Canadian HR Reporter

Credit: Scott Prokop (Shutterstock) the right to strike the right to strike F E AT u r E S labour relationS F E AT u r E S labour relationS F E AT u r E S Important questions raised when Supreme Court ignores importance of precedent By Norm Keith t he supreme court of can- ada has recognized, for the fi rst time in canadian legal history, a constitutional right to strike under the Charter of Rights and Freedoms. This startling decision, in Sas- katchewan Federation of Labour v. Saskatchewan, expands the protections off ered under section 2(d) of the charter: "freedom of as- sociation." e case, however, does more than deal with a new con- stitutional 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 la- bour public policy in Canada. Background In 2007, the Saskatchewan gov- ernment introduced legislation that declared various public ser- vices "essential services," thereby prohibiting the right to withdraw services in a labour dispute. is was a response to damaging pub- lic sector strikes in the health- care, highway snow removal and correctional services. e citizens of Saskatchewan wanted a government that would put an end to such disruption that put the public at risk in the province. e legislation was Sas- katchewan's fi rst statutory regime that proposed to limit the ability of the public sector employees, who performed essential services, to strike. e legislation designat- ed 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 leg- islation unconstitutional pursuant to section 2(d) of the charter. That decision seems to dis- regard the existing trilogy of Supreme Court cases which previously held there was no constitutional right to strike in Canada. e 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, re- liability and the administration of justice, the Canadian legal system values certainty and pre- dictability in the law and judicial decisions. e established Labour Trilogy of cases from the Supreme Court, which go as far back as 1987, and most recently followed and were affi rmed in the 2011 Ontario (At- torney General) v. Fraser decision, saw the Supreme Court rejecting the idea there is a constitutional right in the charter to strike. Then, in Saskatchewan Fed- eration 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 judg- ment of the Supreme Court did not fi nd 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". erefore, when the majority of the Supreme Court departed sig- nifi cantly from its own decisions and legal precedent, this raises se- rious questions regarding judicial consistency. e minority judg- ment added tersely: "In its heavy-handed treatment of Saskatchewan's legislative pol- icy choices in the fi eld of labour relations, the majority defi es this court's (own) caution…that legis- latures, not the courts, should deal with the delicate and political bal- ance 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 char- ter be used to "invent" other new rights that have been rejected by the Supreme Court in prior deci- sions? Is the principle of stare de- cisis 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 ques- tion that was addressed in this decision: Where did the Supreme Court fi nd this new charter right to strike for public, essential ser- vices that have unionized work- ers? e actual text does not sup- port a fi nding of the constitutional right to strike. e court's own jurisprudence does not support a fi nding of the constitutional right to strike. Was it found or imposed by international law on Canada by some convention or treaty? e 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 pur- pose of approach" towards char- ter interpretation in its decision. is has been a well-established approach in the court's jurispru- dence related to charter inter- pretation and application; this principle has been used in the ap- plication 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. e reasoning used by the majority, reaching decades and even centuries past, is based on the concept of "workplace jus- tice" which justifi ed this new con- stitutional 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 sec- tor employers, taxpayers aff ected by essential services being sus- pended and decisions made by the democratically elected legislature. By reversing its prior deci- sions, and holding that there is a constitutional right to strike in the charter by relying upon dubi- ous "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 major- ity further justifi ed 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." e third issue raised by the Su- preme Court's decision is the ex- pansion of its role in making pub- lic policy decisions for Canadians recoGNIZING > pg. 17

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