The Supremes give the B.C. government a lesson on freedom of association

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Only rarely will the Supreme Court rule on a Charter issue of importance from the bench. And that is what has happened today. The Court has overturned the British Columbia Court of Appeal’s ruling, and reinstated the determination of the trial judge. In a previous post, I had commented on the Court of Appeal decision.

The case will no doubt be appealed to the Supreme Court where yet another discussion about the refurbished freedom of association will ensue. The careful discussion by the Chief Justice and Justice Harris (as well as by the dissenting judgment of Justice Donald), dissecting the importance of good faith consultation and discussions with collective representatives from the equally important legislative capacity to impose one or more labour provisions for the sake of public policies, including fiscal prudence, will be of great assistance to that Court when considering just how far the Charter value for associational freedom should go when faced by a government making decisions about such things as educational policy (size of classes and curriculum as examples) and the public purse.

Well, I sure was wrong: the Supreme Court evidently had enough careful discussion and wanted direct action. I will report more on this when a copy of the oral ruling becomes available.

I remain

Constitutionally yours,

Arthur Grant

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Election 2015 – our constitution at work…

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On October 19, 2015, Canada goes to the polls. The hurly burly of the Canadian version of democracy has been on display since early August when Prime Minister Stephen Harper asked the Governor General to dissolve Parliament and to call this election. What many of us do not appreciate is that this spectacle is probably one of the best examples of our constitution at work.

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The British Columbia Court of Appeal puts the brakes on freedom of association – BCTF v. BC, 2015 BCCA 184

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After the Supreme Court of Canada made a number of decisions enlarging the scope of the fundamental freedom of association in the field of labour relations, in British Columbia Teachers Federation v. British Columbia, 2015 BCCA 184, the British Columbia Court of Appeal has slowed its growth and given some considered discussion of the Supreme Court’s recent pronouncements in the field. A majority of four of a five member panel led by Chief Justice Bauman and Mr. Justice Harris reviewed the law respecting freedom of association, including the recent decisions of the Supreme Court in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (“MPAO“)and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“SFL“). Their comments provide penetrating insights as to one approach to understand the newly reconstructed freedom of association.

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In the name of workplace justice: the Court continues to beef up freedom of association

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In two decisions released only two weeks apart, the Supreme Court of Canada has clearly moved to “refang” the union movement, especially insofar as it involves government employers. In its first decision of the year, Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the majority of the Court ruled that the laws prohibiting RCMP members from being able to freely organize their own independent labour association (ie. a labour union) contravened their freedom of association as protected by s. 2(d) of the Charter and could not be justified under s. 1. In last Friday’s decision, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, a majority of the Court held that Saskatchewan’s “essential services” laws which prohibit the public service from striking were similarly contrary to s. 2(d) and unconstitutional. In both cases, Justice Rothstein (joined by Justice Wagner in the second decision) provided powerful dissents. As a result of these decisions and other relatively recent decisions, Canada constitutional protection of freedom of association has now come to protect core elements of labour relations, such as the right to bargain collectively, the right to strike and the right to freely choose an independent labour association to represent their interests viz-a-viz the employer. We have come a long, long way from the labour trilogy of 1987.

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The unions’ renewed swagger – giving teeth to freedom of association

Wikipedia – Winnipeg General Strike 1919

In 1987, a majority of the Supreme Court of Canada held that “the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike”: Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313, per Le Dain J. Then, after testing the waters in some earlier cases, the Supreme Court of Canada reversed this ruling in 2007 in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, at para. 86:

“We conclude that the protection of collective bargaining under s. 2(d) of the Charter is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.”

While the constitutional status of the right to strike is now in doubt, there is no doubt that the courts, with the Supreme Court of Canada leading the way, are resetting the constitutional balance of power between trade unions on one hand and employer (and especially public sector employers) on the other.
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