Tuesday, June 5, 2012

Ontario Court of Appeal Strikes Down Mountie Unions

In September, I made an entry about a case that was about to be heard by the Ontario Court of Appeal regarding whether or not the RCMP can unionize.

There's a long-standing ban on RCMP unions.  They have associations, but these associations are not recognized by management.  Rather, the Mounties have a mechanism called the "Staff Relations Representative Program" (SRRP), which lacks independence and only has 'consultation' rights, not robust collective bargaining rights.

The Mounted Police Association of Ontario (among others) challenged the ban on unions, and its application was decided by Justice MacDonnell in April 2009.  Justice MacDonnell allowed the application, finding the ban unconstitutional.

Here's the fun part about fast-moving law:  Every litigation is trying to hit a moving target.  When the application was decided in April 2009, we had the Dunmore and B.C. Health Services decisions from the Supreme Court of Canada, establishing broad Charter protections for unions and union activities, including meaningful collective bargaining.  Justice MacDonnell's conclusions probably looked fairly firm, given those cases.

At that point, the Fraser case was moving through the Courts.  The Fraser case was the sequel to Dunmore, a challenge by agricultural workers against their exclusion from the Ontario Labour Relations Act.  (In Dunmore, they were ultimately successful, and given the right to join associations.  The Province responded minimally, by giving them the right to join associations and to 'make representations' to employers.  So Fraser was a challenge to that new regime.)  Fraser was first heard before B.C. Health Services was decided, and Justice Farley concluded - rightly at the time - that Dunmore did not provide a Charter right to collective bargaining.  Then B.C. Health Services was released, which did provide such a right, so the terrain was changed for the Fraser appeals.

Last year, the Supreme Court ruled against the agricultural workers in Fraser, concluding - in a feat of statutory interpretation that rivals David Copperfield - that the minimalistic language implemented by Ontario could be interpreted as including an obligation to bargain in good faith, and that the absence of a rigourous process in line with traditional labour relations wasn't fatal.  The traditional model of labour relations that has been applied in Canada - called the Wagner model - is not constitutionally entrenched.

So when I posted in September about this case, I suggested that Fraser might be a major obstacle to the challenge to the ban on unions.  The Court of Appeal recently released its decision on the matter, allowing the government's appeal and finding that, following Fraser, the SRRP was sufficient.

There's no question that the unions will seek leave to appeal to the Supreme Court, but in the mean time the Court of Appeal's decision is quite interesting.

New Questions of Law

The Court of Appeal notes that there are two different questions in this case from the previous Supreme Court cases:  Does the Charter guarantee a right of employees to select their representative association; and does the Charter guarantee a right of employees to have a representative association which is "structurally independent" of management?  The differences in the question afford the Court an opportunity to interpret the principles applied by the Supreme Court in previous cases, extrapolating its results in a principled manner.

Derivative Rights

The Court of Appeal notes that the Supreme Court referred to the Charter's protection of collective bargaining as right in a "derivative sense", and explains the history of derivative rights.  Essentially, when a positive government action may be a "necessary precondition" to the exercise of a fundamental freedom, the government may be obligated to do so.


For example, while there is no Charter obligation on the government to provide access to information, there may be a derivative right to disclosure where such disclosure is a necessary precondition to meaningful public discussion on matters of public interest; in other words, where such discussion is "substantially impeded" by the non-disclosure of such information.

The Court of Appeal concludes, accordingly, that "a positive obligation to engage in good faith collective bargaining will only be imposed on an employer when it is effectively impossible for the workers to act collectively to achieve workplace goals."

That latter sentence may be a slight oversimplification, in part because on the facts of this case, the employer is a government agency.  The Charter has no direct impact on private actors, including private employers.  It impacts only governments.  In a more general sense, it would be fairer to suggest that the Charter imposes an obligation on government to legislatively require employers to engage in good faith collective bargaining only when it is effectively impossible for the workers to act collectively to accomplish workplace goals.

On the Facts


The Application judge made several findings of fact which are difficult for the union to overcome.  In particular, the judge found that "RCMP management listens carefully and with an open mind to the views of SRRs in the consultative process established by the SRRP."

That being the case, Fraser basically had to be fatal to the claim.  The SRRP is a labour relations model with different features from the Wagner model, but it appears to give Mounties a meaningful ability to act in concert to achieve workplace goals, which is - at its core - what is protected by s.2(d) of the Charter.

Implications Moving Forward


We can anticipate a series of "right to strike" cases moving forward.  One has already been heard in Saskatchewan, and we can reasonably expect several more, following from one or more of the designation of the TTC as an essential service or the various back-to-work legislation enacted and/or threatened by the Federal government in recent months (Canada Post, Air Canada, CP).  I don't know if any actual legal processes have been initiated to date for these matters.

If we assume that the Supreme Court does not overturn the Court of Appeal's decision here, then the future of a "right to strike" in Canada is bleak.

When the Saskatchewan Court of Queen's Bench concluded that there is a right to strike, this decision was heavily weighted by referencing international law.  Canada is a signatory to a number of international treaties, including ILO Convention 87, which guarantees rights of trade unions.  While Convention 87 doesn't expressly guarantee a right to strike, adjudicative bodies interpreting it at international law have interpreted the right to strike as an ancillary right protected by the convention.

Earlier decisions of the Supreme Court (and in particular B.C. Health Services) have implied that the rights found in s.2(d) of the Charter should be interpreted to include at least those rights contained in related treaties that Canada has ratified.

Accordingly, said the Saskatchewan judge, the right to strike is constitutionally entrenched.

The Ontario Court of Appeal's consideration of this issue is much more nuanced, and in particular the highlighting of the right to collectively bargain as being a 'derivative right' will inform the discussion:  The Charter doesn't include the right to collectively bargain as a freestanding right, but rather provides that collective bargaining may be guaranteed where necessary to protect the association rights at the core of s.2(d).

Extending these principles to the right to strike, I would anticipate a conclusion that the government is generally entitled to provide alternate recourse to the right to strike, provided that the alternate recourse is even-handed and does not meaningfully interfere with the collective bargaining process.

(To clarify:  In no way to I wish to be taken as endorsing any notion that a general prohibition on the right to strike, such as what we are currently seeing at the federal level, would be good public policy.  On the contrary, I believe that it is far better to have parties reach their own resolution, generally speaking, and in many contexts to permit labour interruptions as a tool for reaching those resolutions.  However, there is a world of difference between calling something "poor public policy" and saying that it should be constitutionally prohibited.)

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer. 

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