Law Times

Law Times • may 28, 2018 Page 11 www.lawtimesnews.com Effect of SCC ruling still emerging BY DALE SMITH For Law Times I n the past few years, the Su- preme Court of Canada has reversed its previous rulings around freedom of asso- ciation and how that relates to a right to strike by labour unions. Labour lawyers say this move has shifted public perception and how they advise their clients when it comes to labour rela- tions in the country. Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 was a landmark case that is still inf luencing decisions made across the country. The ruling found that the right to strike is an essential part of a meaningful collective bar- gaining process and not merely derivative of collective bargain- ing. Because provincial essential services legislation offered no alternative mechanism for em- ployees to exert their right to col- lective bargaining, the scheme was struck down as unconstitu- tional. "The decisions have radically altered the landscape around Charter protections for collec- tive bargaining and the right to strike," says Andrew Raven, partner with Raven Cameron Ballantyne & Yazbeck LLP in Ottawa. For example, in 2017, the rul- ing was cited in International Union of Operating Engineers, Local 793 v. Hermanns Con- tracting Limited, which found that s. 3(c) of Ontario's Labour Relations Act was unconstitu- tional. Raven says governments got cocky in the wake of the SCC's 1987 labour trilogy decisions, which resulted in laws such as the ones struck down in Saskatche- wan Federation of Labour. "Frankly, if governments act- ing as employers or even as legis- lators had been more measured in some of these cases that have worked their way through the courts, the outcome might have been different," says Raven. Sean McGee, partner with Nelligan O'Brien Payne LLP in Ottawa, who leads the firm's Labour Law Practice Group, says the Supreme Court's deci- sion was an evolving progres- sion as opposed to a dramatic shift, which traces back to the Supreme Court's decision about the importance of picketing in R.W.D.S.U., Local 558 v. Pepsi- Cola Canada Beverages (West) Ltd., 2002 SCC 8. "There are specific rights that have been given that are affect- ing the practice of labour law, but there is a more indirect ef- fect, which is [that] the Supreme Court has talked about the way labour rights and individuals' rights and their rights collec- tively interact with the law," says McGee. "It's a discussion about what the Charter means to the eco- nomic and social balances of power in the country," he says. McGee says these principles now play out day to day when union lawyers and manage- ment-side lawyers appear in front of courts and tribunals and argue the more fundamental questions. "Strangely enough, they come up more often than you'd think when you're trying to ar- gue about various points of law because arbitrators, courts and tribunal members want to hear the broader public policy rea- sons why they should decide in certain ways," says McGee. He says that when he repre- sents clients looking for an in- junction, it is incumbent to talk to the court about the balance of rights, power and convenience. "You have to talk about where that social and legal balance has to be put," says McGee. "When we've gone to court to look at injunctions, whether it's at a provincial level or an injunction over federal lands, we're talking about these very issues. "Every labour lawyer has to have a good sense of where this balance is being held, because judges and tribunals are going to want to have this discussion where it's appropriate and where the question of that balance comes into play," says McGee. David Wakely, senior part- ner with Filion Wakely Thorup Angeletti LLP in Toronto, notes that the crux of the SCC deci- sion in Saskatchewan Federa- tion of Labour was that there were no other dispute resolution means incorporated into the legislation. Wakely notes that, in On- tario, all essential services have a system of binding interest ar- bitration that is their own legis- lation that replaces the right to strike. "If you look at police agree- ments, fire agreements or nurse agreements, they're the richest agreements in the country be- cause this binding interest ar- bitration has been very kind to them," says Wakely, who repre- sents management-side clients. As a result, the Supreme Court decisions have had little effect on the practice in Ontario, Wakely says, and he suspects that because of how well these groups have done under binding interest arbitration, it would be unlikely that they would prefer a return to a right to strike. 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Governor General of Canada (2010 - 2017) Chair, Rideau Hall Foundation Executive Advisor, Deloitte FORGING A STRONGER FUTURE www.innovatio-awards.com Signature Sponsor Untitled-3 1 2018-05-22 3:30 PM See Scrutiny, page 12 George Waggott says there is now a greater recognition about the need for a process in negotiations in order to have integrity in labour relations. It's a discussion about what the Charter means to the economic and social balances of power in the country. Sean McGee

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