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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