This case concerns the right to strike under the Canadian Charter of Rights and Freedoms. In 2008, the Province of Saskatchewan created two pieces of labour law: the Public Service Essential Services Act (PSESA) and the Trade Union Amendment Act (TUAA). The effect of these laws was, respectively, to put limits on which public sector workers can go on strike and to make certification of a union more difficult. A challenge was brought to the legislation as violating section 2(b) (free expression) and section 2(d) (free association) of the Charter.
The Court of Queen’s Bench for Saskatchewan (SKQB) found that the PSESA infringes freedom of association by preventing certain employees from meaningfully engaging in job action. The SKQB recognized that collective bargaining includes the right of employees to strike. The SKQB did not find a violation of section 2(d) in respect of the TUAA. The Province appealed the decision to strike down the PSESA and the SFL and unions cross-appealed the court’s failure to strike down the TUAA. The Court of Appeal for Saskatchewan (SKCA) allowed the Province’s appeal, finding that the right to strike is not protected by section 2(d) of the Charter. The SKCA upheld the lower court finding that, while the TUAA makes certification of a union more difficult, it does not substantially impair Charter rights.
This case was appealed to the Supreme Court of Canada, and the BCCLA was granted leave to intervene. The Association argued that striking is a protected exercise of expressive association. All fundamental freedoms protected by section 2 of the Charter must be interpreted with coherence. In all cases, a liberal and purposive approach should be taken to defining the scope of the protected freedom. The BCCLA argued that the Court must consider – and consider together – both expressive and associational aspects of striking to properly appreciate the essential nature of strike activity and its constitutional protection under the Charter.
The Court agreed, and rendered its judgement in January 2015. The Court held that the prohibition against strikes in the Public Service Essential Services Act (“PSESA”) substantially interferes with meaningful collective bargaining and violates s. 2(d) of the Charter. A majority of the Court found that the right to strike is an “indispensable component” of the right to meaningful collective bargaining, and that the crucial role that the right to strike plays in collective bargaining is why this right is constitutionally protected by s. 2(d). The infringement on freedom of association is not justified under s. 1. The declaration of invalidity was suspended for one year.
The BCCLA is represented by Lindsay M. Lyster of Moore Edgar Lyster.
