Recognizing the right to strike

Important questions when Supreme Court ignores importance of precedent

The Supreme Court of Canada has recognized, for the first time in Canadian legal history, a constitutional right to strike under the Charter of Rights and Freedoms. 

This startling decision, in Saskatchewan Federation of Labour v. Saskatchewan, expands the protections offered under section 2(d) of the charter: “freedom of association.” The case, however, does more than deal with a new constitutional right to strike. It deals with two other critical issues: the fundamental place of precedent or stare decisis in Canadian law and the fundamental, constitutional issue of whether unelected judges should override and replace the decisions of democratically elected legislature on key questions of labour public policy in Canada.

In 2007, the Saskatchewan government introduced legislation that declared various public services “essential services,” thereby prohibiting the right to withdraw services in a labour dispute. This was a response to damaging public sector strikes in the health-care, highway snow removal and correctional services. 

The citizens of Saskatchewan wanted a government that would put an end to such disruption that put the public at risk in the province. The legislation was Saskatchewan’s first statutory regime that proposed to limit the ability of the public sector employees, who performed essential services, to strike. The legislation designated which services were essential services and, therefore, which employees could not go on strike.

In 2008, the Saskatchewan Federation of Labour joined with other unions in challenging the constitutional validity of the law. And they found a sympathetic trial judge who declared the legislation unconstitutional pursuant to section 2(d) of the charter.

That decision seems to disregard the existing trilogy of Supreme Court cases which previously held there was no constitutional right to strike in Canada. The trial court refused to follow the Supreme Court’s binding precedent and the long-established legal principle of stare decisis  or precedent.

For the sake of consistency, reliability and the administration of justice, the Canadian legal system values certainty and predictability in the law and judicial decisions. 

The established Labour Trilogy of cases from the Supreme Court, which go as far back as 1987, and most recently followed and were affirmed in the 2011 Ontario (Attorney General) v. Fraser decision, saw the Supreme Court rejecting the idea there is a constitutional right in the charter to strike. 

Then, in Saskatchewan Federation of Labour, the majority changed the court’s view on the matter and found a constitutional right to strike under the charter. In contrast, the minority judgment of the Supreme Court did not find such a new right to strike and said this about precedent and the importance of stare decisis:

“In our legal system, certainty in the law is achieved through the application of precedents. To overrule a precedent is to displace community expectations founded on that decision”. 

Therefore, when the majority of the Supreme Court departed significantly from its own decisions and legal precedent, this raises serious questions regarding judicial consistency. The minority judgment added tersely: 

“In its heavy-handed treatment of Saskatchewan’s legislative policy choices in the field of labour relations, the majority defies this court’s (own) caution…that legislatures, not the courts, should deal with the delicate and political balance of interest in labour relations.”

Questions raised
Many important questions are raised if the Supreme Court is willing to ignore the importance of precedent, especially in the area of labour relations. Can the charter be used to “invent” other new rights that have been rejected by the Supreme Court in prior decisions? Is the principle of stare decisis still a valid legal principle or is just organized labour’s exempt from the principle? Can new rights be used as a sword rather than a shield in labour disputes?

The second important question that was addressed in this decision: Where did the Supreme Court find this new charter right to strike for public, essential services that have unionized workers? The actual text does not support a finding of the constitutional right to strike. The court’s own jurisprudence does not support a finding of the constitutional right to strike. Was it found or imposed by international law on Canada by some convention or treaty? 

The drafters of the charter could have easily put such a right to strike in the text, but chose not to do so. The Supreme Court has found a “new” charter right under the same “old” language of the charter.

The majority decision relies heavily on the “broad and purpose of approach” towards charter interpretation in its decision. This has been a well-established approach in the court’s jurisprudence related to charter interpretation and application; this principle has been used in the application of charter rights, not the creation of new rights.

In order to amend the charter, there must be the formal approval of the federal government and the provinces; this, of course, has not been done. The reasoning used by the majority, reaching decades and even centuries past, is based on the concept of “workplace justice” which justified this new constitutional right to strike.

“Workplace justice,” according to Justice Rosalie Abella, appears to be all about unions’ rights at the expense of the rights of public sector employers, taxpayers affected by essential services being suspended and decisions made by the democratically elected legislature. 

By reversing its prior decisions, and holding that there is a constitutional right to strike in the charter by relying upon dubious “new” sources such as labour abuses in the 19th century and literature surrounding the origins of the union movement, a “new” right was found. When the majority further justified this change, in part based on “international law,” the dissenters said:
 “International law is of no help to this court in determining whether freedom of association in s. 2(d) of the charter includes a right to strike.” 

The third issue raised by the Supreme Court’s decision is the expansion of its role in making public policy decisions for Canadians in labour relations matters. Both average citizens and members of the legal profession do not generally want or thrive on a polarized judiciary. Judicial politics have been largely avoided in Canada; yet they appear to be creeping into the highest court decisions. 

In the United States, Supreme Court judges are often characterized as “strict constructionists” or “liberal activists.” This nomenclature has rarely been used in Canada. However, the Saskatchewan Federation of Labour decision, with strongly worded reasons for both the majority and the dissent, has pushed the court to an American judicial polarity. In other words, this decision has polarized the court internally and brought the American debate of the pollicization north of the border.

This case gives labour unions a constitutional right as sword or “trump card” in the form of a constitutional right to strike. This is a broad expansion of the meaning of section 2(d) freedom of association. Generally speaking, charter rights tend to be rights of individuals, rather than organizations. 

There is some recognition for the rights of organizations, including corporations, when they are charged with offences and are called upon to defend themselves. Otherwise, charter rights primarily flow to individuals. 

Therefore, when the Saskatchewan Federation of Labour was unsuccessful in its political lobbying against the legislation in question, it took its challenge to the courts and, ultimately, the Supreme Court of Canada, notwithstanding the past precedent of the court rejecting its claim to the right to strike. The case demonstrates that if you lose an election, you can assert charter rights to overturn the decision of the electorate.

Labour relations can be and often are highly polarized and contentious. However, the majority’s use of the phrase “workplace justice” to justify the favouring of union interests over the interests of employers and the public is very questionable. It has been a long-held view of the Supreme Court itself that labour relations conflict is better addressed by the democratic and legislative process than judicial interference by the court under the charter.

The dissenting judgment summarized the previously held view of the Supreme Court as follows: 

“Democratically elected legislatures are responsible for determining the appropriate balance between competing economic and social interest in the area of labour relations. Strike action is one of the many constituent elements factored into this statutory balance of power.”

The Supreme Court has clearly taken on a legislative, policy-making role of creating new laws rather than a judicial role to interpret and apply the law. It determined the government of Saskatchewan violated the charter right to strike, even though no right existed when the legislation for essential services was passed. When it comes to a public policy decisions, “There is no need for the Supreme Court to second-guess the judgment of Parliament,” said Grant Huscroft, a law professor at Western University in London, Ont., in the Globe and Mail.

One thing that is reasonably certain from the Supreme Court’s decision is when the court places its thumb on the scales of justice, in favour of organized labour, the consequences will be far-reaching. The decision will spawn many more charter lawsuits by unions to assert further rights. 

The court has also been polarized internally and externally. Apart from undermining the principle of stare decisis, this case may go even further. Saskatchewan Federation of Labour may also result in a call for a constitutional amendment requiring elections and term limits of Supreme Court justices, in order restore some sense of democracy to a legislative, public policy process that apparently has been embraced by the Supreme Court of Canada.

Norm Keith is a labour and employment lawyer and partner at the Toronto office of Fasken Martineau. He can be reached at (416) 868-7824 or [email protected].

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