Friday, September 28, 2012

Canada - Freedom of Association under the Charter: Snake or Tree?

By Michael A. Hines, Hicks Morley
The ancient parable of the six blind men and the elephant is a lesson in perspective. Each blind man was asked to describe “what an elephant is like” by touching one part of the animal. One, touching the trunk, proclaimed elephants to be like snakes. Another, touching a leg, declared elephants to be like trees. And so on.
This lesson, combined with the ability of courts to see what they want in earlier precedent, provides an insight into two recent decisions from Saskatchewan and Ontario on the so-called Charter “right to collective bargaining.”
The “elephant” in question is the recent Supreme Court of Canada case law on section 2(d) of the Charter, most particularly its unanimous 2007 decision in B.C. Health Services and its 2011 decision in Ontario (Attorney General) v. Fraser (“Fraser”).
Section 2(d) guarantees to everyone the fundamental “freedom of association.” The legal question here concerns the extent to which unions can use section 2(d) to challenge legislation adverse to their interests. B.C. Health Services was hailed as the case that reversed a series of 1987 Supreme Court decisions, making labour legislation and “collective bargaining” finally subject to Charter rights – a case that would, for the first time, force governments to exercise legal caution when enacting wage restraint legislation, back-to-work legislation and so on. Significantly, B.C. Health Services emphasized that section 2(d) does not prescribe any particular model of labour relations, so long as a process of “good faith collective bargaining” is statutorily protected.
The Court’s fragile “unanimity” in B.C. Health Services was soon revealed by Fraser, which yielded four sets of reasons among its nine members. It should therefore come as no surprise that these cases are now generating divergent interpretations. What is striking is the extent of the disparity. Indeed, accepting a basic shared parameter (the applicability of section 2(d) to labour law), the two most recent cases could not be more different.
On February 6, 2012, Justice Ball of the Saskatchewan Court of Queen’s Bench released his decision in Saskatchewan v. Saskatchewan Federation of Labour (“SFL”). At issue was the constitutionality of The Public Service Essential Services Act (“PSES”), which guaranteed the continuous provision of public services necessary to ensure safety, health and order. Employees engaged in providing such services were prohibited from striking at any time.
PSES was unusual in two important respects. First, employers covered by PSES could determine, without appeal, which services were to be regarded as essential. Second, PSES contained no third-party dispute resolution mechanism to resolve outstanding bargaining issues. The collective bargaining concerns of “essential services workers” could remain unresolved indefinitely.
Although Justice Ball could have focused on the absence of any dispute resolution mechanism to support a conclusion that section 2(d) had been violated, his decision was much more specific. He held that section 2(d) constitutionally guarantees a right to strike. The denial within PSES of a right to strike was sufficient on its own to constitute a section 2(d) violation, forcing the government to justify this omission under section 1 of the Charter. The implications for police, hospital and other similar “no strike” labour regimes are obvious.
Justice Ball placed extensive reliance on the dissenting judgment of Chief Justice Dickson in the three 1987 decisions that B.C. Health Services had overturned. He also relied heavily on an analysis of Canada’s international treaty obligations regarding labour laws and collective bargaining, many of which advert to a “right to strike.” He regarded the majority decision in Fraser as an unqualified endorsement of B.C. Health Services. He mentioned only in passing the Court’s important observation that section 2(d) does not compel any specific model of collective bargaining.
On June 1, 2012, the Ontario Court of Appeal released its decision in Mounted Police Association of Ontario v. Canada concerning the labour law regime applicable to members of the RCMP. The issue was more fundamental and less extreme than the “right to strike” affirmation in SFL. The challenged provisions did not require the employer to recognize any employee association selected by the affected employees. Rather, the legislation provided a structure that allowed the employees to elect a number of Staff Relations Representatives (“SRRs”) who would discuss, in good faith, matters of concern with representatives of the employer. There was, of course, no right to strike. The only “dispute resolution mechanism” concerned salary, where a panel of two SRRs, two employer representatives and a neutral chair would do no more than make recommendations to the Treasury Board concerning compensation issues.
The analysis in SFL would have found a violation of section 2(d) simply based on the absence of a “Charter-guaranteed right to strike.” Yet in its unanimous decision, the Ontario Court of Appeal found the legislation to be consistent with section 2(d). SFL was not mentioned. Fraser was regarded as having tempered B.C. Health Services and was interpreted as being based largely on its unusual facts –a consideration of the Charter rights of migrant, politically disenfranchised agricultural workers that had little to say about well-organized police unions. The revered “Charter right to collective bargaining” was held to be merely a “derivative right” arising in certain cases only as an adjunct to the freedom of association. International treaties were not mentioned. Rather, the Court pointed out that many successful labour relations systems in other countries were modelled on “representative” systems like the SRR structure at issue.
This observation, combined with the statement in B.C. Health Services regarding “no single prescribed model,” allowed the Court to find that the model before it was sufficient to guarantee the associative freedoms protected by section 2(d).
So is “the Charter right to collective bargaining” a snake, a tree, or something else? The answers at this stage are anything but clear.