way as to put the specific legislative measures or framework adopted by the legislature beyond the reach of judicial review. These provisions require the state to take steps to make the

Chapter IV rights effective, but they do not allow for the judicial assessment of the adequacy of those steps. ... [422] Moreover, the evidence does not show that the union members of the health sector work in conditions that would be unfair or unreasonable or that would disregard their health or safety. [423] This argument is rejected. [ 40 ] On this same issue, pointing out that the right stated in

section 46 of the Quebec Charter is limited to the measure provided by law, the Labour Relations Board, finding support in Gosselin v. Quebec (Attorney General) , [30] just as the Superior Court did, had the following to add:

[translation] [335] Moreover,

section 52 of the Quebec Charter does not count the rights in this

chapter among those it declares to have precedence over other statutes; consequently, these rights are not as judicially restrictive. It is difficult therefore to see how these economic and social rights could significantly broaden the scope of freedom of association under

section 3 . [ 41 ] In light of the limited scope of the right enshrined in

section 46 of the Quebec Charter and in light of

section 52 of this same charter, the Superior Court's conclusion is entirely justified. In any event, the respondents do not address it in their respective factums, which frees us from further analysis. 3. Validity of Bill 30 with regard to freedom of association [ 42 ]

Section 2 of the Canadian Charter and

section 3 of the Quebec Charter guarantee freedom of association in these terms: Canadian Charter 2. Everyone has the following fundamental freedoms: (

a) freedom of conscience and religion; (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (

c) freedom of peaceful assembly; and (

d) freedom of association. Quebec Charter 3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association. [ 43 ] This freedom may be interfered with, exceptionally, only in a manner that is consistent with

section 1 of the Canadian Charter or

section 9.1 of the Quebec Charter , as the case may be: Canadian Charter 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Quebec Charter 9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well-being of the citizens of Québec.

In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law. * * [ 44 ] In 2007, in Health Services , [31] the Supreme Court of Canada affirmed what it had not yet recognized, at least not as clearly: 25 ... As developed more thoroughly in the next

section of these reasons, the fundamental importance of collective bargaining to labour relations was the very reason for its incorporation into statute. Legislatures throughout Canada have historically viewed collective bargaining rights as sufficiently important to immunize them from potential interference. The statutes they passed did not create the right to bargain collectively. Rather, they afforded it protection.

There is nothing in the statutory entrenchment of collective bargaining that detracts from its fundamental nature. ... 40 Association for purposes of collective bargaining has long been recognized as a fundamental Canadian right which predated the Charter . This suggests that the framers of the Charter intended to include it in the protection of freedom of association found in s. 2 (

d) of the Charter . ... 87 The preceding discussion leads to the conclusion 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. ... ... 89 The scope of the right to bargain collectively ought to be defined bearing in mind the pronouncements of Dunmore , which stressed that s. 2 (

d) does not apply solely to individual action carried out in common, but also to associational activities themselves. The scope of the right properly reflects the history of collective bargaining and the international covenants entered into by Canada. Based on the principles developed in Dunmore and in this historical and international perspective, the constitutional right to collective bargaining concerns the protection of the ability of workers to engage in associational activities, and their capacity to act in common to reach shared goals related to workplace issues and terms of employment. In brief, the protected activity might be described as employees banding

together to achieve particular work-related objectives.

Section 2 (

d) does not guarantee the particular objectives sought through this associational activity. However, it guarantees the process through which those goals are pursued. It means that employees have the right to unite, to present demands to health sector employers collectively and to engage in discussions in an attempt to achieve workplace- related goals.

Section 2 (

d) imposes corresponding duties on government employers to agree to meet and discuss with them. It also puts constraints on the exercise of legislative powers in respect of the right to collective bargaining, which we shall discuss below. [ 45 ] This conclusion is based on the history of collective bargaining in Canada. [32] It is also based on several of the international agreements Canada adheres to, which clearly consider the right to collective bargaining to be one of the components of freedom of association and a tool to interpret

section 2(

d) of the Canadian Charter . [33] Finally, it agrees with the fundamental values on which the Canadian Charter is based by favouring the "human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work". [34] It also favours the value of equality promoted by the Canadian Charter [35] and agrees with its underlying democratic values by allowing the workers to "ensure the rule of law in the workplace" [36] and "gain a voice to influence the establishment of rules that control a major aspect of their lives". [37] [ 46 ] As a result, freedom of association not only has an individual aspect, in that it protects the associational activities of workers themselves, but it also includes the entities or communities arising from individual associational activities.

This principle, which was established in Dunmore v. Ontario (Attorney General) [38] (" Dunmore ") and reiterated by the Supreme Court in Health Services , [39] means that not only do employees have this freedom of association, but the associations themselves, which include the employees, also benefit from some rights without which recognizing freedom of association would be pointless.

One of these rights is the right to collective bargaining, which the Supreme Court defined by reference to the comments of Professor Bora Laskin, as he then was and who subsequently became Chief Justice of Canada: Collective bargaining is the procedure through which the views of the workers are made known, expressed through representatives chosen by them, not through representatives selected or nominated or approved by employers.

More than that, it is a procedure through which terms and conditions of employment may be settled by negotiations between an employer and his employees on the basis of a comparative equality of bargaining strength. [40] This right to collective bargaining, an essential component of freedom of association, constitutes the heart of the respondents’ grounds of contestation and the question that must now be defined and discussed. A. The disputed provisions and their anticipated impact [ 47 ] First, we will consider how, according to the respondents, Bill 30 interferes with the freedom of association guaranteed under

section 2(

d) of the Canadian Charter and

section 3 of the Quebec Charter . [ 48 ] The respondents' contestation specifically targets three series of provisions in Bill 30 . It appears relevant to reproduce them to mark how they differ from the previous scheme, which the respondents would like to remain in force. (

i) Legislative determination of bargaining units [ 49 ] The first disputed provisions, sections 4 to 9 of Bill 30 , which correspond to sections 4 to 9 of the Act respecting bargaining units in the social affairs sector , [41] concern certification units. They are: 4. The bargaining units in any institution in the social affairs sector must be constituted according to the following classes of personnel: (1) nursing and cardio-respiratory care personnel, as defined in

section 5; (2) paratechnical personnel and auxiliary services and trades personnel, as defined in

section 6; (3) office personnel and administrative technicians and professionals, as defined in

section 7; (4) health and social services technicians and professionals, as defined in

section 8. 5. The class of nursing and cardio-respiratory care personnel comprises employees whose practice is governed by the Nurses Act (chapter I-8 ), employees who are members of the Ordre professionnel des infirmières et infirmiers auxiliaires du Québec and employees assigned to nursing and cardio-respiratory care, and who hold employment under one of the job titles listed in

Schedule 1. 6. The class of paratechnical personnel and auxiliary services and trades personnel comprises employees whose job consists in performing semi-skilled tasks to provide functional support, generally to health and social services professionals or technicians, and employees whose job consists in providing manual auxiliary services or pursuing skilled or semi-skilled trades that may require a qualification certificate, and who hold employment under one of the job titles listed in

Schedule 2. 7. The class of office personnel and administrative technicians and professionals comprises employees whose job consists in performing a set of administrative, professional, technical or routine tasks and who hold employment under one of the job titles listed in

Schedule 3. 8. The class of health and social services technicians and professionals comprises employees whose job consists in providing health services or social services to users or in carrying out professional or technical work as part of such services, and who hold employment under one of the job titles listed in

Schedule 4. 9. A bargaining unit may not include more than one class of personnel listed in

section 4 and may only include employees whose home base is in the territory of a single agency. Only one association of employees may be certified to represent the employees of a bargaining unit in an institution and only one

collective agreement may be applicable to all the employees in that bargaining unit. The eminently composite nature of the four personnel categories becomes wholly apparent when we note that schedules 1, 2, 3, and 4, to which these provisions refer, include 27, 154, 66, and 122 job titles, respectively. [ 50 ] In the decision that was set aside by the court below, the Labour Relations Board provided a very good

summary of the situation existing prior to the coming into force of Bill 30 .

It is useful to briefly revisit this information before considering the respondents' position. [ 51 ] With regard to the specific issue of configuring the bargaining units, an issue that the Labour Relations Board addressed in paragraphs 31 and following of its reasons, two specific aspects require our attention. [ 52 ] If, on the one hand, we approach the issue from a strictly legal standpoint, we observe that prior to Bill 30 , the respondents had in past decades benefited from the Labour Code 's general scheme: a certification request had to concern a single bargaining unit deemed to be [translation] "appropriate" as per the usual analysis established by the abundant case law of the competent administrative tribunals.

The important decision rendered by the (former) Labour Relations Board in Syndicat national des employés de Sicard (CSN) v.

Association internationale des travailleurs de métal en feuille [42] is often cited as being the starting point for case law regarding the test to identify the appropriate unit, but with time, other criteria, including those mentioned by the (present) Labour Relations Board in paragraph 12 of its reasons, have improved upon this analysis. [ 53 ] If, on the other hand, we consider the actual certification practice in the health and social affairs sector, it appears that it has evolved quite differently from the norm in industrial, manufacturing or commercial businesses, also governed by the Labour Code .

In paragraphs 36 to 49 of its decision, the Labour Relations Board reviewed the main structural, professional and socio-economic factors that, in time, brought about the fragmentation of general units certified for single institutions, the increase of units that were more restricted, and their eventual overlap, often in newly restructured institutions. These observations are often echoed in Labour Tribunal case law, as shown by Syndicat des employés du CLSC des Trois-Saumons v.

Syndicat professionnel des techniciens en radiologie médicale du Québec [43] and Syndicat national des employés du centre hospitalier Ste-Marie de Trois-Rivières v.

Syndicat des professionnelles et professionnels des affaires sociales du Québec , [44] judgments that were rendered more than ten years apart. [ 54 ] With respect to the configuration of the bargaining units, we can therefore state at this point that the respondents' activities abided by the general rules of the Labour Code prior to Bill 30 , but that, in practice and through the years, the bargaining units for which they were certified have taken on a distinctive nature and now differ from those usually held to be appropriate in other areas.

These elements must be taken into consideration to assess the challenge to sections 4 to 9 of Bill 30 . (ii) Legislative determination of the negotiation levels [ 55 ] A second series of disputed provisions is related to

section 67 of Bill 30 , which adds

Schedule A.1 to the Act respecting the process of negotiation .

Section 58 of that statute, which is also amended by Bill 30 , provides that the matters listed in

Schedule A.1 are "the subject of clauses negotiated and agreed at the local or regional level". Here is that list:

SCHEDULE A.1 LIST OF THE MATTERS NEGOTIATED AND AGREED AT THE LOCAL OR REGIONAL LEVEL IN THE SOCIAL AFFAIRS SECTOR 1- Concept of position, except concept of reserved position, and conditions of application 2- Concepts of unit and activity centre 3- Duration and conditions of probationary period 4- Temporarily vacant position: — definition — circumstances required for filling the position 5- Concept of re-assignment and conditions of application, except remuneration 6- Rules applicable to employees on temporary assignment, except those relating to employees with employment security, employees on disability leave, and employees covered by the parental rights plan 7- Rules applicable to voluntary transfers in the facilities maintained by the institution, except those relating to employees with employment security and employees on disability leave, and those relating to remuneration 8- Bumping procedure (conditions of application of the general principles negotiated and agreed at the national level), except remuneration 9- Working hours and weekly schedule, except remuneration 10- Conditions governing time compensation for overtime work, recall, and standby duties, except rates and remuneration 11- Paid holidays, floating holidays, and annual vacation, except quanta and remuneration 12- Granting and conditions of leave without pay, except leave without pay under the parental rights plan and leave without pay to work

in a northern institution 13- Human resources development, except allocated amounts and retraining of employees with employment security 14- Activities carried on with users within the meaning of the Act respecting health services and social services outside facilities maintained by an institution governed by that Act, or with beneficiaries within the meaning of the Act respecting health services and social services for Cree Native persons outside an institution governed by that Act 15- Mandate and mode of operation of local committees with respect to the matters listed in this schedule, except any release for union activities required to negotiate those matters 16- Rules of conduct between the parties 17- Posting of notices 18- Professional orders 19- Professional practice and liability 20- Special conditions applicable during transportation of users within the meaning of the Act respecting health services and social services or beneficiaries within the meaning of the Act respecting health services and social services for Cree Native persons 21- Loss or destruction of personal property 22- Rules to be followed when uniforms are required by the employer 23- Locker room and dressing room 24- Payment of salaries 25- Establishment of a savings union 26- Moving allowances, except the quanta [ 56 ] The rule set out in

section 57 of the Act respecting the process of negotiation, which, between 1985 and 2003, provided that "matters pertaining to the clauses negotiated and agreed at the local or regional level are those that are defined by the parties in the course of the negotiation of the clauses negotiated and agreed at the national level", was also repealed. [ 57 ] In paragraphs [318] and following, the trial judge related the evolution of Quebec legislation on this issue.

Starting in 1944, a scheme that was distinct from both the Labour Code and its preceding statutes was applied to employees of the government of Quebec: for example, the Act respecting the Arbitration of disputes between public services and their workers [45] set out that any strike or lock- out was prohibited under any circumstances, and it created a mandatory adjudication process.

It was only in 1971 that the legislature got involved with the Act respecting collective negotiations in the education and hospital sectors , [46] adding that, in the sectors of education and health, a provision in a collective agreement "was only valid if it was negotiated and certified at a provincial level".

Section 8 of that statute, similar in content to sections 3 and 4 of the Act respecting the organization of management and the union for the purpose of collective bargaining in the sectors of education, social affairs, and government organizations , [47] was the predecessor of

section 57 of the Act respecting the process of negotiation , amende

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