Law Times

Law Times • OctOber 6, 2014 Page 9 www.lawtimesnews.com Labour lawyers watching as SCC pronounces on key employment law issues By Judy van rhiJn For Law Times ntario labour lawyers are watching the Su- preme Court of Ca- nada as it deals with two cases related to the right to strike and statutory pay freezes. Although both cases ema- nate from other provinces, they have the potential to affect labour law and practices in On- tario. In the first case, United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp., the Supreme Court issued a judgment on June 27. The case involved the closing of a store in Jonquière, Que., during the period covered by s. 59 of the Quebec Labour Code that im- poses a freeze on employees' conditions of employment dur- ing bargaining periods for col- lective agreements. The union argued Wal-Mart must prove the closure took place in the normal course of its business activities. The ar- bitrator held that a statement by Wal-M art that it was a busi- ness decision wasn't sufficient to justify the closure. While the Superior Court upheld the decision, the Quebec Court of Appeal overturned it. It held that s. 59 didn't provide an ap- propriate recourse for contest- ing the closure of a business. In its decision, the ma- jority of the Supreme Court found s. 59 could apply to cases involving the closure of a business. It held that dismissal of employees constituted a change to the terms of their employment for the purpose of the section. Robert Salisbury, a partner at Gowling Laf leur Hender- son LLP based in Waterloo, Ont., believes that what most employers wanted to hear from the court was a definition of the rules identifying the risks and interpretations they face. "Whether you see it as a pro- gression of the law in Quebec or elsewhere, the case makes it clear to employers that during a statu- tory freeze period, it is clearly risky for employers to make substantial decisions affecting employees. The application in Ontario is simply to identify those risks and potential conse- quences for employers." Paul Broad of Hicks Morley Hamilton Stewart Storie LLP in London, Ont., considers that much of the decision related to the Quebec statute which, un- like in Ontario, doesn't appear to give the labour board the remedy of compensation. "Under our statute, upon a violation of a condition of em- ployment, the labour board has broad remedies including damages. What is interesting is the finding that having a job itself is a condition of em- ployment. Presuming that comes over into Ontario law, if a company shuts down while a freeze is on, there will be damages. That was always a potential out- come in Ontario, although it`s not something that comes up that often." John Hyde of Levitt & Grosman LLP isn't losing any sleep over the decision. "From my perspective, I don't think it has a re- ally big impact in terms of changing the law," he says. Hyde notes one aspect of the decision was the test for reviewing the arbitrator's decision, namely reason- ableness. "The arbitrator at first instance found that the de- cision to close the store was a violation of the Quebec freeze provision. That was one reasonable outcome. The alternative could also have been true. I don't think the sec- tion was ever intended to ad- dress the closure of a business. That said, this is what we have to live with." Ontario has incorpora- ted freeze provisions into the Ontario Labour Relations Act, while federally regulated em- ployees have statutory freezes in the Canada Labour Code. "Employers have always had statutory freeze conditions to contend with," says Hyde. "They can only change the terms of employment in the normal course of business or with the agreement of the union. Closing the business during a statutory freeze is never a good idea unless you have the facts to overcome the presumption that you did so on account of anti-union animus. This case says if you are in that situation, make sure you have enough facts to support it." The second case remains under reserve following a hear- ing on May 16. Saskatchewan Federation of Labour v. Saskatchewan emanat- ed from the introduction of two pieces of provincial legislation, the Public Service Essential Ser- vices Act and the Trade Union Amendment Act, that unions say violated employees' right to freedom of association. The essential services act pro- vided a mechanism to determine which services were essential with employers having the ability to unilaterally make determina- tions failing an agreement. The appeal raises the issue of whether there's a constitutionally protect- ed right to strike in Canada un- der s. 2 of the Charter of Rights and Freedoms. Previous decisions stat- ing that freedom of associa- tion includes a right to col- lective bargaining have given impetus to attempts to ex- tend it to a right to strike. The Saskatchewan Court of Ap- peal found the Charter doesn't guarantee a right to strike for unions and their members but concluded it was a matter for the Supreme Court to decide. "The first part of the appeal is the Charter argument that the right to strike is guaranteed by s. 2(d)," says Hyde. "The Court of Appeal passed the ball on that. Given the decisions in Dunmore v. Onta- rio, B.C. Health Services, and Fraser v. Ontario, they said it was really up to the Supreme Court but they hinted that it was likely that the Supreme Court might in fact agree that the right to strike is protected by s. 2(d)." In fact, the Court of Appeal found that even if the recent develop- ments in the Supreme Court's case law sug- gested it might overrule its previous finding on the right to strike, there was sufficient ambigu- ity in the decisions to make it very difficult to determine what course the top court might ulti- mately adopt. Broad won't be laying any bets on the outcome. "Every legal practitioner is hesitant to guess where the Supreme Court is going with this given the unpre- dictability of s. 2 cases recently. If there is a recognition of the right to strike in some form, the big unknown is whether it will be a full-blown right to strike or a broader notion of a right to some kind of mechanism to resolve disputes." Broad notes the Ontario Court of Appeal in Fraser phrased s. 2 as guaranteeing a right to a dispute mechanism. "The Supreme Court could take this route or it may answer the specific Saskatchewan question without answering the consti- tutional question." Broad believes that in Onta- rio, the decision will have the most impact with respect to the tools the government uses to intervene in labour disputes, such as back-to-work legislation, essential services designations, and recognition of illegal strikes. "It doesn't mean the government can't address these issues, but there will be a higher level of justification for interfe- ring." Salisbury sees the Saskatch- ewan case as an opportunity for the Supreme Court to provide a better definition of whether there's constitutional protection afforded to the right to strike. "The Fraser decision left many of us unclear as to whether there is any basis for considering a right to strike as being consti- tutionally entrenched. Fraser is read by many as being a depar- ture from the labour trilogy but its import remains unclear." Hyde, who expects the deci- sion will be similar to recent rul- ings, notes he's hoping for a bal- anced approach when it comes to issues like essential services. "My perspective is that there will not be a significant impact upon broader labour relations in Ontario. These are interest- ing cases, but I don't think they will profoundly change the way the majority of businesses oper- ate or handle day-to-day labour relations." LT REASONABLE DOUBT? If you're building your case with anything other than Canada's new and most comprehensive resource for criminal cases and expert commentary, it's only natural to wonder if you've missed something. NEW! WestlawNext® Canada CriminalSource™ Go to court with confidence. westlawnextcanada.com/criminalsource NEWS O 'Every legal practitioner is hesitant to guess where the Supreme Court is going with this given the unpredict- ability of s. 2 cases recently,' says Paul Broad.

• Cover