Case information

Charter of Rights — Freedom of association — Natural Justice — Procedural fairness — Employer’s protection under s. 2(d) of the Charter — Employer’s right to provide further evidence on the Charter issue — Whether a First Nation-owned business should have been permitted to call evidence with respect to the nature of its business, with respect to asserting Charter rights before the Saskatchewan Labour Relations Board? — Whether KDM, as a First Nation-owned business, can avail itself of the freedom not to associate, under s. 2(d) of the Charter, rather than being forced to associate with the respondent Construction Labour Relations Association of Saskatchewan for purposes of collective bargaining? — Whether KDM can avail itself of the protections of s. 2(d) of the Charter, when it has been made involuntarily subject to civil process (an application for certification), to allow for the procedural right to collective bargaining, established by this honourable court? — The Saskatchewan Employment Act, SS 2013, c S-15.1, Part VI, Division 13, ss. 6-69, 6-70.

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The applicant, KDM Constructors LP (KDM) is a limited partnership owned by three Saskatchewan First Nations, namely, the Kawacatoose First Nation, the Day Star First Nation, and the Muskowekwan First Nation. On February 18, 2020, the respondent, International Union of Operating Engineers Local 870 (Union) filed a certification application at the Saskatchewan Labour Relations Board (LRB) so that it may become the bargaining agent for the operating engineers employed by KDM pursuant to Part VI, Division 13 of The Saskatchewan Employment Act, S.S. 2013, c. S-15.1 (SEA). On March 20, 2020, KDM objected to the certification application on the ground that the bargaining unit was inappropriate due to the nature of the work performed by the operating engineers. KDM argued that the work performed by the operating engineers is mere “maintenance work” and therefore, it falls outside Division 13 of the SEA that covers only the work performed with the “construction industry.” Further, KDM filed a notice of constitutional question arguing that Part VI, Division 13 of the SEA violates its right to freedom of association pursuant to s. 2(d) of the Charter. It asked that the provisions contained within Division 13 be struck down to the extent that they automatically impose both a bargaining agent and a collective agreement on an employer while depriving the employer of the ability to collectively bargain the terms of the latter agreement. The LRB rendered two decisions on these issues. On August 23, 2021, the LRB concluded that the work performed by the KDM’s operating engineers was construction work. On October 18, 2021, the LRB did not allow KDM to call evidence on the Charter issue and concluded that KDM did not have a right to free association pursuant to s. 2(d) of the Charter. The Court of Queen’s Bench dismissed the application for judicial review and the Court of Appeal dismissed the appeal.