August 16, 2016

In a significant victory for the Canadian Union of Postal Workers, an Ontario Superior Court judge has found that the Harper government's back-to-work legislation prohibiting strikes and unilaterally imposing wage increases was a violation of the union's rights to freedom of association and expression under the Canadian Charter of Rights and Freedoms. The judge declared the legislation of no force or effect retroactively.

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In June 2011, the Harper government passed back-to-work legislation to end a dispute between the Canadian Union of Postal Workers (CUPW) and Canada Post Corporation over a new collective agreement.

CUPW members began rotating strikes on June 3, 2011 in various cities following months of negotiations that ended in impasse. In response, Canada Post locked them out on June 14, bringing mail delivery to a halt. Six days later, the Harper government introduced back-to-work legislation in the form of Bill C-6, the Restoring Mail Delivery for Canadians Act, which received Royal Assent on June 26, 2011.

The Act unilaterally imposed wage increases, setting them below what Canada Post had already offered the union. The legislation also specified that an arbitrator would be appointed to settle the rest of the outstanding issues by final offer selection, a winner-take-all process whereby the union and the employer each present their offers and the arbitrator picks one or the other, without any negotiation or any scope for the arbitrator to impose a compromise on any issue.

In furtherance of ordering the resumption of postal services, the Act prohibited the Corporation from impeding its employees' return to work, and prohibited the union from engaging in any act that might encourage postal workers' non-compliance with the resumption of their duties.

However, the Federal Court of Canada, granting the union's applications for judicial review, subsequently quashed the appointments of two successive arbitrators appointed by then Minister of Labour Lisa Raitt, finding that the first one was unacceptably and insufficiently experienced and the second gave rise to a reasonable apprehension of bias because he had previously worked as a lawyer for Canada Post in a pay equity battle against CUPW and was also actively involved in the Conservative Party of Canada. CUPW and Canada Post ultimately negotiated a new collective agreement in October 2012, which was ratified in December 2012, without the intervention of an arbitrator, but under the shadow of Bill C-6.

CUPW then challenged the constitutionality of the Act on the grounds that it infringed the Charter guarantees of freedom of association and freedom of expression.

Justice Stephen Firestone of the Ontario Superior Court held that the Act violated ss.2(d) and (b) of the Charter and could not be saved as a reasonable limit under s.1. The judge found that the Act was of no force and effect and that the declaration of invalidity was to be applied retroactively. However, the Court ruled, CUPW was not entitled to damages in addition to a declaration of invalidity.

Justice Firestone referenced the recent Supreme Court of Canada decision in Saskatchewan Federation of Labour v. Saskatchewan (SFL), 2015 SCC 4, reviewed in Lancaster's Human Rights and Workplace Privacy, April 9, 2015, eAlert No. 255. In this case, the majority of the Supreme Court ruled that the right to strike is an "indispensable component" of the right to meaningful collective bargaining under the guarantee of freedom of association in s.2(d) of the Canadian Charter of Rights and Freedoms.

The judge also discussed the Supreme Court of Canada decision in Mounted Police Association of Ontario v. Canada (Attorney General (MPAO), reviewed in Lancaster's Police Employment Law, April 8, 2015, eAlert No. 80, in which the Court stated that the ultimate question to be determined under s.2(d) is whether the measures imposed disrupt the balance between employees and employer, thereby substantially interfering with meaningful collective bargaining.

Justice Firestone stated:

SFL confirms that "[t]he right to strike is protected by virtue of its unique role in the collective bargaining process" (para. 77). Accordingly, the test is "whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining."

In turn, the meaning to be given to the term "substantial interference" in SFL takes its colour from para. 72 of its companion case, MPAO: "[w]hatever the nature of the restriction, the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining." The disruption of balance between the parties is therefore the measure of substantial interference.

In Justice Firestone's view, the s.2(d) right of postal workers was infringed, notwithstanding the fact that the workers went on rotating strike before the legislation came into effect:

Based on the evidentiary record, there can be no question that, on the facts of this case, the Restoring Mail Delivery for Canadians Act abrogated the right to strike of CUPW members. The Crown argues, however, that the right to strike has not been abrogated. It contrasts the situation in this case, where the Union engaged in rotating strikes and had the potential to strike for the 100-plus days of bargaining that preceded the work stoppages, with the facts of SFL, where the relevant legislation removed any possibility of strike action ab initio.

With respect, this is a false distinction. The right to strike is protected insofar as it contributes to a meaningful process of collective bargaining. So long as it makes that contribution, it is deserving of constitutional protection. There is no support for a temporal limit on the right to strike in the jurisprudence of the Supreme Court of Canada. Nor is there any support for the proposition that the right to strike, once engaged (as long as it is contributing to a meaningful process of collective bargaining), can then be taken away without a s. 2(d) violation (subject, of course, to justification under s. 1). Quite the opposite. The facts of this case reveal that the right to strike was actively contributing to a meaningful process of collective bargaining at the very moment of its abrogation by the Act.

Moreover, the effect of abrogation of the right to strike was to substantially interfere with – and to disrupt the balance of – a meaningful process of collective bargaining between CUPW and Canada Post, as it caused Canada Post to harden its position and seek a more favourable settlement.

Justice Firestone found that the s.2(d) violation could not be saved under s.1. While the government's objectives in securing a continued postal service and preventing damage to Canada Post and the wider economy were pressing, substantial, and rationally connected to the prohibition of striking, the arbitration process in the Act was not minimally impairing, as it took wages entirely off the table and paid no heed to one party's position. The judge also noted that the appointment process for the arbitrator created an apprehension of bias.

On the question of s.2(b), Justice Firestone found that the Act did limit freedom of expression by prohibiting strikes:

Did the CUPW strikes express meaning in the sense required by s. 2(b) of the Charter? I find that they did. It is clear from the affidavit evidence of union members, submitted by the applicants, that the rotating strikes – beginning at the Canada Post facility in Winnipeg – were at least partially devoted to expressing CUPW's discontent with what it felt to be unfair work practices and requirements. That expression was clearly aimed at the employer, Canada Post, and the wider public.

In the judge's opinion, as in the s.1 analysis under freedom of association, the Act was not minimally impairing. He wrote:

This complete prohibition however must be considered in relation to the expressive aspect of the strike. By removing any ability of CUPW and its members to perform even limited strike actions in a site-specific manner, which was the very nature of the rotating strikes, there was no possibility for any expression of meaning to be conveyed through the medium of strike action.

In terms of remedy, however, Justice Firestone found that a declaration of invalidity was sufficient, and an award of damages was not warranted:

I find that an award of damages under s. 24(1) of the Charter is not appropriate here. The Supreme Court of Canada has stressed that s. 24(1) remedies exist for the purposes of compensation, vindication, and deterrence in the face of conduct by state actors. There was no conduct on the part of government officials in this case that would warrant an award of Charter damages. Declaratory relief is, in my view, sufficient to provide the Union and its members a meaningful remedy for the violation of their constitutional freedoms.

Instead, the judge found that it was appropriate to declare that the Act was unconstitutional and of no force or effect. The declaration of invalidity was applied retroactively.