IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN … · PART I: REPLY ON SECTION 2(d) A. Comments...

Q.B. No. 1059 of 2008

CANADA )

PROVINCE OF SASKATCHEWAN )

IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN

JUDICIAL CENTRE OF REGINA

BETWEEN:

THE SASKATCHEWAN FEDERATION OF LABOUR (IN ITS OWN RIGHT AND ON BEHALF

OF THE UNIONS AND WORKERS IN THE PROVINCE OF SASKATCHEWAN), ET AL

PLAINTIFFS

AND

HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF SASKATCHEWAN

DEFENDANT

AND

SASKATCHEWAN UNION OF NURSES (SUN),

CANADIAN UNION OF PUBLIC EMPLOYEES (CUPE),

SERVICE EMPLOYEES INTERNATIONAL UNION (SEIU),

SASKATCHEWAN GOVERNMENT AND GENERAL EMPLOYEES’ UNION (SGEU),

REGINA QU’APPELLE REGIONAL HEALTH AUTHORITY,

CYPRESS HEALTH AUTHORITY,

FIVE HILLS REGIONAL HEALTH AUTHORITY,

SASKATOON REGIONAL HEALTH AUTHORITY,

HEARTLAND REGIONAL HEALTH AUTHORITY,

SUNRISE REGIONAL HEALTH AUTHORITY,

PRINCE ALBERT PARKLAND REGIONAL HEALTH AUTHORITY,

SASKATCHEWAN URBAN MUNICIPALITIES ASSOCIATION (SUMA),

SASKATCHEWAN ASSOCIATION OF RURAL MUNICIPALITIES (SARM),

CITY OF REGINA,

CITY OF SASKATOON,

UNIVERSITY OF SASKATCHEWAN,

UNIVERSITY OF REGINA,

SASKATCHEWAN POWER CORPORATION,

SASKENERGY INCORPORATED

INTERVENORS

REPLY OF THE INTERVENOR CUPE

CANADIAN UNION OF PUBLIC EMPLOYEES

PETER J. BARNACLE

ADAM R. TOUET

WOLOSHYN & COMPANY

Barristers and Solicitors

200 Scotiabank Building

111 Second Avenue South

INTRODUCTION

1. The Intervenor CUPE makes the following reply to the Written Submissions of the

Defendant and to the Written Submissions of Intervenor Employers in this matter. We

reserve the right to supplement these submissions in the course of oral argument.

2. In PART I of these submissions, we will respond to specific statements made by the

Defendant in respect to violation of s. 2(d) of the Charter. In doing so, we note that the

Intervenor Employers have adopted the Written Submissions of the Defendant and our

comments here are intended to also respond to supplementary submissions by Intervenor

Employers on s. 2(d) without specific reference.

3. In PART II of these submissions, we will respond to the Defendant’s s. 1 argument as

supported by the Intervenor Employers and with specific reference to the submissions of

both the Defendant and Intervenor Employers.

4. As a preliminary matter, at paragraph 98 of the Defendant’s Submissions and throughout

thereafter, the Intervenor CUPE is incorrectly referred to as ―CUPE, Local 3967‖. As per

paragraph 6 of the Fiat of the Chief Justice dated October 1, 2010, the style of cause in this

matter was amended to name CUPE National as an Intervenor and Local 3967 deleted. We

request that the Written Submissions of the Defendant be read as ―Intervenor CUPE‖

accordingly.

PART I: REPLY ON SECTION 2(d)

A. Comments re CUPE Job Actions and Essential Services (Written Submissions of the

Defendant at paragraphs 49 – 51)

5. We note the comments of the Defendant at paragraphs 49-50 with respect to the CUPE

1975 strike in 2007 and will address those and that of the affected Intervenor Employers in

the context of our s. 1 reply below.

6. We submit that the Defendant’s statements at paragraph 51 on the experience of CUPE

Local 600 in reaching an essential services agreement need to be considered in light of the

submissions and evidence cited at paragraphs 33 - 35 and Appendix ―F‖ to the Intervenor

CUPE Brief of Law. That is, CUPE Local 600 felt it had little option but to reach an

agreement given the framework of the PSESA and that outcome reflects the effect of the

legislation in tilting the table in favour of the employer.

B. Enactments of Bills 5 and 6 (Written Submissions of the Defendant at paragraphs 60 -

71)

7. The Intervenor CUPE addresses the Defendant’s statements and arguments with respect to

the rationale and purpose of the two acts in the context of its s. 1 response below.

C. Consultation (Written Submissions of the Defendant at paragraph 5 and paragraphs

72 – 84)

8. The Intervenor CUPE notes the statement in paragraph 5 of the Written Submissions of

the Defendant that government officials ―consulted widely about the proposed laws with a

variety of interested parties including labour unions‖. The experience of CUPE in

meetings with government officials is set out in the Reply Affidavit of Tom Graham in this

matter, dated March 1, 2011.

Mr. Graham attests that CUPE was not afforded any opportunity to consult on

Bills 5 and 6 prior to their introduction in the Legislature on December 19, 2007

(paragraph 11).

That he subsequently received a letter dated January 11, 2008 inviting CUPE to

review the legislation on the Government website and stating that the Defendant

was ―seeking feedback‖. Mr. Graham was invited to meet with the Minister by

February 15, 2008 to ―discuss and gather feedback‖ (paragraph 12).

No other opportunities to meet or comment on the legislation were provided to

CUPE (paragraphs 13 and 14).

Mr. Graham and two other CUPE representatives met with the Minister on

February 4, 2009 for one hour and fifteen minutes. Mary Ellen Wellsch, who has

filed an affidavit on behalf of the Defendant and was cross-examined in this

matter was in attendance and Mr. Graham agrees her notes of the meeting

submitted with her affidavit generally summarize what took place (paragraphs 15

and 16).

Mr. Graham attests that they submitted a document to the Minister at that meeting

entitled, ―Bill 5 (The Public Services Essential Services Act) and Bill 6 (An Act to

Amend the Trade Union Act), Presented to: The Hon. Rob Norris, Minister of

Advanced Education, Employment and Labour, A Submission of the Canadian

Union of Public Employees, Saskatchewan‖, dated February 4, 2008. Mr.

Graham spoke to the document in the course of his presentation to the Minister

(paragraph 16).

Mr. Graham also submitted a list of questions to the Minister at the meeting on

February 4, 2008, but the Minister did not respond to any questions, stating

instead that ―he would get back to us‖ (paragraph 17).

CUPE did not ever receive a response to its submission or to any of the questions

provided to the Minister. (paragraph 24).

The ―consultation‖ afforded to CUPE by the Defendant consisted of a single 75

minute meeting without any response, let along dialogue, on CUPE’s concerns

(paragraph 24).

9. Further to paragraph 80 and 81 of the Written Submissions of the Defendant, Mr.

Graham states in his affidavit that the amendments made to Bill 5 were minor in nature and

did not address the concerns raised by CUPE in its meeting with the Minister, the written

submission left with the Minister at that meeting or the concerns otherwise raised in

CUPE’s lobbying efforts.

Reply Affidavit of Tom Graham, dated March 1, 2011 at paragraph 28.

10. During the cross-examination of Mary Ellen Wellsch on her affidavit filed by the

Defendant, Ms. Wellsch responded to questions with respect to the ―consultation‖ as

applied to CUPE:

Ms Wellsch had no notes of the Minister making any response to the submissions

being made by CUPE at the February 4, 2008 meeting. She stated that it was

possible that the Minister made no response to anything he heard. She believed

that she would have made a note or a comment in her notes if he had done so, as

she did in respect of a meeting with another union. Ms Wellsch stated that Mr.

Graham’s recollection that the Minister made no response at the meeting was

consistent with her recall of the event. (see Q.184 – 188 at pages 45-6).

Ms Wellsch also stated that she had no knowledge of any response subsequently

being made to CUPE, or indeed any other union, and that the consultation with

CUPE consisted of that one meeting on February 4, 2008 (Q. 189 – 191, pages 46

-7).

11. It is our submission that the exercise engaged by the Defendant following the introduction

of Bills 5 and 6 can in no way be considered consultation. It consisted of one meeting with

the President of CUPE Saskatchewan, Tom Graham, at which the Minister did not respond

to any of the concerns raised and, in fact, made no comments at all. No subsequent

response was made by the Minister or anyone else in Government to the CUPE

submissions at that meeting or in the document left with the Minister at that meeting. The

amendments made to Bill 5 did not address the concerns raised.

12. The Intervenor CUPE submits that the ―consultation‖ process with CUPE was not

consultation at all within the ordinary, let alone legal, meaning of the word. In this respect,

the Intervenor CUPE adopts the definitions and principles set out by the Intervenor SUN in

is initial Submissions and Reply in this matter.

D. Legal Principles: Fraser and related arguments on Charter s. 2(d) caselaw (Written

Submissions of the Defendant at paragraphs 87 – 176

13. The Intervenor CUPE notes the Written Submissions of the Defendant, as supported and

commented upon by Intervenor Employers, and states that it disagrees with both the

analysis and conclusions denying a violation of s. 2(d) in this matter.

14. We generally adopt submissions made by the Intervenor SUN and the Intervenor SEIU in

their reply submissions in this matter, subject to further comment and qualification at the

trial. Nonetheless, here we wish to focus on the Defendant’s at paragraphs 116 - 126 (and

related Intervenor Employer submissions) on the principles arising out of the Supreme

Court of Canada decision in Fraser in respect to the interpretation of s. 2(d) of the Charter.

15. With respect, it is our view that the Written Submissions of the Defendant on the

―effectively impossible‖ standard (see, for example, paragraph 123ff), fail to adequately

recognize the qualification that the Court makes in considering the impact of government

action on collective bargaining protected by s. 2(d). For the following reasons, we submit

the Court is concerned with ―meaningful‖ association and it is ―meaningful‖ collective

bargaining that is protected. It is not that collective bargaining must be effectively

impossible, but ―meaningful collective bargaining‖. The distinction is important as if one

side is forced to accept the position of the other because its ability to persuade otherwise is

fatally impaired by legislation, as we maintain is the evidence here, then while there may

be collective bargaining in the formal sense it is not meaningful collective bargaining in

the substantive sense protected under the Supreme Court standard.

16. Thus, in concluding its review of Dunmore, McLachlin C.J. and Lebel J. state:

32 After Dunmore, there could be no doubt that the right to associate to

achieve workplace goals in a meaningful and substantive sense is protected by

the guarantee of freedom of association, and that this right extends to realization

of collective, as distinct from individual, goals. Nor could there be any doubt that

legislation (or the absence of a legislative framework) that makes achievement of

this collective goal substantially impossible, constitutes a limit on the exercise of

freedom of association. Finally, there could be no doubt that the guarantee must be

interpreted generously and purposively, in accordance with Canadian values and

Canada's international commitments.

33 It is worth pausing at this juncture to summarize the propositions that led the

majority of the Court in Dunmore to these conclusions.

Section 2(d), interpreted purposively, guarantees freedom of

associational activity in the pursuit of individual and common goals.

The common goals protected extend to some collective bargaining

activities, including the right to organize and to present submissions to

the employer.

What is required is a process that permits the meaningful pursuit of

these goals. No particular outcome is guaranteed. However, the

legislative framework must permit a process that makes it possible to

pursue the goals in a meaningful way.

The effect of a process that renders impossible the meaningful pursuit

of collective goals is to substantially interfere with the exercise of the

right to free association, in that it negates the very purpose of the

association and renders it effectively useless. This constitutes a limit

under s. 2(d) which is unconstitutional unless justified by the state under

s. 1 of the Charter. (This is an application of the settled rule that a law

or government act that in purpose or effect constrains exercise of a right

constitutes a limitation for purposes of s. 1: see Irwin Toy Ltd. v. Quebec

(Attorney General), [1989] 1 S.C.R. 927).

The remedy for the resultant breach of s. 2(d) is to order the state to

rectify the legislative scheme to make possible meaningful

associational activity in pursuit of common workplace goals.

Ontario (Attorney General) v. Fraser at paragraph 32 – 33, emphasis added. See

TAB 29, Defendant’s Book of Authorities, Vol. II.

17. The learned justices, after carrying out a review of BC Health Services, conclude:

38 The decision in Health Services follows directly from the principles

enunciated in Dunmore. Section 2(d), interpreted purposively and in light of

Canada’s values and commitments, protects associational collective activity in

furtherance of workplace goals. The right is not merely a paper right, but a right to

a process that permits meaningful pursuit of those goals. The claimants had a

right to pursue workplace goals and collective bargaining activities related to

those goals. The government employer passed legislation and took actions that

http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23SCR%23sel2%251%25year%251989%25page%25927%25sel1%251989%25vol%251%25&risb=21_T12970307512&bct=A&service=citation&A=0.46849542046495096

rendered the meaningful pursuit of these goals impossible and effectively

nullified the right to associate of its employees. This constituted a limit on the

exercise of s. 2(d), and was thus unconstitutional unless justified under s. 1 of the

Charter.

39 While the majority decision in Health Services sits firmly within the

principles the Court had earlier set out in Dunmore, in its discussion of the s. 2(d)

right the Court went on to explain in greater detail what the government must

permit in order to avoid the charge of substantial interference with the s. 2(d)

right in the context of collective action in pursuit of workplace goals. In Dunmore,

Bastarache J. stated that ―the effective exercise of these freedoms may require …

the exercise of certain collective activities, such as making majority

representations to one’s employer‖ (para. 30). It remained uncertain what other

collective activities might be protected.

…

42 The Court in Health Services emphasized that s. 2(d) does not require a

particular model of bargaining, nor a particular outcome. What s. 2(d) guarantees

in the labour relations context is a meaningful process. A process which permits

an employer not even to consider employee representations is not a meaningful

process. To use the language of Dunmore, it is among those "collective activities

[that] must be recognized if the freedom to form and maintain an association is to

have any meaning" (para. 17). Without such a process, the purpose of associating

in pursuit of workplace goals would be defeated, resulting in a significant

impairment of the exercise of the right to freedom of association. One way to

interfere with free association in pursuit of workplace goals is to ban

employee associations. Another way, just as effective, is to set up a system

that makes it impossible to have meaningful negotiations on workplace

matters. Both approaches in fact limit the exercise of the s. 2(d) associational

right, and both must be justified under s. 1 of the Charter to avoid

unconstitutionality.

43 In summary, Health Services applied the principles developed in Dunmore

and explained more fully what is required to avoid interfering with associational

activity in pursuit of workplace goals and undermining the associational right

protected by s. 2(d). Its suggestion that this requires a good faith process of

consideration by the employer of employee representations and of discussion with

their representatives is hardly radical. It is difficult to imagine a meaningful

collective process in pursuit of workplace aims that does not involve the employer

at least considering, in good faith, employee representations. The protection for

collective bargaining in the sense affirmed in Health Services is quite simply a

necessary condition of meaningful association in the workplace context.

Ontario (Attorney General) v. Fraser, supra, at paragraphs 38-39 and 42-43,

emphasis added.

18. The Defendant quotes the Chief Justice and Lebel J. at paragraph 122 of its submissions:

98 The essential question is whether the AEPA makes meaningful association

to achieve workplace goals effectively impossible, as was the case in Dunmore. If

the AEPA process, viewed in terms of its effect, makes good faith resolution of

workplace issues between employees and their employer effectively impossible,

then the exercise of the right to meaningful association guaranteed by s. 2(d) of

the Charter will have been limited, and the law found to be unconstitutional in the

absence of justification under s. 1 of the Charter. The onus is on the farm workers

to establish that the AEPA interferes with their s. 2(d) right to associate in this

way.

With respect, the Intervenor CUPE submits that the reference to ―effectively impossible‖ in

this quotation must be considered in the context of the Court’s review and confirmation of

the principles set out in Dunmore and BC Health Services noted above.

19. That is, it is not as the Defendant appears to suggest at paragraph 124 of its submissions

whether the ―ability to associate freely is effectively impossible‖ as a result of the

impugned legislation (see also the similar statement summarizing Fraser at paragraph

150 of the Written Submissions of the Defendant). Rather, we submit, the question is

whether the ability to engage in ―meaningful‖ collective bargaining to allow ―meaningful‖

pursuit of collective goals has been subject to ―substantial interference‖ and that is the

standard confirmed by the majority in Fraser.

20. The ability of the Intervenor CUPE and its locals to carry our meaningful collective

bargaining within the terms protected by the Charter has been, we submit, made

effectively impossible by the substantial interference in the right to strike. In this sense, as

we have argued in our Brief of Law, the right to strike is an inextricably linked to the

collective bargaining process, whether it is seen as a component of meaningful collective

bargaining or a means to ensure meaningful collective bargaining.

21. It is thus the Intervenor CUPE’s submission that Fraser did not change the law from

Dunmore and BC Health Services; rather it was confirmed by the Supreme Court majority.

Nor was it required to do so in order to overturn the Ontario Court of Appeal. That is,

following the caselaw review referred to above, McLachlin C.J. and Lebel J. set out the

issue to be determined in Fraser beginning at paragraph 44:

44 Against this background, we return to the issue in this case. The Court of

Appeal held that Health Services constitutionalizes a full-blown Wagner system of

collective bargaining, and concluded that since the AEPA did not provide such a

model, absent s. 1 justification, it is unconstitutional. The court appears to have

understood the affirmation of the right to collective bargaining in Health Services

as an affirmation of a particular type of collective bargaining, the Wagner model

which is dominant in Canada.

…

47 It follows that Health Services does not support the view of the Ontario

Court of Appeal in this case that legislatures are constitutionally required, in all

cases and for all industries, to enact laws that set up a uniform model of labour

relations imposing a statutory duty to bargain in good faith, statutory recognition

of the principles of exclusive majority representation and a statutory mechanism

for resolving bargaining impasses and disputes regarding the interpretation

or administration of collective agreements (C.A. reasons, at para. 80). What is

protected is associational activity, not a particular process or result. If it is shown

that it is impossible to meaningfully exercise the right to associate due to

substantial interference by a law (or absence of laws: see Dunmore) or by

government action, a limit on the exercise of the s. 2(d) right is established, and

the onus shifts to the state to justify the limit under s. 1 of the Charter.

Ontario (Attorney General v. Fraser, supra, at paragraphs 44 and 47.

22. Thus, the issue in Fraser was whether the Ontario Court of Appeal erred in its conclusion

that ―Health Services constitutionalizes a full-blown Wagner system of collective

bargaining‖. We note the Written Submissions of the Defendant at paragraphs 171 – 175

that there is no requirement for a dispute resolution mechanism to comply with s. 2(d). No

such claim otherwise is made by the Intervenor CUPE.

23. That is, in our right to strike argument we are not requesting the Court to impose a

―statutory mechanism for resolving bargaining impasses‖. Rather, we are content with

relying on the common law right to strike. As such, the distinction must be made between a

scenario where there is a demand to include a statutory right to strike (which demand is not

made here) and a scenario where an existing right to strike is effectively and fatally

compromised by legislation (as is the case here).

24. Nonetheless, to conclude on this latter point, we do submit that the failure to include an

alternative dispute resolution process mechanism in the PSESA is very relevant in the s. 1

analysis and we discuss that aspect in the appropriate sections below.

E. Re International Law, the ILO and the Charter (Written Submissions of the Defendant

at paragraphs 223 - 269

(i) Expert Reports

25. With respect to Note 6 found at paragraph 224 of the Written Submissions of the

Defendant, CUPE notes the Defendant’s position with respect to the admissibility and

weight accorded the expert affidavits of Professors Patrick Macklem and Michael Lynk.

The Intervenor CUPE states that these opinions represent a review of principles arising

from a wide framework of international law instruments.

26. Unlike secondary sources submitted in this proceeding such as journal articles and

conference papers, these opinions do not advocate a specific result arising from the

principles identified. Rather, these opinions provide a statement of the law arising from

the review by these two experts and, as such, in our submission are of assistance to this

Honourable Court in determining the content and scope of international law relevant to the

issues at hand.

27. Accordingly, contrary to the view of the Defendant, it is the submission of the Intervenor

CUPE that significant weight should be accorded the opinions of Professors Macklem and

Lynk in determining the principles of international human rights law to be considered and

applied by this Honourable Court in this matter.

(ii) Application of International Law

28. A paragraph from the dissent of Dickson C.J. in the Alberta Reference is set out in

paragraph 232 of the Written Submissions of the Defendant in the context of an argument

that the majority in BC Health Services were ―not sufficiently attentive‖ to what the former

Chief Justice ―actually stated in Alberta Reference (see paragraph 231 of the Written

Submissions of the Defendant).

29. The Intervenor CUPE submits the Defendant errs in failing to recognize the context in

which the Chief Justice made the statement in question and the subsequent endorsement by

the Court of the presumption that the Charter should be read to provide the same

protection as provided under applicable international law. Thus, the paragraph quoted by

the Defendant (which should be referenced as paragraph 60, not 64) is the conclusion to a

discussion of the application of international law commencing at paragraph 57 of the

judgment of Dickson C.J., including the heading, these paragraphs read as follows:

(iv) International Law

57 International law provides a fertile source of insight into the nature and

scope of the freedom of association of workers. Since the close of the Second

World War, the protection of the fundamental rights and freedoms of groups and

individuals has become a matter of international concern. A body of treaties (or

conventions) and customary norms now constitutes an international law of human

rights under which the nations of the world have undertaken to adhere to the

standards and principles necessary for ensuring freedom, dignity and social justice

for their citizens. The Charter conforms to the spirit of this contemporary

international human rights movement, and it incorporates many of the policies and

prescriptions of the various international documents pertaining to human rights.

The various sources of international human rights law -- declarations,

covenants, conventions, judicial and quasi-judicial decisions of international

tribunals, customary norms -- must, in my opinion, be relevant and

persuasive sources for interpretation of the Charter's provisions.

58 In particular, the similarity between the policies and provisions of the

Charter and those of international human rights documents attaches

considerable relevance to interpretations of those documents by adjudicative

bodies, in much the same way that decisions of the United States courts under the

Bill of Rights, or decisions of the courts of other jurisdictions are relevant and may

be persuasive. The relevance of these documents in Charter interpretation extends

beyond the standards [page349] developed by adjudicative bodies under the

documents to the documents themselves. As the Canadian judiciary approaches

the often general and open textured language of the Charter, "the more detailed

textual provisions of the treaties may aid in supplying content to such imprecise

concepts as the right to life, freedom of association, and even the right to counsel".

J. Claydon, "International Human Rights Law and the Interpretation of the

Canadian Charter of Rights and Freedoms" (1982), 4 Supreme Court L.R. 287, at

p. 293.

59 Furthermore, Canada is a party to a number of international human rights

Conventions which contain provisions similar or identical to those in the Charter.

Canada has thus obliged itself internationally to ensure within its borders the

protection of certain fundamental rights and freedoms which are also contained in

the Charter. The general principles of constitutional interpretation require

that these international obligations be a relevant and persuasive factor in

Charter interpretation. As this Court stated in R. v. Big M Drug Mart Ltd.,

[1985] 1 S.C.R. 295, at p. 344, interpretation of the Charter must be "aimed at

fulfilling the purpose of the guarantee and securing for individuals the full benefit

of the Charter's protection". 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.

60 In short, though I do not believe the judiciary is bound by the norms of

international law in interpreting the Charter, these norms provide a relevant and

persuasive source for interpretation of the provisions of the Charter, especially

when they arise out of Canada's international obligations under human rights

conventions.

Alberta Reference, paragraphs 57 – 60, emphasis added.

30. Far from supporting the caution suggested by the Defendant, we submit that the statements

of the Chief Justice instead reflect the significant role international law should play in the

interpretation of Charter rights. The following summary of the applicable principles in

considering international human rights principles is based on the full statements of Dickson

C.J.:

there is a body of treaties, conventions and ―customary norms‖ that comprise

international human rights law that reflect the commitment of the nations of the

world to ensure ―freedom, dignity and social justice‖ for their citizens’;

the Charter conforms to the spirit of this law and incorporates many of ―polices

and prescriptions of the various international documents pertaining to human

rights‖;


―various sources of international human rights law – declarations, covenants,

conventions, judicial and quasi-judicial decisions of international tribunals,

customary norms – must be… relevant and persuasive sources for interpretation of

the Charter's provisions‖;

given the similarity in ―policies and provisions‖ of the Charter and international

human rights Conventions, ―considerable relevance‖ is attached to decisions of

adjudicative bodies in supplying content to imprecise Charter rights such as

freedom of association;

Canada has ―obliged itself internationally to ensure within its borders the

protection of certain fundamental rights and freedoms which are also contained in

the Charter‖; and

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‖.

31. The Intervenor CUPE submits that the majority had the benefit of the full reasoning of

Dickson C.J. in setting out its conclusion at paragraph 79 of BC Health Services that the

Charter should be read ―as recognizing at least the same level of protection‖ as

international conventions to which Canada is a party.

32. Further, Gib Van Ert, in his work relied upon by the Defendant in its submissions,1 Using

International Law in Canadian Courts, distinguishes between the former Chief Justice’s

use of the words ―relevant and persuasive‖ and ―presumed to provide‖ in Alberta

Reference. The author maintains that the latter comprises a theory of ―presumption of

minimum protection‖ which attaches greater weight to international law than if such law is

simply considered on the ―relevant and persuasive‖ basis (see discussion below). The

learned author argues the presumption of minimum protection is close to the accepted

judicial principle of statutory interpretation of a presumption of conformity with

international law (both treaty and customary) and, in fact, was the preferred test of Dickson

C.J.

33. Before proceeding further on this point, however, we submit is to useful to first review the

principle of the presumption of conformity with international law. Van Ert states:

The presumption of conformity with international law is a rule of legal interpretation

whereby domestic law is read, wherever possible, consistently with international law

and comity. The normative justification for the presumption is respect for

international law. To interpret acts of our legislatures and courts in a way that failed

to respect international law or comity would impute to these bodies an unlawful or

belligerent intent. Such a imputation is certainly uncharitable and usually wrong.

There is a also an important prescriptive justification for the presumption. Violations

of international law may bring internationally responsibility upon the state. The

judiciary should therefore avoid internationally unlawful constructions of domestic

law wherever possible.

Gib Van Ert, Using International Law in Canadian Courts, 2nd

ed. (Toronto: Irwin

Law Inc., 2008) Chapter 5, pp.130 – 181; Chapter 11, pp. 323 – 360 at 130. TAB

―A‖ to these submissions.

34. Van Ert maintains the principle is well established in Canadian law:

Canadian case law and commentators have purported to follow the English

authorities on the presumption of conformity. Maxwell’s formulation of the

presumption2 has been cited in both its ambiguous and unambiguous versions and

leading English cases continue to be relied upon.3 Commentators agree that the

1 See paragraphs 235ff in the Submissions of the Defendant.

2 Van Ert earlier quotes Sir Peter Benson Maxwell’s 1875 first edition of On the Interpretation of Statutes: ―every

statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of

nations, or with the established rules of international law‖. See Van Ert, supra, at 137. 3 See, for example, the adoption of the statement of the English Court of Appeal by the Federal Court of Appeal per

Iacobbucci C.J., as he then was, in National Corn Growers Assn. v. Canada (Import Tribunal) (1989), 58 D.L.R. 4th

642 (F.C.A.), aff’d *1990+ 2 S.C.R. 1324 per Diplock C.J. in Salomaon v. Com’rs of Customs and Excise, [1966] 3 All E.R. 871 (C.A.) :

If the terms of the legislation are clear and unambiguous, they must be given effect to whether or not they

carry out Her Majesty's treaty obligations, for the sovereign power of the Queen in Parliament extends to

breaking treaties..., and any remedy for such a breach of an international obligation lies in a forum other than

Her Majesty's own courts. If the terms of the legislation are not clear, however, but are reasonably capable of

more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that

Parliament does not intend to act in breach of international law, including therein specific treaty

obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant

with the treaty obligations and another or others are not, the meaning which is consonant is to be

preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are

presumption exists in Canadian law and is to be assiduously applied. The

presumption has been referred to and applied in Canadian courts, from the trial level

to the Supreme Court of Canada, too many times to mention….In recent years the

Supreme Court of Canada has applied the presumption more vigorously.

Van Ert, supra, at 139-141, footnotes omitted.

35. Van Ert notes that the presumption is rebuttable, but states that the Supreme Court of

Canada has held that this is only where a statute, ―demonstrates an unequivocal legislative

intent to default on an international obligation‖.

Van Ert, supra, at 132.

36. Finally, to complete this review of the presumption for our purposes, the learned author

also states:

Whether the presumption of conformity with international law applies to the

Canadian Charter of Rights and Freedoms is unclear, though recent Supreme Court

of Canada authority suggests it does.

Van Ert, supra, at 181. As we will see below the authority relied upon by the author

for this statement includes BC Health Services.

37. This thus leads us back to our earlier reference to Van Ert’s conclusion that the

presumption of minimum protection set out by Dickson C. J. in Alberta Reference is close

to the accepted presumption of conformity with international law. In this regard, Van Ert

first points to a subsequent decision by the former Chief Justice in Slaight Communications

v. Davidson [1989] 1 S.C.R. 1038, and quotes the following passage from paragraph 23 of

that judgment, given by Dickson C. J. in the course of his section 1 analysis in that case:

…Especially in light of Canada's ratification of the International Covenant on

Economic, Social and Cultural Rights, G.A. Res. 2200 A (XXI), 21 U.N. GAOR,

Supp. (No. 16) 49, U.N. Doc. A/6316 (1966), and commitment therein to protect,

inter alia, the right to work in its various dimensions found in Article 6 of that

treaty, it cannot be doubted that the objective in this case is a very important one.

relevant to enable the court to make its choice between the possible meanings of these words by applying this

presumption... [emphasis added]

National Corn Growers Assn. v. Canada (Import Tribunal) (1989), 58 D.L.R. 4th

642 (F.C.A.), aff’d [1990] 2

S.C.R. 1324, TAB ―B‖ to submissions at pp5-6 (QL).

In Reference Re Public Service Employee Relations Act (Alta.), supra, I had

occasion to say 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.

Given the dual function of s. 1 identified in Oakes, Canada's international human

rights obligations should inform not only the interpretation of the content of the

rights guaranteed by the Charter but also the interpretation of what can constitute

pressing and substantial s. 1 objectives which may justify restrictions upon those

rights. Furthermore, for purposes of this stage of the proportionality inquiry, the

fact that a value has the status of an international human right, either in

customary international law or under a treaty to which Canada is a State Party,

should generally be indicative of a high degree of importance attached to that

objective. This is consistent with the importance that this Court has placed on the

protection of employees as a vulnerable group in society.

Slaight Communications v. Davidson [1989] 1 S.C.R. 1038 at paragraph 23. See

TAB 56, Book of Authorities of the Defendant, Vol III.

38. Van Ert concludes his discussion of a recognition of a presumption of minimum protection

arising out of international law by stating that this interpretative approach was endorsed by

the Supreme Court in BC Health Services and in a case released a day prior, R. v. Hape.

The quote from BC Health Services at paragraph 79 of that decision has been noted by the

Defendant in its Written Submissions as discussed above. Here we submit it is worth

quoting in full the statements of Lebel J., writing for the majority in R. v. Hape,

recognizing the link Van Ert submits exists between the presumption of conformity and the

presumption of minimum protection in respect to the application of international law (first

note the heading to this section of the judgment):

(4) Conformity With International Law as an Interpretive Principle of

Domestic Law

53 One final general principle bears on the resolution of the legal issues in this

appeal. It is a well-established principle of statutory interpretation that legislation

will be presumed to conform to international law. The presumption of conformity

is based on the rule of judicial policy that, as a matter of law, courts will strive to

avoid constructions of domestic law pursuant to which the state would be in

violation of its international obligations, unless the wording of the statute clearly

compels that result. R. Sullivan, Sullivan and Driedger on the Construction of

Statutes (4th ed. 2002), at p. 422, explains that the presumption has two aspects.

First, the legislature is presumed to act in compliance with Canada's obligations as

a signatory of international treaties and as a member of the international

community. In deciding between possible interpretations, courts will avoid a

construction that would place Canada in breach of those obligations. The second

aspect is that the legislature is presumed to comply with the values and principles

of customary and conventional international law. Those values and principles form

part of the context in which statutes are enacted, and courts will therefore prefer a

construction that reflects them. The presumption is rebuttable, however.

Parliamentary sovereignty requires courts to give effect to a statute that

demonstrates an unequivocal legislative intent to default on an international

obligation.

See also P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000),

at pp. 367-68.

54 The presumption of conformity has been accepted and applied by this Court

on numerous occasions. In Daniels v. White, [1968] S.C.R. 517, at p. 541, Pigeon

J. stated:

[T]his is a case for the application of the rule of construction that Parliament

is not presumed to legislate in breach of a treaty or in any manner

inconsistent with the comity of nations and the established rules of

international law.... [I]f a statute is unambiguous, its provisions must be

followed even if they are contrary to international law ... [emphasis added].

See also Zingre, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at

paragraph 137; Schreiber v. Canada (Attorney General), [2002] 3 S.C.R. 269,

2002 SCC 62, at paragraph 50. The presumption applies equally to customary

international law and treaty obligations.

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] 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] 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

http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23SCR%23year%251968%25page%25517%25sel1%251968%25&risb=21_T12910785243&bct=A&service=citation&A=0.46239601966090926



http://www.lexisnexis.com/ca/legal/search/runRemoteLink.do?langcountry=CA&linkInfo=F%23CA%23SCC%23onum%2562%25decisiondate%252002%25year%252002%25sel1%252002%25&risb=21_T12910785243&bct=A&service=citation&A=0.44178891018878164



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] 2 S.C.R. 486, at p. 503; Suresh;

United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; Canadian Foundation

for Children, Youth and the Law v. Canada (Attorney General), [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. In light of the foregoing principles -- the direct application of

international custom, territorial sovereignty and non-intervention as customary

rules, and comity and the presumption of conformity as tools of construction -- I

will now turn to the point that is directly in issue in this appeal: the interpretation

of s. 32 of the Charter and the application of the Charter to searches and seizures

outside Canada.

R. v. Hape, [2007] 2 S.C.R. 292 at paragraphs 53 – 56, emphasis added. TAB ―C‖ to

these submissions.

39. A further element to note from the above quotation is that the Supreme Court recognizes

that the presumption of conformity applies ―equally to customary international law and

treaty obligations‖. We come back to this point further below.

40. In summary, it is the submission of the Intervenor CUPE that the ―caution‖ suggested in

the consideration of paragraph 79 of BC Health Services at paragraph 232 and 234 of its

submissions is misplaced. Indeed, the Supreme Court has gone further than ―persuasive‖

to ―seek to ensure compliance with Canada’s binding obligations under international law‖:

see R. v. Hape at paragraph 56 above.

41. Interestingly, in light of Lebel J. comments in R. v. Hape in 2007, at paragraph 233 of its

submissions, the Defendant quotes Lebel J.’s 2001 statement in Advance Cutting & Coring

Ltd. in support of the contention that the European Court of Human Rights jurisprudence

should also be approached with caution. The Defendant, at Note 7 referenced in

paragraph 233, further states that this caution is applicable in considering the Intervenor

CUPE arguments in our Brief of Law ( see paragraphs 176 – 183 of our Brief of Law) in

respect to ECHR caselaw arising from Article 11 of the European Convention.







42. We note that Lebel J. comments are with respect to the issue of recognizing a negative

right of association, a position the learned justice rejects in Advance Cutting & Coring Ltd

(see paragraph 252). His ―caution‖ in considering the European jurisprudence is based on

the difference labour relations framework with respect to compulsory membership in the

Canadian (particularly Quebec) and European context and is thus in the context of that

issue.

43. As such, it is submitted that the ―caution‖ suggested by the Defendant with respect to the

European Convention or any other sure of law is not appropriate where the freedom of

association issue is not subject to specific differences in approach in the respective

domestic labour law frameworks. This reflects the argument we make in our Brief of Law

based on comparison of Supreme Court of Canada and European Court of Human Rights

caselaw, and indeed that of other jurisdictions, and one which the Defendant does not seek

to answer on its merits in its submissions. That is, the two courts have come to similar

conclusions on the incorporation of collective bargaining into freedom of association

without referring to one another based on consideration of consideration of international

law. There is nothing unique about collective bargaining in Canada that demands a

differential approach then that applied in Europe. The convergence in caselaw between the

two courts arises from both considering the same international human rights principles and

has application when considering the right to strike.

44. We submit that the principles arising from a review of the sources of law referred to by

Dickson C. J. at paragraph 57 of Alberta Reference, set out above, lead to this ―leveling

out‖ in interpreting the content of freedom of association. That, it is submitted, is exactly

what the application of international law is designed to accomplish - as is reflected at the

conclusion of paragraph 57 of Alberta Reference.

45. We turn the statement at paragraph 237 of the Written Submissions of the Defendant to

the effect that Canada is a hybrid in allowing for incorporation of international customary

law but requiring implementation of conventional (by that, we assume ―treaty-based‖)

international law requires qualification. We submit that the line between the two is not

clearly defined. In that context we also note the lack of distinction between both sources in

with respect to the presumption of conformity with international law by Lebel J. in R. v.

Hape at paragraph 54 set out above.

46. The Supreme Court of Canada has blended the two concepts by relying on treaties not

ratified by Canada in seeking to determine the nature of customary norms. Thus, in

considering the concept of ―underinclusion‖, Bastarache J. in Dunmore referred to ILO

Convention No. 11, Rights of Association and Combination of Agricultural Workers, and

stated at paragraph 27:

27 … Although provincial jurisdiction has prevented Canada from ratifying

Convention No. 11, together these conventions provide a normative foundation for

prohibiting any form of discrimination in the protection of trade union freedoms

… This foundation is fortified by Convention (No. 141) concerning Organisations

of Rural Workers and Their Role in Economic and Social Development …which

extends, under Article 2, the freedom to organize to "any person engaged in

agriculture, handicrafts or a related occupation in a rural area, whether as a wage

earner or, ... as a tenant, sharecropper or small owner-occupier".

Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 at paragraph 27. See

TAB 14, Defendant’s Book of Authorities, Vol. I. citations removed. ILO Convention

No. 141, Concerning Organisations of Rural Workers and Their Role in Economic

and Social Development has also not been ratified by Canada.4 See also ILO

Appendix 7 - Conventions ratified by Canada,

http://www.hrsdc.gc.ca/eng/lp/ila/representing_canada/canada_ratification_ilo.shtml,

TAB ―D‖ to these submissions.

47. We also note here that Van Ert states that ―the presumption of conformity applies equally

to implemented and unimplemented treaties‖ and the author goes on to conclude:

For the presumption to apply both to implemented and unimplemented treaties makes

sense, for a primary purpose of the presumption is to prevent breaches of Canada’s

international obligations. A treaty commitment is not less binding on Canada

internationally for being implemented in Canadian law. Canada’s treaty partners

make no distinction between implemented and unimplemented treaties, and,

therefore, courts applying the presumption should not do so either.

4 The European Court of Human Rights took a similar approach in Demir and Baykara where the Court rejected the

Turkish Government’s argument that unratified treaties could not be considered in interpreting Article 11. See

Barnacle, ―Interpretation of Freedom of Association in Canada and Europe: Convergence Revisted‖ (2011) CUPE

Book of Authorities, TAB 26, at page 24.

http://www.hrsdc.gc.ca/eng/lp/ila/representing_canada/canada_ratification_ilo.shtml

Van Ert, supra, at 163. Also the international obligation arises from the concept of

punt sunt servanda discussed below.

48. We pause at this point to acknowledge that reliance on unratified treaties was not

supported by Rothstein J. in Ontario (Attorney General) v. Fraser (see paragraph 248 of

that decision), but with respect, the learned justice did not address the principles of

presumption set out above. Further, and in any event, Rothstein J. does not consider

unimplemented treaties and other sources of international law such as customary norms,

declarations and tribunal decisions that could ―fill in‖ to establish or support international

norms in the absence of ratification of a specific treaty.

49. In this respect, we turn to Malcolm N. Shaw, in International Law, 6th

ed, for a descriptin

of the sources of international law:

Article 38(1) of the Statute of the International Court of Justice is widely recognized

as the most authoritative statement as to the sources of international law. It provides

that:

Article 38

1. The Court, whose function is to decide in accordance with international law such

disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of

the most highly qualified publicists of the various nations, as subsidiary means

for the determination of rules of law.

Although this formulation is technically limited to the sources of international law

the International Court must apply, in fact since the function of the Court is to decide

disputes submitted to it ―in accordance with international law‖ and since all member

states of the United Nations are ipso facto parties to the Statute by virtue of article 93

of the United Nations Charter…there is no serious contention that the provision

expresses the universal perception as to the enumeration of sources of international

law.

Malcolm N. Shaw, International Law, 6th

ed. (Cambridge: University of Cambridge

Press, 2008) Chapter 3, pp. 69 – 128; Chapter 11, pp 323 – 360 at 70-1. TAB ―E‖ to

these submissions. The Defendant references the Statute of the International

Criminal Court at paragraph 240 of its Submissions.

50. The Intervenor CUPE also notes the reference by the Defendant at paragraph 240 to

―subsidiary‖ sources of international law is based on Article 38(1)(d) of the Statute of the

International Criminal Court set out above. Such would capture the decisions of such

bodies as the ILO’s Committee on Freedom of Association that has been referred to by the

experts and in the submissions in this matter. However, while we note, the Defendant

states that such subsidiary sources can be used ―to understand the content of international

law‖, Article 38(1)(d) actually says ―as subsidiary means for the determination of rules of

law‖, a much more powerful direction than conceded by the Defendant.

51. With respect to the Defendant’s review of lex ferenda or ―soft law‖ (see paragraph 241),

we submit that such a classification does not capture the sources of international law relied

upon by the Intervenor CUPE as reflected in Article 38(1) of the Statute of the

International Court of Justice.

52. In summary, the Intervenor CUPE submits that identifying international law principles

requires a holistic approach in considering all sources of international law, including the

use of judicial or quasi-judicial decisions of international tribunals (Dickson C. J. Alberta

Reference at paragraph 57). As set out in Article 38(1) of the Statute of the International

Court of Justice, international custom and general principles of law are accorded equal

status to treaty rights.

53. This approach, in a manner analogous to the use of Charter values in the interpretation of

the Charter itself (see BC Health Services at paragraph 81ff.), is reflected in the values

analysis with respect to international human rights law by the majority in Baker v. Canada

(Minister of Citizenship and Immigration). In that case, L’Heureux-Dubé J. stated:

69. Another indicator of the importance of considering the interests of children when

making a compassionate and humanitarian decision is the ratification by Canada of

the Convention of the Rights of the Child, with the recognition of the importance of

children’s rights and the best interests of children in other international instruments

ratified by Canada. International treaties and conventions are not part of Canadian

law unless they have been implemented by statute…I agree with the respondent and

the Court of Appeal that the Convention has not been implemented by Parliament.

Its provisions therefore have no direct application within Canadian law.

70. Nevertheless, the values reflected in international human rights law may help

inform the contextualized approach to statutory interpretation and judicial

review…[t]he important role of international human rights law as an aid in

interpreting domestic law has also been emphasized in other common law

countries…

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,

emphasis added. TAB ―F‖ to these submissions. See also the discussion of this

concept by Van Ert, supra, at 347 – 348.

54. With respect, the Written Submissions of the Defendant failure to recognize this holistic

(or ―contextualized‖) approach to the consideration and application of international law.

That approach can thus extend to unratified treaties whereby the values and principles are

reflected in other recognized sources of international law.

55. At paragraph 244 of its submissions, the Defendant relies on a quotation from Van Ert, in

its claim that neither Parliament nor provincial legislatures are obligated to implement

international treaties or conventions even if ratified. The quotation concludes:

The fact that Canada is obliged internationally to live up to its promises or conform

to certain norms does not, without more, produce obligations that prevail over

inconsistent legislation in domestic courts. [emphasis added]

56. We note that the key word here is ―inconsistent‖. The point we submit has no application

where:

the Charter is not on its face inconsistent on its face with international law as here

whereby s. 2(d) states only ―freedom of association‖;

the phrase ―freedom of association‖ is one that is utilized in the international

human rights instruments ratified by Canada or applicable through other sources

of international law as discussed above an law is utilized for interpretation of s.

2(d);

the Government of Canada, while acknowledging it has not ratified Convention

No. 98, Right to Organise and Collective Bargaining Convention, 1949, states:

However, under the 1998 ILO Declaration on Fundamental Principles and

Rights at Work, all ILO members, regardless of whether they have ratified

fundamental Conventions, ―have an obligation arising from the very fact of

membership in the Organization to respect, to promote and to realize, in

good faith and in accordance with the [ILO] Constitution, the principles

concerning the fundamental rights which are the subject of those

Conventions‖.

ILO Conventions Ratified by Canada – Appendix 7,

http://www.hrsdc.gc.ca/eng/labour/employment_standards/fls/final/page72.s

html TAB ―D‖ to these submissions.

the source of law is treaty, such as here with the UN Covenants reviewed by

Professor Macklem and ILO Convention ratified and unratified per Professor

Lynk, it is a principle of international law, known as pacta sunt servanda, that a

treaty is binding and must be performed by a state party: see Vienna Convention

on the Law of Treaties, at Article 26.5 See also Shaw:

pacta sunt servanda is ―arguably the oldest principle of international law. It

was reaffirmed in article 26 of the 1969 [Vienna] Convention, and underlies

every international agreement for, in the absence of a certain minimum belief

that states will perform their treaty obligations in good faith, there is no reason

for countries to enter into such obligations with each other.

Shaw, supra, at 903 – 4. TAB ―E‖ to these submissions.

as discussed above, the Supreme Court of Canada recognizes, at the least, a

minimum protection test in considering Charter rights in respect of sources of

international law.

57. With respect to paragraph 245 of the Written Submissions of the Defendant, the argument

that only Saskatchewan can implement international law sourced by treaty pursuant to the

5 Article 26 Pacta sunt servanda

Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Article 31 of the Vienna Convention requires that every treaty be interpreted in good faith.

The Vienna Convention on the Law of Treaties (1969) came into force for Canada January 27, 1980:

http://www.treaty-accord.gc.ca/details.asp?id=104068. The Government of Canada recognizes that ―under

http://www.hrsdc.gc.ca/eng/labour/employment_standards/fls/final/page72.shtml

http://www.hrsdc.gc.ca/eng/labour/employment_standards/fls/final/page72.shtml

http://www.treaty-accord.gc.ca/details.asp?id=104068

division of powers in the Constitution Act, 1867 addresses only ―direct implementation‖ of

international law to Saskatchewan labour law and not the application of international law

through the interpretation of the Charter s. 2 (d), which is then applied in considering the

constitutionality of Saskatchewan labour law.

58. Further in this regard (see Note 8 at paragraph 248 of the Written Submissions of the

Defendant), despite having attorned to the jurisdiction of the ILO Committee on Freedom

of Association (CFA) to hear the complaint against it pursuant to Convention No. 876 and

defending on the merits, the Defendant appears to be making a new argument to the effect

that, having not been implemented in specific Saskatchewan legislation, the Province is not

bound.

See the submissions filed at the CFA by the Defendant per paragraphs 5, 6 and 8 and

Exhibits ―A‖, ―B‖ and ―D‖ of the Affidavit of Patricia Parenteau (No.1) dated 8

December 2010

59. In this respect, the Intervenor CUPE notes the following passages from the Defendant’s

initial submission to the CFA:

The two pieces of legislation which form the basis of this complaint are An Act

Respecting Essential Public Services ("Bill 5") and An Act to Amend The Trade

Union Act ("Bill 6"). These pieces of legislation continue to facilitate and protect the

rights of workers to engage in the process of collective bargaining, balanced with the

Government's obligation to protect the heath and safety of the public during a

workplace dispute and ensure the continued economic growth and prosperity of the

province.

Statement of Evidence on Behalf of the Government of Canada (Saskatchewan) at 2,

Exhibit ―A‖ to the Affidavit of Patricia Parenteau (No. 1)

The Government respectfully submits that Bills 5 and 6 are in accordance with the

spirit and intent of the Convention No. 87 and the principles articulated by the

international law, a treaty creates international legal obligations for Canada‖ – see http://www.treaty-

accord.gc.ca/procedure.asp at paragraph 8. See also Shaw, supra, at pages 903-4: ―pacta sunt servanda 6 Here we refer to paragraphs 5, 6 and 8 and Exhibits ―A‖, ―B‖ and ―D‖ of the Affidavit of Patricia Parenteau (No.1)

dated December 8, 2010, filed by the Defendant in this matter in respect to its submissions through the Government

of Canada to the ILO Committee on Freedom of Association. The Defendant does not take the position that the

CFA had no jurisdiction or authority over the complaint vis Saskatchewan but rather instead maintained that it was

not in violation of Convention No. 87.

http://www.treaty-accord.gc.ca/procedure.asp

http://www.treaty-accord.gc.ca/procedure.asp

ILO Committee on Freedom of Association. The Bills reflect the constitutionally

guaranteed right to engage in the process of collective bargaining, subject to

restriction demonstrably justified in a free and democratic society.

Statement of Evidence on Behalf of the Government of Canada (Saskatchewan) at 16,

Exhibit ―A‖ to the Affidavit of Patricia Parenteau (No. 1), emphasis added.

60. In its response to the CFA following release of the Committee’s decision on the complaint,

the Defendant made further submissions after making the following introductory

statement:

The Government of Saskatchewan appreciates this opportunity to respond to the

International Labour Organization respecting the Committee on the Freedom of

Association [sic] recommendations. The Government submits that it is in

compliance with the International Labour Organization's Convention (No. 87)

Concerning Freedom of Association and Protection of the Right to Organize.

In the Matter of the International Labour Organization Committee on Freedom of

Associations Recommendations Case No. 2654 at 1, Exhibit ―D‖ to the Affidavit of

Patricia Parenteau (No. 1), emphasis added.

61. At paragraphs 247 – 248 the Defendant submits the two criteria for incorporating

customary international law are not met in the present case: evidence of a sufficient degree

of state practice and determination that a state acts on the understanding that it is under a

legal obligation (opinio juris). In response, the Intervenor CUPE again refers to the CFA

submissions filed by the Defendant through the Government of Canada.

62. Further, as Shaw, supra, states, ―in many cases treaties (or conventions) merely reiterate

accepted rules of customary international law‖. As stated above, the division made by the

Defendant between ―conventional‖ and ―customary‖ international law (see paragraph

237) is thus subject to significant overlap or blending. Indeed such is reflected in

Bastarache J.’s statement in Dunmore quoted above.

Shaw, International Law, 6th

ed., supra, at 71.

63. On such an approach, we submit that this evidence establishes that the Government of

Canada, though adoption of the Defendant submissions, and the Defendant itself,7

maintained the impugned legislation is consistent with state practice of complying with

international obligations. The Government response is based on the premise that the

impugned legislation is consistent with those legal requirements and it has acted in a

manner consistent with its obligations and that position, we submit, satisfies the opino juris

criterion.

64. The same comment applies to interpretation of the Charter. It is intended to reflect and

incorporate state practice. We refer here again to Dickson C.J. at paragraph 57 of the

Alberta Reference where he states, ―The Charter conforms to the spirit of this

contemporary international human rights movement, and it incorporates many of the

policies and prescriptions of the various international documents pertaining to human

rights.‖ As Van Ert states:

[T]he federal government regards the Charter as one means by which Canadian

human rights obligations are implemented in domestic law. Canada has explained to

UN treaty bodies that ―[t]o some extent, human rights treaties are implemented by

constitutional law, including the Canadian Charter of Rights and Freedoms.‖ Canada

relies heavily on Charter provisions in its reports to the Human Rights Committee

and other UN treaty bodies.


65. On this point, Van Ert also notes:

It is a matter of historical record that the drafters of the Charter looked to Canada’s

international treaty obligations, especially the ICCPR, for inspiration and guidance.

The results may be seen on the face of the Charter itself; many of its provisions

correspond closely to provisions of the UDHR, ICCPR and ECHR.8


7 Note the style of cause utilized in the Defendant’s submission to the Committee: ―Government of Canada

(Saskatchewan)‖ and further the title of its submissions: Statement of Evidence of the Government of Canada

(Saskatchewan) – see Exhibit ―A‖ to the Affidavit of Patricia Parenteau (No. 1). 8 Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) –

see Professor Macklem’s discussion in his expert opinion. European Convention on Human Rights – see the

Intervenor CUPE’s prior submissions.

66. The above submissions also respond to the claims made by the Defendant with respect to

the ILO and the CFA at paragraphs 249 – 258 of its Submissions. That is, in its review of

the ILO and the CFA, the Defendant’s submissions do not deal with the blend of

convention and customary law identified and applied by our courts. Accordingly, the

submissions fail to recognize the significance of the 1998 Declaration on the Fundamental

Principles and Rights of Work despite the view of the Government of Canada noted above.

Further, the submissions disparage a judicial role of the CFA despite the fact that the

Defendant has attorned to its jurisdiction and the Supreme Court (per Dickson J. at

paragraph 57 of Alberta Reference), at least considers such bodies ―quasi-judicial‖.

Presumably, the Defendant might have a different view of the significance of the ILO/CFA

if it had been successful in its defence to the complaint.

(iii) Constitutional law principles

67. The Intervenor CUPE notes the Written Submissions of the Defendant at paragraphs 259

- 268 with respect to the application of three constitutional principles in considering the

application of international law: federalism, judicial independence and the minimalist or

Kuldip principle. All of this is answered by what considering the principles with respect to

the application of international law identified above including pacta sunt servanda, the

sources and principles of application of international law, as well as the presumption of

conformity/minimal protection with respect to international law arising out of Charter

jurisprudence.

68. Further, the Written Submissions of the Defendant in this regard should, we submit, be

considered in light of the willingness of Government to limit domestic judicial oversight in

important areas assigned to trade international bodies, such as the World Trade

Organization and the tribunals struck under NAFTA. The recognition of international

economic law as having ―bite‖ as a result of its enforcement mechanisms may be

contrasted to the view apparently accorded by Government towards international human

rights law, which does not have such mechanisms at its disposal. But those are issues of

enforcement, not of the rights that underlie any enforcement process. There is no basis to

make the distinction between economic and human rights obligations in considering the

application of international law and consideration of the principles set out by the Defendant

simply beg the question in this proceeding.

F. The Right to Strike (Written Submissions of the Defendant at paragraphs 271 – 280)

69. Further to paragraphs 271 - 280 of the Written Submissions of the Defendant, the

Intervenor CUPE states that its focus on the right to strike is not as an independent exercise

of freedom of association but as an essential element of collective bargaining

constitutionally protected under s. 2(d) of the Charter. Simply put, legislation such as the

PSESA that removes the ability of a union and its members to carry out effective strike

activity results in an inability to engage in meaningful collective bargaining as protected

under s. 2(d) freedom of association. The Defendant makes no response to that argument.

References in this regard include paragraphs 83 – 84; 110 – 113; 130 – 135; 141 –

146; 161 – 163; 180; and 182 from the Brief of Law of the Intervenor CUPE filed in

this matter.

70. The recognition of the nexus between the ability to maintain an effective strike and the

ability to engage in meaningful collective bargaining is, we submit, self-evident. Even the

LRB in the RQHR case involving CUPE Local 3967 recognized the relationship:

―the Board will expect there to be a larger balance between the provision of essential

services (i.e. the protection against the prohibited consequences) and the residual ability of

the parties to exert pressure on one another to resolve collective bargaining disputes‖.

Canadian Union of Public Employees, Local 3967 v. Regina Qu‟Appelle Health Region

and the Attorney General for Saskatchewan (2010), LRB File No.124-09. TAB „G‖ to

these submissions

G. The TUAA (Written Submissions of the Defendant at paragraphs 286 – 300)

71. With respect to paragraph 286 of the Written Submissions of the Defendant, the

Intervenor CUPE states that its focus is on the barriers to the exercise of association by

employees arising from the amendments to The Trade Union Act (see our Brief of Law at

paragraphs 198 – 202.

72. With respect to paragraphs 294 – 295 of the Written Submissions of the Defendant, the

Intervenor CUPE relies upon the expert testimony of Dr. Chris Riddell, including that

provided under cross-examination by counsel for the Defendant, and the cross-examination

of Frederick Bayer that exposes the flaws in that analysis conducted on behalf of the

Defendant. We also note that the conclusion of Dr. Van Audenrode set out at paragraph

295 is contrary to the opinion of the Defendant’s other expert, Dr. Marcel Boyer that there

is a negative correlation between certification experience and a mandatory vote system (in

the latter regard see our Brief of Law at paragraph 202).

PART II REPLY RE SECTION ONE

73. In their respective submissions, the Defendant and the Intervenor Employers have

submitted that, should the Court find that the PSESA or the TUAA, 2008 violate s. 2(d) of

the Charter, the infringements are demonstrably justified and therefore saved by s. 1 of the

Charter. The Intervenor CUPE takes the contrary position and respectfully submits that if

the PSESA or TUAA, 2008 are found to violate s. 2(d) of the Charter, the infringements do

not represent a reasonable limit so as to be saved by s. 1.

74. s. 1 of the Charter provides as follows:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms

set out in it subject only to such reasonable limits prescribed by law as can be

demonstrably justified in a free and democratic society.

75. The legal framework for determining whether a law is a reasonable limit pursuant to s.1 of

the Charter was succinctly set out by the Supreme Court of Canada in B.C. Health

Services9:

138 The analysis for assessing whether or not a law violating the Charter can be

saved as a reasonable limit under s. 1 is set out in Oakes. A limit on Charter rights

must be prescribed by law to be saved under s. 1. Once it is determined that the

9 Health Services & Support-Facilities Subsector Bargaining Assn. v. British Columbia, [2007] S.C.R. 391, 2007 SCC 27, TAB

2, Intervenor CUPE Book of Authorities.

limit is prescribed by law, then there are four components to the Oakes test for

establishing that the limit is reasonably justifiable in a free and democratic

society (Oakes, at pp. 138-40). First, the objective of the law must be pressing and

substantial. Second, there must be a rational connection between the pressing and

substantial objective and the means chosen by the law to achieve the objective.

Third, the impugned law must be minimally impairing. Finally, there must be

proportionality between the objective and the measures adopted by the law, and more

specifically, between the salutary and deleterious effects of the law (Oakes, at p. 140;

Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (S.C.C.), [1994] 3

S.C.R. 835, at p. 889).

76. The onus is on the Defendant to establish that the limitations are ―reasonably justified in a

free and democratic society‖. The Intervenor CUPE respectfully submits that the

Defendant has failed to establish that the limitations are justified.

A. Is the objective of the law pressing and substantial?

(i) The Public Services Essential Services Act

Objective of the PSESA

77. In the Written Submissions of the Defendant (the ―Defendant Submissions‖), the

Defendant indicated that the governmental objectives behind the enactment of the PSESA

were as follows:

(1) to fill a lacunae in the law of Saskatchewan, namely the absence of any statute

regulating essential services in the public sector during a work stoppage

(paragraph 314);

(2) to ensure a sufficient level of essential services in the public services provided to

residents (paragraph 316); and

(3) to mitigate the harm experienced by members of the public who have no other

place to turn when public services are disrupted by a work stoppage (paragraph

317).

http://www.canlii.org/en/ca/scc/doc/1994/1994canlii39/1994canlii39.html

1. First Stated Objective: filling a lacunae or gap

78. With respect to the first stated objective, the Intervenor CUPE respectfully submits that

filling the lacunae or gap created by the absence of any statute regulating essential services

is not a pressing and substantial objective in a free and democratic society.

79. As stated in the Defendant Submissions at paragraph 52, at the time the PSESA was

introduced, Saskatchewan and Nova Scotia were the only two jurisdictions in Canada

without essential services legislation. However, it is Intervenor CUPE’s respectful

submission that the absence of such legislation in Saskatchewan, in and of itself, does not

justify the enactment of such legislation. Nova Scotia apparently continues not to see the

need so such is not obvious on its face and requires evidence – evidence that we submit is

absent in this case.

80. There must be an objective of sufficient importance to warrant overriding a Charter right

and the Intervenor CUPE respectfully submits that enacting legislation to simply address

the absence of legislation is not a sufficiently important objective. Further, it is also worth

noting that it has yet to be tested whether specific essential services legislation in other

Canadian jurisdictions meets the pressing and substantial objective.

2. Second Stated Objective: ensure sufficient level of essential services

81. With respect to the second stated objective, the Intervenor CUPE concedes that ensuring a

sufficient level of essential services in the public sector may, in certain circumstances, be

considered to be a pressing and substantial objective. However, the Intervenor CUPE

respectfully submits that there is little evidence to suggest that the Defendant’s underlying

concern in enacting the PSESA was, in fact, to ensure a sufficient level of essential services

in the public sector. Indeed, the scheme of the PSESA is inconsistent with such a stated

objective.

82. First, the Intervenor CUPE notes that s. 7(2) of the PSESA provides that ―the number of

employees in each classification who must work during the work stoppage to maintain

essential services is to be determined without regard to the availability of other persons to

provide essential services‖ (emphasis added). The Intervenor CUPE submits that if the

purpose and objective of the PSESA was truly to ensure a sufficient level of essential

services in the public sector, there would have been no reason for the Defendant to exclude

or disregard the availability of other persons to provide essential services. Rather, it might

leave it open to the Board to regulate the hours that can be worked by managers. For

example, in British Columbia, essential service designations are normally based on

excluded personnel working ten hours per day, six days per week.

Chantelle Management Ltd. (Operating Eden Intermediate Care Centre) (the

“Employer”) et al and British Columbia Nurses‟ Union (the “BCNU”) and Hospital

Employees‟ Union (“HEU”), [1993] B.C.L.R.B.D. No. 364, Intervenor CUPE Book

of Authorities, TAB 10

83. The inclusion of s. 7(2) in the PSESA would suggest that the purpose and objective of the

PSESA was not to ensure a sufficient level of essential services in the public sector. Rather

s. 7(2) supports the argument that the objective of the legislations is to diminish the ability

of the union affected to engage in meaningful collective bargaining by limiting its

bargaining power through restriction on its ability to potentially place economic pressure

on an employer.

84. Further, the Intervenor CUPE submits that considerable evidence has been presented that

an adequate level of services were maintained during previous work stoppages in the

public sector prior to the introduction of the PSESA. Given that essential services were

already being maintained during work stoppages in the absence of essential services

legislation, and the Defendant always has the ability to intervene in a labour dispute on an

ad hoc basis,10

the Intervenor CUPE respectfully submits that the Defendant has not

provided evidence that the PSESA is required to ensure a sufficient level of essential

services in the public sector.

85. The Intervenor CUPE has reviewed the submissions of the Employer Intervenors on the

10 See our discussion below on back to work legislation.

issue of the level of services maintained during previous work stoppages and wishes to

respond to the submissions of following Intervenors:

(a) The Intervenor Health Regions;

(b) The Intervenor University (Regina);

(c) The Intervenor University (Saskatchewan); and

(d) The Intervenor Municipalities.

86. In considering the following submissions, the Intervenor CUPE maintains it is appropriate

to consider again here that s. 7(2) of the PSESA expressly excludes the availability of non-

bargaining unit employees to provide essential services, despite the fact that such persons

were evidently capable of meeting much of the essential services needs of all employers

affected by CUPE strikes in the past.

a. The Intervenor Health Regions

87. In the Written Argument submitted on behalf of the Intervenor Health Regions (the

―Intervenor Health Regions Submissions‖), the Intervenor Health Regions stated at

paragraph 20 that the Intervenor CUPE had failed or refused to provide adequate essential

services to Saskatchewan residents during previous job action and this refusal and/or

failure resulted in danger to life, health and safety of Saskatchewan residents and

jeopardized the well-being of clients. The Intervenor CUPE respectfully disagrees with

these submissions.

88. In the Intervenor Health Regions Submissions, the Intervenor Health Regions noted that,

during the 1999 CUPE one-day work stoppage, ―57 elective surgery cases‖ were cancelled,

―all non-urgent diagnostic procedures were cancelled‖ and ―more than 500 patients with

scheduled appointments‖ were not able to be treated. The Intervenor Health Regions

further noted that, during the 2001 six-day work stoppage, ―elective procedures were

cancelled‖, ―patients were transferred out of province and to alternate provincial sites‖,

―public health services were limited to only dealing with issues of an emergent nature‖,

―all but the most serious cases were turned away‖ and ―Sunrise RHA had to resort to

ordering from restaurants for residents, as the meal services at Sunrise facilities were

staffed by CUPE members‖.

Intervenor Health Regions Submissions at parasgraphs 28, 30, 56 and 57

89. The Intervenor CUPE does not dispute disruptions in the services occurred. That is, the

Intervenor CUPE concedes that appointments were cancelled, elective procedures were

postponed, patients who would in normal circumstances have been admitted for

observation were turned away and certain public health services were limited to only

dealing with issues of an emergent nature.

90. Nonetheless, the Intervenor CUPE submits that these disruptions in services are an

inevitable concomitant of any work stoppage and indeed, the effectiveness of a strike

depends upon the ability to provide pressure on an employer. It must be emphasized over

and over, that it is the potential to disrupt services that establishes a union’s bargaining

power – if the threat of a strike is meaningless, an employer has no incentive to engage in

meaningful collective bargaining. Comprising the ability to carry out an effective strike

has a knock-on effect on collective bargaining.

91. One of the purposes of job action is to create a disruption in services in order to apply

pressure on an employer at the bargaining table. If a strike would not create such a

disruption and services continue to be provided on a ―business as usual‖ basis, the work

stoppage will be ineffective.

92. We submit that a societal goal in dealing with labour disputes is to ensure that if a strike

occurs it be as short as possible. This goal is evident in British Columbia Labour Relations

Board decisions to which we have referred in our Brief of Law, wherein it has been held

that the Board is entitled to take such steps necessary to shorten the duration of a labour

dispute by proceeding in a manner which places the maximum economic pressure on the

employees and the employer so that both parties will seek ways of concluding the labour

dispute, thus minimizing the negative impact the dispute necessarily has on the public

interest.

Chantelle Management Ltd. et al and British Columbia Nurses‟ Union and Hospital

Employees‟ Union, [1993] B.C.L.R.B.D. No. 364, Intervenor CUPE Book of

Authorities, TAB 10

Compass Group Canada (Health Services) and HEU (Re), BCLRB No. B72/2009,

(April 1, 2009), Intervenor CUPE Book of Authorities, TAB 11.

93. We note there that the CUPE health care strike of 1999 was settled after one day and in

2001 it lasted only six days. It is a given that an inequality of bargaining power leads to

lengthy strikes if employers are able to function otherwise.

94. The Intervenor CUPE respectfully submits that the important issue is not whether there

was a disruption in the regular services provided, but rather whether essential services were

maintained. The Intervenor CUPE respectfully submits that the essential services were, in

fact, maintained and notes that there was no evidence presented (or any suggestion) of any

actual harm to an individual that arose as a result of the 1999 or the 2001 work stoppages.

95. The Intervenor CUPE further notes that the Intervenor Health Regions specifically stated

at paragraph 64 of their submissions that ―no loss of life resulted from this disruption‖

and in fact, following the work stoppage in 2001, the Intervenor CUPE was even provided

with a letter from one of the Intervenor Health Regions specifically thanking the Intervenor

CUPE for reacting quickly and preventing the loss of two lives during the 2001 strike due

to the timely provision of essential services.

Transcript of Sinda Cathcart - LRB Hearing – pg. 223, line 1 to 25

96. In paragraph 87 of the Intervenor Health Regions Submissions, the Intervenor Health

Regions submitted that the evidence sets out a ―litany of examples of serious risk of harm

or fatality to clients‖. The Intervenor CUPE respectfully submits that no evidence was

presented to support this statement. The Intervenor CUPE concedes that the evidence sets

out a litany of examples of disruption to regular services and sets out examples of the

impact of the disruption on employers, non-unionized workers and volunteers.

97. The issue, we submit, is not whether employers, non-unionized workers and volunteers

experienced hardship as a result of the strike. The issue is whether essential services were

maintained and the Intervenor CUPE respectfully submits that there is a abundant evidence

supporting the position that essential services were maintained during these previous work

stoppages. In the 2001 strike, SAHO and CUPE even agreed on a process to maintain such

services.

Exhibit No. A-14, Memorandum from Laura Scott, SAHO and John Weldon, CUPE

to CEOs/Administrators of CUPE Member Agencies, Health District HR Contracts

re: Essential Services Discussions, filed with the Saskatchewan Labour Relations

Board by the Canadian Union of Public Employees, Local 3967 on December 17,

2010 – Return of the Board, Volume V - TAB 21

98. Given the foregoing, the Intervenor CUPE respectfully submits that, although there was a

disruption in the regular services provided, the evidence is that essential services were

maintained during the 1999 and 2001 CUPE strikes.

b. The Intervenor University (Regina)

99. In the Written Submissions on behalf of the Intervenor University (Regina) (the

―University (Regina) Submissions‖), the University submitted at paragraph 30 that,

during the 2007 work stoppage, the University was exposed to unacceptable risks. The

Intervenor CUPE respectfully disagrees with this submission.

100. In the University (Regina) Submissions, the University noted at paragraph 31 that, during

the 2007 work stoppage, it requested that the Intervenor CUPE Local 1975-01 provide the

services of employees in the areas of Campus Security, Technical Support, Clerical

Registration at the Dr. Paul Schwann Centre and Research Positions in laboratories, all of

which requests were denied by the Intervenor CUPE Local 1975-01. The Intervenor

CUPE does not dispute that these requests were denied. However, it is important to note

that these services were subsequently performed by outside contractors hired by the

University and by out-of-scope employees. This is expressly admitted in the University

(Regina) Submissions at paragraph 36. It is therefore clear that the University had the

resources available to maintain the services requested and that the services requested were,

in fact, maintained.

101. It is also important to note the issue is not ―who‖ maintained the essential services but

rather whether the essential services were maintained. The University appears to focus on

the fact that Intervenor CUPE Local 1975-01 refused to provide the requested services.

However, since the University had the resources available to maintain the services (i.e.

outside contractors and out-of-scope employees), the Intervenor CUPE was able to refuse

to provide the services without exposing the University to potential risks.

102. In the University (Regina) Submissions, the University also noted at paragraph 37 that,

during the 2007 work stoppage, it requested that the Intervenor CUPE Local 1975-01

provide the regular services of the Shift Engineers and Boiler Operators in the Central

Plant, which request was denied by the Intervenor CUPE Local 1975-01. The Intervenor

CUPE does not dispute that this request was denied. However, it is important to note that

The Boiler and Pressure Vessel Act, 1999 only requires one 1st or 2nd Class Shift Engineer

to be present at all times in the Central Plant and the University had two out-of-scope 1st

Class Shift Engineers to operate, maintain, monitor and perform system checks and boilers

and heating and cooling equipment in the Central Plant.

Reply Affidavit of Don Puff, March 2011 at paragraph 3(ii)

103. The University also noted at paragraph 38 of their submissions that CUPE refused to

provide relief coverage for the two out-of-scope 1st Class Shift Engineers in the Central

Plant and that, as a result of this refusal, the two employees faced considerable hardship.

The Intervenor CUPE does not dispute the initial denial of the requested services but notes

that the University's only request for the Intervenor CUPE Local 1975-01 to provide the

services of a Shift Engineer in the Central Plant was made at the initial meeting on

November 5, 2007. Following this initial meeting, the Intervenor CUPE was not advised

as to any difficulties facing these two out-of-scope 1st Class Shift Engineers and the

University did not make any additional requests for the services of a Shift Engineer in the

Central Plant. The Intervenor CUPE therefore disputes that any hardship faced by these

two out-of-scope 1st Class Shift Engineers was the result of any denial of services by

Intervenor CUPE Local 1975-01.

Reply Affidavit of Don Puff, March 2011 at paragraph 6

104. In the University (Regina) Submissions, the University submitted at paragraph 30 that

―While the University was fortunate that there was no serious damage to buildings,

infrastructure or equipment due to CUPE 1975’s failure to provide essential services, nor

any serious health or environmental outcomes at that time, this was only achieved as a

result of considerable hardship on the part of out-of-scope employees and by exposing the

University to unacceptable risks‖. The Intervenor CUPE respectfully submits that no

evidence was presented to support this statement. Although there is evidence that CUPE

Local 1975-01 refused to provide the requested services, there is also considerable

evidence that a sufficient level of essential services was maintained by outside contractors

and out-of-scope employees and there is no evidence to support the submission that the

University was exposed to unacceptable risks.

Reply Affidavit of Don Puff, March 2011 at paragraph 3

c. The Intervenor University (Saskatchewan)

105. In the Brief of Law and Argument on behalf of the Intervenor University (Saskatchewan)

(the ―University (Saskatchewan) Submissions‖), the University submitted at paragraph

48 that, during the 2007 work stoppage, many critical areas of the University operations

were left exposed to potential failure. The Intervenor CUPE disputes this submission and

notes that evidence was presented which directly contradicted this submission. In

particular, the Intervenor CUPE notes that in the Reply Affidavit of Lois Lamon, Ms.

Lamon specifically stated that ―the University had the requisite personnel to maintain all

essential services and there is no reason why any of these areas would have been left

exposed to potential failure.‖

Reply Affidavit of Lois Lamon, March 2011 at paragraph 4

106. At paragraph 52 of the University (Saskatchewan) Submissions, the University

commented on Ms. Lamon’s statements in this respect and suggested that these statements

were simply Ms. Lamon’s ―statement of belief without any supporting grounds or basis for

her belief‖. In response to these comments, the Intervenor CUPE notes that Ms. Lamon

was not challenged in her statements, either by reply affidavit or through cross-

examination. As such, the Intervenor CUPE respectfully submits that this evidence, being

uncontradicted, ought to be accepted in its entirety and there is no basis for the University

to now challenge the accuracy of these statements.

107. In the University (Saskatchewan) Submissions, the University also noted at paragraph

51(b) that, during the 2007 work stoppage, several animals had to be euthanized due to

accidental injury or upset caused by inexperienced handlers redeployed to replace

Intervenor CUPE 1975 members. The Intervenor CUPE does not dispute this statement.

However, it is important to note that evidence was presented that animals at the University

are handled by unskilled handlers on a daily basis regardless of whether or not a strike is

ongoing and that animals at the University are euthanized daily.


108. The University commented on this evidence and stated at paragraph 51(b) that ―there is

both a practical and an ethical world of difference between euthanizing animals in the

course of approved research protocols, and euthanizing animals because of trauma, stress

or injury from inappropriate or inexperienced handling, let alone causing cannibalization of

young due to maternal distress‖. The Intervenor CUPE agrees entirely with this statement

but notes the Intervenor CUPE employees represent only 20-25 percent of the employees at

the Western College of Veterinary Medicine. Furthermore, evidence was presented that

the University had other skilled out of scope personnel available to handle the animals,

including Veterinarians, Clinical Interns, Graduate Students and Residents and as such,

there should have been only a minimal, if any, increase in the number of unskilled handlers

dealings with the animals during the strike. As such, the rate of euthanizations during the

strike should have been no different than the normal rate of euthanizations.


109. At paragraph 51(g) of their submissions, the University stated that the absence of support

staff in specialized clinics in the areas of paediatrics, oncology and in vitro fertilization

created chaos. The Intervenor CUPE disagrees with these submissions and notes that

evidence was presented which directly contradicts these submissions. In particular, the

Intervenor CUPE notes that at paragraph 10 of the Reply Affidavit of Lois Lamon, March

2010, Ms. Lamon stated as follows:

All appointments in the clinics were pre-booked for a period ranging from six weeks

to three months in advance. Therefore, the absence of support staff should not have

affected normal bookings. Furthermore, all patients arriving at the clinics for their

scheduled appointments are admitted through Admitting at Royal University

Hospital and as such, admitting of patients arriving at the clinics should not have

been affected either. The only services that would have been affected would have

been the rescheduling of cancelled appointments, the scheduling of new

appointments and miscellaneous clerical duties. This may have created some delays

and disruptions, but certainly would not have created chaos or made the clinics

impossible to run.

110. The University commented on Ms. Lamon’s statements at paragraph 51(g) of their

submissions and suggested that these statements demonstrated a ―simplistic approach to a

very complex facility‖. In response to these comments, the Intervenor CUPE again notes

that Ms. Lamon was not challenged in her statements, either by reply affidavit or through

cross-examination. As such, the Intervenor CUPE respectfully submits that this evidence,

being uncontradicted, ought to be accepted in its entirety and there is no basis for the

University to now challenge the accuracy of these statements.

111. In the University (Saskatchewan) Submissions, the University submitted at paragraph 56

that ―While management, out-of-scope employees and volunteers mustered an

extraordinary effort to maintain all of these critical U of S operations during the 2007

strike, it was really only ―pure luck‖ that enabled the U of S to avoid any one of a number

of potential disasters‖. Although the Intervenor CUPE disputes that it was only ―pure

luck‖ that enabled to University to avoid disaster, the Intervenor CUPE agrees with the

University that management, out-of-scope employees and volunteers were able to maintain

the critical University operations. That is, management, out-of-scope employees and

volunteers (as well as the Intervenor CUPE employees that provided services) were able to

maintain essential services at the University during the work stoppage. Although this may

have only been achieved by considerable efforts on the part of the management, out-of-

scope employees and volunteers, the maintenance of essential services was none-the-less

achieved.

112. It is appropriate to note here, that as per the above submissions, the associated Defendant’s

statements at paragraphs 49 – 51 with respect to the 2007 strike at the University of

Saskatchewan cannot be substantiated on the evidence.

d. The Intervenor Municipalities

113. In the Trial Brief of the Intervenor Municipalities (the ―Municipalities Submissions‖), the

Intervenor Municipalities submitted at paragraph 51 that, during the 1994 work stoppage

in the City of Saskatoon, the City was able to manage core essential services. The

Intervenor CUPE agrees with these submissions. Certainly that must have been the case

given that the labour dispute was also a full lockout by the employer (see below).

114. The Intervenor Municipalities further submitted at paragraph 51, however, that the City

of Saskatoon ―would not, for a variety of reasons, be able to maintain such services if a

general strike were to happen today‖. The Intervenor CUPE respectfully disagrees.

115. Firstly, we note that this statement is wholly unsupported by the evidence presented. That

is, there is no suggestion, in any of the evidence filed that the City of Saskatoon would not

be able to maintain essential services if a general strike were to happen today. In the

Affidavit of Judy Schlechte, February 2011, Ms. Schlechte does state at paragraph 19 that

without the legislation, ―staffing for the provision of essential services to the public in the

event of a labour dispute in the City of Saskatoon would be much less certain.‖ However,

uncertainty with respect to staffing in maintaining essential services is different that a

definite inability to maintain the services themselves through other employees or persons

or by agreement, if required, with the unions affected.

116. Secondly, it is important to note that the work stoppage that took place in 1994 was not a

―general strike‖, but a lockout of employees. The City did not try to keep anyone back.

For example, the City made no request that the Intervenor CUPE Local 47 (waste water

and water services) provide any members to undertake essential services during this

lockout: see the Affidavit of Kim Heuchert, March 2011 at paragraphs 4 and 5. It was the

City’s decision to operate without seeking such assistance. Further, there was no evidence

of any attempt to seek such assistance from the other two CUPE locals, Locals 59 (inside

workers) and 859 (outside workers) or that any such requests, if they had been made,

would have been refused.

117. In the Municipalities Submissions, the Intervenor Municipalities further submitted at

paragraph 48 that, during the 2005 work stoppage in the City of Regina, the City was able

to maintain most of the essential services. The Intervenor CUPE agrees with these

submissions. The Intervenor Municipalities further submitted at paragraph 48,

however, that the City of Regina ―could not, in general, expect to maintain the required

level of essential services during a prolonged strike‖. The Intervenor CUPE disagrees with

this submission.

118. Although the Intervenor CUPE acknowledges that, during a prolonged strike, there may be

an increasing need for the services of the Intervenor CUPE members to maintain essential

services, there is no evidence to suggest that the Intervenor CUPE would refuse a request

for such services. The City did not at any point during the 2005 work stoppage request that

the Intervenor CUPE Local 21 provide any members to undertake essential services.

However, had the strike been prolonged and the services of members been needed to

maintain essential services, there is no evidence to suggest that requests would have been

denied.

3. Third Stated Objective: mitigate public harm

119. With respect to the third stated objective, the Intervenor CUPE similarly submits that

mitigating harm experienced by members of the public is not, on the facts before this

Honourable Court, a pressing and substantial objective of this legislation. There was no

such evidence submitted by the Defendant and the purpose of the Act, as noted above can

be read otherwise on its face.

120. Thus, the Intervenor CUPE also respectfully submits that there was no evidence presented

to suggest that the Defendant’s underlying concern in enacting the PSESA was, in fact, to

ensure a sufficient level of essential services in the public sector. Indeed, to re-state, if the

purpose and objective of the PSESA was truly to ensure a sufficient level of essential

services in the public sector, there would have been no reason for the Defendant to include

a provision that disregards the availability of other persons to provide essential services.

121. Finally, the Intervenor CUPE notes that there was no evidence of any actual harm during

previous work stoppages in the public sector. In the absence of any evidence of actual

harm, the Intervenor CUPE respectfully submits that minimizing harm is not a pressing

and substantial objective.

(ii) The Trade Union Amendment Act, 2008

Objective of the TUAA, 2008

122. In the Written Submissions, the Defendant has indicated that the governmental objectives

behind the enactment of the TUAA, 2008 were as follows:

(1) to ensure that Saskatchewan’s labour legislative environment must also be

competitive with other Canadian jurisdictions, if the Saskatchewan economy is to

realize its potential (paragraph 320); and

(2) to maintain the economic well-being of this province in turbulent economic times

(paragraph 323).

123. For the reasons that follow, the Intervenor CUPE respectfully submits that ensuring

―competitiveness‖ and maintaining ―economic well-being‖ are not, on the facts before this

Honourable Court, pressing and substantial objectives.

124. Firstly, the Intervenor CUPE respectfully submits that the stated objective of ensuring

―competitiveness‖ is vague and does not provide an express statement of an underlying

concern of the Defendant in enacting the legislation. However, the Fraser Institute studies

submitted by the Defendant advocate reduced unionization as a policy objective by

claiming unions are a drag on labour market flexibility which affects business success.

Such a policy, we submit, is inconsistent with the right of employees to associate in trade

unions. Providing barriers to association we submit cannot be a legitimate objective, let

alone one that is pressing and substantial. In this regard we also note that the 1944 ILO

Declaration of Philadelphia provides as its initial provisions that ―labour is not a

commodity‖. Competition based on restricting or limiting worker rights is inconsistent

with such a principle.

See our submissions on this point at paragraphs 198ff of Intervenor CUPE Brief of

Law and the ILO Declaration of Philadelphia,

http://www.ilocarib.org.tt/projects/cariblex/conventions_23.shtml. TAB ―H‖ to these

submissions.

125. In the alternative, if the objective the enactment of the TUAA, 2008 was simply to ensure

Saskatchewan’s labour environment was ―competitive‖ and such can be considered an

appropriate objective, the Intervenor CUPE notes that there is no evidence to suggest that,

prior to the enactment of the TUAA, 2008, Saskatchewan’s labour environment was not

competitive. As noted below, it may have been different than legislation in other Canadian

jurisdictions, but that does not mean the labour environment was uncompetitive. There

was simply no evidence presented in this respect and thus, we submit that any suggestion

that the labour environment in Saskatchewan affected the decisions of business to locate or

operate in this province prior to the enactment of the TUAA, 2008 is without any factual

foundation.

126. In this regard we note:

the 2007 Fraser Institute study relied upon by the employer ,―Measuring Labour

Markets in Canada and the United States: 2007‖, listed Saskatchewan as No. 10

out of 60 Canadian and US jurisdictions in terms of labour market performance,

yet 58 out of 60 in ―the second section of the study identifies and measures key

characteristics and regulations that affect labour market performance in each of

the 60 jurisdictions‖ (see our discussion at paragraphs 56 – 61 of the Intervenor

CUPE Brief of Law11

).

the ―Canadian Provincial Investment Climate: 2007 Edition‖ study by the Fraser

Institute submitted by the Defendant lists Saskatchewan as No. 3 as a market for

investment, yet No. 10 in labour market regulation (see the discussion at

paragraphs 62 – 64 of our Brief of Law.

11 Please note that in paragraph 55 of our Brief of Law, we incorrectly referred to this document, which is Exhibit

―A‖ to the Affidavit of Patricia Parenteau, No.2, dated December 14, 2010, as ―Canadian Provincial Investment

Climate: 2007 Edition‖. The latter document is actually Exhibit ―B‖ to that affidavit.

http://www.ilocarib.org.tt/projects/cariblex/conventions_23.shtml

The Fraser Institute studies thus do not establish any economic urgency justifying the

introduction of Bills 5 and 6.

127. Thus, if the Defendant’s stated objective of ensuring ―competitiveness‖ is simply referring

to Saskatchewan’s labour laws being the same as labour laws in other jurisdictions, there

was no evidence presented to suggest that this difference in legislation negatively impacted

on the ―competitiveness‖ of Saskatchewan’s labour environment. The Intervenor CUPE

therefore submits that, in the absence of establishing a negative impact resulting from the

differing legislation, ensuring the labour laws in Saskatchewan are consistent with the

labour laws in other jurisdictions is not an objective of sufficient importance to warrant

overriding a Charter right.

128. Thirdly, the Intervenor CUPE notes that certain provisions of the TUAA, 2008 specifically

enhance the rights of employers (see: amendment to s. 11(1)(a) of The Trade Union Act).

The Intervenor CUPE further notes that evidence presented established that, consistent

with the experience in other Canadian provinces, the mandatory votes provisions of the

TUAA, 2008 have the effect of decreasing the rates of certifications or unionization in the

province. Therefore, the scheme of the TUAA, 2008 would suggest that the Defendant’s

underlying concern was to enhance the rights of employers and, as noted above, decrease

unionization.

129. The issue of enhancing the rights of employers was discussed by the Supreme Court of

Canada in BC Health Services. At paragraph 147, McLachlin C.J. and Lebel J. stated that

it was not clear, on the facts of that case, that increasing management power was an

objective that was pressing and substantial in a free and democratic society. The

Intervenor CUPE similarly submits that, if the Defendant’s underlying concern was to

enhance the rights of employers and decrease unionization, as advocated by the Fraser

Institute, that is not a sufficiently important objective to warrant overriding a Charter right.

BC Health Services, Intervenor CUPE Book of Authorities, TAB 2

B. Is there a rational connection between the objective and means chosen to achieve the

objective?

(i) PSESA

130. With respect to the first stated objective, namely, filling the gap in the law created by the

absence of any statute regulating essential services, while the Intervenor CUPE disputes

the objective itself as being pressing and substantial in these circumstances, it concedes

that the enacting essential services legislation is rationally connected to addressing the

absence of essential services legislation.

131. However, with respect to the second stated objective, namely, to ensure a sufficient level of

essential services in the public services, the Intervenor CUPE respectfully submits that

there is no rational connection between the objective and the means chosen to achieve the

objective. The Intervenor CUPE submits that the presence of s. 7(2) of the PSESA alone

refutes any such ―rationale connection‖. That is, it is ―irrational‖ to exclude non-bargaining

unit employees from essential services consideration if the intention is to ensure a

sufficient level of essential services in the public services provided to residents.

132. With respect to the third stated objective, namely, to mitigate the harm experienced by

members of the public, the Intervenor CUPE similarly submits that there is no rational

connection between the objective and the means chosen to achieve the objective. The

Intervenor CUPE submits that the presence of s. 7(2) of the PSESA similarly refutes any

such ―rationale connection‖. That is, it is ―irrational‖ to exclude non-bargaining unit

employees from essential services consideration if the intention is to mitigate the harm

experienced by members of the public.

133. Further, s. 2(k) of the PSESA in defining ―work stoppage‖ states that a strike is one within

the meaning of The Trade Union Act. S. 14 of the Act provides that ―no essential services

employee shall participate in a work stoppage against his or her employer‖. Thus, given

the expansive definition of ―strike‖ under the TUAA,12

the Act prohibits employees from

engaging in strike activity that is short of an actual full or partial withdrawal of services. It

would even appear to capture activity designed to provide essential services, while

declining to perform non-essential services.

(ii) TUAA, 2008

134. In the Written Submissions, the Defendant stated at paragraph 328 that amending certain

aspects of the TUA, 2008 to bring the labour regime operating in this province in line with

other provinces achieves the government’s objectives. Presumably, the Defendant is

referring to the stated objectives of ensuring Saskatchewan’s labour environment is

competitive and maintaining the economic well-being of the province. For the reasons that

follow, the Intervenor CUPE disagrees that the TUAA, 2008 achieves the Defendant’s

stated objectives.

135. Firstly, as noted, the Intervenor CUPE respectfully submits that there is no evidence to

suggest that enacting the TUAA, 2008 makes Saskatchewan’s labour environment more

competitive with other jurisdictions. Although the enactment may bring the labour

legislation in Saskatchewan in line with aspects of other jurisdictions, there is nothing to

suggest that such an enactment makes Saskatchewan more competitive per se as a result.

Policies to improve the quality of the workforce (education, training), for example, would

have a rational connection to competitiveness on their face, but we submit such is not the

case with respect to amendments to The Trade Union Act.

136. Secondly, the Intervenor CUPE respectfully submits that there is no evidence to suggest

12 S.2(k.1) of the TUA provides:

―strike‖ means any of the following actions taken by employees:

(i) a cessation of work or a refusal to work or to continue to work by employees acting in

combination or in concert or in accordance with a common understanding; or

(ii) other concerted activity on the part of employees in relation to their work that is designed to

restrict or limit output or the effective delivery of services.

that enacting the TUAA, 2008 maintains the economic well-being of the province. There

was simply no evidence presented in this respect and the Intervenor CUPE respectfully

submits that any suggestion that enacting the TUAA, 2008 maintains the economic well-

being of the province is without foundation. For example, the Defendant has led no

evidence to suggest that the well-being of the province was at risk without the legislative

amendments.

137. The Intervenor CUPE concedes, however, that if the objective of enacting the TUAA, 2008

was to enhance the rights of employers and decrease unionization, as the scheme of the

legislation would suggest, there would be a rational connection between the objective and

the means chosen to achieve that objective. An improper objective, we maintain, but one

certainly connected to the legislation.

C. Is the impugned law minimally impairing?

138. In the Written Submission, the Defendant submitted at paragraph 337 that the PSESA and

the TUAA, 2008 fall within a range of reasonable legislative alternatives and as such,

impair the Intervenor CUPE’s rights under s. 2(d) as little as possible. The Intervenor

CUPE disagrees with these submissions.

139. In BC Health Services, the Supreme Court of Canada discussed the requirements of the

third stage of the Oakes analysis at paragraph 150:

At the third stage of the Oakes test, the court is directed to inquire whether the

impugned law minimally impairs the Charter right (Oakes, at p. 139, citing Big M

Drug Mart, at p. 352). The government need not pursue the least drastic means of

achieving its objective. Rather, a law will meet the requirements of the third stage of

the Oakes test so long as the legislation "falls within a range of reasonable

alternatives" which could be used to pursue the pressing and substantial objective

(RJR-Macdonald Inc. c. Canada (Procureur général), [1995] 3 S.C.R. 199 (S.C.C.),

at para. 160).

BC Health Services, Intervenor CUPE Book of Authorities, TAB 2

140. For the reasons that follow, the Intervenor CUPE respectfully submits that the PSESA and

the TUAA, 2008 do not fall within a range of reasonable alternatives and as such, impair

the Intervenor CUPE’s Charter protected rights more than is reasonably necessary to

achieve their stated purposes.

(i) PSESA

141. The Defendant has submitted at paragraph 332 of their submissions that by adopting the

designation model and affording unions the opportunity to challenge designation levels

before the Saskatchewan Labour Relations Board, the PSESA impairs the rights under s.

2(d) as little as possible. The Intervenor CUPE disagrees with these submissions.

142. Firstly, the Intervenor CUPE notes that s. 7(2) of the PSESA expressly excludes the

availability of non-bargaining unit employees to provide essential services. As such, an

employer in Saskatchewan covered by the PSESA can operate with a level of designated

employees based on its unilateral determination of essential services, performing the full

range of their work and does not even have to consider the ability of managers, contractors

or replacement workers to provide essential services in the event of a work stoppage.

Given the fact that such persons were evidently capable of meeting much of the essential

services needs of all employers affected by CUPE strikes in the past, excluding these

persons from consideration when determining designation levels is clearly not minimally

impairing.

143. We note here that the Saskatchewan Labour Relations Board in the only decision to date

with respect to the PSESA, CUPE and Regina Qu‟Appellee Health Region, determined that

it would not it would not ―be inclined‖ to split the difference or ―interpolate‖ an alternate

number with a goal of finding some theoretically-reasonable middle ground‖. At

paragraph 121 (4) the Board states:

4. In adjudicating applications before it pursuant to the PSES Act, because of the

short time frame for adjudication, the Board will tend to examine the evidence and

rationale of the parties and select the position of the party that best adheres to the

above stated guideline. In other words, in deciding the number of employees

which the Board deems is necessary to maintain essential services within

disputed classifications, the Board will select the position of one (1) party or the

other (not unlike pendulum or final offer arbitration, wherein the arbitrator selects

the most ―reasonable‖ of competing positions). Generally speaking, the Board will

not be inclined to “split the difference”, so to speak, or attempt to interpolate an

alternate number with a goal of finding some theoretically-reasonable middle

ground.

CUPE Local 3967 and RQHR, supra, TAB ―G‖ to these submissions.

144. Given the Board’s approach, there is no guarantee that a Final Offer approach will protect

essential services as defined under the Act while impairing to the minimum the ability of

the union to carry out strike activity.

145. Secondly, the Intervenor CUPE notes that the definition of essential services in the PSESA

stands in stark contrast to the definitions of essential services in other Canadian provinces.

For example, in British Columbia, the definition of essential services, which can found in

Part 6 of the British Columbia Labour Relations Code, provides as follows:

72 (1) If a dispute arises after collective bargaining has commenced, the chair may,

on the chair's own motion or on application by either of the parties to the dispute,

(a) investigate whether or not the dispute poses a threat to

(i) the health, safety or welfare of the residents of British Columbia, or

(ii) the provision of educational programs to students and eligible children

under the School Act,

[Emphasis Added]

146. In New Brunswick, the definition of essential services can be found in the Public Service

Labour Relations Act at s. 43.1(1):

In relation to any bargaining unit the employer may, within the time limits

established under subsection (2), by notice in writing advise the Board and the

bargaining agent for the relevant bargaining unit that the employer considers in

whole or in part the services provided by the bargaining unit to be essential in the

interest of the health, safety or security of the public.

[Emphasis Added]

147. These definitions of essential services ensure that the systems established to regulate

essential services will be based on the health, safety and security of residents of their

province. The definition of essential services in the PSESA is much broader and provides

not only for the prevention of danger to life, health and safety, but also for the prevention

of destruction or serious deterioration of machinery, equipment or premises and serious

environmental damage. Such a definition provides for a disproportionate designation of

employees compared to the services that can be considered essential and, in fact, does not

provide for provision of essential service during a labour dispute but rather, in effect, for

maintenance of full services, including those not essential.

148. The Intervenor CUPE respectfully submits that the PSESA does not even fall within the

same range as essential services legislation enacted in other Canadian provinces and

therefore can certainly not be considered to fall within a range of reasonable alternatives

which could be used to pursue their stated objectives.

149. Thirdly, the Intervenor CUPE further notes that in the Canada Labour Code, s. 87.4(8)

provides that a union may apply to the Board to order interest arbitration if the level of

designations arising from a decision of the Board were to render a strike ineffective. This is

a provision consistent with international law whereby those whose right of strike is

properly limited under an essential services assessment must have an appropriate binding

alternative dispute resolution mechanism available. Parliament has thereby expressly

recognized the nexus between the ability to negotiate a collective agreement (i.e. collective

bargaining) and the right to strike. There is no such mechanism in the PSESA, which

provides for high levels of designation without the ability of a union to challenge the

essentiality of the claim that the service is even essential. It is therefore apparent that the

PSESA does not even fall within the same range as federally enacted legislation.

150. Fourthly, the Intervenor CUPE respectfully submits that the enactment of ―back-to-work‖

legislation on a case-by-case basis would impair the Intervenor CUPE’s Charter protected

rights less than the enactment of the PSESA. Saskatchewan has a history of enacting

―back-to-work‖ legislation which has been effective in ending strikes in the public sector

on an ad hoc basis. However, despite the effectiveness of such legislation, the Defendant

presented no evidence to suggest that such an alternative was even considered. Evidently it

was a sufficient means of protecting the public interest in the past.

Collective Bargaining in Canada: Human Right or Canadian Illusion (Nepean:

National Union of Public and General Employees, 2005) at 104

151. Fifthly, the Intervenor CUPE respectfully submits that the unilateral designation scheme in

the PSESA provides employers with the ability to take an over-inclusive approach to its

designation of essential services with the intention of defeating the union’s bargaining

power. Examples of such an approach under the PSESA include:

(i) the designations in the Regina Qu’Appelle Health Region in 2009 wherein

approximately eighty-seven (87%) percent of all Intervenor CUPE Local 3967

members were designated as essential;

Transcript of Sinda Cathcart - LRB Hearing – p. 207, line 19 to p. 218, line 19

(ii) the designations in the Prairie North Health Region in 2009 wherein approximately

seventy-three (73%) percent of all Intervenor CUPE Local 5111 members were

designated as essential;

Affidavit of Brian Manegre, December 2010 at paragraph 19

(iii) the designations in the Prince Albert Parkland Health Region in 2009 wherein

approximately 72% percent of all Intervenor CUPE Local 4777 members were

designated as essential;

Affidavit of Carol McKnight, December 2010 at paragraph 19

(iv) the designations in the Sunrise Health Region in 2009 wherein approximately 89%

percent of all Intervenor CUPE Local 4980 members were designated as essential;

and

Affidavit of Pearl Blommaert, December 2010 at paragraph 19

(v) the designations in the Sun Country Health Region in 2009 wherein approximately

85% percent of all Intervenor CUPE Local 5999 members were designated as

essential.

Affidavit of Sandra Seitz, December 2010 at paragraph 19

152. The Intervenor CUPE does concede that there are employers that perhaps have not taken

an over-inclusive approach to their designation of essential services. As mentioned in the

University (Saskatchewan) Submissions at paragraph 60, approximately 15.5% of the

approximately 1,800 members employed at the U of S have been designated as essential.

As mentioned in the University (Regina) Submissions at paragraph 53, the designation

level at the University of Regina is approximately 15.6%.

153. Nonetheless, we submit that the important issue is not whether all employers are taking an

over-inclusive approach to their designation of essential services, but rather whether the

PSESA provides the employers with the ability to take such an approach. In this respect,

the Intervenor CUPE submits that it is clear, as evidenced in the various health regions

referred to above, that the PSESA does provide employers with ability to take such an

approach with the intention of defeating the union’s bargaining power.

154. In this regard, we also again note the failure to include an alternative dispute resolution

mechanism in the legislation, or the ability to so request as exists in the Canada Labour

Code essential services provisions. Minimal impairment of the ability to conduct

meaningful collective bargaining would, we submit, at the very least requires an alternative

to balance off the loss of the ability to carry out an effective strike. The failure to

incorporate such here thus confirms that this is legislation is not really about protecting

essential services, but about limiting union bargaining power.

155. Finally, we also note that s. 2(k) of the PSESA, by incorporating the definition of a strike

set out in The Trade Union Act (see above), would capture all forms of concerted activity,

even if such did not impair the provision of essential services as defined under the PSESA.

156. In light of the foregoing, the Intervenor CUPE respectfully submits that the PSESA does

not fall within a range of reasonable alternatives and as such, impairs the Intervenor

CUPE’s Charter protected rights more than is reasonably necessary to achieve its stated

purposes.

(ii) TUAA, 2008

157. The Intervenor CUPE respectfully submits that the TUAA, 2008 does not fall within a

range of reasonable legislative alternatives so as to be saved by s. 1 of the Charter.

158. As mentioned above, the stated objectives of the TUAA, 2008 are to ensure that

Saskatchewan’s labour environment is ―competitive‖ with other Canadian jurisdictions and

to maintain the ―economic well-being of this province‖ in turbulent economic times. In the

absence of evidence to support a finding that (a) the stated objectives of the TUAA, 2008

are legitimate objectives; and (b) the TUAA, 2008 achieves these stated objectives, it is

effectively impossible to determine whether the TUAA, 2008 falls within a range of

reasonable legislative alternatives.

159. Furthermore, the Intervenor CUPE simply notes that ensuring ―competitiveness‖ and

maintaining ―economic well-being‖ can be achieved in the Province of Saskatchewan in

the absence of this legislation. It is unquestionable that Saskatchewan was, prior to the

enactment of the TUAA, 2008, able to maintain its economic well-being and was able to be

competitive with other Canadian jurisdictions and there was no evidence presented to

suggest otherwise. The Intervenor CUPE therefore respectfully submits that TUAA, 2008

clearly impairs the Intervenor CUPE’s Charter protected rights more than is reasonably

necessary to achieve its stated purposes.

D. Is there proportionality between the salutary and deleterious effects?

160. In Oakes, Dickson C.J. explained the function of this step of the proportionality analysis as

follows:

Some limits on rights and freedoms protected by the Charter will be more serious

than others in terms of the nature of the right or freedom violated, the extent of the

violation, and the degree to which the measures which impose the limit trench

upon the integral principles of a free and democratic society. Even if an objective

is of sufficient importance, and the first two elements of the proportionality test

are satisfied, it is still possible that, because of the severity of the deleterious

effects of a measure on individuals or groups, the measure will not be justified by

the purposes it is intended to serve. The more severe the deleterious effects of a

measure, the more important the objective must be if the measure is to be

reasonable and demonstrably justified in a free and democratic society. [pp. 139-

40]

161. Although the Intervenor CUPE notes that there has been some debate as to the utility of

this fourth component of the Oakes test, the Intervenor CUPE submits that the recent

decision of the Supreme Court of Canada in Alberta v. Hutterian Brethren of Wilson

Colony13

has given fresh life to this element of the analysis. At paragraph 76, McLachlin

C.J. stated as follows:

[76] It may be questioned how a law which has passed the rigours of the first three

stages of the proportionality analysis — pressing goal, rational connection, and

minimum impairment — could fail at the final inquiry of proportionality of

effects. The answer lies in the fact that the first three stages of Oakes are anchored

in an assessment of the law’s purpose. Only the fourth branch takes full account of

the ―severity of the deleterious effects of a measure on individuals or groups‖. As

President Barak explains:

Whereas the rational connection test and the least harmful measure test are

essentially determined against the background of the proper objective, and

are derived from the need to realize it, the test of proportionality (stricto

13 [2009] 2 S.C.R. 567, 2009 SCC 37.

sensu) examines whether the realization of this proper objective is

commensurate with the deleterious effect upon the human right. . . . It

requires placing colliding values and interests side by side and balancing

them according to their weight. [p. 374]

In my view, the distinction drawn by Barak is a salutary one, though it has not

always been strictly followed by Canadian courts. Because the minimal

impairment and proportionality of effects analyses involve different kinds of

balancing, analytical clarity and transparency are well served by distinguishing

between them. Where no alternative means are reasonably capable of satisfying

the government’s objective, the real issue is whether the impact of the rights

infringement is disproportionate to the likely benefits of the impugned law. Rather

than reading down the government’s objective within the minimal impairment

analysis, the court should acknowledge that no less drastic means are available

and proceed to the final stage of Oakes.

(i) PSESA

162. In the Written Submissions, the Defendant states at paragraph 339 that recent events

demonstrate that in spite of the PSESA, unions are able to negotiate and conclude collective

agreements and if necessary exercise the right to strike and as such, there is proportionality

between the effects of the PSESA on the protected freedom and its legislative objective.

For the reasons that follow, the Intervenor CUPE respectfully disagrees.

163. Firstly, the Intervenor CUPE concedes that unions, including CUPE, have been able to

negotiate and conclude collective agreements. However, the important issue is not whether

unions have been able to conclude collective agreements, but rather whether the PSESA

has impacted on the union’s ability to exert effective influence and pressure in the

collective bargaining process; in other words, to engage in meaningful collective

bargaining. In any event, caution must be exercised in determining constitutional issues

based on what has happened to date. Rather, the focus is what the legislation permits to

happen.

164. Such is reflected where, following the enactment of the legislation, the Intervenor CUPE

was able to conclude a collective agreement with the health care regions through their

bargaining agent, the Saskatchewan Association of Health Organizations (SAHO). As a

result of the union’s inability to carry out an effective strike due to the high essential

services designation levels of approximately seventy-two (72%) percent to eighty-nine

(89%) percent, the employers faced little risk of disruption and the threat of a strike little

consequence.

165. As a result, the Intervenor CUPE was unable to exert effective influence and pressure in

the collective bargaining process and as such, was required make a number of concessions

and was unable to achieve many improvements to the terms and conditions of employment

for their members. Nonetheless, the Intervenor CUPE believed that it was necessary to

conclude a collective agreement in order to protect their membership from further loss and

it must be noted that this was only the first round under the PSESA framework.

Transcript of Sinda Cathcart - LRB Hearing – paragraphs 22 to 24

Cross Examination of Pearl Blommaert, March 23, 2011 – p. 26, line 8 to p. 28, line

24

166. The Intervenor CUPE concedes that the enactment of the PSESA has not, in every

circumstance, had the same effect as between the balance of power at the bargaining table.

In certain circumstances, such as at the University of Saskatchewan and the University of

Regina, the parties have entered into essential services agreements with lower designation

levels than the health regions demanded and as such, the Intervenor CUPE is likely still

able to exert effective influence and pressure in the collective bargaining process. There is

no guarantee such will be the case in the future if this legislation is upheld.

167. Again, however, the important issue is not the effect of the PSESA in every circumstance

to date, but rather the impact that the PSESA is capable of having, as evidenced in the

various health regions. That is, the PSESA is clearly capable of negating the union’s ability

to exert effective influence and pressure in the collective bargaining process. It is this

impact of the PSESA on the union’s ability to exert effective influence and pressure on the

employer that is important.

168. Here we again note the failure to include an alternative dispute resolution process in the

PSESA to counter any loss of the ability to conduct an effective strike (see the Canada

Code at s. 87.4(8)). The absence of such a means that would not ensure an employer

domination of the collective bargaining outcome says much in considering proportionality.

169. Secondly, the Intervenor CUPE respectfully submits that no evidence was presented as to

any salutary effects of the PSESA and the Intervenor CUPE contests whether any such

salutary effects exist. Although the Defendant and the Employer Intervenors have

submitted that the PSESA creates a framework for the establishment of essential services,

the Intervenor CUPE notes that considerable evidence has been presented that an adequate

level of services were maintained during previous work stoppages in the public sector,

prior to the introduction of the PSESA. As such, the Intervenor CUPE disputes that the

creation of a framework for the establishment of essential services is a salutary effect of the

legislation.

170. In light of the impact of the PSESA on the union’s ability to exert effective influence and

pressure in the collective bargaining process and the absence of evidence of salutary effects

of the legislation, the Intervenor CUPE respectfully submits that the impact of the rights

infringement of the PSESA is clearly disproportionate to any benefits of the legislation.

(ii) TUAA, 2008

171. In the Written Submissions, the Defendant stated at paragraph 342 that, with respect to

the TUAA, 2008, changes to the certification process have not had an appreciable effect on

unionization rates in Saskatchewan and as such, there is proportionality between the effects

of the TUAA, 2008 on the protected freedom and its legislative objective. For the reasons

that follow, the Intervenor CUPE respectfully disagrees.

172. Firstly, the Intervenor CUPE respectfully submits that the TUAA, 2008 amendments have

had an appreciable effect on unionization rates in Saskatchewan. The Intervenor CUPE

presented evidence that the movement to mandatory vote regime in Saskatchewan has

resulted in a decline in union certification success in the private sector of approximately

twenty (19.6%) percent. The decline is higher if controls on the statistical analysis are

applied – up to a 25.8% decline.

Riddell Study at p. 8

173. The Intervenor CUPE further presented evidence that studies on the impact of mandatory

votes (or ―compulsory election laws in the United States‖) establish a reduction in union

certification success. While there tends to be little discernable effect on public sector

certification success rates, the private sector rates drop upwards of twenty (20%) percent

when mandatory votes are implemented. Furthermore, evidence was presented that the

introduction in Saskatchewan of compulsory elections with no time limits on the elections

would imply a reduction in union certification success rates by perhaps an even greater

magnitude that seen in other jurisdictions in Canada where mandatory time limits for a

vote apply.

Reply Affidavit of Chris Riddell, Exhibit ―A‖ (the ―Riddell Analysis in Reply‖) at

paragraphs 1 – 6, 10

Riddell Study at pp. 1-2

174. Secondly, the Intervenor CUPE respectfully submits that no evidence was presented as to

any salutary effects of the TUAA, 2008 and the Intervenor CUPE contests whether any

such salutary effects exist. There was no evidence that ―competitiveness‖ was enhanced or

that the legislation had any impact on the economic performance of Saskatchewan.

175. In light of the appreciable effect of the TUAA, 2008 on unionization rates in Saskatchewan

and the absence of evidence of salutary effects of the legislation, the Intervenor CUPE

submits that the impact of the rights infringement of the TUAA, 2008 is clearly

disproportionate to any benefits of the legislation.

THIS DOCUMENT WAS DELIVERED BY:

WOLOSHYN & COMPANY

Barristers & Solicitors

200 Scotiabank Building

111 Second Avenue South

Saskatoon, Saskatchewan S7K 1K6

And the address for service is: same as above.

LAWYER IN CHARGE OF FILE: Peter J. Barnacle

TELEPHONE: (306) 244-2242

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IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN … · PART I: REPLY ON SECTION 2(d) A. Comments...

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Transcript of IN THE COURT OF QUEEN’S BENCH FOR SASKATCHEWAN … · PART I: REPLY ON SECTION 2(d) A. Comments...