Summary

35423

Saskatchewan Federation of Labour (in its own right and on behalf of the unions and workers in the Province of Saskatchewan), et al. v. Her Majesty the Queen, in Right of the Province of Saskatchewan

(Saskatchewan) (Civil) (By Leave)

Keywords

Canadian charter - civil - Freedom of association, Labour Law, Freedom of expression (s. 2(b)).

Summary

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Canadian Charter of Rights and Freedoms - Freedom of association - Labour Law - Right to strike - Freedom of expression - Province enacting laws that introduced restrictions on ability of public sector workers to strike and made it somewhat more difficult for unions to obtain certification - Trial judge holding that Public Service Essential Services Act is contrary to s. 2(d) of Charter and is not saved by s. 1 - Court of Appeal allowing appeal, feeling bound by prior case law holding that freedom of association did not include right to strike - Whether freedom of association guaranteed by s. 2(d) of Charter protects right to strike - Whether freedom of expression guaranteed by s. 2(b) of Charter protects right to strike - Whether Public Service Essential Services Act infringes s. 2(b) and/or s. 2(d) of Charter and, if so, whether infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of Charter - Whether sections 3, 6, 7 and 11 of Trade Union Amendment Act, 2008, infringe s. 2(d) of Charter and, if so, whether infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of Charter - Public Service Essential Services Act, S.S. 2008, c. P-42.2 - Trade Union Amendment Act, 2008, S.S. 2008, c. 26 and c. 27.

In May 2008, the Government of Saskatchewan enacted the Public Service Essential Services Act, S.S. 2008, c. P-42.2 (the PSESA) and the Trade Union Amendment Act, 2008, S.S. 2008, c. 26 and c. 27 (the TUAA).

The PSESA introduced restrictions on the ability of public sector workers who provide essential services to engage in strike activity. It implemented a “controlled strike” approach regulating the withdrawal of essential services by establishing a regime for limiting the number of employees who are allowed to refuse to work in the event of a strike. The PSESA contemplates the negotiation of essential services agreements intended (i) to establish the particulars of the services to be maintained during a strike, (ii) to identify the number of employees in each classification who must work during a work stoppage, and (iii) to identify the employees who will be required to continue to provide those essential services in the event of a strike. However, the PSESA also foresees that, if an essential services agreement has not been concluded at least 30 days before the expiry of a collective agreement, the employer can give notice to the union dictating the essential services to be maintained during a strike, the number of employees in each classification that will be required to work as well as the name of the employees that it will require to work during a work stoppage. The PSESA further empowers the employer to designate an additional number of employees who will be required to work during all or any part of a work stoppage in order to maintain essential services.

The TUAA changed existing provincial labour legislation so as to make it somewhat more difficult for unions to obtain certification as bargaining agents and so as to broaden the scope of permissible communications between employers and their employees.

The Saskatchewan Federation of Labour (the SFL) and numerous other unions challenged the constitutionality of one or both of these acts on the basis that they infringe rights and freedoms guaranteed by the Charter, notably the freedom of association and freedom of expression. In order to avoid duplication, the Court of Queen’s Bench of Saskatchewan ordered that those challenges should be dealt with in a single trial, with the SFL’s action being the lead case and all other challenges being stayed pending the outcome of the SFL’s action.