234:. . . s. 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals. The right to a meaningful process of collective bargaining is therefore a necessary element of the right to collectively pursue workplace goals in a meaningful way . . . . process of collective bargaining will not be meaningful if it denies employees the power to pursue their goals.
26:
210:
process of determining their wages, working conditions and the rules that will govern their working lives (Fudge and Tucker, at p. 334). The ability to strike thereby allows workers, through collective action, to refuse to work under imposed terms and conditions. This collective action at the moment of impasse is an affirmation of the dignity and autonomy of employees in their working lives.
194:, this Court recognized that the Charter values of "uman dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy" supported protecting the right to a meaningful process of collective bargaining within the scope of s. 2(d) (para. 81). And, most recently, drawing on these same values, in
166:
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 the freedom to strike puts the workers at the mercy of their employers. This — in all
241:
and Eric Tucker point out that it is "the possibility of the strike which enables workers to negotiate with their employers on terms of approximate equality" (p. 333). Without it, "bargaining risks being inconsequential — a dead letter" (Prof. Michael Lynk, "Expert
Opinion on Essential Services", at
257:
57 Strike activity itself does not guarantee that a labour dispute will be resolved in any particular manner, or that it will be resolved at all. And, as the trial judge recognized, strike action has the potential to place pressure on both sides of a dispute to engage in good faith negotiations.
209:
54 The right to strike is essential to realizing these values and objectives through a collective bargaining process because it permits workers to withdraw their labour in concert when collective bargaining reaches an impasse. Through a strike, workers come together to participate directly in the
182:
4 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
204:
to protect the individual from "state-enforced isolation in the pursuit of his or her ends" . . . . The guarantee functions to protect individuals against more powerful entities. By banding together in the pursuit of common goals, individuals are able to prevent more powerful entities from
245:
56 In their dissent, my colleagues suggest that s. 2(d) should not protect strike activity as part of a right to a meaningful process of collective bargaining because "true workplace justice looks at the interests of all implicated parties" (para. 125), including employers. In essentially
190:
131:
205:
thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society.
221:
he role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers.
153:
3 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
137:
145:
section 2(d) because it left a determination of what was essential up to the employer. The Trade Union
Amendment Act 2008 was lawful, even though it made union organizing more difficult.
129:
held that the Public
Service Essential Services Act 2008 was an unwarranted interference with the right to strike and the right to collective bargaining, as previously elaborated in
200:
it confirmed that protection for a meaningful process of collective bargaining requires that employees have the ability to pursue their goals and that, at its core, s. 2(d) aims
217:
that structure the relationship between employers and employees, and the vulnerability of employees in this context. In the
Alberta Reference, Dickson C.J. observed that
254:'s aphoristic fallacy: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."
246:
attributing equivalence between the power of employees and employers, this reasoning, with respect, turns labour relations on its head, and ignores the fundamental
213:
55 Striking — the "powerhouse" of collective bargaining — also promotes equality in the bargaining process: England, at p. 188. This Court has long recognized the
183:
Saskatchewan's legislation abrogates the right to strike for a number of employees and provides no such alternative mechanism, it is unconstitutional.
94:
418:
403:
413:
423:
398:
179:, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.
90:
250:
which the entire history of modern labour legislation has been scrupulously devoted to rectifying. It drives us inevitably to
247:
214:
260:
258:
But what it does permit is the employees' ability to engage in negotiations with an employer on a more equal footing (see
117:
increased the level of employee support required to unionize, thereby making it more difficult to organize a union.
408:
375:
126:
36:
176:
102:
383:
379:
317:
302:
74:
70:
46:
109:
introduced Public
Service Essential Services Act 2008 which would have unilaterally designated
98:
264:(1947) Ltd., 1951 CanLII 24 (SCC), S.C.R. 762, at p. 780; Mounted Police, at paras. 70-71).
155:
142:
25:
172:
78:
280:
251:
196:
132:
Health
Services and Support – Facilities Subsector Bargaining Assn. v British Columbia
392:
312:
167:
its simplicity — is the essence of the matter. (Laws
Against Strikes (1972), at p. 8)
110:
307:
268:
106:
93:
and a group of other unions claimed that two new provincial statutes violated the
113:
workers' services as "essential" and therefore prohibited strike action. The new
286:
276:
238:
159:
290:
146:
272:
138:
Mounted Police
Association of Ontario v Canada (Attorney General)
53:
42:
32:
18:
149:gave the leading judgment, saying the following:
67:Saskatchewan Federation of Labour v Saskatchewan
19:Saskatchewan Federation of Labour v Saskatchewan
151:
8:
141:. It was unconstitutional and violated the
24:
15:
328:
95:Canadian Charter of Rights and Freedoms
242:par. 20; A.R., vol. III, at p. 145).
7:
261:Williams v. Aristocratic Restaurants
97:by suppressing the freedom to take
14:
91:Saskatchewan Federation of Labour
115:Trade Union Amendment Act, 2008
1:
419:Supreme Court of Canada cases
404:Canadian trade union case law
414:Section Two Charter case law
175:is not merely derivative of
226:And this Court affirmed in
440:
424:2015 in Canadian case law
399:Labour disputes in Canada
58:
23:
376:Supreme Court of Canada
127:Supreme Court of Canada
37:Supreme Court of Canada
378:decision available at
266:
236:
224:
207:
169:
232:
219:
202:
177:collective bargaining
164:
103:collective bargaining
105:. The government of
318:European labour law
303:Canadian labour law
293:dissented in part.
75:Canadian labour law
215:deep inequalities
99:collective action
63:
62:
431:
409:Saskatchewan law
354:
351:
345:
342:
336:
333:
156:Otto Kahn-Freund
143:Canadian Charter
28:
16:
439:
438:
434:
433:
432:
430:
429:
428:
389:
388:
371:
362:
357:
352:
348:
343:
339:
334:
330:
326:
299:
248:power imbalance
191:Health Services
173:right to strike
123:
87:
79:right to strike
59:Right to strike
12:
11:
5:
437:
435:
427:
426:
421:
416:
411:
406:
401:
391:
390:
387:
386:
370:
369:External links
367:
366:
365:
361:
358:
356:
355:
346:
337:
327:
325:
322:
321:
320:
315:
310:
305:
298:
295:
281:Karakatsanis J
252:Anatole France
228:Mounted Police
197:Mounted Police
122:
119:
86:
83:
61:
60:
56:
55:
51:
50:
44:
40:
39:
34:
30:
29:
21:
20:
13:
10:
9:
6:
4:
3:
2:
436:
425:
422:
420:
417:
415:
412:
410:
407:
405:
402:
400:
397:
396:
394:
385:
381:
377:
374:Full text of
373:
372:
368:
364:
363:
359:
350:
347:
341:
338:
332:
329:
323:
319:
316:
314:
313:UK labour law
311:
309:
306:
304:
301:
300:
296:
294:
292:
288:
284:
282:
278:
274:
270:
265:
263:
262:
255:
253:
249:
243:
240:
235:
231:
229:
223:
218:
216:
211:
206:
201:
199:
198:
193:
192:
186:
184:
180:
178:
174:
168:
163:
161:
157:
150:
148:
144:
140:
139:
134:
133:
128:
120:
118:
116:
112:
111:public sector
108:
104:
100:
96:
92:
84:
82:
80:
76:
72:
69:
68:
57:
52:
48:
45:
41:
38:
35:
31:
27:
22:
17:
349:
340:
331:
308:US labor law
285:
269:McLachlin CJ
267:
259:
256:
244:
237:
233:
227:
225:
220:
212:
208:
203:
195:
189:
187:
185:
181:
170:
165:
162:recognized:
152:
136:
130:
124:
114:
107:Saskatchewan
88:
77:case on the
66:
65:
64:
49:, 2015 SCC 4
344:2007 SCC 27
287:Rothstein J
283:concurred.
393:Categories
360:References
353:2015 SCC 1
335:2015 SCC 4
277:Cromwell J
239:Judy Fudge
160:Bob Hepple
71:1 SCR 245
47:1 SCR 245
43:Citations
297:See also
291:Wagner J
147:Abella J
121:Judgment
54:Keywords
273:LeBel J
380:CanLII
188:53 In
384:LexUM
324:Notes
230:that
85:Facts
73:is a
33:Court
382:and
289:and
279:and
171:The
158:and
135:and
125:The
101:and
89:The
395::
275:,
271:,
81:.
Text is available under the Creative Commons Attribution-ShareAlike License. Additional terms may apply.