Two Big Wins For Unions At The SCC

Earlier this year, the Supreme Court of Canada delivered a pair of big wins to Canadian unions. Both judgments relate to public sector unions, but may have important implications for labour law more generally. In both cases, the Court has undermined its own precedent.

Mounted Police Association of Ontario v. Canada (Attorney General)

The first case is Mounted Police Association of Ontario v. Canada (Attorney General). In this case, the Court (per McLachlin C.J. and Le Bel J. for the six-judge majority; Rothstein J. dissenting) held that a legislative ban preventing members of the Royal Canadian Mounted Police from unionizing was unconstitutional because it infringed the right to freedom of association under Charter s. 2(d).

The majority considered that the legislated human relations scheme substantially interfered with the right to associate because the scheme was not chosen or controlled by RCMP members, was not independent from management, and did not permit meaningful collective bargaining. The majority expressly overturned the Court's previous decision in Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, which held that the exclusion of RCMP members from the application of federal public sector labour relations legislation did not violate Charter s. 2(d). In so doing, they cited the Court's recent shift to a purposive and generous approach to labour relations.

A more fulsome summary of the judgment can be found here, on the British Columbia Employment Advisor blog.

Saskatchewan Federation of Labour v. Saskatchewan

The second case is Saskatchewan Federation of Labour v. Saskatchewan. In this case, the Court (per Abella J. for the five-judge majority; Rostein and Wagner JJ. dissenting in part) considered provincial legislation limiting the ability of "essential services" public sector employees to strike. Both the majority and dissent agreed that the legislation was unconstitutional because it granted unilateral authority to government to determine which employees were providing "essential services" and because the legislation provided no meaningful alternative review mechanism, such as arbitration.

The majority also went further and held that the right to strike is protected by Charter s. 2(d). In the majority's view, this was a logical extension of precedent because the right to strike is essential to a meaningful process of collective bargaining. Rothstein and Wagner JJ. strongly disagreed. In their view, the...