Report: Supreme Court of Canada recognises constitutional protection for the right to strike

associations for the purpose of collective bargaining and, in overturning the final piece of its earlier case law in SFL, incorporates the right to strike. The Saskatchewan Public Services Essential Services Act permitted a broad range of public sector employers to unilaterally ‘designate’ employees (as essential workers) and hence to require them to continue to perform their duties in the event of a work stoppage (‘Saskatchewan challenge to workers’ rights’, IUR 15.3 2008). The Saskatchewan Act went far beyond essential services legislation in any other Canadian jurisdiction. It provided the broadest definition of essential services, covered the greatest number of public sector employers, all without any effective means to challenge whether the services were in fact essential, let alone the designation of employees themselves, and with no alternative dispute resolution process to otherwise resolve a workplace dispute. The effect was to so drastically interfere with the right to strike as to make its exercise meaningless. The Saskatchewan labour movement claimed the Act was in violation of what should be a constitutional protection of the right to strike. In 2010, the ILO Committee on Freedom of Association found the situation violated the right to strike, but this had no impact on the Saskatchewan Government. The Government refused to make the requested revisions and the SFL action proceeded to trial. The path to the Supreme Court began with the 2012 trial judge’s decision that the right to strike was constitutionally protected under the Charter. That decision was overturned on appeal by the Government of Saskatchewan in early 2013 and the matter moved to the Supreme Court of Canada where it was heard in May 2014. In a great display of effective solidarity, the Canadian Labour Congress co-ordinated the efforts of the diverse trade unions and labour organisations, along with the CLC itself, that intervened in support of the Saskatchewan Federation of Labour. In reaching its conclusion, the Supreme Court majority found support in its previous caselaw, in the application of Charter values promoting dignity in the workplace, in the role of strikes in labour history, international treaties, and in the acceptance of a constitutional right to strike in other states as well under the European Convention on Human Rights (‘ECHR’). The majority also relied on expert evidence admitted at trial on the content of international law from Canadian professors Michael Lynk, Patrick Macklem and Roy Adams. The Court referenced many published articles and, while this included respected Canadians such as Judy Fudge, Eric Tucker and Paul Weiler, this also included others familiar to IUR readers as Sir Bob Hepple, John The Canadian Supreme Court has greatly expanded the recognition and protection of freedom of association concepts under the Canadian Charter of Rights and Freedoms INTERNATIONAL union rights Page 20 Volume 22 Issue 1 2015 I n a 5-2 decision issued 30 January 2015, Saskatchewan Federation of Labour v. Saskatchewan, (‘SFL’) the Supreme Court of Canada recognised that the right to strike is constitutionally protected as an essential element of meaningful collective bargaining pursuant to s.2 (d) freedom of association in the Canadian Charter of Rights and Freedoms. In reaching this profound conclusion, the Supreme Court has completed a move from a restricted interpretation of freedom of association that was set out in the 1987 Labour Trilogy and a subsequent 1990 case, Professional Institute of the Public Services of Canada (‘PIPSC’). In those cases, the constitutional protection of worker freedom of association was found to be limited to activities that could be performed by individuals and not those collective activities, which could only be performed as a result of association. The remarkable shift that has occurred from this earlier case law began in 2001 with the Dunmore case. In Dunmore, the Court held that the Charter guarantee of freedom of association included the right of farm workers in the Province of Ontario to at least make collective representations to their employers (see ‘Scope for Optimism in Canada’, IUR 9.1 2002). The outcome reflected the Court’s adoption of a ‘purposive ’ approach in the interpretation of the rights set out under the Charter. This included consideration of international labour law in giving meaning to freedom of association. In...

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