Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Charter of Rights – Freedom of Association – Labour relations – Arbitration – Jurisdiction – If the Court of Appeal’s reasoning regarding the jurisdiction of a labour arbitrator is correct, whether it implies a significant restriction of the presumed jurisdiction of inferior tribunals to decide constitutional questions – If the Court of Appeal’s reasoning is correct, whether it extends to decisions by other expert tribunals, not merely labour arbitrators appointed to decide disputes arising under collective agreements – Canadian Charter of Rights and Freedoms, s. 2(d) – Public Service Employee Relations Act, R.S.A. 2000, c. P-43, s. 12(1).

The Public Service Employee Relations Act, R.S.A. 2000, c. P-43 (“PSERA”) establishes the Alberta Union of Provincial Employees (“AUPE”) as the exclusive bargaining agent for the bargaining unit consisting of employees of the Crown in right of Alberta. The AUPE and the Government of Alberta (“Alberta”) are parties to a collective agreement but it does not apply to certain employees excluded by s. 12 of the PSERA. The AUPE filed a policy grievance in relation to the excluded employees, alleging that Alberta’s exclusion of employees from the bargaining unit and failure to deduct and remit union dues violated several articles of the collective agreement, as well as the employees’ freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms. Alternatively, AUPE alleged that s. 12(1) of the PSERA violated s. 2(d) of the Charter. AUPE further claimed that the exclusion of employees from the bargaining unit undermined and interfered with AUPE’s fundamental right of representation, and violated the excluded employees’ fundamental rights of representation and to bargain collectively.

The AUPE sought similar relief in its grievance and in the filed Notice of Constitutional Question. In particular, it asked the Board for declarations that Alberta or, alternatively, s. 12(1) of the PSERA violated s. 2(d) of the Charter; s. 12(1) was constitutionally invalid and of no force or effect; and that the exclusions of employees from the bargaining unit as a result of s. 12(1) are null and void. The AUPE also sought a collateral declaration that the excluded employees are covered by the collective agreement and that Alberta must deduct and remit union dues to AUPE in relation to the excluded employees.

The Board concluded that it had jurisdiction to deal with the constitutional issues, as the collective agreement gave it jurisdiction over the dispute. The Board accepted that the issue about Alberta’s obligation to collect and remit union dues was sufficient to constitute a grievance under the collective agreement. The Board also held that s. 12(1) of the PSERA did not breach the Charter and it dismissed AUPE’s grievance on the basis that the excluded employees were not members of AUPE’s bargaining unit and therefore, Alberta did not breach the collective agreement by not deducting and remitting union dues to AUPE. On judicial review, the Board’s decision was upheld on the basis that the Board reasonably interpreted s. 12(1) of the PSERA and that it correctly found that s. 12(1) did not violate s. 2(d) of the Charter. An appeal to the Court of Appeal was allowed and the arbitration award was quashed. The court held that the Board did not have jurisdiction to deal with the dispute or to issue a declaration of constitutional invalidity.

Alberta then sought leave to reargue the appeal before the Court of Appeal. The majority of the Court of Appeal dismissed the application.