The Health Services and Support-Facilities Subsector Bargaining Association, et al. v. Her Majesty the Queen in Right of the Province of British Columbia

(British Columbia) (Civil) (By Leave)

(Sealing order)




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Canadian Charter - Civil - Labour Law - Collective Agreement - Labour Relations - Whether Part 2 of the Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2, in whole or in part, infringes section 2(d) and/ or s. 15 of the Charter - If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter?

The facts were taken from the judgment of Garson J. On January 28, 2002, the government of British Columbia enacted the Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2 ("Bill 29"). Bill 29, which applies to non-clinical services performed by health care workers, voids certain provisions of existing collective agreements with the result that: (a) a health sector employer may contract with outside service providers to perform certain services previously provided by the Appellants; (b) upon lay-off, the employer shall not give more than 60 days notice to employees; (c) the previously agreed regime for the bumping by senior employees of junior employees upon lay-off is replaced with a more restrictive one; (d) health care workers or services may be transferred or assigned between different sites; and (e) health sector employers are no longer required to provide laid off employees with the benefits of the Employment Security and Labour Force Adjustment Agreement which gave such employees up to one year of retraining and assistance in finding alternative positions.

The Appellants, the Hospital Employees Union, the British Columbia Government Employees Union and the British Columbia Nurses Union, are unions representing health care workers. The individual Appellants are members of the Appellant unions who allege that they have been affected by Bill 29. The Appellants Health Services and Support - Facilities Subsector Bargaining Association, the Health Services and Support-Community Subsector Bargaining Association, and The Nurses' Bargaining Association are associations of the Appellant unions formed under the Health Authorities Act, R.S.B.C. 1996, c. 180, and certified as the exclusive bargaining agents for all employees in the particular health subsector to which they apply.

The Appellants challenge the constitutionality of Bill 29, alleging that it: (I) impedes their freedom to join, establish and maintain an association, namely, a workplace union, which freedom is guaranteed by s. 2(d) of the Charter of Rights and Freedoms; (ii) infringes their right "to life, liberty, and security of the person" protected by s. 7 of the Charter; (iii) discriminates against the members of the Appellant's union and the individual Appellants on the ground of sex, or on the analogous ground of women who work in female-dominated sectors, doing work associated with women, contrary to s. 15 of the Charter. The Supreme Court of British Columbia dismissed the Appellants' action. The Court of Appeal for British Columbia dismissed the appeal.

Lower Court Rulings

September 11, 2003
Supreme Court of British Columbia

July 5, 2004
Court of Appeal for British Columbia (Vancouver)

see file