Can a provincial government prohibit strikes by “essential” workers and refuse to provide such workers with any sort of meaningful alternative dispute resolution process?
According to a 2015 decision from the Supreme Court of Canada, Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 the answer is “no.”
As Ontario once again looks at the issue of teachers’ right to strike, it is important to take note of what Canada’s top court has said is and is not constitutional.
On December 19, 2007, the newly elected Government of Saskatchewan (Saskatchewan Party) introduced two statutes: 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, which became law in May, 2008. Prior to the enactment of the PSESA, public sector strikes were regulated on an ad hoc basis in Saskatchewan. Without a regime in place, it was often difficult to ensure the adequate provision of essential services during labour disputes. In April 1999, for example, 8,400 members of the Saskatchewan Union of Nurses participated in a province-wide strike and many health care facilities throughout the province lost the capacity to provide critical care to patients. Similarly, in 2001, health care employees represented by the Canadian Union of Public Employees withdrew their services, seriously affecting the delivery of health care.
The PSESA was Saskatchewan’s first statutory scheme to limit the ability of public sector employees who perform “essential services” to strike. It prohibited unilaterally designated “essential service employees” from participating in any strike action against their employer. Those employees were required to continue the duties of their employment in accordance with the terms and conditions of the last collective bargaining agreement. No meaningful mechanism for resolving bargaining impasses was provided.
The PSESA defined “essential services” to mean:
(i) with respect to services provided by a public employer other than the Government of Saskatchewan, services that are necessary to enable a public employer to prevent:
(A) danger to life, health or safety;
(B) the destruction or serious deterioration of machinery, equipment or premises;
(C) serious environmental damage; or
(D) disruption of any of the courts of Saskatchewan; and
(ii) with respect to services provided by the Government of Saskatchewan, services that:
(A) meet the criteria set out in subclause (i); and
(B) are prescribed
In July 2008, the Saskatchewan Federation of Labour and other unions challenged the constitutionality of both the PSESA and The Trade Union Amendment Act, 2008. The trial judge, Justice D.P. Ball, concluded that the right to strike was a fundamental freedom protected by s. 2(d) of the Canadian Charter of Rights and Freedoms and that the prohibition on the right to strike in the PSESA substantially interfered with the s. 2(d) rights of the affected public sector employees. He also found that the absolute ban on the right to strike in the PSESA was neither minimally impairing nor proportionate and therefore was not saved by s. 1 of the Charter.
The Saskatchewan Court of Appeal (Klebuc C.J.S. and Richards, Ottenbreit, Caldwell and Herauf JJ.A.) unanimously allowed the Government of Saskatchewan’s appeal with respect to the constitutionality of the PSESA.
On further appeal to the Supreme Court of Canada, the Court (McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis JJ.) held that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations. The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right.
Writing for the majority, the Honourable Justice Rosalie Abella opened the Court’s reasons for decision as follows:
In the Alberta Reference (Reference re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313), this Court held that the freedom of association guaranteed under s. 2(d) of the Canadian Charter of Rights and Freedoms did not protect the right to collective bargaining or to strike. Twenty years later, in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, this Court held that s. 2(d) protects the right of employees to engage in a meaningful process of collective bargaining. The rights were further enlarged in Ontario (Attorney General) v. Fraser, 2011 SCC 20, where the Court accepted that a meaningful process includes employees’ rights to join together to pursue workplace goals, to make collective representations to the employer, and to have those representations considered in good faith, including having a means of recourse should the employer not bargain in good faith. And, most recently, in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, the Court recognized that a process of collective bargaining could not be meaningful if employees lacked the independence and choice to determine and pursue their collective interests. Clearly the arc bends increasingly towards workplace justice.
As framed by the Court, the question that had to be answered in the Saskatchewan Federation of Labour case was:
Whether a prohibition on designated employees participating in strike action for the purpose of negotiating the terms and conditions of their employment amounts to a substantial interference with their right to a meaningful process of collective bargaining and, as a result, violates s. 2(d) of the Charter.
In resolving that such a prohibition did amount to a substantial interference with their right to a meaningful process of collective bargaining, Justice Abella wrote the following:
 The conclusion that the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations is supported by history, by jurisprudence, and by Canada’s international obligations. As Otto Kahn-Freund and Bob Hepple recognized:
The power to withdraw their labour is for the workers what for management is its power to shut down production, to switch it to different purposes, to transfer it to different places. A legal system which suppresses that freedom to strike puts the workers at the mercy of their employers. This — in all its simplicity — is the essence of the matter.
(Laws Against Strikes (1972), at p. 8)
The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.
 This applies too to public sector employees. Those public sector employees who provide essential services undoubtedly have unique functions which may argue for a less disruptive mechanism when collective bargaining reaches an impasse, but they do not argue for no mechanism at all. Because Saskatchewan’s legislation abrogates the right to strike for a number of employees and provides no such alternative mechanism, it is unconstitutional.…
 I agree with the trial judge. Along with their right to associate, speak through a bargaining representative of their choice, and bargain collectively with their employer through that representative, the right of employees to strike is vital to protecting the meaningful process of collective bargaining within s. 2(d). As the trial judge observed, without the right to strike, “a constitutionalized right to bargain collectively is meaningless”.
 Where strike action is limited in a way that substantially interferes with a meaningful process of collective bargaining, it must be replaced by one of the meaningful dispute resolution mechanisms commonly used in labour relations. Where essential services legislation provides such an alternative mechanism, it would more likely be justified under s. 1 of the Charter. In my view, the failure of any such mechanism in the PSESA is what ultimately renders its limitations constitutionally impermissible.…
 The test… is whether the legislative interference with the right to strike in a particular case amounts to a substantial interference with collective bargaining. The PSESA demonstrably meets this threshold because it prevents designated employees from engaging in any work stoppage as part of the bargaining process. It must therefore be justified under s. 1 of the Charter.
In finding that the law’s interference with a constitutionally protected right was not justified under section 1 of the Charter, which permits some infringements of the Charter, provided that the same can be shown to be “demonstrably justified in a free and democratic society", Justice Abella wrote this:
 The maintenance of essential public services is self-evidently a pressing and substantial objective, as the Unions acknowledge. The Unions also accept the trial judge’s further conclusion that the government’s objective — ensuring the continued delivery of essential services — is rationally connected to the “basic structure of the legislation, including the sanctions imposed on employees and their unions to ensure compliance with its provisions”.
 The determinative issue here, in my view, is whether the means chosen by the government are minimally impairing, that is, “carefully tailored so that rights are impaired no more than necessary.”
 The trial judge concluded that the provisions of the PSESA “go beyond what is reasonably required to ensure the uninterrupted delivery of essential services during a strike”. I agree. The unilateral authority of public employers to determine whether and how essential services are to be maintained during a work stoppage with no adequate review mechanism, and the absence of a meaningful dispute resolution mechanism to resolve bargaining impasses, justify the trial judge’s conclusion that the PSESA impairs the s. 2(d) rights more than is necessary.…
 And even where an employee has been prohibited from participating in strike activity, the PSESA does not tailor his or her responsibilities to the performance of essential services alone. Section 18(1)(a) of the PSESA requires that in the event of a work stoppage, all essential services employees must continue “the duties of . . . [their] employment with the public employer in accordance with the terms and conditions of the last collective bargaining agreement” and must not fail to continue those duties “without lawful excuse” (s. 18(2)). Requiring those affected employees to perform both essential and non-essential work during a strike action undercuts their ability to participate meaningfully in and influence the process of pursuing collective workplace goals.
 All this is in addition to the absence of an impartial and effective dispute resolution process to challenge public employer designations under s. 9(2) of the legislation, a particular concern in light of the significant definitional latitude given to public employers. As noted, the ILO’s Committee on Freedom of Association defined essential services as those needed to prevent a “clear and imminent threat to the life, personal safety or health of the whole or part of the population” (Freedom of Association, at para. 581). The definition of “essential services” under the PSESA requires basic judgments to be made about when life, health, safety, or environmental concerns, among others, justify essential services designation. These are fundamental questions, yet all are permitted to be answered unilaterally by the employer under the Act with no access to an effective dispute resolution mechanism for reviewing disputed employer designations.
 Nor is there any access to a meaningful alternative mechanism for resolving bargaining impasses, such as arbitration……
 Given the breadth of essential services that the employer is entitled to designate unilaterally without an independent review process, and the absence of an adequate, impartial and effective alternative mechanism for resolving collective bargaining impasses, there can be little doubt that the trial judge was right to conclude that the scheme was not minimally impairing. Quite simply, it impairs the s. 2(d) rights of designated employees much more widely and deeply than is necessary to achieve its objective of ensuring the continued delivery of essential services.
In the result, the Court deemed the provisions of the PSESA to be unconstitutional. For what it is worth, Justices Rothstein and Wagner disagreed; finding that there is no right to strike guaranteed by section 2(d) of the Charter.
This case is of critical importance with respect to the issue of “essential services.” It is important to note that while the Court struck down the Saskatchewan law, it did so not because the government could not legally prohibit striking by those deemed to provide an “essential service”, but because the law prohibited striking by such employees and it failed to replace the right to strike with something meaningful.
In future cases it may be found that a prohibition of the right to strike by those providing essential services may strike the appropriate balance between the rights of employees to collectively withdraw the provision of their non-essential services and the right of the employer/government to ensure the continued provision of essential services.
What is missing from the decision is any analysis of what counts as “essential.” While that issue was not before the Court, their decision will leave many wondering what counts as an “essential” service. It is important to note that in the trial judge’s decision, Justice Ball pointed to workers in the province’s public-sector casinos and liquor stores as being among those who provide non-essential public services.
But What About Teachers?
As a resident of Ontario, it would be nearly impossible to write a post about the right of public sector employees to strike and not touch on the issue of teachers. As this post is being written, the issue of whether the government can legislate teachers back to work, or prevent them from striking in the first place, is once again in the spotlight.
The issue of whether teachers should have the right to strike is a sensitive topic. As a high school student during the Mike Harris government and as an alumnus of York University I have been through my own share of work stoppages by teachers. Now I find myself both a teacher (albeit in a non-unionized, very part-time position) and friends with several teachers in both the Ontario elementary and secondary system. I am also at an age where I have several friends with children in school. While a teachers’ strike may seem like every student’s dream, the reality is that they really are not. Such work stoppages are no fun for anyone, including students.
Whether teachers should be retain the right to withdraw all their services is a controversial subject and it is important to note that I am a lawyer commenting on the law not a politician running for office. With respect to such an issue, what I think the Saskatchewan Federation of Labour case will do is require whatever government is in power to ensure that an appropriate balance is struck. If the government is going to attempt to prohibit strikes by teachers, then in order to be constitution any such law will have to, at a minimum, do the following:
- ensure that teachers retain the right to withdraw the provision of non-essential services; and
- ensure that teachers are provided with a meaningful alternative form of dispute resolution.
Whether future governments will success in such balancing of interests is yet to be seen. Suffice it to say, however, that given the Court’s recent decisions, such a balancing will not be easy.
To reach the author of this blog, Sean Bawden, email firstname.lastname@example.org or call 613.238.6321 x260. You may also use the contact box at the top of this page.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He is also a part-time professor at Algonquin College teaching Trial Advocacy for Paralegals and Small Claims Court Practice.