In the May 2 issue I did a news brief on the unanimous Saskatchewan Court of Appeal ruling on April 26 that upheld the constitutionality of two labour bills passed by the Saskatchewan Party government in its first term. Bill 5 dealt with essential services, while Bill 6 introduced amendments to the Trade Union Act like providing for a secret ballot and permitting employers to communicate more broadly with employees about union activity in the workplace.

In February 2012 Queen’s Bench justice Dennis Ball ruled that Bill 6 did not contravene Charter provisions tied to s. 2(d) Freedom of Association and other constitutional rights. The Court of Appeal, while conceding Bill 6 did make it “somewhat more difficult” for workers to organize and bargain collectively, reaffirmed that ruling. So there likely won’t be any more litigation on that issue.

Where the Court of Appeal parted ways with Justice Ball was in relation to Bill 5. Last February, Ball had ruled that the legislation did contravene what amounted to a charter right of workers to withdraw their labour as a negotiating tactic during collective bargaining. It’s not that the Court of Appeal disagreed with Ball’s determination that the right to strike is protected under s. 2(d). It just said that given existing case law in the area, which is somewhat murky, it wasn’t prepared to make that determination.

As St. Thomas More assistant professor Charles Smith noted in the news brief it was like the Court of Appeal was begging the Supreme Court for clarification. Below are some additional comments from Smith that were cut from the news brief because of space constraints. And should the Saskatchewan Federation of Labour and its co-plaintiffs seek leave to appeal in the 60 days allotted, and should the Supreme Court agree to hear the case, expect numerous labour, government and employer organizations from across Canada to seek intervenor status to argue their positions in court.

During our interview, Smith outlined a series of cases that Canadian courts have heard over the last 30 years that have shaped labour law since the passage of the Charter in 1982. Thus far, courts have determined that workers have the right to organize and bargain collectively. Those rights are protected primarily under s. 2 (d) — although s. 2 (b) Freedom of Expression, s. 7 (Life, Liberty and Security of Person) and s. 15 (Equality Before the Law) are also relevant.

But when it comes to whether the right to strike is constitutionally protected Canadian courts have done a nifty tap-dance, says Smith. “There’s been this continuing argument that you can’t have bona fide collective bargaining without the right to withdraw your labour. That’s been talked about in the lower courts in a host of cases.  So I think there’s definitely a need for the Supreme Court to answer this question.”

And from labour’s perspective, Smith says, Bill 5 is a favourable test case. “It’s the most restrictive bill in Canada. If any bill is ripe for being struck down because of its broad swath it’s this one. So I suspect there will be pressure on the SFL and other unions to appeal to get clarification.”