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Ontario Erectors Association

Right to strike constitutionally protected, SCC rules

January 30, 2015

In a historic decision, the Supreme Court of Canada has ruled that the right to strike in Canada is an essential component of the guarantee of freedom of association protected by section 2(d) of the Canadian Charter of Rights and Freedoms. In reasons delivered by Justice Rosalie Abella on behalf of a 5:2 majority (Justices Rothstein and Wagner dissenting), the Court has declared that the “ability of workers to collectively withdraw their services for the purpose of negotiating the terms and conditions of their employment – in other words, to strike – is an essential component of the process through which workers pursue collective workplace goals.”

For the majority, Justice Abella stated:

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. …

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.

As a result, the majority of the Court has held that Saskatchewan’s Public Service Essential Services Act – which nullifies the ability of essential services employees to participate in any strike action and provides no meaningful alternative mechanism for resolving bargaining impasses – substantially interferes with a meaningful process of collective bargaining and, therefore, violates section 2(d) of the Charter. The Supreme Court further found that the infringement was not justified by section 1 of the Charter, which permits reasonable limits on fundamental rights. However, it suspended the declaration of invalidity of the Act for one year to allow the provincial legislature to enact legislation that complies with the Charter.

Dealing with a different issue, the Supreme Court upheld a lower court ruling that the Saskatchewan Trade Union Amendment Act, 2008, which introduced changes to the process of certification and decertification, as well as to the rules governing employer communications to employees, is constitutionally valid.

A detailed analysis of the Supreme Court of Canada’s ruling will be provided next week by Lancaster House.

Full text:
Saskatchewan Federation of Labour v. Saskatchewan
Saskatchewan Federation of Labour v. Saskatchewan
Supreme Court of Canada
Chief Justice Beverley McLachlin and Justices Louis LeBel, Rosalie Abella, Thomas Cromwell, and Andromache Karakatsanis; Justices Marshall Rothstein and Richard Wagner dissenting in part
January 30, 2015