Friday 30 January 2015

The rule of law and the Supreme Court's decision on the right to strike -

Today’s Supreme Court of Canada decision in the Saskatchewan Federation of Labour case is remarkable on many levels.

Both the majority and minority judgements deserve to be read: 2015 SCC 4.

In brief, the Court has, for the first time in history, constitutionalized the right to strike.

There is lots that needs to be said about this decision.  In this note, I want only to make an observation about its implications for the rule of law.  In particular, the idea, which lies at the heart of our system of government, that our constitution is intended to be the expression of enduring values, not simply a mirror for the ever-changing to-and-fro of political debates. And, equally importantly, the idea that the democratic legitimacy of judicial power requires that court decisions promote stability, certainty and predictability. 

For twenty years, the Supreme Court of Canada consistently held that the Charter protection for “freedom of association” did not extend to collective bargaining.  Legislatures could enact labour relations statutes recognizing the right of workers to organize and bargain collectively, and could create, protect and regulate the right to strike, but these were policy choices made by legislatures, not the implementation of constitutional imperatives.

All that changed in the Health Services case, in 2007, in which the Supreme Court expressly overruled three previous decisions.  Not ancient, dusty precedents, lodged deep in the forgotten recesses of old libraries, but three decisions, carefully and thoughtfully reasoned, less than twenty years old.

What the Supreme Court decided in Health Services was that, contrary to its three previous decisions, the constitutional protection for freedom of association does imply a right of collective bargaining.  In particular, it “requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation”

This is an enforceable protection.  If the employer does not “meet and bargain in good faith,” employees have recourse to the courts, who can order the parties to continue bargaining. That’s an enormously powerful remedy.  It completely changes the dynamic of collective bargaining in the public sector.  When governments know that public sector unions can take them to court to challenge their collective bargaining proposals, offers, strategies and processes, it’s a big deal.  Everything that the BC government has done in its recent negotiations with teachers, to give just one example, has been conditioned and influenced by the spectre of litigation.

What about the right to strike?  Well, in a 2011 decision called Fraser, the Supreme Court refined its 2007 ruling, and made it clear that the constitution, “does not require the parties to conclude an agreement or accept any particular terms and does not guarantee a legislated dispute resolution mechanism in the case of an impasse.” 

Okay, so the new law is that the constitution protects the right to bargain, but does not protect the right to any “legislated dispute resolution mechanism.” In short, no right to strike. 

Well, that was then (as in, 2011) and this is now.  Four years later, the Supreme Court of Canada has changed its mind again.  As the dissenting minority points out in their reasons, what the court has done here is create “a stand-alone constitutional right to strike.”

So, last week, if, relying upon Heath Services and Fraser, you advised your client that while there was clearly a constitutional requirement to bargain collectively in good faith the law was clear that there was no constitutional right to strike, you were wrong.  When you told your client that the Court had obviously charted a new course on freedom of association, but that we could count on a measure of stability, certainty and predictability in this area of constitutional law for the time being, you were wrong.  When you observed that the Court had stared right at the argument that the Constitution should protect a right to strike and said no, you were wrong. 

Imagine trying to govern when you have no idea, week in or week out, what the courts will allow you to do.

That’s not the rule of law, it’s whipsaw whimsy.

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