IN THE QUEEN S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF REGINA. THE SASKATCHEWAN FEDERATION OF LABOUR ET AL (per attached Schedule A)

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1 IN THE QUEEN S BENCH FOR SASKATCHEWAN JUDICIAL CENTRE OF REGINA Q.B.G. No of A.D BETWEEN: THE SASKATCHEWAN FEDERATION OF LABOUR ET AL (per attached Schedule A) AND PLAINTIFFS HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF SASKATCHEWAN DEFENDANT AND: SASKATCHEWAN UNION OF NURSES CANADIAN UNION OF PUBLIC EMPLOYEES SERVICE EMPLOYEES INTERNATIONAL UNION (WEST) SASKATCHEWAN GOVERNMENT AND GENERAL EMPLOYEES UNION CYPRESS REGIONAL HEALTH AUTHORITY F1VE HILLS REGIONAL HEALTH AUTHORITY HEARTLAND REGIONAL HEALTH AUTHORITY PRINCE ALBERT PARKLAND REGIONAL HEALTH AUTHORITY REGINA QU'APPELLE REGIONAL HEALTH AUTHORITY SASKATOON REGIONAL HEALTH AUTHORITY SUNRISE REGIONAL HEALTH AUTHORITY SASKATCHEWAN ASSOCIATION OF RURAL MUNICIPALITIES SASKATCHEWAN URBAN MUNICIPALITIES ASSOCIATION CITY OF REGINA CITY OF SASKATOON UNIVERSITY OF REGINA UNIVERSITY OF SASKATCHEWAN SASKENERGY INCORPORATED SASKATCHEWAN POWER CORPORATION INTERVENORS REPLY ARGUMENT OF THE PLAINTIFFS SASKATCHEWAN FEDERATION OF LABOUR ET AL

2 SCHEDULE A PLAINTIFFS ADVANCED EMPLOYEES ASSOCIATION AND ITS LOCALS 101 AND 102; AMALGAMATED TRANSIT UNION, LOCAL 588; CANADIAN OFFICE AND PROFESSIONAL EMPLOYEES UNION, LOCAL 397; COMMUNICATIONS, ENERGY, AND PAPERWORKERS UNION OF CANADA AND ITS LOCALS; CONSTRUCTION AND GENERAL WORKERS UNION, LOCAL 180; GRAIN SERVICES UNION; HEALTH SCIENCES ASSOCIATION OF SASKATCHEWAN; INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF US, ITS TERRITORIES AND CANADA AND ITS LOCALS 295, 300, 669; INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL AND REINFORCING IRONWORKERS, LOCAL 771; INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS AND ALLIED WORKERS, LOCAL 119; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 2038, 2067 AND 529; SASKATCHEWAN GOVERNMENT AND GENERAL EMPLOYEES UNION; SASKATCHEWAN JOINT BOARD RETAIL, WHOLESALE AND DEPARTMENT STORE UNION; UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL 1985; UNITED MINE WORKERS OF AMERICA, LOCAL 7606; UNITED STEEL, PAPER AND FORESTRY, RUBBER, MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION AND ITS LOCALS; UNION OF NEEDLETRADES, INDUSTRIAL AND TEXTILE EMPLOYEES/HOTEL EMPLOYEES, RESTAURANT EMPLOYEES UNION LOCAL 41; UNIVERSITY OF REGINA FACULTY ASSOCIATION; LARRY HUBICH; BOB BYMOEN; GARRY HAMBLIN; SASKATCHEWAN PROVINCIAL BUILDING & CONSTRUCTION TRADES COUNCIL; UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 179; CANADIAN UNION OF PUBLIC EMPLOYEES, LOCALS 7 AND 4828; AND TEAMSTERS, LOCAL 395

3 PLAINTIFFS Counsel for the Saskatchewan Federation of Labour et al Larry Kowalchuk (RWDSU) Craig Bavis (Victory Square Law Office) c/o Saskatchewan Federation of Labour # , Thirteenth Avenue, Regina, SK S4P 0W1 P: (306) F: (306) E: E: DEFENDANT Counsel for the Government of Saskatchewan (Attorney General) Graeme Mitchell, Q.C. Saskatchewan Justice, Constitutional Law Branch 8th Floor Scarth Street Regina, SK S4P 3V7 P: 1(306) F: 1(306) E: gmitchell@justice.gov.sk.ca Counsel for the Saskatchewan Government and General Employees Union Juliana Saxberg SGEU, Director of Legal Services 1440 Broadway Avenue Regina, SK S4P 1E2 P: 1 (306) F: 1 (306) E: jsaxberg@sgeu.org INTERVENORS (UNION) Counsel for the Canadian Union of Public Employees Peter Barnacle Woloshyn & Company # Second Avenue South Saskatoon, SK S7K 1K6 P: 1 (306) F: 1 (306) E: pbarnacle@sasklaw.com Counsel for the Saskatchewan Union of Nurses Gary Bainbridge Bainbridge Jodouin Cheecham # First Avenue North Saskatoon, SK S7K 1X2 P: 1 (306) F: 1 (306) E: gbainbridge@bjhlaw.ca Counsel for Service Employees International Union (West) Drew Plaxton Plaxton and Company # , 21 Street East Saskatoon, SK S7K 0C3 P: 1 (306) F: 1 (306) E: contactus@plaxtonlaw.com

4 INTERVENORS (EMPLOYER) Counsel for Cypress Regional Health Authority, Five Hills Regional Health Authority, Heartland Regional Health Authority, Prince Albert Parkland Regional Health Authority, Regina Qu Appelle Regional Health Authority, Sunrise Regional Health Authority Leah Schatz MacPherson Leslie & Tyerman LLP # , 22nd Street East Saskatoon, SK S7K 5T6 P: 1 (306) F: 1 (306) E: lschatz@mlt.com Counsel for Saskatoon Regional Health Authority Evert Van Olst Saskatoon Health Region Corp. Office # nd Street East Saskatoon, SK S7K 5T6 P: 1 (306) F: 1 (306) E:evert.vanolst@saskatoonhealthregion.ca Counsel for University of Saskatchewan Michelle Ouellette, Q.C. McKercher LLP 374 Third Avenue South Saskatoon, SK S7K 1M5 P: 1 (306) F: 1 (306) E: m.ouellette@mckercher.ca Counsel for the City of Regina, the City of Saskatoon, Saskatchewan Urban Municipalities Association, Saskatchewan Association of Rural Municipalities Robert G. Kennedy, Q.C. Hnatyshyn Gough # st Street Saskatoon, SK S7K 0C3 P: 1 (306) F: 1 (306) E: rkennedy@hglaw.ca Counsel for SaskEnergy Incorporated, Saskatchewan Power Corporation Brian J. Kenny, Q.C. MacPherson Leslie Tyerman LLP # nd Street East Saskatoon, SK S7K 5T6 P: 1 (306) F: 1 (306) E: BKenny@mlt.com Counsel for the University of Regina Erin Kleisinger McDougall Gauley LLP # Scarth Street Regina, SK S4P 4K9 P: 1 (306) F: 1 (306) E: ekleisinger@mcdougallgauley.com

5 Contents Introduction... 1 Reply to Reservation of Rights... 2 Reply to the Defendant s Statement of Facts... 2 Labour Relations Environment Evidence... 2 Lack of Consultation... 3 Repeal of significant negotiated terms in existing collective agreements... 5 SGEU voluntarily provided essential and highways services when asked... 6 The Government s use of RCMP as replacement workers during the job action... 8 The Government unilaterally enacted the PSESA Regulations, in the middle of negotiations for an essential services agreement with SGEU Significance of Collective Agreement Terms dealing with Public Service Act Evidence: summary Charter Interpretation and Application International Law in Charter interpretation Reply to Charter Infringement Arguments Section 2 (b) Section 2 (c) Section 2 (d) The impact of Fraser Plourde Dispute resolution mechanism Consultation Section Section Section 1 justification evidence Overview PSESA Sufficient importance: pressing and substantial objective Rational connection Minimal impairment Proportionality between effects and object TUAA Sufficient importance: pressing and substantial objective... 54

6 Rational connection Minimal impairment Proportionality between effects and object Remedy... 59

7 INTRODUCTION 1. The Defendant s argument defending the PSESA and TUAA is based on a broad characterization of the purposes of the legislation as a political initiative in which the government sought to justify changes to the labour relations landscape to meet an ideological need to restrict the rights of labour. The Defendant s argument largely ignores the operation of the PSESA and TUAA and its impact on workers in the province: eliminating freedoms and rights, and in making unionization impossible for some workers. By focusing on the purpose of the legislation and centering its argument, particularly in the context of the section one argument, on balancing political goals with impacts on unions at a provincial level, the Defendant s argument conveniently ignore the impacts of the PSESA and TUAA at the trade union or individual level. Coupled with a restrictive approach to the Charter, the Defendant s argument urges the court to be reluctant to engage in an in-depth review of the impact of the legislation. 2. In this case, individual workers have been designated as essential and denied the freedom to withdraw their labour and effectively exercise collective rights. Individual workers have signed union cards, applied for certification, and have been denied the right to be recognized as a union. The Plaintiffs, comprised of individual workers and trade unions representing individual workers, in addition to arguing that both the purpose and content of the impugned legislation violates the Charter, are challenging the PSESA and TUAA as it impacts both collective and individual rights. 3. While it is understandable that the Defendant dismisses the Plaintiffs claims by observing that unions continue to be certified under the Trade Union Act and that unions have reached collective agreements while restricted by the PSESA, such an analysis ignores the process and operation of the impugned legislation. Each worker who is denied the right to join a union because of additional barriers to certification, and each worker who is told that she must continue to work instead of striking, even when there is no risk of harm to the public, deserves the evaluation of how the TUAA and PSESA affect their rights and freedoms. 1

8 REPLY TO RESERVATION OF RIGHTS 4. At the outset, the Plaintiffs submit that the Defendant does not have a right of sur-reply to the Plaintiff s reply to the Defendant s section 1 argument. The onus is on the Defendant to justify the PSESA and TUAA under section 1 of the Charter, and it is bound to those grounds that it has articulated and relied upon in its argument. With respect, the court s October 12, 2011 fiat granting the Defendant and intervenor employers a right of sur-reply has the effect of denying the Plaintiffs a right of effective reply to the Defendant s section 1 argument, and reverses the onus of proof with respect to the section 1 analysis. For example, in its written submission the Defendant elected not to justify the PSESA and TUAA under section 1 by examining the operation and impact of particular provisions of the legislation, but by looking at the overall impact of the legislation. 5. The Plaintiffs reply to the Defendant s position is that the Court, in determining whether the Charter infringements are justified, especially under the minimal impairment test, must look at the particular provisions of the legislation. If the Defendant is permitted to sur-reply to the Plaintiff s reply to the Defendant s position, then the Plaintiffs may be required to seek additional reply. There can be no debate that the Defendant bore the burden of proof to establish that any violation of the Plaintiffs Charter rights is justified under Section 1. It does not fall to the Plaintiffs to demonstrate that the violations are not justifiable under Section 1 in the absence of a case by the Defendant in that regard. It is submitted that any additional evidence or new argument tendered by the Defendant in sur-reply should be given no weight by the Court REPLY TO THE DEFENDANT S STATEMENT OF FACTS 6. The Defendant has gravely misstated the evidence respecting the impact of the PSESA on existing collective agreements, the impact of the 2006/7 SGEU strike, and the genesis of the PSESA Regulations. Labour Relations Environment Evidence 7. The Defendant [Def. Arg. Para 21], asserts that the Government of Saskatchewan faced an increasingly complex labour relations environment. There is no evidence suggesting that 2

9 the complexity of labour relations in Saskatchewan was any different in 2007 than in the previous years. Lack of Consultation 8. The Defendant further mischaracterizes the evidence when it alleges that the Government consulted widely [Def.Arg., paras. 5 and 6]. The evidence discloses that the Government s consultation was in fact summary and facial. 9. At para 72, the Defendant, under the heading consultation makes reference to a meeting on December 6, 2007 between Larry Hubich and Minister Norris [Def. Arg. Para 72]. The evidence clearly demonstrates that this was not a consultation about proposed legislation: Affidavit of L. Hubich #1, para The evidence further discloses that the legislation was presented in nearly final form for feedback and that organized labour was not consulted during the development of the legislation: Affidavit of L. Hubich #1, para , 28. However, as summarized at paras. 124 to 127 of the Plaintiffs brief, employer, business and government were involved in the planning and design of the impugned legislation before Bills 5 and 6 were tabled. 11. The Defendant quotes Minister Norris as saying the consultations were "extensive, thorough and open" because officials "listened to the parties". [Def. Arg. Para 81] This does not meet the requirement of meaningful consultation and discussion, however, because the Defendant was never prepared to allow workers any real opportunity to influence the development of the laws. As the Supreme Court explained in Health Services, at para. 114: the right to bargain collectively protects not just the act of making representations, but also the right of employees to have their views heard in the context of a meaningful process of consultation and discussion. 12. In addition, the so-called consultations were not "open" because the SFL asked to receive copies of all of the submissions to the Government on Bills 5 and 6 and were denied access to those submissions: Affidavit of Larry Hubich, paras The so-called public consultations were not public, because despite repeated invitations to speak with labour leaders and workers at public information sessions and meetings, the Government refused to 3

10 attend: Affidavit of Larry Hubich, paras. 43, 44, 47, 48, 49. Finally the so-called consultations were hardly extensive in that the window during which unions had to submit feedback was mere weeks, and the oral presentation of those submissions was limited to one hour for some unions, and zero hours for many more: Affidavit of Larry Hubich, para ; Affidavit of Mary Ellen Wellsch, para.30; Cross-Examination of Mary Ellen Wellsch, transcript, p The Plaintiffs vigorously dispute the allegation made by the Defendant, at para. 81, that three amendments were made to Bill 5 as a result of submissions by organized labour. First, the evidence discloses that the decision to threat executive government employees the same as others was made at the suggestion of a Government consultee not a labour representative: see the Affidavit of Larry Hubich #4, Appendix A, p Second, none of the amendments were substantial in nature, and none addressed the fundamental concerns of organized labour. For example, the amendment to section 6 of the PSESA, regarding the process of determining the list of essential services, was allegedly amended to clarify that the employer present what it considers to be essential, purportedly to show that the list is meant to be freely negotiated between the parties. This amendment did nothing to change the fact that the employer unilaterally designates essential services employees under Section 6, and that Section 9 allows the employer to impose that list where there is no agreement for all other affected employees. The effect of the provisions which is to permit the employer to unilaterally designate essential services employees without making any real attempt to negotiate was not changed in the slightest by the mere substitution of a single word. 15. In sum the Plaintiffs submit that the Defendant has overstated the extent of the so-called consultation with stakeholders that was conducted after Bills 5 and 6 were introduced in nearfinal form, and that the consultation fell far short of what is required by Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 SCR 391 ( Health Services ) and what was recommended by the ILO in Case No. 2654, i.e. to hold full and specific consultations with the relevant workers and employers organizations at the early stage of considering the adoption of any legislation in this regard so as to restore the confidence of the parties in the process and truly permit the attainment of mutually acceptable solutions where possible. (para.362) 4

11 Repeal of significant negotiated terms in existing collective agreements 16. The Defendant states, at paras164 and 278 of its brief, that no collective agreement term was repealed by the PSESA, and that there is no evidence that any collective bargaining agreement in Saskatchewan made provision for essential services agreements. This is not true and not consistent with the evidence. 17. In particular SGEU s evidence demonstrates that the parties had collective bargaining agreement commitments to negotiate and provide for essential services during job action at the time, and before, the PSESA was introduced and enacted. In particular: a. The Memorandum of Agreement ratified by the parties in 2007, which formed the basis of the SGEU PS/GE collective bargaining agreement, contained an article committing the parties to negotiate an essential services agreement as part of the Collective Agreement. The Agreement further provided for arbitration of the terms of the essential services contract language if the parties were unable to agree (Affidavit of B. Nowoselsky, paras. 6 and 7). This Memorandum of Agreement, which was voluntarily adopted and ratified by both parties, is equivalent to a collective bargaining agreement for purposes of the Charter analysis. The history of these and the related proceedings discloses that essential services is a workplace issue of significant importance to the parties. The terms incorporated into the Memorandum of Agreement provided for both a process of determining essential services, and for the incorporation of substantive terms governing essential services into the collective agreement. It is submitted that these terms are significant negotiated terms within the meaning of the s.2(d) test prescribed by Health Services per the majority at para. 96, i.e. Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining, as may laws that unilaterally nullify significant negotiated terms in existing collective agreements. b. In its collective agreement with Prairie Regeneration Technologies, SGEU has agreed to an emergency services provision that provides for the negotiation of 5

12 an agreement to provide emergency services during any job action. The Article provides for arbitration by an arbitrator specified in the agreement if the parties cannot agree on appropriate levels of staff. (Affidavit of Robert Bymoen, para.3, Exhibit A) 18. It is submitted that these terms are significant negotiated terms within the meaning of the s.2(d) test prescribed by Health Services per the majority at para. 96, i.e. Laws or state actions that prevent or deny meaningful discussion and consultation about working conditions between employees and their employer may substantially interfere with the activity of collective bargaining, as may laws that unilaterally nullify significant negotiated terms in existing collective agreements. [emphasis added] SGEU voluntarily provided essential and highways services when asked 19. The Defendant further misstates the evidence in paragraph 26 of its brief wherein it states that in essential services negotiations before the PS/GE strike SGEU refused to provide all of the requested essential services except employees responsible for northern airport maintenance and the air ambulance program. 20. In fact, the evidence discloses that, in advance of the strike and after receiving strike notice, the employer met with PS/GE and requested about 418 workers to continue to providing essential services (Affidavit of D. Zerr, paras. 20, 21, Ex."R") Consistent with its historical practice, SGEU declined to keep all the requested staff on the job, but did agree to maintain positions historically staffed during labour disputes to maintain public safety including about 30 in northern airport maintenance and air ambulance (Affidavit of D. Zerr, Paras ; Affidavit of R. Bymoen, para. 16, 19). PSC accepted SGEU's position but asked for advance notice if Highways would be withdrawn and for "minimal withdraw of rural based staff." (Affidavit of D. Zerr at para.24) SGEU did in fact provide the requested advance notice for all employee groups that participated in the strike and especially highways workers (Affidavit of J.Rattray, paragraph 5, 6, 8, 11, 18, 19, 21, 22, 23). The evidence further discloses that the SGEU maintained the vast majority of members in rural centres and elsewhere in active duty throughout the strike. The Affidavit of Jason Rattray, Chairperson of the PS/GE Strike Committee for the PS/GE strike, states (at para.4): 6

13 The vast majority of SGEU PS/GE members did not participate in job action. Only SGEU members working for Corrections, Environment, Saskatchewan Property Management, Justice, Finance and Highways participated in job action. In the beginning only about 800 corrections workers engaged in job action. About 331 Highways workers joined the job action over two days in January 2007, returning to work January 9, Smaller groups of workers at Environment, Saskatchewan Property Management, Justice and Finance joined the job action after Highways returned to work. 21. Indeed, of an 11,000-strong bargaining unit, only a total of about 1348 workers participated in job action during the PS/GE strike about 12 percent of the bargaining unit (Affidavit of B. Nowoselsky, para. 2; Affidavit of J. Rattray, para. 27). 22. With respect to Highways workers, the evidence discloses that (1) SGEU provided Highways services when asked during the job action; (2) SGEU gave the public and the Defendant abundant warning before Highways workers joined the job action; and (3) at the time of the strike the Defendant repeatedly assured SGEU and the public that SGEU Highways workers were not needed to maintain public safety. (Affidavit of Bob Bymoen, para. 20, 21, 22, 23, 24; Affidavit of J. Rattray, paras. 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 23) For example, in a January 8, 2007 article, the Regina Leader Post quoted John Law, then-deputy Minister of Highways, as saying that the Department had a contingency plan in place, that about 100 nonunionized managers had up-to-date licenses and training to drive equipment to combat snow and ice; and in a January 8, 2007 article, the Leader Post quoted Law as saying that out-of-scope managers were able to provide a "comparable level" of service in the 24 hours that SGEU members had been on strike from Highways, and that the government's contingency plan "allows us to carry on indefinitely", and that if the weather became dangerous private contractors with their own equipment could be called upon to clear snow. (Affidavit of J. Rattray, para. 23, Ex. A, pp. 92, 95, 101, 104) 23. The evidence discloses that for all other employee groups, once a particular department was struck, the striking workers stayed off the job for the duration of the job action; but that SGEU returned Highways workers alone to active duty for the duration of the job action in order to preserve public safety (Affidavit of J. Rattray, paras. 15, 20, 21, 22, 23, 24, 25, 26, 27; Affidavit of D. Zerr, para. 14). It must also be emphasized that the Defendant has tendered no evidence that would indicate that Highways workers brief involvement in the PS/GE job 7

14 action caused any actual harm to the public such as motor vehicle accidents, blocked highways, and the like. No evidence of such harm has ever been linked to the SGEU s job action. The Government s use of RCMP as replacement workers during the job action 24. The Defendant has not accurately characterized the evidence with respect to the impact on communities of the Government s use of Royal Canadian Mounted Police (RCMP) officers to provide replacement services for striking Corrections workers during the PS/GE strike. In particular there is no evidence that public safety was ever jeopardized by the displacement of RCMP from rural communities during the job action. On the contrary, the evidence discloses that the RCMP and the Defendant repeatedly assured the public that local communities were not affected by the use of RCMP as replacement workers during the strike, that there was no impact on public safety, and that the Government had access to a plentiful supply of off-duty RCMP officers from various locations (and other replacement workers) that it expected could provide replacement Corrections services indefinitely. In particular: a. In a December 22, 2006 article, the Leader Post quoted RCMP spokesman Sgt. Brad Kaeding as saying that the use of RCMP officers to replace striking SGEU members was not expected to affect overall public safety, and that "[m]ost of the people working will be called in on time off, so the regular shifts at the detachment should be maintained as close as possible." (Affidavit of Jason Rattray, para.17(b), Ex A, p.26) b. In a December 22, 2006 article, the Saskatoon Star Phoenix quoted Kaeding as saying that the strike did not result in fewer officers being available to enforce the law, that "substantially" fewer workers were required to replace the 800 striking SGEU members, and that "[t]he regular work of the RCMP is going to be carried on, and it should be carried on as normally as possible." (Affidavit of Jason Rattray, para.17(c) Ex. A, p. 28) c. In a December 27, 2006 article, the Leader Post quoted Kaeden as saying that "[t]he RCMP contingency plan is in place and we account for a wide variety of 8

15 variables, including short-term, long-term, and everything in between". (Affidavit of Jason Rattray, para. 17(d),ex. A, p. 39) d. On December 27, 2006, online Canadian news website canoe.ca reported that RCMP had called 250 replacements from Alberta and Manitoba to serve as guards at correctional facilities, allowing Saskatchewan RCMP to return to their home units, and that the strike had not resulted in any increased danger to the public or degraded the effectiveness of the RCMP on the street. (Affidavit of Jason Rattray, para. 17(e),ex. A, p. 41) e. In a December 28, 2006 article, the Leader Post reported that there were significant costs to the Province to pay out-of-scope managers and RCMP to replace striking workers, but that the Government had focused on "making sure enough people have been assigned to keep the facilities running as opposed to how much it is costing"; and that things had been "relatively quiet" at the institutions. (Affidavit of Jason Rattray, para. 17(g),ex. A, p. 45) f. A December 29, 2006 article on the CBC news website reported that replacement RCMP officers from Alberta had been deployed for "about a week", and that according to RCMP Corporal Wayne Oaks, "... this is not a unique situation, and given the size and structure of the RCMP... we have a large body of personnel that are able to help out." (Affidavit of Jason Rattray, para. 17(i),ex. A, p. 54) g. A December 30, 2006 Leader Post article reported that relief RCMP officers were brought in from other jurisdictions in part to allow Saskatchewan officers to return to their home communities to cover "extra work" related to parties and intoxicated drivers on New Year's Eve. [emphasis added] (Affidavit of Jason Rattray, para. 17(j),ex. A, p. 56) h. In a January 4, 2007 Leader Post article, Donald Zerr is reported to have said that it was possible for the RCMP and out-of-scope managers to maintain security at struck institutions without employing additional replacement workers. (Affidavit of Jason Rattray, para. 17(n),ex. A, p. 72) 9

16 25. Based on the foregoing, it is submitted, the Government was able, during the PS/GE strike, to effectively manage any danger to public safety and security posed by striking Corrections Workers, without recourse to essential services legislation or other coercive strikebreaking measures; and that there was no effect on policing in rural communities in particular. The Government unilaterally enacted the PSESA Regulations, in the middle of negotiations for an essential services agreement with SGEU 26. The Defendant s attempt to portray the PSESA Regulations as the product of negotiation between SGEU and the Government is particularly objectionable. The record discloses that the Regulations were unilaterally enacted by the Defendant, over SGEU s objection, in order to override an arbitrated settlement of essential services that fell short of what the Government expected. On the facts it is definitely arguable that the impugned legislation did in fact single out [a] particular unio[n] or existing collective agreemen[t] to use the Defendant s words [Df.Arg. para.164]. The evidence further shows that SGEU experienced this action as a blatant abuse of the Defendant s regulatory power. The Defendant s attempt to portray the enactment of the Regulations as the product of a consensual process is a most egregious attempt to mislead this Court. 27. In particular the Defendant says, at paragraph 41 of its written submission, that after SGEU sent a January 21, 2009 letter indicating that it intended to conclude a comprehensive essential services agreement with the Government, that PSC and SGEU continued to communicate regarding the development and enactment of the Regulations, which were to set out the services that the Government deemed essential [Def.Arg., para. 41]. 28. An examination of the record reveals this to be a gross mischaracterization of the parties actions and intentions that is wholly unsupported by, and inconsistent with, the evidence. 29. In particular, on January 21, 2009 Don Zerr sent to Arbitrator Ready, on behalf of the Defendant, a letter stating that your process referring to the parties commitment to negotiate essential services language in the collective agreement, which was included in the 2007 Memorandum of Settlement should end with the determination of which programs and services are essential as it pertains to public health and safety. (Affidavit of B. Nowoselsky, 10

17 para. 19, Ex. L.), the Defendant advised Ready that it considered his jurisdiction to be limited to determining only a single category of essential services (those required to prevent a danger to the health and safety of the public) and that that it intended to engage SGEU in discussions respecting the additional categories of services contemplated by ss. 2(c)(i) (B) (C) and (D) of the PSESA. This letter was copied to the SGEU. Regulations are never mentioned or contemplated in this correspondence. 30. SGEU responded with the letter, referred to above, committing to continue essential services discussions with a view towards binding resolution. Again there is no mention of the Regulations. (Affidavit of B. Nowoselsky, para. 20, Ex. M). The content of the letter cannot be said to be consistent with any expectation that the Government would exercise its executive power to unilaterally designate essential services via Regulation. Rather, the letter reflects an expectation that the Defendant would honour its commitments under the Memorandum of Agreement. 31. The determination of essential services in accordance with the Memorandum of Agreement was referred to Arbitrator Colin Taylor, who works in association with Arbitrator Ready. During spring of 2009, SGEU continued to negotiate with the Saskatchewan Public Service Commission with respect to the designation of additional essential services. On March 26, 2009, Arbitrator Taylor provided the parties with a preliminary essential services designation (Affidavit of B. Nowoselsky, para.21, Ex. N) On April 30, 2009 the employer provided SGEU with numbers of employees to be deemed essential under the additional PSESA categories (Affidavit of B. Nowoselsky, para.22, Ex. O). The Government declined to provide this information to Arbitrator Taylor when he requested it, however, claiming that the information was not fully known at this time (Affidavit of B. Nowoselsky, para.23, Ex. P). 32. The Defendant s communications to both the SGEU and the Arbitrator during this time would seem to encourage or perpetuate the understanding that the Defendant intended to honour its commitments under the Memorandum of Agreement. Zerr s January 21, 2009 letter to Ready says that [w]e respect the agreement we have reached. (Affidavit of B. Nowoselsky, para. 19, Ex. L.) In the April 30, to Nowoselsky Reynolds asks for a formal response to the programs and services we have put forward as essential (Affidavit of B. Nowoselsky, para. 22, 11

18 Ex. O). In her May 29, to Arbitrator Taylor, Reynolds responds to Taylor s request for an estimate of the number of employees to be designated essential with a short statement that discussions are ongoing with the Ministries (Affidavit of B. Nowoselsky, para. 23, Ex. P). Again, there is no mention of the Regulations or any plan to enact Regulations. Tellingly, Reynolds does not correct Taylor s statement, in the message to which she is responding, that I can safely assume that negotiations in this respect or not completed and this information is therefore in the hands of the Employer. (Affidavit of B. Nowoselsky, para. 23, Ex. P). 33. If the parties were communicating about Regulations at this time as alleged by the Defendant, these communications with the arbitrator would be contemptuous and misleading. Indeed, SGEU has filed an Unfair Labour Practice complaining that the Defendant bargained in bad faith during this time by not disclosing its plans to enact Regulations to the SGEU: see Affidavit of B. Nowoselsky at para. 32, Exhibit X. 34. The parties only began to communicate with respect to the Regulations when, on June 10, 2009, SGEU sent the Defendant a letter asking if the Defendant intended to enact Regulations pursuant to ss.21(i)(b) and 6(3) of the PSESA, and asking for a chance to review a draft in advance: Affidavit of B. Nowoselsky at para. 24, Exhibit Q. 35. On June 2, 2009 Arbitrator Taylor issued his award. Arbitrator Taylor concluded that, in part because the Province had enacted the PSESA, he could not accede to SGEU s request for an interest arbitration clause in the parties essential services agreement. Affidavit of B. Nowoselsky at para. 25, Exhibit R. 36. On July 3, 2009 the employer wrote to SGEU and indicated that Regulations would be forthcoming that month and that further meetings with SGEU were desired: Affidavit of B. Nowoselsky at para. 27, Exhibit S. 37. The Regulations were enacted July 13, 2009: Affidavit of B. Nowoselsky at para. 28, Exhibit T. As detailed in the Unfair Labour Practice Application filed with the Saskatchewan Labour Relations Board, the Regulations include most or all of the positions deemed essential by Arbitrator Taylor, but go further to include services that were the subject of ongoing negotiations between SGEU and the Province: Affidavit of Barry Nowoselsky, para.32, Exhibit X. 12

19 38. Immediately following the enactment of the Regulations SGEU wrote to the Defendant to formally object to the regulatory prescription of essential services, stating: At the time the Regulations were enacted, we were engaged with you in a process of negotiating the eservices that would be considered essential under ss. 2(c)(i)(B),(C) and (D) of the Act. The unilateral and premature enactment of these Regulations has taken away our ability to negotiate with respect to these categories. This is inconsistent with your duty to bargain in good faith with respect to the establishment of an essential services agreement under both the collective bargaining agreement and the Trade Union Act, and to our right to bargain collectively with respect to the terms and conditions of employment, which is protected by s.2(d) of the Canadian Charter of Rights and Freedoms. We respectfully request that you suspend enforcement of the Regulations until we have had a chance to meaningfully bargain with respect to these matters. We further request advance notice, and the opportunity to participate in a consultation process, with respect to any further Regulations that may affect the terms and conditions of SGEU PSGE members. Affidavit of B. Nowoselsky, para. 29, Exhibit U. 39. On August 4, 2009, the employer wrote to SGEU and indicated that its position was that the [PSESA] does not require the Government of Saskatchewan to negotiate with its respective unions an agreement on which services will be prescribed as essential under ss. 2(c)(i) (B) (C) and (D). Affidavit of B. Nowoselsky, para. 30, Exhibit V. 40. This evidence is wholly inconsistent with the Defendant s characterization of the genesis of the Regulations as the product of a consensual process between the SGEU and the Defendant. Significance of Collective Agreement Terms dealing with Public Service Act 41. In reply to paragraph 85 of the Defendant s brief, the Defendant has mischaracterized the evidence. The Nowoselsky Affidavit does not allege that there were direct amendments to the Public Service Act, Rather, what the Nowoselsky Affidavit says is that [a]t all times relevant to these legal actions, the Collective Bargaining Agreement covering the PS/GE sector has contained provisions committing the Respondent to negotiate with SGEU on matters 13

20 relating to conditions of employment and to refrain from amending or revising The Saskatchewan Public Service Act without first providing SGEU with written notice of any proposed amendments or revisions, and unless an opportunity to make representations is afforded to the union. (Affidavit of B. Nowoselsky, para. 31). A review of Exhibits A through M to the Affidavit of D. Zerr reveals that similar language has been included in every historical collective agreement in evidence in these proceedings between SGEU and the Provincial Government, going back to 1945! (Affidavit of D. Zerr, Paras. 6, 7, Exs. A to M). The significance of this evidence is that the SGEU has had a very stable and longstanding expectation that it would be provided with an opportunity to consult, in advance, with respect to legislative changes that would affect the terms and conditions of its members employed by the Province in the public service. Evidence: summary 42. As demonstrated above, the Defendant s version of the facts is inaccurate and misleading. The Plaintiffs rely on this honourable Court to make findings of fact that are consistent with the evidence. 14

21 CHARTER INTERPRETATION AND APPLICATION 43. The Defendant adopts an impoverished and cynical application of the Charter in the context of its argument, claiming that the labour relations issues involved are political and beyond the area of expertise of the Courts. [Def. Arg. para 92] 44. Charter jurisprudence is consistent and forceful that the Charter is to be interpreted generously and purposefully to give effect to the rights and freedoms enshrined. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, per McLachlin C.J.C. and Charron J. for the majority, the Supreme Court recently stated, at para. 16: Constitutional guarantees such as ss. 9 and 10 should be interpreted in a generous rather than legalistic [way], aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter s protection (R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 344). Unduly narrow, technical approaches to Charter interpretation must be avoided, given their potential to subvert the goal of ensuring that right holders enjoy the full benefit and protection of the Charter (Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 (CanLII), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23). 45. All Charter scrutiny of legislative action will necessarily have political consequences as the courts evaluate how legislative choices infringe rights and freedoms. Characterizing an issue as political does not relieve the Court or the Government from ensuring that a law passes Charter scrutiny. The Supreme Court has made this point several times. For example, in Doucet- Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 SCR 3 the Court observed (per Iacobucci and Arbour JJ. For the majority, at para. 36): Deference ends, however, where the constitutional rights that the courts are charged with protecting begin. As McLachlin J. stated in RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 136: Parliament has its role: to choose the appropriate response to social problems within the limiting framework of the Constitution. But the courts also have a role: to determine, objectively and impartially, whether Parliament's choice falls within the limiting framework of the Constitution. The courts are no more permitted to abdicate their responsibility than is Parliament. 15

22 Determining the boundaries of the courts' proper role, however, cannot be reduced to a simple test or formula; it will vary according to the right at issue and the context of each case. 46. This point was made more bluntly by Binnie and LeBel JJ. in Chaoulli v. Quebec (Attorney General), 2005 SCC 35, [2005] 1 S.C.R. 791 at paras (dissenting in the result but not on this issue): The Attorneys General of Canada and Quebec argue that the claims advanced by the appellants are inherently political and, therefore, not properly justiciable by the courts. We do not agree. Section 52 of the Constitution Act, 1982 affirms the constitutional power and obligation of courts to declare laws of no force or effect to the extent of their inconsistency with the Constitution. Where a violation stems from a Canadian Charter breach, the court may also order whatever remedy is appropriate and just in the circumstances under s. 24. There is nothing in our constitutional arrangement to exclude political questions from judicial review where the Constitution itself is alleged to be violated. [emphasis added] 47. If any deference is warranted to the Defendant s choices of political and social policy in this case, it is only relevant at the stage of justification of the law under s.1 of the Charter, not at the initial stage of determining whether the law infringes a Charter right. Recently in its unanimous judgment in Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44 the Supreme Court soundly rejected the argument that deference is due to governments in assessing whether a law or measure offends Charter rights. For the Court the Chief Justice wrote, at para. 103 et seq.: Canada argues that the decision to allow supervised injection is a policy question, and thus immune from Charter review. The answer, once again, is that policy is not relevant at the stage of determining whether a law or state action limits a Charter right. The place for such arguments is when considering the principles of fundamental justice or at the s. 1 stage of justification if a Charter breach has been established. The issue of illegal drug use and addiction is a complex one which attracts a variety of social, political, scientific and moral reactions. There is room for disagreement between reasonable people concerning how addiction should be treated. It is for the relevant governments, not the Court, to make criminal and health policy. However, when a policy is translated into law or state action, those laws and actions are subject to scrutiny under the Charter: Chaoulli, at para. 89, per Deschamps J., at para. 107, per McLachlin C.J. and Major J., and at para. 183, per Binnie and LeBel JJ.; Rodriguez, at pp , per Sopinka J. The 16

23 issue before the Court at this point is not whether harm reduction or abstinencebased programs are the best approach to resolving illegal drug use. It is simply whether Canada has limited the rights of the claimants in a manner that does not comply with Charter. [emphasis added] See also Vriend v. Alberta, [1998] 1 SCR 493, at paras per Cory J. for the majority. INTERNATIONAL LAW IN CHARTER INTERPRETATION 48. The Defendant advances a misguided and sophistical analysis in minimizing the significance of international human rights law to Charter interpretation by the Canadian courts. 49. First, it is incorrect for the Defendant to say that Canada and the Defendant have no domestic legal obligations from either Convention (No. 87) concerning freedom of association and protection of the right to organise, 68 U.N.T.S. 17; and/or the Convention (No. 98) concerning the application of the principles of the right to organise and to bargain collectively, 96 U.N.T.S The Defendant concedes that Canada has ratified Convention 87 [Def. Arg. para 251] Canada has also ratified the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171, or the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3: The sources most important to the understanding of s. 2(d) of the Charter are the International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3 ( ICESCR ), the International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 ( ICCPR ), and the International Labour Organization s (ILO s) Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 68 U.N.T.S. 17 ( Convention No. 87 ). Canada has endorsed all three of these documents, acceding to both the ICESCR and the ICCPR, and ratifying Convention No. 87 in This means that these documents reflect not only international consensus, but also principles that Canada has committed itself to uphold. [emphasis added] Health Services, supra, at para As explained by Professor Roy Adams in Commentary: The Supreme Court, Collective Bargaining and international law: A Reply to Brian Langille (2008) 14 Canadian Labour & Employment Law Journal 317, at 324: 17

24 Beyond its duties under ILO instruments, Canada has also incurred legal obligations by ratifying two United Nations Covenants the Covenant on Civil and Political Rights, and the Covenant on Economic, Social and Cultural Rights. Freedom of association is identified as a human right in both of those documents, and its meaning in that context has been the subject of decisions by the UN s oversight committees. Both of the UN instruments make reference to ILO Convention 87, effectively incorporating that convention and the ILO jurisprudence on it. 52. With respect to the legal impact of decisions of the International Labour Office s Committee on Freedom of Association, Professor Adams explains: The CFA draws its authority from the ILO Constitution and the Governing Body. Its function is to determine the meaning in specific cases of the constitutional obligation to respect freedom of association, an obligation freely entered into by all member states. In carrying out that function, it has consistently made reference to the principles contained in Conventions 87 and 98. That process has been widely accepted by ILO member states including Canada. The result is that, for all practical purposes, the obligations of those states that have not ratified the two conventions are identical to those of the states that have ratified them. 53. In Reply to paragraph 224 of the Respondent s brief, one need look no further than the Supreme Court of Canada s jurisprudence for clear domestic judicial authority for the rule that Courts ought to interpret the Charter in a manner consistent with international legal norms. This rule is well established in the domestic jurisprudence. 54. Recently, in a unanimous decision in Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 SCR 125 the Court stated at paras.18 and 29: in interpreting the scope and application of the Charter, the courts should seek to ensure compliance with Canada s binding obligations under international law. ([R.v. Hape, 2007 SCC 26] para. 56, per LeBel J.). [ ] The principles of fundamental justice are informed by Canada s international human rights obligations: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), [2002] 1 S.C.R. 3, 2002 SCC 1, at para. 60; United States v. Burns, 2001 SCC 7 (CanLII), [2001] 1 S.C.R. 283, 2001 SCC 7, at paras ; Hape, at paras

25 55. The Court examined the interplay between international law and the Charter in R. v. Hape, 2007 SCC 26, [2007] 2 SCR 292 and concluded, per LeBel J. for the majority at paras.55 through 56: 55 This Court has also looked to international law to assist it in interpreting the Charter. Whenever possible, it has sought to ensure consistency between its interpretation of the Charter, on the one hand, and Canada s international obligations and the relevant principles of international law, on the other. For example, in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1056, Dickson C.J., writing for the majority, quoted the following passage from his dissenting reasons in Reference re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 S.C.R. 313, at p. 349: The content of Canada s international human rights obligations is, in my view, an important indicia of the meaning of the full benefit of the Charter s protection. I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified. Dickson C.J. then stated that Canada s international obligations should also inform the interpretation of pressing and substantial objectives under s. 1 of the Charter. (See also Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 503; Suresh; United States v. Burns, 2001 SCC 7 (CanLII), [2001] 1 S.C.R. 283, 2001 SCC 7; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 S.C.R. 76, 2004 SCC 4.) 56 In interpreting the scope of application of the Charter, the courts should seek to ensure compliance with Canada s binding obligations under international law where the express words are capable of supporting such a construction. [ ] 56. In United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283 the unanimous Court considered evidence of a significant movement towards acceptance internationally of a principle of fundamental justice namely the abolition of capital punishment (para.89) and concluded that the Charter did not permit extradition of Canadian citizens to face the death penalty. In its reasoning the Court declared, at para ; In Re B.C. Motor Vehicle Act, supra, Lamer J. expressly recognized that international law and opinion is of use to the courts in elucidating the scope of fundamental justice, at p. 512: 19