February 11, 2012

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.

August 15, 2011

The 2012 Canadian Association of Labour Lawyers / Association Canadienne des Avocats du Mouvement Syndical (CALL / ACAMS) will be held from Thursday, June 14 through Sunday June 17 inclusive at the Château Frontenac, Québec City.
Further details concerning the agenda and the events will follow as soon as possible.
Please mark your calendars. 


June 24, 2011

As you are aware there is presently before the House of Commons a debate concerning the federal government's proposed back to work legislation concerning the CUPW / Canada Post dispute.  The executive is presently trying to get in touch with CUPW's lawyers and will be discussing the issue.  In the meantime, we have received correspondence from the CLC calling for messages to be sent in support of the CUPW.  I attach the link to take you to the website with President Georgetti's appeal to help support the NDP in its filibuster. 

Please visit the CLC website.

Thank you.

Drew S. Plaxton

The website:



May 10, 2011

The CIRB has proposed changes to regulations that affect hearing and vote procedures.  Some of these might be significant to our clients.  [eg. ss 7, 11, 12.1, 21, 27, 28, 29, 36, 38].

Michael Cohen and Mary Mackinnon are part of a CIRB client consultation committee and have agreed to invite submissions from CALL before the end of June to be provided to the CIRB.

Click here to view invitation.

August 23, 2010

The 2011 CALL Conference will be in Vancouver – that quaint “village by the sea” that hosted the Olympics in 2010.  The organizing committee is working to ensure that mountain adventures and ocean views are in store for all who attend.  The dates have been chosen and the Hotel (Hyatt Regency) has been booked.  Reserve it in your calendar and plan to be here!