Case information

Charter of Rights ? Right to freedom of association ? Right to strike ? Collective agreement ? Under s. 2(d) of Canadian Charter, whether limit imposed by legislature on right to strike always constitutes, in all circumstances, substantial interference with right to collective bargaining protected by freedom of association ? Whether legislature can limit right to strike after that right has been fully exercised, without thereby interfering substantially with right to collective bargaining ? Whether right to collective bargaining and exercise of right to strike are always, and in all circumstances, unlimited in time ? Having regard to purpose of respondent’s claim and to conduct of bargaining, whether 2017 Act constitutes substantial interference with right to bargain ? If 2017 Act constitutes such substantial interference, whether legislature has power to define dispute resolution mechanism tailored to specific circumstances of parties at time of its enactment ? Whether there is legal impediment that would prevent order sought by Quebec government lawyers and notaries from being granted ? Whether courts below complied with their duty to provide full, effective and meaningful remedy for Charter violations when they dismissed application by Quebec government lawyers and notaries for orders ? Canadian Charter of Rights and Freedoms, s. 2(d) ? Charter of human rights and freedoms, CQLR, c. C 12, s. 3 ? Act to ensure the continuity of the provision of legal services within the Government and to allow continued negotiation and the renewal of the collective agreement of the employees who provide those legal services, S.Q. 2017, c. 2.

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Les avocats et notaires de l’État québécois (“LANEQ”), an association that was certified with Quebec’s Conseil du trésor in 1996, represents about 1,150 legal professionals in six bargaining units in the Quebec public service. This does not include criminal and penal prosecuting attorneys, who are represented by their own association. In 2014, the parties began bargaining with a view to renewing the collective agreement that was to expire in 2015. In October 2016, after nearly two years of discussions, LANEQ called a general strike that lasted four months. In January 2017, the National Assembly responded by enacting the Act to ensure the continuity of the provision of legal services within the Government and to allow continued negotiation and the renewal of the collective agreement of the employees who provide those legal services, S.Q. 2017, c. 2 (“2017 Act”), which, among other things, ordered the members of LANEQ to return to work and prohibited the exercise of the right to strike. At the time the 2017 Act was passed, the respondent Pierre Moreau was the chair of the Conseil du trésor and acted as the minister responsible for the administration of the Public Service Act, CQLR, c. F 3.1.1, which gave him responsibility for signing collective agreements. The 2017 Act also provided for penalties for non compliance with obligations. Following the enactment of the 2017 Act, the parties continued bargaining for several months, but to no avail, with the consequence that the terms of the 2010 2015 collective agreement were extended until 2020. After the 2017 Act came into force, LANEQ challenged its constitutionality in the Superior Court, alleging a violation of the right to freedom of association protected by s. 2(d) of the Canadian Charter of Rights and Freedoms and s. 3 of the Charter of human rights and freedoms, CQLR, c. C 12. The Superior Court allowed the application for judicial review and declared the 2017 Act unconstitutional and invalid with retroactive effect. The Court of Appeal dismissed the principal appeal and the incidental appeal.