Solidarity Forever! A Right to Strike is Recognized in Saskatchewan Federation of Labour v Saskatchewan
In the context of more and more services being designated as “essential” by Canadian governments, a finding of a right to strike under the s. 2(d) right to freedom of association is enormously significant in Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4. It is apparent that the Supreme Court of Canada has undergone an evolution in their views on the scope of freedom of association and the protections it affords for labour.
In doing so, the Court has overruled its previous position held in a series of cases known as the “Labour Trilogy” that freedom of expression does not include the freedom to strike. That is, a clear right to strike has been recognized under the s. 2(d) right to freedom of association under the Charter of Rights and Freedoms (“Charter“) with this decision.
In 2007, the recently elected Government of Saskatchewan introduced two new pieces of labour legislation, The Public Service Essential Services Act, S.S. 2008, c. P-42.2 (“PSESA“), and The Trade Union Amendment Act, 2008, S.S. 2008, c. 26 (“TUA“).
The PSESA would limit the ability of certain public sector employees to participate in any strike action by unilaterally designating their services as essential. As such, in times of striking these employees would be required to continue their work in accordance with the last collective agreement. The PSESA also would not provide for a meaningful mechanism of resolving impasses in bargaining.
Coupled with the PSESA, the TUA made forming a union far more difficult by increasing the required level of written employee support for unionization. It also changed the provisions surrounding communications between employers and employees during an organization drive.
Along with many other unions, the Saskatchewan Federation of Labour launched a constitutional challenge to the PSESA and TUA. The trial judge found that the right to strike was a fundamental freedom protected by the Charter and that the prohibition on strike activity by the PSESA substantially interfered with the rights of public sector employees because the prohibition of strike activity could not be saved by section 1 of the Charter as a proportionate limit on freedom of expression. In contrast, the trial judge found the changes to the unionization process established in the TUA did not infringe freedom of association.
On appeal, both pieces of legislation were allowed to remain as the Saskatchewan Court of Appeal found in favour of the Government of Saskatchewan in determining that the legislation did not violate freedom of association.
At the Supreme Court level, the majority applied the test from Health Services and Support – Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27 (“Health Services“) and Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1 (“Mounted Police“) to determine that a legislative interference with the right to strike amounts to a substantial interference with collective bargaining and is therefore unconstitutional.
In reaching this decision, the majority found that the PSESA left the determination of which occupation should be deemed “essential” as entirely up to the employer. Further, the PSESA lumped essential and non-essential services together in specifying that an employee so designated be obliged to maintain their duties during a strike.
In contrast, the TUA was found to not violate s. 2(d) of the Charter. The majority found that the amendments, while making unionization more difficult, did not reach the point of “substantial interference” with freedom of association.
In their ultimate determination that freedom of association includes a right to strike, an appreciation for collective goals can be seen throughout the judgment. The majority expressed their understanding of the significance of strike action for collective bargaining, and adhered to the “substantial interference” test of Health Services which was enumerated in Mounted Police:
It should come as no surprise that the suppression of legal strike action will be seen as substantially interfering with meaningful collective bargaining. That is because it has long been recognized that the ability to collectively withdraw services for the purpose of negotiating the terms and conditions of employment — in other words, to strike — is an essential component of the process through which workers pursue collective workplace goals (para 46).
Looking back on the jurisprudence, it almost seems as if the previous cases (with the exception of Ontario (Attorney General) v Fraser, 2011 SCC 20) were leading up to this moment. Certainly this judgement in favour of a right to strike was hinted at in Mounted Police (commentary available here), where the majority cites the dissent of former Chief Justice Dickson in the Alberta Reference throughout.
Indeed, in the instant case, Justice Abella, writing for the majority, outlined the history of this progression in the Court’s consideration of labour issues. For example, the decision of RWDSU, Local 558 v Pepsi-Cola Canada Beverages (West) Ltd.,  1 S.C.R. 156 (“RWDSU“) was cited as a case where the Court recognized strikes as “critical components” of labour actions (para 48). The majority goes on to further cite this case as an instance where it was recognized by Chief Justice McLachlin and Justice LeBel that strikes serve an “integral” purpose, and at certain times employees are “entitled to withdraw their services,” to exert economic pressure on employers. Ultimately, it is concluded by the majority, “the right to strike is constitutionally protected because of its crucial role in a meaningful process of collective bargaining” (para 51).
This positive appraisal for the labour movement continued throughout the judgment, with the dissent of former Chief Justice Dickson in the Reference Re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313 (“Alberta Reference“) being cited repeatedly throughout the decision to aid in the definition of the scope of freedom of association:
[t]he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers. [p. 368]
The appreciation that the majority expresses for workers’ struggles is notable and suggests a move away from a liberal individualist reading of rights (at least in the context of freedom of association). This can be further seen in the majority’s approval for former Chief Justice Dickson’s comments in the Alberta Reference that “[t]he very nature of a strike, and its raison d’être, is to influence an employer by joint action which would be ineffective if it were carried out by an individual” (at 371).
The majority also saw constitutional support for collective action as important for equality in the bargaining process and for the promotion of democracy. Prolific labour law academics were cited in this regard, including Judy Fudge and Osgoode Professor Eric Tucker. The SCC acknowledged this academic writing in recognizing that strikes allow workers to participate directly in determining their working conditions and affirm their dignity.
Following this praise for the importance of strikes and collective action, the majority was rather critical of the reasoning of the dissent, in terms of their concern for unions gaining too much power in relation to employers if a right to strike is granted:
In essentially attributing equivalence between the power of employees and employers, this reasoning, with respect, turns labour relations on its head, and ignores the fundamental power imbalance which the entire history of modern labour legislation has been scrupulously devoted to rectifying. It drives us inevitably to Anatole France’s aphoristic fallacy: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. (para 56)
This passage suggests a critique of liberalism as well, particularly liberalism’s vision for a certain kind of “equality” in the sense of an across-the-board declaration of equality, rather than an appreciation of power imbalances that can be magnified in a situation where everyone is treated “equally.”
Further, the majority went one step further in flipping the reasoning of the dissent on its head, as they note that it is the power of a threat of a strike that allows workers to negotiate with employers on somewhat of an even playing field. The majority also notes that strikes do not guarantee that a labour dispute will be resolved favourably for the union, as both sides in a dispute feel the impact of strikes.
Finally, the majority also took issue with the “preference for deference” approach of the dissent in relation to the legislature, as they point out, “if the touchstone of Charter compliance is deference, what is the point of judicial scrutiny?”(para 76) Here it is also noted that the bar to meet to demonstrate a Charter violation should not very between rights and they emphasize that Charter rights must be interpreted “generously.”
As expected from his previous dissent in Mounted Police, Justice Rothstein (along with Justice Wagner) dissented in this judgment. In contrast to the majority, the dissent found that a right to strike would sway the pull between labour and the employer too far in favour of labour. Further, the dissent took the position that recognizing a right to strike would be too political for the Court and an exercise best left to the legislature.
In addition, the dissent found that the majority established “a stand-alone constitutional right to strike” (para 108) and conflated the freedom to strike under common law with the right to strike. In doing so, the dissent seemed to take a negative view of freedom, in that it is suggested that workers are free to leave their employment if the terms do not satisfy their expectations. While this is certainly true, it also must be said that this sort of freedom for the worker to leave her employment also leaves her free to starve. Nevertheless, the dissent expressed a concern for what they see as a duty imposed by this decision on employers not to terminate or hire replacement workers in place of employees who go on strike, which they deemed as going too far into the socio-economic realm.
As such, the dissent would have preferred a return to the narrow interpretation of freedom of association expressed in Fraser in determining that the impugned legislation does not violate the Charter.
This decision, while a huge victory for labour rights, leaves many questions unanswered. What does this signal for the Fraser decision, in which the Court found that freedom of association “does not guarantee a legislated dispute resolution mechanism in the case of an impasse” (para 41)? It will certainly be interesting to see if Ontario farm workers bring another constitutional challenge in light of these developments in the instant case and in Mounted Police. Indeed, it would certainly tie up a few remaining questions.
Despite these unanswered questions, this decision also provides greater protections for workers increasingly facing legislative assaults through governments committed to expanding the definition of what is an “essential service.” However, there is also the possibility that creative legislators will respond in ways that minimally meet the constitutional requirements set out in this judgment, much like the legislative response in Ontario after the Dunmore v Ontario (Attorney General), 2001 SCC 94 decision which found a law that excluded farm workers from the Labour Relations Act, S.O. 1995, c-1 to be unconstitutional.
It also presents an interesting progression in the Court’s definition of rights. It would appear that the Court is no longer dead-set on the liberal individualist definition of rights as seen in previous decisions, at least in the associational context.