Law Times

Law Times • March 2, 2015 Page 9 www.lawtimesnews.com Lawyers eagerly awaiting impact of SCC labour rulings BY SHANNON KARI Law Times he Supreme Court of Canada deci- sions that allowed RCMP officers to form their own union and that found there's a consti- tutional right to strike con- tinue to attract considerable commentary and contro- versy in the weeks since they came out. From the strongly worded dissents by Jus- tice Marshall Rothstein, who suggested the deci- sions have "far-reaching consequences," to opinion pieces in daily newspapers, critics are saying the Su- preme Court is engaging in policy-making and im- properly reversing its own precedents. On the other side, lawyers representing employees are sug- gesting the rulings are simply adding a level of fairness to the collective-bargaining process. The decision in Mounted Police Association of Ontario v. Canada (Attorney General) grants RCMP officers the same right to form an association to bargain virtually every other municipal and provincial police force in the country already en- joys. In a companion decision, Meredith v. Canada (Attorney General), the court upheld the right of the federal government to reduce approved wage in- creases as part of its 2009 Ex- penditure Restraint Act. The majority decision in Sas- katchewan Federation of Labour v. Saskatchewan found freedom of association protections ex- tend to the right of unionized workers to strike. Some of the criticism of the rulings deals with the scope of freedom of association rights in the collective-bargaining process and how it appears to be changing with each ruling on the subject by the Supreme Court. John Craig, a partner at Fasken Martineau DuMoulin LLP in Toronto, says there has been "tremendous inconsisten- cy" in the interpretation of free- dom of association and how it applies to collective bargaining. "Lower courts are going to have trouble" in applying the rulings, says Craig, who acted for inter- vener groups at the Supreme Court in both the RCMP and the Saskatchewan case. In the RCMP ruling, the ma- jority said that a scheme that "substantially interferes" with a meaningful process of collec- tive bargaining is inconsistent with the s. 2(d) guarantees in the Charter of Rights and Free- doms. Rothstein, in his dissent, said the test was whether it was "effectively impossible" to as- sociate based on the Supreme Court's ruling in Ontario (At- torney General) v. Fraser. Craig says Rothstein's view was widely interpreted as the standard after Fraser. "They changed the test," he says. Laura Young, a Toronto law- yer who acted for the RCMP of- ficers in Mounted Police Associa- tion in the more than eight years of litigation in the case, agrees there was some "inconsistent language" previously. "We needed clarification on that issue," says Young. "What the decision says is that it is legitimate for work- ers to have an association to bargain with an employer," she adds. Young describes the rul- ing as merely trying to correct the "power imbalance" in bar- gaining between RCMP officers and the federal government. In the Saskatchewan decision, the Supreme Court reversed its 1987 rul- ing in the Alberta reference case that freedom of asso- ciation didn't extend to the right to strike. Nearly three decades later, the majority ex- plained the reversal. "The right to strike is not merely derivative of collective bargaining, it is an indis- pensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction," wrote Justice Rosalie Abella. In dissent, Rothstein suggested the majority de- cision "constitutionalizes a duty on employers not to terminate employees who have withdrawn their labour, nor to hire replace- ment workers." Christopher Rootham, who acted for an intervener in the proceeding, disagrees with that interpretation of the major- ity decision. "It just means you are not deemed to have quit. There is a right of return," says Rootham, a partner at Nelligan O'Brien Payne LLP in Ottawa. The existing statutory frame- work in Canada is aimed at lim- iting strikes, says Craig, who suggests the Supreme Court has given "constitutional protec- tion" to one side. Rootham disagrees that there's an unfair tilt towards unionized employees. "All it does is try to level the play- ing field," he says. Restric- tions on the right to strike or back-to-work legislation by the government "is going to have to be a lot more carefully tailored," says Rootham, who's represent- ing the Air Canada Pilots As- sociation in an ongoing court challenge against the federal government on the issue. Rootham, who also repre- sented the unsuccessful appel- lants in Meredith, says the Su- preme Court decisions in the three cases show more of a sup- port for collective-bargaining rights in the abstract than in practice. The most immediate im- pact of these rulings may arise in two cases before the British Columbia and Quebec courts of appeal. In late January, instead of deciding whether to grant leave to appeal, the Supreme Court sent the matters back for another hearing at the courts of appeal in light of its recent decisions. The disputes also involve pub- lic employees who had negotiated wage increases later reduced by the federal government after the restraint legislation had become law. Despite its decision in Mer- edith, the majority wrote that its conclusion in that case "should not be taken to endorse the con- stitutional validity of that pro- cess or of similar schemes." 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