Willis & Winkler on Leading Labour Cases 2010

Transcription

1 Willis & Winkler on Leading Labour Cases 2010 Elaine B. Willis Warren K. Winkler Canada Law Book A Division of The Cartwright Group Ltd. 240 Edward St., Aurora, Ontario, L4G 3S9

2 #THE CARTWRIGHT GROUP LTD., 2010 Printed in Canada All rights reserved. No part of this book may be reproduced in any form by any photographic, electronic, mechanical or other means, or used in any information storage and retrieval system, without the written permission of the publisher. The publisher, and every person involved in the creation of this publication, disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication. This publication is intended for information purposes only. The publisher is not engaged in rendering legal or other professional advice and this publication should not be relied upon as providing such advice. The publisher, and every person involved in the creation of this publication, disclaims all liability in respect of the results of any actions taken or not taken in reliance upon information in this publication. The paper used in this publication meets the minimum requirements of American National Standards for Information Sciences Permanence of Paper for Printed Library Materials, ANSI Z ISSN

3 Preface This year s edition of Willis and Winkler on Leading Labour Cases 2010 paints a broad canvas. We examine a mixture of key current cases and underlying structural issues and we provide updates on the application of important Supreme Court of Canada cases. In Chapter 1 we concentrate on constitutional developments in two areas: personal information searches, or the ability of employers to require security clearances, and the constitutional boundaries of statutory strike definitions. These developments are important for employees, unions, employers and, indeed, for all those who are interested in understanding the limits of certain Charter rights in the workplace setting: freedom of expression, freedom of association, and the privacy of personal information as an aspect of the right to be secure against unreasonable searches. In Chapter 2 we look at a topic of growing interest and importance to both tribunals and courts: the sufficiency or adequacy of a tribunal s written reasons. The Supreme Court of Canada s decision in Dunsmuir v. New Brunswick focused renewed attention on this subject, and courts at all levels are paying close attention to the critical question: Are the tribunal s reasons sufficient? This chapter samples some of the expanding body of authorities on this key subject. In Chapters 3 and 4 we return to fundamentals by comparing two structural differences across labour relations statutes: arbitration clauses and union security provisions. Both are basic components of Canadian labour statutes; yet the importance and the effect of these components has often been overlooked. Statutory arbitration clauses have the potential to define the scope of arbitrable disputes, while union security provisions may determine not only the efficacy but ultimately the viability of unions. In Chapters 3 and 4 we look at how these statutory features have shaped the case law in several jurisdictions a topic which appears largely unexplored to date. In Chapter 5 we return to more familiar territory: the exclusive jurisdiction of arbitrators as articulated in Weber v. Ontario Hydro. For the iii

4 iv WILLIS & WINKLER ON LEADING LABOUR CASES 2010 vast majority of disputes between parties who are subject to a collective agreement, figuring out the right forum for resolving their dispute is not an issue. But the answer to this question is not always straightforward. In some instances, determining whether a dispute belongs in front of an arbitrator, as opposed to a court or another administrative tribunal, remains a perplexing exercise. In this chapter we look at some recent exceptions to the preference for arbitration that is, cases in which arbitrators were found not to have exclusive jurisdiction over the dispute. Finally, in Chapter 6 we revisit four Supreme Court of Canada cases from 2008 which dealt with important issues for the labour community: the duty to accommodate, the duty to mitigate, Wallace damages, and standards of judicial review post-dunsmuir, particularly the reasonableness standard. By considering how these cases have been interpreted and applied we get a better sense of their impact. Assessing the impact of such cases is a dynamic process, and so our understanding of these important labour issues will continue to evolve. For now, we provide you with some key updates. May 2010 Elaine B. Willis Warren K. Winkler

5 Table of Contents Preface Table of Cases PAGE Chapter 1 Charter Cases The Constitutionality of Personal Information Searches The Constitutionality of Statutory Definitions of Strike Key Conclusions Chapter 2 The Sufficiency of Reasons Assessing Sufficiency Curing Insufficiency: The Problem of Functus Officio Reasoned Decisions in Other Contexts Conclusions Chapter 3 Mandatory Arbitration Clauses in Labour Relations Statutes: The Impact of Structural Divergence Statutory Arbitration Clauses Mandating A Method for the Settlement of Differences Settlement of Differences by Arbitration or Otherwise A Mandatory Arbitration Clause Concluding Analysis Chapter 4 Union Security Clauses in Labour Relations Statutes: Legislative Differences That Matter Union Security Provisions and Unionization Union Security and Case Law Analysis and Key Conclusions iii vii v

6 vi WILLIS & WINKLER ON LEADING LABOUR CASES 2010 Chapter 5 Weber Distinguished: Exceptions to the Exclusive Jurisdiction of Arbitrators Recent Cases Which Have Distinguished Weber Summary of Key Points The Exclusive Jurisdiction of Arbitrators: Key Conclusions Chapter 6 Key Updates: Accommodation, Duty to Mitigate, Damages, and Standards of Judicial Review Lessons from Dunsmuir Duty to Accommodate Wrongful Dismissal and the Duty to Mitigate: An Adjudicator s Perspective on Evans Awarding Wallace Damages: Keays v. Honda Canada Inc Index

7 Table of Cases B.C. Ltd. and HEU (Re) (unreported, January 30, 2009, BCLRB No. B21/2009, Mullaly), request for reconsideration denied (unreported, March 16, 2009, BCLRB No. B55/2009, Mullin) Alberta and AUPE ( R ) (Re) (2009), 183 L.A.C. (4th) 1, 2009 C.L.L.C. } , [2009] A.J. No. 368, 2009 CarswellAlta 484, 176 A.C.W.S. (3d) 525, 2009 ABQB Alberta v. AUPE (Davis) (2006), 86 C.L.A.S. 344, [2006] A.G.A.A. No. 50 sub nom. Alberta v. AUPE (Hornung), appeal quashed 163 L.A.C. (4th) 193, 424 A.R. 335, 21 D.E.L.D. 257, 160 A.C.W.S. (3d) 482, 2007 ABQB 410, affd 174 L.A.C. (4th) 353, 295 D.L.R. (4th) 66, 429 W.A.C. 159, 96 Alta. L.R. (4th) 207, 433 A.R. 159, 2008 C.L.L.C. } , 23 D.E.L.D. 160, 168 A.C.W.S. (3d) 108, 2008 ABCA , 45, 47, 48, 49, 50, 63 Alberta (Health Services) and HSAA (Munro) (Re) (2009), 187 L.A.C. (4th) 129, 99 C.L.A.S. 135 (Price) , 119 Asselstine v. Manufacturers Life Insurance Co. (2005), 254 D.L.R. (4th) 464, [2005] 10 W.W.R. 252, 352 W.A.C. 102, 40 B.C.L.R. (4th) 226, 41 C.C.E.L. (3d) 209, 22 C.C.L.I. (4th) 169, 2006 C.L.L.C. } , [2005] B.C.J. No. 1152, [2005] I.L.R. }1-4410, 139 A.C.W.S. (3d) 762, 2005 BCCA AUPE v. Alberta (2008), 179 L.A.C. (4th) 117 sub nom. Alberta and AUPE (Guay) (Re), 95 C.L.A.S. 348 (Price), application for judicial review dismissed 186 L.A.C. (4th) 1, 179 A.C.W.S. (3d) 201, 2009 ABQB 410, revd 188 A.C.W.S. (3d) 529, 2010 ABCA , 50, 61 Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193, [1999] 2 S.C.R. 817, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 243 N.R. 22, 89 A.C.W.S. (3d) 777, [1999] S.C.J. No , 24, 26, 28 vii

8 viii WILLIS & WINKLER ON LEADING LABOUR CASES 2010 BCTF v. British Columbia Public School Employers Assn. (2009), 182 L.A.C. (4th) 193, 306 D.L.R. (4th) 144, 2009 C.L.L.C. } , 187 C.R.R. (2d) 260, [2009] 5 W.W.R. 608, 89 B.C.L.R. (4th) 96, 175 A.C.W.S. (3d) 231, 2009 BCCA 39, leave to appeal to S.C.C. refused 183 L.A.C. (4th) vii, 306 D.L.R. (4th) vi, [2009] 2 S.C.R. vii... 9, 14, 15, 16, 17 Bethany Care Centre Cochrane and UNA, Local 173 (Robertson) (Re) (1995), 40 C.L.A.S. 513 (Beattie)... 42, 47 British Columbia (Public Service Employee Relations Commission) v. BCGSEU (1999), 176 D.L.R. (4th) 1, [1999] 3 S.C.R. 3, 244 N.R. 145 sub nom. Public Service Employee Relations Commission (B.C.) v. British Columbia Government and Service Employees Union, [1999] 10 W.W.R. 1, 207 W.A.C. 161, 66 B.C.L.R. (3d) 253, 46 C.C.E.L. (2d) 206, 35 C.H.R.R. D/257, 99 C.L.L.C. } , 68 C.R.R. (2d) 1, [1999] S.C.J. No. 46, 90 A.C.W.S. (3d) British Columbia Maritime Employers Assn. and ILWU (Re) (2007), 150 C.L.R.B.R. (2d) 224 (C.I.R.B.)...2 British Columbia Maritime Employers Assn. and ILWU-Canada, Local 500 (Re) (2007), 168 L.A.C. (4th) 418, 92 C.L.A.S. (Munroe)...2 Budgen v. St. John s (City) (2008), 179 L.A.C. (4th) 1, 301 D.L.R. (4th) 166, 281 Nfld. & P.E.I.R. 178, 2009 C.L.L.C. } , 863 A.P.R. 178, 171 A.C.W.S. (3d) 348, 2008 NLTD , 55, 61, 82, 83, 93 Canada (Attorney General) (Re) (2009), 186 L.A.C. (4th) 353, 395 N.R. 1 sub nom. Reference re: Marine Transportation Security Regulations, 181 A.C.W.S. (3d) 911, 2009 FCA 234, leave to appeal to S.C.C. refused 189 L.A.C. (4th) ix... 2, 18 Canadian National Railway Co. and Drew (Re) (2009), 98 C.L.A.S. 372 (Trachuk) Canadian Pacific Ltd. v. UTU (1978), 85 D.L.R. (3d) 665, [1979] 1 F.C. 609, 21 N.R. 33 (C.A.)... 54, 55 Cape Breton-Victoria Regional School Board and NSTU (Re) (2004), 127 L.A.C. (4th) 110, 77 C.L.A.S. 133 (Kydd)...57 Chandler v. Alberta Assn. of Architects (1989), 62 D.L.R. (4th) 577, [1989] 2 S.C.R. 848, 40 Admin. L.R. 128, 36 C.L.R. 1, [1989] 6 W.W.R. 521, 70 Alta. L.R. (2d) 193, 101 A.R. 321, 99 N.R. 277, 17 A.C.W.S. (3d) 598, [1989] S.C.J. No , 29 Clifford v. Ontario (Attorney General) (2008), 85 Admin. L.R. (4th) 105, 70 C.C.P.B. 100, 90 O.R. (3d) 742, 237 O.A.C. 277, 168 A.C.W.S. (3d) 641 (Ont. S.C.J. (Div. Ct.)), revd 188 L.A.C. (4th) 97, 312 D.L.R. (4th) 70, 93 Admin. L.R. (4th) 131, 76 C.C.P.B. 184, 98 O.R. (3d) 210, 181 A.C.W.S. (3d) 201, 2009 ONCA 670, leave to appeal to S.C.C. refused 188 L.A.C. (4th) x, 312 D.L.R. (4th) vii...20, 23, 25, 26, 28, 31, 34

9 TABLE OF CASES ix Correctional Service of Canada, Deputy Head and Sioui (Re) (2009), 184 L.A.C. (4th) 70, 97 C.L.A.S. 311, [2009] C.P.S.L.R.B. No. 44, 2009 PSLRB Cronkhite v. Nackawic (Town) (2009), 344 N.B.R. (2d) 317, 73 C.C.E.L. (3d) 251, 884 A.P.R. 317, 58 M.P.L.R. (4th) 238, 176 A.C.W.S. (3d) 904, 2009 NBQB Drifter Motor Hotel and Hotel and Restaurant Employees and Bartenders Union, Local 636 (Re) (unreported, May 30, 1978, BCLRB No. 29/78, Germaine) Dunsmuir v. New Brunswick (2008), 170 L.A.C. (4th) 1, 291 D.L.R. (4th) 577, 95 L.C.R. 65, [2008] 1 S.C.R. 190, 69 Admin. L.R. (4th) 1, 64 C.C.E.L. (3d) 1, 2008 C.L.L.C. } , 69 Imm. L.R. (3d) 1, 844 A.P.R. 1, 329 N.B.R. (2d) 1, 372 N.R. 1, 164 A.C.W.S. (3d) 727, 2008 CarswellNB 124, [2008] S.C.J. No. 9, 2008 SCC , 24, 31, 43, 45, 95, 100, 102, 105 Dynatec Corp. and CEP, Local 890 (Mr. X) (Re) (2009), 98 C.L.A.S. 262 (Pelton) , 122 Eastaugh v. Halat (2009), 182 L.A.C. (4th) 306, 306 D.L.R. (4th) 256, 447 W.A.C. 377, 6 Alta. L.R. (5th) 43, 448 A.R. 377, 24 D.E.L.D. 2, 177 A.C.W.S. (3d) 33, 2009 ABCA , 93 Edmonton (City) and Edmonton Police Assn. (Sahim) (Re) (2008), 167 L.A.C. (4th) 312, 92 C.L.A.S. 16, 92 C.L.A.S. 198 (Sims)... 45, 46 Evans v. Teamsters Local Union No. 31 (2008), 292 D.L.R. (4th) 577, [2008] 1 S.C.R. 661, 425 W.A.C. 1, 253 B.C.A.C. 1, 65 C.C.E.L. (3d) 1, 2008 C.L.L.C. } , 374 N.R. 1, 23 D.E.L.D. 62, [2008] S.C.J. No. 20, 165 A.C.W.S. (3d) 854, 2008 SCC , 116, 117 Fidler v. Sun Life Assurance Co. of Canada (2006), 271 D.L.R. (4th) 1, [2006] 2 S.C.R. 3, [2006] 8 W.W.R. 1, 374 W.A.C. 39, 57 B.C.L.R. (4th) 1, 53 C.C.E.L. (3d) 1, 39 C.C.L.I. (4th) 1, 2007 C.L.L.C. } , [2006] I.L.R. }1-4521, 350 N.R. 40, [2006] S.C.J. No. 30, 148 A.C.W.S. (3d) 902, 2006 SCC Ford Motor Co. of Canada Ltd. v. UAW, 46 C.L.L.C. }18,001 (Rand) Gables Lodge Ltd. and CUPE, Local 1315 (Re) (2009), 187 L.A.C. (4th) 286, 99 C.L.A.S. 53 (Kydd) GWU, Local 333 v. B.C. Terminal Elevator Operations Assn. (2009), 184 L.A.C. (4th) 289, 2009 C.L.L.C. } , 395 N.R. 33, 178 A.C.W.S. (3d) 577, 2009 FCA 201, leave to appeal to S.C.C. refused 186 L.A.C. (4th) xi... 13, 17

10 x WILLIS & WINKLER ON LEADING LABOUR CASES 2010 Haight-Smith v. Neden (2002), 211 D.L.R. (4th) 370, 268 W.A.C. 236, 98 B.C.L.R. (3d) 260, 9 C.C.L.T. (3d) 303, [2002] B.C.J. No. 375, 111 A.C.W.S. (3d) 1141, 2002 BCCA 132, leave to appeal to S.C.C. refused 218 D.L.R. (4th) vi, [2004] 4 S.C.R. vi, 303 N.R. 394n, 303 W.A.C. 160n, [2002] S.C.C.A. No Halifax (City) v. IAFF, Local 268 (1982), 131 D.L.R. (3d) 426, 50 N.S.R. (2d) 299, 82 C.L.L.C. }14,167, [1982] N.S.J. No. 306 (C.A.)... 56, 57 Halifax (Regional Municipality) v. NSUPE, Local 13 (2009), 187 L.A.C. (4th) 353, 282 N.S.R. (2d) 180, 2009 C.L.L.C. } , 895 A.P.R. 180, 181 A.C.W.S. (3d) 367, 2009 NSSC 283, affg 171 L.A.C. (4th) 257, 93 C.L.A.S. 223, 2008 CarswellNS 462 (Veniot)...99, 100 Hamilton Health Sciences Corp. and ONA (Schuster) (Re) (2009), 188 L.A.C. (4th) 327, 99 C.L.A.S. 235 (Harris) Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia (2007) 164 L.A.C. (4th) 1, 283 D.L.R. (4th) 40, [2007] 2 S.C.R. 391, 2007 C.L.L.C. } , 157 C.R.R. (2d) 21, [2007] 7 W.W.R. 191, 400 W.A.C. 1, 65 B.C.L.R. (4th) 201, 242 B.C.A.C. 1, 363 N.R. 226, 157 A.C.W.S. (3d) 298, [2007] S.C.J. No. 27, 2007 SCC , 9, 11, 15, 75 Hill v. Church of Scientology of Toronto (1995), 126 D.L.R. (4th) 129, [1995] 2 S.C.R. 1130, 24 O.R. (3d) 865n, 84 O.A.C. 1, 25 C.C.L.T. (2d) 89, 30 C.R.R. (2d) 189, 184 N.R. 1, [1995] S.C.J. No. 64, 56 A.C.W.S. (3d) Irwin Toy Ltd. v. Quebec (Attorney General) (1989), 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, [1989] 1 S.C.R. 927, 24 Q.A.C. 2, 39 C.R.R. 193, 94 N.R. 167 sub nom. Irwin Toy Ltd. v. Quebec (Procureur Ge néral), 15 A.C.W.S. (3d) 121, [1989] S.C.J. No , 15, 16 ITO-International Terminal Operators Ltd. v. Miida Electronics Inc. (1986), 28 D.L.R. (4th) 641, [1986] 1 S.C.R. 752, 34 B.L.R. 251, sub nom. Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd., 68 N.R. 241, 39 A.C.W.S. (2d) 436, [1986] S.C.J. No Jacobs Catalytic Ltd. v. IBEW, Local 353, 2008 C.L.L.C. } , 91 O.R. (3d) 20, 238 O.A.C. 218, 168 A.C.W.S. (3d) 542, [2008] O.J. No. 2186, [2008] O.L.R.B. Rep. May/June 466 (S.C.J. (Div. Ct.)), revd 188 L.A.C. (4th) 193, 312 D.L.R. (4th) 250, 2009 C.L.L.C. } , 98 O.R. (3d) 677, 182 A.C.W.S. (3d) 443, [2009] O.L.R.B. Rep. September/October 759, 2009 ONCA , 31 Keays v. Honda Canada Inc. (2008), 294 D.L.R. (4th) 577, [2008] 2 S.C.R. 362, 92 O.R. (3d) 479n, 239 O.A.C. 299, 66 C.C.E.L. (3d) 159, 63 C.H.R.R. D/247, 2008 C.L.L.C. } , 376 N.R. 196, 2008 CarswellOnt 3743, 23 D.E.L.D. 122, [2008] S.C.J. No. 40, 166 A.C.W.S. (3d) 685, 2008 SCC , 117, 118, 119, 120, 121, 122, 124, 125

11 TABLE OF CASES xi Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 304 D.L.R. (4th) 1, [2009] 1 S.C.R. 339 sub nom. Canada (Citizenship and Immigration) v. Khosa, 82 Admin. L.R. (4th) 1, 77 Imm. L.R. (3d) 1, 385 N.R. 206, 2009 CarswellNat 434, [2009] S.C.J. No. 12, 175 A.C.W.S. (3d) 7, 2009 SCC , 103 Knight v. Indian Head School Division No. 19 (1990), 69 D.L.R. (4th) 489, [1990] 1 S.C.R. 653, [1990] 3 W.W.R. 289, 83 Sask. R. 81, 43 Admin. L.R. 157, 30 C.C.E.L. 237, 90 C.L.L.C. }14,010, 106 N.R. 17, 20 A.C.W.S. (3d) 315, [1990] S.C.J. No Kootenay Boundary Health Services Area and BCNU (Hope) (Re) (2008), 96 C.L.A.S. 465 (Sullivan) Lafrance v. Treasury Board (Statistics Canada) (2009), 99 C.L.A.S. 204, 2009 PSLRB Lavigne v. Canada Post Corp. (2006), 156 L.A.C. (4th) 257, 303 F.T.R. 156, 153 A.C.W.S. (3d) 371, 2006 FC 1345, affd 159 L.A.C. (4th) 25, 263 N.R. 77, 155 A.C.W.S. (3d) 1133, 2007 FCA 123, leave to appeal to S.C.C. refused 171 L.A.C. (4th) xi... 53, 55, 62, 92 Lavigne v. Ontario Public Service Employees Union (1991), 81 D.L.R. (4th) 545, [1991] 2 S.C.R. 211, 3 O.R. (3d) 511n, 48 O.A.C. 241, 91 C.L.L.C. }14,029, 4 C.R.R. (2d) 193, 126 N.R. 161, [1991] S.C.J. No. 52, 27 A.C.W.S. (3d) Limo Jet Gold Express Ltd. and PSAC, Local 05/21081 (Re) (2008), 171 L.A.C. (4th) 28, 93 C.L.A.S. 98 (Larson) Loyalist College of Applied Arts and Technology v. OPSEU (2003), 225 D.L.R. (4th) 123, 63 O.R. (3d) 641, 169 O.A.C. 116, 2003 C.L.L.C. } , 120 A.C.W.S. (3d) 984, leave to appeal to S.C.C. refused 119 L.A.C. (4th) vi, 231 D.L.R. (4th) vii, [2003] 3 S.C.R. v, 326 N.R. 392n, 194 O.A.C. 198n Manz v. British Columbia (Workers Compensation Appeal Tribunal) (2009), 91 B.C.L.R. (4th) 219, 82 Admin. L.R. (4th) 185, 176 A.C.W.S. (3d) 1205, 2009 BCCA Maritime Paper Products Ltd. v. CEP, Local 1520 (2009), 183 L.A.C. (4th) 289, 278 N.S.R. (2d) 381, 2009 C.L.L.C. } , 886 A.P.R. 381, [2009] N.S.J. No. 246, 178 A.C.W.S. (3d) 240, 2009 NSCA 60, revg 270 N.S.R. (2d) 360, 2009 C.L.L.C. } , 865 A.P.R. 360, 172 A.C.W.S. (3d) 396, 2008 NSSC O Loan v. Risinger (2009), 183 L.A.C. (4th) 306, 177 A.C.W.S. (3d) 803 (Ont. S.C.J.), affd 188 L.A.C. (4th) 385, 2009 ONCA 842, 182 A.C.W.S. (3d) , 92, 93 Old Dutch Foods Ltd. and UFCW, Local 401 (Re) (2009), 188 L.A.C. (4th) 289, 171 C.L.R.B.R. (2d) 1, 101 C.L.A.S. 75 (Alta. L.R.B.)... 65, 73, 76, 78, 79

12 xii WILLIS & WINKLER ON LEADING LABOUR CASES 2010 Ontario Power Generation and Society of Energy Professionals (Robinson) (Re) (2007), 168 L.A.C. (4th) 288, 92 C.L.A.S. 124 (Burkett)... 60, 62 Pacific Newspaper Group Inc. v. CEP, Local 2000 (2009), 2010 C.L.L.C. } , 183 A.C.W.S. (3d) 1109, 2009 BCSC Parry Sound (District) Social Services Administration Board v. OPSEU, Local 324 (2003), 230 D.L.R. (4th) 257, [2003] 2 S.C.R. 157, 67 O.R. (3d) 256n, 177 O.A.C. 235, 7 Admin. L.R. (4th) 177, 31 C.C.E.L. (3d) 1, 47 C.H.R.R. D/182, 2003 C.L.L.C. } , 308 N.R. 271, [2003] S.C.J. No. 42, 125 A.C.W.S. (3d) 85, 2003 SCC , 46, 47, 49, 58, 62 Pepsi-Cola Canada Beverages (West) Ltd. v. RWDSU, Local 558 (2002), 208 D.L.R. (4th) 385, [2002] 1 S.C.R. 156, 2002 C.L.L.C. } , 78 C.L.R.B.R. (2d) 161, 90 C.R.R. (2d) 189, [2002] 4 W.W.R. 205, 265 W.A.C. 22, 217 Sask. R. 22, 280 N.R. 333, 111 A.C.W.S. (3d) 272, [2002] S.C.J. No. 7, 2002 SCC Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, [2001] 3 W.W.R. 589, 238 W.A.C. 1, 153 Man. R. (2d) 1, 8 C.C.E.L. (3d) 1, 4 C.C.L.T. (3d) 248, 3 C.P.C. (5th) 40, [2001] M.J. No. 606, 102 A.C.W.S. (3d) 104, 2000 MBCA Piko v. Hudson s Bay Co. (1998), 167 D.L.R. (4th) 479, 41 O.R. (3d) 729, 116 O.A.C. 92, 39 C.C.E.L. 46, 99 C.L.L.C. } , [1998] O.J. No. 4714, 84 A.C.W.S. (3d) 99 (C.A.), leave to appeal to S.C.C. refused 175 D.L.R. (4th) vi, 247 N.R. 197n, 127 O.A.C. 399n... 85, 93 Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) (2004), 128 L.A.C. (4th) 1, 240 D.L.R. (4th) 577, [2004] 2 S.C.R. 185, 321 N.R. 290, 15 Admin. L.R. (4th) 1 sub nom. Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Procureure generale), 49 C.H.R.R. D/413 sub nom. Quebec (Attorney General) v. Quebec (Comm. des droits de la personne et des droits de la jeunesse) et Morin, 2004 C.L.L.C. } sub nom. Quebec (Morin) v. Quebec (Attorney General), [2004] S.C.J. No. 34, 131 A.C.W.S. (3d) 494, 2004 SCC , 94 R. v. M. (R.E.) (2008), 297 D.L.R. (4th) 577, 235 C.C.C. (3d) 290, [2008] 3 S.C.R. 3, 60 C.R. (6th) 1, [2008] 11 W.W.R. 383, 439 W.A.C. 40, 83 B.C.L.R. (4th) 44, 260 B.C.A.C. 40, 380 N.R. 47, 79 W.C.B. (2d) 321, [2008] S.C.J. No. 52, 2008 SCC R. v. Oakes (1986), 26 D.L.R. (4th) 200, 24 C.C.C. (3d) 321, [1986] 1 S.C.R. 103, 50 C.R. (3d) 1, 19 C.R.R. 308, 53 O.R. (2d) 719n, 14 O.A.C. 335, 65 N.R. 87, 16 W.C.B. 73, [1986] S.C.J. No

13 TABLE OF CASES xiii Reference re: Public Service Employee Relations Act (1987), 38 D.L.R. (4th) 161, [1987] 1 S.C.R. 313, 87 C.L.L.C. }14,021, 28 C.R.R. 305, [1987] 3 W.W.R. 577, 51 Alta. L.R. (2d) 97, 78 A.R. 1, 74 N.R. 99, 4 A.C.W.S. (3d) 138 sub nom. Alberta Union of Provincial Employees and Attorney-General of Alberta (Re)... 8, 19 Ryan v. Law Society of New Brunswick (2003), 223 D.L.R. (4th) 577, [2003] 1 S.C.R. 247, 257 N.B.R. (2d) 207, 48 Admin. L.R. (3d) 33, 31 C.P.C. (5th) 1, 302 N.R. 1, [2003] S.C.J. No. 17, 121 A.C.W.S. (3d) 172, 2003 SCC , 99 Scarborough Hospital and CUPE, Local 1487 (K. (J.)) (Re) (2008), 177 L.A.C. (4th) 439, 95 C.L.A.S. 157 (Levinson)... 58, 59, 63 School District No. 36 (Surrey) and BCTF (Wyndham) (Re) (2007), 169 L.A.C. (4th) 117, 92 C.L.A.S. 87 (Taylor) Spooner and Correctional Service of Canada (Re) (2009), 184 L.A.C. (4th) 198, 98 C.L.A.S. 23, [2009] C.P.S.L.R.B. No. 60, 2009 PSLRB St. Anne-Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219 (1986), 28 D.L.R. (4th) 1, [1986] 1 S.C.R. 704, 73 N.B.R. (2d) 236, 86 C.L.L.C. }14,037, 68 N.R. 112, [1986] S.C.J. No. 34, 38 A.C.W.S. (2d) , 81, 83 Stuart v. Hugh (2009), 182 L.A.C. (4th) 289, 306 D.L.R. (4th) 98, [2009] 7 W.W.R. 471, 90 B.C.L.R. (4th) 60, 177 A.C.W.S. (3d) 34, 2009 BCCA 127, revg 161 A.C.W.S. (3d) 739, supp. reasons 163 A.C.W.S. (3d) 528 (S.C.)... 86, 88, 93 Syndicat des Employe -e-s de Techniques Professionnelles et de Bureau d Hydro-Que bec, Section Locale 2000 v. Hydro-Que bec (2008), 174 L.A.C. (4th) 1, 294 D.L.R. (4th) 407, [2008] 2 S.C.R. 561, 63 C.H.R.R. D/301, 2008 C.L.L.C. } , 174 C.R.R. (2d) 165, 377 N.R. 136, [2008] S.C.J. No. 44, 168 A.C.W.S. (3d) 359, 2008 SCC , 108, 109, 112, 113 Syndicat des employe es et employe s de re seau d Hydro-Que bec v. Marcheterre (2009), 188 L.A.C. (4th) 387, 183 A.C.W.S. (3d) 545, 2009 QCCS Syndicat des Employe s de l Hoˆ pital Ge ne ral de Montre al v. Centre Universitaire de Sante McGill (2007), 159 L.A.C. (4th) 1, 277 D.L.R. (4th) 577, [2007] 1 S.C.R. 161, 59 C.H.R.R. D/259 sub nom. McGill University Health Centre v. Syndicat des employe s de l Hoˆ pital ge ne ral de Montre al, 2007 C.L.L.C. } , 356 N.R. 177, [2007] S.C.J. No. 4, 153 A.C.W.S. (3d) 665, 2007 SCC

14 xiv WILLIS & WINKLER ON LEADING LABOUR CASES 2010 Toronto Hydro-Electric System v. CUPE, Local 1 (1980), 26 L.A.C. (2d) 434n, 111 D.L.R. (3d) 693, 29 O.R. (2d) 18, 80 C.L.L.C. }14,035, 2 A.C.W.S. (2d) 488 (Div. Ct.), affd 26 L.A.C. (2d) 434n, 113 D.L.R. (3d) 512, 30 O.R. (2d) 64n, 6 A.C.W.S. (2d) 59 (C.A.), leave to appeal to S.C.C. refused 35 N.R UNA, Local 301 v. Capital Health Authority (2009), 184 L.A.C. (4th) 193, [2009] 8 W.W.R. 257, 457 W.A.C. 61, 6 Alta. L.R. (5th) 1, 457 A.R. 61, 94 Admin. L.R. (4th) 165 sub nom. UNA, Local 301 v. Capital Health Authority (University of Alberta), [2009] A.J. No. 569, 177 A.C.W.S. (3d) 1073, 2009 ABCA 202, revg [2008] 3 W.W.R. 472, 435 A.R. 1, 83 Alta. L.R. (4th) 357, 162 A.C.W.S. (3d) 75, 2007 ABQB 612, setting aside 87 C.L.A.S , 97, 101 Vancouver Coastal Health Authority and UFCW, Local 1518 (Re) (unreported, February 27, 2009, BCLRB File No. B41/2009), revd in part (unreported, August 13, 2009, BCLRB File No. B165/2009, Mullin)...33 Vaughan v. Canada (2005), 138 L.A.C. (4th) 1, 250 D.L.R. (4th) 385, [2005] 1 S.C.R. 146, 331 N.R. 64, 41 C.C.E.L. (3d) 159 sub nom. R. v. Vaughan, 2005 C.L.L.C. } , [2005] S.C.J. No. 12, 137 A.C.W.S. (3d) 942, 2005 SCC Victoria Times Colonist Inc. v. CEP, Local 25-G (2009), 310 D.L.R. (4th) 367, [2009] 9 W.W.R. 269, 93 B.C.L.R. (4th) 221, 2009 C.L.L.C. } , 171 C.L.R.B.R. (2d) 36, 178 A.C.W.S. (3d) 658, 2009 BCCA , 104, 105 Wallace v. United Grain Growers Ltd. (1997), 152 D.L.R. (4th) 1, [1997] 3 S.C.R. 701, [1999] 4 W.W.R. 86, 159 W.A.C. 1, 123 Man. R. (2d) 1, 3 C.B.R. (4th) 1, 36 C.C.E.L. (2d) 1, 97 C.L.L.C. } , 219 N.R. 161, 12 D.E.L.D. 70, [1997] S.C.J. No. 94, 74 A.C.W.S. (3d) , 118, 119, 120, 122 Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583, [1995] 2 S.C.R. 929, 183 N.R. 241, 24 O.R. (3d) 358n, 82 O.A.C. 321, 30 Admin. L.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 C.L.L.C. } , 30 C.R.R. (2d) 1, 10 D.E.L.D. 1, [1995] S.C.J. No. 59, 56 A.C.W.S. (3d) , 54, 55, 61, 81, 83, 85, 91, 92, 93 Westfair Foods Ltd. and UFCW, Local 247 (Re) (2009), 99 C.L.A.S. 318 (Steeves), revd in part (unreported, October 27, 2009, BCLRB File No. B208/2009, Saunders)...32, 34, 35

15 Chapter 1 Charter Cases Can the Canadian Charter of Rights and Freedoms truly be relied on to protect the rights and interests of workers? The short answer is that it depends: on the right at issue, on the state action or inaction, and on the strength or compelling nature of the countervailing interest. Last year, the response to that question by unions would likely have been sanguine, in light of the Supreme Court of Canada s decision in Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia (2007), 164 L.A.C. (4th) 1 ( Health Services ). Organized labour was galvanized by the message that the Charter provided constitutional protection to a process of collective bargaining. This year, the response may be less affirmative, as courts and tribunals struggle to define the reach of Health Services. Of course none of the rights protected by the Charter is absolute. This was always understood from the outset. Freedom of expression and freedom of association have limits. The question in each case is where the limit lies. Two of the cases discussed in this chapter deal with such familiar (in the labour context) territory. These cases raise the issue of whether a statutory definition of strike is constitutional. However, we begin with a case which is concerned with a relatively new Charter frontier in the labour context: the s. 8 right to be secure against unreasonable search or seizure. 1

16 2 WILLIS & WINKLER ON LEADING LABOUR CASES 2010 THE CONSTITUTIONALITY OF PERSONAL INFORMATION SEARCHES Canada (Attorney General) (Re) Background to the Case: The Grievance Arbitration Proceeding The case of Canada (Attorney General) (Re) (2009), 186 L.A.C. (4th) 353 (F.C.A.), leave to appeal to S.C.C. refused 189 L.A.C. (4th) ix ( Attorney General Reference ), had its origins in a labour arbitration: British Columbia Maritime Employers Assn. and ILWU-Canada, Local 500 (Re) (2007), 168 L.A.C. (4th) 418 (Munroe). The arbitration proceeding was the first forum in which the ILWU mounted a challenge to the constitutional validity of the Marine Transportation Security Regulations, SOR/ The regulations provide a mechanism for screening workers employed in security-sensitive positions at ports in Canada. Approximately 4,600 employees who belonged to four of the ILWU locals were affected by the regulations. The union argued before the arbitrator that the terminal operators were in breach of the collective agreement by failing to consult adequately with the unions on the positions and areas affected, and by requiring employees to apply for a security clearance. The union also argued that the regulations violated employees privacy rights and the Charter. The arbitrator adjourned the proceeding pending a determination of the validity of the regulations by the Canada Industrial Relations Board ( CIRB ) or a court. At the CIRB Before the CIRB, the British Columbia Maritime Employers Association ( BCMEA ) sought a declaration that employees concerted refusal to apply for security clearances amounted to an unlawful strike, contrary to s. 91 of the Canada Labour Code, R.S.C. 1985, c. L-2. However, before the hearing got underway the Attorney General announced that he was referring the constitutional validity question to the Federal Court of Appeal. The CIRB decided that such a reference under s. 18.3(2) of the Federal Courts Act, R.S.C. 1985, c. F-7, removed the constitutional issues from its jurisdiction. The board did determine that ILWU s instruction to its members not to apply for security clearances constituted an unlawful strike (British Columbia Maritime Employers Assn. and ILWU (Re) (2007), 150 C.L.R.B.R. (2d) 224 (C.I.R.B.)). But because the hearing was truncated, the constitutional reference arrived before the Court of Appeal without a record of factual findings.

17 Ruling of the Federal Court of Appeal CHARTER CASES 3 From information provided at the reference hearing, the court determined that most of the approximately 5,000 security applications submitted had been processed. Of these, 10 applicants in Vancouver had been refused, seven of whom were longshoremen. The negative decisions were all subject to reconsideration. Employees who were denied security clearances would not necessarily lose their jobs; however their work opportunities would likely be reduced if they were restricted from working in areas of the port for which a security clearance was required, such as container terminals, cruise ships and central controls for security and surveillance equipment. One of the ILWU s concerns was that security-sensitive designations would be extended in the future to other areas of the port. The court agreed with the union that although a security clearance may not have been adopted as a formal employment requirement, neither was it voluntary, given its impact on work opportunities. The court began by noting the salient features of the regulations. Section 503 defines the positions for which a security clearance is required; at present, security-sensitive locations in a port are designated as a restricted area two (para. 13). Section 506 describes the information which an applicant for a security clearance must supply, including:. identity: name, date of birth, gender, height, weight, colour of eyes and hair, birth certificate (if born in Canada), place of birth, port and date of entry, citizenship or permanent residence, evidence of immigration status, passport number, fingerprints and facial image;. residence: all addresses at which the applicant resided for the last five years;. activities: including names and addresses of employers and postsecondary institutions attended in the last five years;. travel: details of travel outside Canada and the United States of more than 90 days;. spousal information: identity information and addresses of spouse or common-law partner, both present and former (para. 15). Section 508 describes checks and verification of the information by law enforcement agencies to determine whether a security clearance would be issued, including a criminal record check, a law enforcement files check, a Canadian Security Intelligence Service ( CSIS ) indices check, and a check of the applicant s citizenship and immigration status.

18 4 WILLIS & WINKLER ON LEADING LABOUR CASES 2010 The Minister could also share an applicant s information with the government of a foreign state when the Minister was of the opinion that public interest in disclosure clearly outweighed the invasion of privacy. Otherwise, the Minister was prohibited from disclosing the information to a foreign government without the applicant s written consent (s. 506(5)). Information supplied by the applicant, if deemed sufficient to make a decision, would then be weighed on the basis of an evaluation of factors listed in s. 509, including:. the relevance of any criminal record to marine transportation security;. whether the applicant had or was suspected of having misused transportation infrastructure to commit criminal or violent acts against persons or property, been involved with a terrorist group or criminal organization, or been associated with a member of such a group or organization;. whether there were reasonable grounds to suspect an applicant could be suborned to commit an act that might endanger the security of marine transportation; and. whether the applicant had a security pass for a port, marine facility or airport revoked for cause or had filed false or misleading information for his or her security clearance application (para. 18). The Minister was required to notify an applicant before refusing a clearance (s. 511). Under s. 515, the Minister could also suspend a security clearance on the receipt of information pertaining to s In case of either a refusal or a cancellation, the applicant had an opportunity to make representations (s. 517). The union argued before the court that the regulations violated employees rights under ss. 2, 7, 8 and 15 of the Charter. The court approved three points put forward by the Attorney General as a framework for the analysis:. first, that the union, as the party alleging Charter violations, had the burden of proving a prima facie breach;. second, that the party alleging a Charter breach was required to adduce evidence to prove it, unless it was obvious; and. third, that a distinction had to be made between the validity of the regulations and individual decisions made under the regulations. The regulations were not invalid merely because they might be applied in an unconstitutional manner in individual cases (para. 28).

19 The court first considered s. 2 of the Charter. The union argued that the information required under s. 506 of the regulations and the subsequent checks and verifications by law enforcement agencies, particularly the RCMP and CSIS, could allow for an applicant s religion or political opinions to be identified. Because the Minister might refuse an application on the basis of this information and the applicant s employment would be adversely affected, in the union s view the regulations would have a chilling effect on the constitutional freedoms under s. 2. The Unanimous Opinion: Evans J.A. CHARTER CASES 5 Writing for a unanimous court, Evans J.A. found that it was not obvious that the Regulations would have such an effect. Neither the Regulations nor the application form required the applicant to disclose religious or political opinions. Whether these could be inferred was speculative (para. 31). A similar scheme had been in place for airport workers since the Air India bombing in 1985, and no evidence had been adduced of a chilling effect on the exercise of constitutional rights in that sector (para. 32). With respect to the guarantee of freedom of association, the court noted that s. 2 of the Charter does not protect the freedom to engage in violent or terrorist activity. However, the union s real concern in this area was the Minister s discretion to refuse an application on the basis of the applicant s association with suspect persons. The court s response to this argument was that innocent associations would not normally warrant the denial of a security clearance. Furthermore, the association must pose a threat to the security of marine transportation (para. 38). As with the s. 2(b) argument, the deterrent effect of the regulations was not plain and obvious; the union provided no evidence to support its allegation that the regulations had a chilling effect on applicants freedom of association under s. 2(d) of the Charter. Finally, the court noted that an unsuccessful applicant could apply to the Federal Court for review of the decision. Thus the court dismissed the union s argument that the regulations violated members freedom of religion, thought, belief, expression and association under s. 2 of the Charter. The union s s. 15 argument met with a similar lack of success. The union s position was that applicants might be refused a security clearance on the basis of spousal information, or a current or former spouse s unwillingness to supply their personal information. Because of the adverse employment consequences faced by employees in a spousal relationship

20 6 WILLIS & WINKLER ON LEADING LABOUR CASES 2010 consequences which were not faced by employees who had never been in a spousal relationship the demand for information about spouses and partners was discriminatory. The court disagreed. It was insufficient for a claimant to establish that the impugned law made a distinction on a listed or analogous ground (in this case, marital status); the claimant also had to show that the distinction created a disadvantage by perpetuating prejudice or negative stereotyping. The union adduced no evidence to establish that the Regulations perpetuated prejudice or stereotyping (para. 72). The union s primary concern under s. 7 was that the regulations potentially threatened members security of the person, in that s. 506(5) of the Regulations enabled the Minister to share personal information about an applicant with a foreign government; if the foreign government had a poor human rights record, the information could be used to inflict harm on the applicant. Citing the notorious case of Maher Arar, the court agreed that sharing intelligence with foreign governments could have very serious consequences. Nevertheless, the circumstances of permitted disclosure under s. 506(5) were limited, and the possibility of disclosure was sufficiently rare that the danger to personal safety was viewed as too remote and speculative to constitute a breach of s. 7. The speculative nature of concerns about the dangerous consequences of information sharing was reinforced by the absence of such concerns in the airport sector, where security clearance schemes were well established (para. 43). The union made two other points with regard to s. 7. First, it characterized the extensive personal information demanded as an invasion of privacy, an interest protected by s. 7. The court responded that this concern was more appropriately addressed in s. 8, which dealt with the protection of privacy from unreasonable search and seizure. Second, the union submitted that the spectre of loss of employment was a deprivation of liberty. The court noted that the employment consequences of a security clearance denial were uncertain, and it was speculative whether anyone would actually lose their job. In addition, s. 7 did not protect property or other predominantly economic interests, such as employment (paras ). Thus the court dismissed the union s s. 7 argument. The s. 8 argument, however, prompted a more expansive analysis. For the purpose of the Reference, the court assumed that the demand for personal information, in a context where an applicant s employment was jeopardized, constituted a search. The question, then, was whether that search was unreasonable. 1 That question required the court to engage in a balance of interests: the employees interest in privacy and the public 1 Section 8 of the Charter states: Everyone has the right to be secure against unreasonable search or seizure.

21 CHARTER CASES 7 interests served by the Regulations. In turn, the balance-of-interests analysis required consideration of contextual factors, the availability of checks to prevent the abuse of power, the degree of intrusion and the countervailing strength of the public interest. The contextual factors required the court to determine first the strength of the privacy interest. Evans J.A. said that because the employees were part of a regulated workforce, they had a relatively low expectation of privacy. Second, the manner of search was relevant. In that regard, filling out a form was a lesser intrusion on privacy than a physical search of a person s home or business. Third, administrative searches were generally less intrusive than searches conducted in the course of a criminal investigation. Finally, the pressing nature of the public interest had to be considered. The public interest at stake here was national security, which was regarded as of grave concern. In determining whether personal information was relevant to that interest, a court should be prepared to allow government a margin of appreciation (para. 53). The union argued that the security clearance program was fatally flawed because it lacked adequate checks to prevent the abuse of power. In particular, there was no prior independent authorization required. The court rejected that argument, noting that prior authorization would serve no purpose because all employees completed the same form; and the concern was not with the administration of the form, but with the form itself (para. 57). Cases where prior authorization had been required arose in the criminal or quasi-criminal context, where the privacy expectation was highest. Similarly, requiring prior authorization for checks by law enforcement agencies was impracticable. Although there was no independent body to hear appeals, there was no constitutional right to such an appeal; and an applicant could always challenge the denial of a security clearance in Federal Court. The court characterized the invasion of privacy as relatively minimal: Demands for personal information, a photograph and fingerprints are among the least intrusive forms of search (para. 61). The union argued that more information was demanded than was reasonably necessary, and relied on an expert opinion that port employees in Canada had never been a source of terrorist activity. The Attorney General adduced evidence from other experts, however, which the court found more persuasive, particularly with regard to the existence of links between terrorists and organized crime. Keeping in mind that the regulations were intended to protect against threats from organized crime as well as threats from terrorists, the court concluded that the government was right to take seriously the possibility that port security could be endangered by employees acting from ideological or mercenary motives (para. 65).

22 8 WILLIS & WINKLER ON LEADING LABOUR CASES 2010 The vulnerability of Canada s long coast lines and many ports, its substantial economic dependence on international trade, its ability to fund security measures and its proximity to the United States were among the rationales put forward for the security clearance program. Taken together, the court concluded that they illustrated the substantial and pressing nature of the public interest which the Regulations were designed to protect: protection from threats to public safety and the economy from the activities of terrorist groups and organized crime (para. 67). In light of the potentially grave nature of such threats, the court determined that the information demanded by the Regulations was not overly intrusive. The search authorized by the Regulations was therefore not unreasonable and did not violate s. 8 of the Charter. Significance of the Attorney General Reference First, the number of employees affected, as a proportion of the working population may, at first glance, appear to comprise a relative minority. However, employers in more and more employment sectors are requiring various kinds of security clearances as virtual conditions of employment: airports, transportation industries, and federal and provincial governments, as examples. Therefore the relevance and significance of this case only stands to increase over time. Second, the impact of this case exceeds the raw number of employees affected. The real impact lies in its message about the sanctity of national security interests. In a non-criminal context and, specifically, in an employment context, we see an increasing number of circumstances in which any Charter right can be regarded as subordinate to the countervailing interest of national security. Does this suggest that an immutable hierarchy of rights and interests is emerging? Of course, one could rightly point out that Charter rights, like other rights, are inherently qualified; that is, they are never absolute. On the other hand, given the public preoccupation with security threats, the scope of Charter rights may become increasingly qualified. THE CONSTITUTIONALITY OF STATUTORY DEFINITIONS OF STRIKE Two courts of appeal have recently examined statutory definitions of a strike, and whether such definitions violate employees freedom of expression under s. 2(b) of the Charter. Previous case law from the Supreme Court of Canada, particularly the Alberta Reference, 2 had found 2 Reference re: Public Service Employee Relations Act (1987), 38 D.L.R. (4th) 161 (S.C.C.),

23 that the Charter did not protect a right to strike. That message was not overruled in Health Services, which did not deal with the issue; instead, Health Services confined the s. 2(d) freedom of association challenge to a declaration that s. 2(d) protects a constitutional right to a process of collective bargaining. In the following two cases, the courts reached the same essential conclusion: that although a statutory definition which prohibits all midcontract work stoppages violated employees rights under s. 2(b), the violations were justified under s. 1 of the Charter. In other words, there remains no constitutional right to strike, and political protest rallies or concerted refusals to cross a picket line have not been recognized as exceptions to statutory prohibitions of mid-contract strikes. BCTF v. British Columbia Public Schools Employers Assn. Background CHARTER CASES 9 The appellants in BCTF v. British Columbia Public School Employers Assn. (2009), 182 L.A.C. (4th) 193 (B.C.C.A.), leave to appeal to S.C.C. refused 183 L.A.C. (4th) vii, the British Columbia Teachers Federation ( BCTF ) and the Hospital Employees Union ( HEU ), challenged the definition of strike in s. 1 of the British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244 (the Code ). Section 1 states: strike includes a cessation of work, a refusal to work or to continue to work by employees in combination or concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services... The prior definition in the Labour Code, R.S.B.C. 1979, c. 212, limited strikes to work stoppages aimed at compelling employers to agree to terms and conditions of employment. The 1984 amendments to the Code, which included the present s. 1, changed the definition of strike from one focused on purpose to one focused on effects. Strikes were no longer limited to work stoppages with a collective bargaining purpose. The result of the amendment was to sweep up all forms of mid-contract work stoppage, including political protest rallies, which were the type of activity at issue in this case. The rallies were a response by provincial teachers and health care workers to government legislation which impacted the scope of bargaining and/or modified existing collective agreement terms. In the case of per McIntyre J., who in separate reasons concluded that the Charter did not guarantee a right to strike. He also warned of the dangers of having judges define the limits of strike action under a constitutional rubric (BCTF v. British Columbia Public School Employers Assn. (2009), 182 L.A.C. (4th) 193 (B.C.C.A.), at para. 40).

24 10 WILLIS & WINKLER ON LEADING LABOUR CASES 2010 teachers, Bills 27 and 28 designated education as an essential service and precluded school boards and teachers from negotiating class sizes. Other collective agreement rights were also overridden. In the case of Bill 29, the legislation modified existing collective agreements to allow contracting out; bumping and lay-off rights were also restricted. In response, the BCTF staged a one-day work stoppage. One year later the HEU followed suit. The BCTF protest was limited to a withdrawal of services by teachers, and demonstrations; there was no picketing, although students did not receive instruction for that day and parents had to make alternative arrangements. The HEU work stoppage involved picketing of hospitals and health care facilities. Staff and patients had difficulty getting to the facilities, and elective surgeries had to be cancelled. There was some evidence of picket line intimidation associated with the HEU strike. Petitions to the British Columbia Labour Relations Board The British Columbia Labour Relations Board issued injunctions. The unions then challenged the constitutionality of the definition of strike in s. 1 of the Code. The unions position was that the definition of strike in s. 1 was too broad, and an exception should be made for political protest strikes that were aimed at government legislation, not the government qua employer. By direction from the British Columbia Supreme Court, the board first heard the constitutional arguments. Separate Vice-Chairs heard the two petitions. Both characterized the work stoppages as political protests that were strikes within the meaning of s. 1; both agreed that the protest strikes were expressive activity within the meaning of s. 2(b) of the Charter; however they differed as to whether the infringement of employees freedom of expression was justified under s. 1 of the Charter (100 C.L.R.B.R. (2d) 161 (B.C.) and 100 C.L.R.B.R. (2d) 243 (B.C.)). A reconsideration panel of the board endorsed the Vice-Chairs distinction between political protest strikes and collective bargaining strikes, and agreed that the work stoppages at issue were political protest strikes which engaged s. 2(b) of the Charter. A majority of the panel concluded that a complete prohibition of mid-contract strikes was justified under s. 1 of the Charter (109 C.L.R.B.R. (2d) 1 (B.C.)).