Charter Case of Note

A significant decision was handed down on February 6, 2012 by the Court of Queen’s Bench in Saskatchewan: Saskatchewan Federation of Labour and Govt of Saskatchewan, 2012 SKQB 62. Justice Ball ruled that the province’s essential service legislation is unconstitutional. This was a collaborative effort brought by the Saskatchewan Federation of Labour, supported by two dozen union plaintiffs and intervenors CUPE, SGEU, SUN, and SEIU-West, opposed by the Government and 16 employer intervenors.

 This marks the first time in a quarter century that a Canadian court has found that the right to strike is included in the freedom of association under section 2(d) of the Charter. Previously, the right to strike was protected by the Charter in Retail, Wholesale and Department Store Union v. Saskatchewan (1985), 19 DLR (4th) 609 (SKCA) when the Saskatchewan Court of Appeal ruled that the legislature’s back to work legislation on dairy workers to end a lawful strike breached the freedom of association under 2(d). However, this ruling was overturned by the Supreme Court of Canada as part of the Labour Trilogy in 1987.

The Court found that the PSESA violated section 2 (d) and was not saved by section 1 because the PSESA gave employers so much power to designate essential services in a strike that the right to strike was effectively negated, with some bargaining units in health care having close to 100 percent of employees in job classifications deemed essential. The Court found that while restrictions on a right to strike for employees performing essential services may be justified, the manner in which the PSESA restricted the right to strike was not minimally impairing. It allowed the employer to unilaterally designate essential services, job classifications, name individual employees as essential, excluded management from performing essential services, and did not provide any means for unions to challenge these designations (although there was a limited ability to challenge numbers of employees designated essential, but not services or classifications, at the Labour Relations Board.) 

Of additional significance to labour lawyers is that the Court found Canada’s international obligations are “highly important in assessing whether provincial labour legislation is Charter compliant” and noted that the PSESA was not consistent with international law and ILO decisions. Of equal significance, the Court rejected the Government’s argument that the Supreme Court of Canada’s decision in Fraser v. Ontario in 2011 signalled a retreat from the principles of the Health Services decision in 2007. 

The unions also challenged changes to the Trade Union Act which eliminated card certification and brought in other changes which made organizing more difficult, but the Court found that these changes were not unconstitutional.