Law Times

Page 12 august 10, 2015 • Law Times www.lawtimesnews.com Labour rulings leave significant uncertainty Employers face 'shifting sands' due to Charter jurisprudence By Julius MelniTzer For Law Times or almost 30 years, the Su- preme Court of Canada has been equivocating about the extent to which the constitutional rights to freedom of association and speech affect labour relations. Given the far- reaching effects of this jurispru- dence on Canadian workplaces, uncertainty has now become the norm. "The shifting sands of the ju- risprudence have been incoher- ent for some 10 or 15 years," says John Craig of Fasken Martineau DuMoulin LLP in Toronto. "The SCC just seems to keep moving in the direction of the results it wants to get as particu- lar cases come up." Craig, who represented in- terveners in two of the cases on the issue earlier this year, says much of the confusion stems from the fact that in many of the leading cases, the top court found itself confronting what he calls the "heavy-handedness" of governments. The trilogy involved the judgments in Mounted Police Association of Ontario v. Cana- da (Attorney General), Meredith v. Canada (Attorney General), and Saskatchewan Federation of Labour v. Saskatchewan. Both Mounted Police and Meredith involved the RCMP. In those cases, the court held that the unique bargaining scheme that the federal government had imposed on the RCMP violated s. 2(d) dealing with freedom of association under the Charter of Rights and Freedoms. In Sas- katchewan Federation of Labour, the court went further. Faced with essential-services legisla- tion, the court ruled that the s. 2(d) protection included the right to strike as an "indispens- able component" of the right to bargain collectively. "The decisions in these cases turned the jurisprudence on its head," says Craig. "The majority's reasons in Saskatchewan, in particular, don't seem to reference legal principle so much as they ref lect the political and social views of the judges." This approach, Craig main- tains, makes it difficult for counsel to predict where future decisions are going. "That's the fundamental problem with jurisprudence that doesn't see the forest for the trees in its concern for fashion- ing results to achieve workplace or social justice," he says. "The court has had no prob- lem overturning previous de- cisions on this issue, so why would it — especially if it was differently constituted — have a problem overturning Sas- katchewan Federation of La- bour? And that makes things very confusing from an em- ployer perspective." But Chris Paliare of Paliare Roland Rosenberg Rothstein LLP in Toronto says the trilogy makes sense. "The very notion of collective bargaining implies that there is an imbalance between workers and employees," he says. "So unless you have an inher- ently anti-union bent, you have to accept that workers need the fundamental right to bargain collectively, to be protected from unfair labour practices, and to take strike action in or- der to address that imbalance." To some extent, Paliare believes the shift to expanding the reach of s. 2(d) is a sign of the times. "The earliest decisions which ruled against the right to strike as a constitutional right came when the Charter was still new," he says. "Collective bargaining was more robust then and I think the courts are recognizing that workers need more protection today." To the extent, however, that the recent trilogy remains the law, what seems clear is that the jurisprudence will resound for years. From a legislative perspec- tive, statutory limits on collec- tive bargaining will be subject to greater scrutiny and essen- tial-services legislation limiting the right to strike will need to go no further than necessary. From a dispute resolution perspective, courts, labour relations boards, and arbitrators will have to take the trilogy into account, some- thing that could result in nar- rowing interpretations of em- ployer rights. "The overarching effect of these decisions is to move la- bour relations in Canada fur- ther away from a question of economic relationships to one of constitutional rights," wrote Michael Torrance of Norton Rose Fulbright Canada LLP in a recent legal update. "Consequently, employers can likely expect more permis- sive treatment of unions and their membership wherever a linkage to freedom of associa- tion or freedom of expression can be found." 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