Finding More “Meaning” in the Future of Labour Law

We are all looking for meaning in life.

For some of us that means we want to make an impact on the world. For others, it means the mass accumulation of wealth. And for some, like the Justices of the Supreme Court of Canada, it means rendering every textbook published on labour law prior to 2015 entirely obsolete.

Hot on the heels of their recent decision Mounted Police Association of Ontario v. Canada (Attorney General), the Court released a decision on Friday in Saskatchewan Federation of Labour v. Saskatchewan. The majority overturned the Saskatchewan Court of Appeal decision and held that the The Public Service Essential Services Act, which prevented public sector essential workers from striking, was unconstitutional.

The province passed the Act after a series of strikes in 1999 and 2001, which seriously affected the provision of health care, which were followed by strikes in 2006-2007 by highway workers, snow plow operators, and corrections workers, all of which created significant concerns about public safety.

Justice Rothstein, who is making a name for himself for dissenting in the Court’s labour decisions, simply couldn’t help himself here either. He emphasized judicial deference, and again noted that the Canadian jurisprudence on labour law simply didn’t justify the position adopted by the majority,

[105] McLachlin C.J. and LeBel J., writing for a unanimous Court in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156, cautioned that

[j]udging the appropriate balance between employers and unions is a delicate and essentially political matter. Where the balance is struck may vary with the labour climates from region to region. This is the sort of question better dealt with by legislatures than courts. Labour relations is a complex and changing field, and courts should be reluctant to put forward simplistic dictums. [para. 85]

Thirteen years later, the majority in this case ignores this sage warning in reaching its conclusion. Our colleagues have taken it upon themselves to determine “the appropriate balance between employers and unions”, despite the fact that this balance is not any less delicate or political today than it was in 2002. In our respectful view, the majority is wrong to intrude into the policy development role of elected legislators by constitutionalizing the right to strike.

Once again, the Court appears to have dispensed of the confusing “derivative” language that has permeated recent labour law decisions. Justice Abella, writing for the majority, stated,

[3] …The right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.

I can imagine Justice Rothstein, who was joined by Justice Wagner, shaking his head at this statement when responding,

[128] The majority finds that “the right to strike is an essential part of a meaningful collective bargaining process” and that “[t]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right” (para. 3). Such statements expressly contradict the right to meaningful collective bargaining as it was so recently recognized and defined by this Court in Health Services and Fraser.

He also points out that the majority’s language remains confusing and contradictory even in this decision,

[136] Contrary to Fraser, the majority now says that “[t]he right to strike is not merely derivative of collective bargaining, it is an indispensable component of that right” (para. 3). However, the majority also says that the right to strike is protected simply because “the right to strike is an essential part of a meaningful collective bargaining process” (para. 3). This must mean that the right is indeed derivative — a right to strike is protected only because it derives from the right to collective bargaining, a right which was itself derived from the protection of freedom of association (see Fraser, at paras. 46, 54, 66 and 99). As earlier noted, the result is to inflate the right to freedom of association to such an extent that its scope is now completely divorced from the words of s. 2 (d) of the Charter  themselves.

Of course he’s mostly right, but the problem I’ve mentioned before is that s. 2(d) simply didn’t make sense prior to 2015, and the Court’s restructuring of constitutional labour rights provides a more effective approach that is also comprehensible. What he does not get right, and the part which was adopted by sensationalist headlines, is that the majority did not necessarily constitutionalize the right to strike in this decision.

Although the Act was found unconstitutional in this decision and the Act did not allow for a right to strike, it was the lack of any other meaningful mechanism for dispute resolution which the Court appears to have issue with. The Wagner Model of labour relations was imported into Canada from the U.S. as a trade-off from an unlimited ability to strike. In return, unions gained the ability to have terms of a collective agreement imposed through binding arbitration.

Justice Abella cited Paul Weiler to emphasize the importance of of arbitration,


If we pull all the teeth of a union by requiring provision of imperative public safety services, such that any remaining strike option does not afford the union significant bargaining leverage, then I believe the union should have access to arbitration at its option.

In other words, if a legislative scheme incorporated a proper arbitration mechanism instead of the ability to strike, it could theoretically be upheld [paras 4, 93].

Justice Rothstein notes at para 147 that both B.C. Health (paras 102-103) and Fraser (para 41) explicitly stated that no legislative dispute mechanism was required by s. 2(d). Also, Justice Abella’s strong support for the right to strike makes it difficult to envision how this non-strike resolution mechanism could be executed.

Some insight may be gleaned from paras 90-91, where she appears to suggest that continued essential services could still be maintained through collaborative decision-making instead of the unilateral approach employed by the province, and by looking at what particular services each employee is actually providing. Not all essential workers are always essential to a working public sector.

Justice Rothstein did not find this reasoning particularly compelling. He distinguished public employers from those in the private sector, and found that this should be central to evaluating their ability to limit the powers of review by a labour board,

[168] …The Government of Saskatchewan was entitled to determine that compulsory arbitration could thwart the goal of the PSESA: assuring the continued delivery of essential services during labour actions.

Part of the problem with the Act is that workers had no input as to who was an essential worker, and who was not. The Act does not define what are essential services. This is done by regulation, and the board has limited control over these designations,

[13] The Saskatchewan Labour Relations Board has limited jurisdiction to review the numbers of employees required to work in a given classification during a strike, but it has no authority to review whether any particular service is essential, which classifications involve the delivery of genuinely essential services, or whether specific employees named by the employer to work during the strike have been reasonably selected.

The blanket prohibition of striking, combined with the inability to challenge or discuss who was an essential service employee unable to strike, is what made this Act unconstitutional [para 96].

The majority canvassed international law, and the right to strike in a number of different jurisdictions, before coming to its conclusions. Justice Rothstein points out at para 156 that international law is still uncertain on any presumed right to strike, lacks widespread consensus, and would not not be binding given our lack of ratification of these international documents. Where these obligations do become binding, it is the role of the legislature to adopt these obligations, not that of the Court.

I find this rationale of the dissent to be most compelling, especially given the Court’s marked deference to the executive in Khadr. The Court’s role is to review and scrutinize executive and legislative decisions, but particularly in circumstances where vulnerable or marginalized populations are at risk.

Unions still enjoy widespread public support, enjoy stable funding under the Rand formula, and have constitutional protection for their direct involvement in political activities. The same cannot be said for Canadian child soldiers captured abroad, detained by the world’s sole superpower, and subjected to torture with Canadian complicity, in an area of international law where there is far more consensus.

To me, it appears as if the Court’s priorities are misplaced.

The Court also reviewed in this decision the The Trade Union Amendment Act, which made it more difficult to certify unions in Saskatchewan, and easier to decertify. Both the majority and minority agreed this was constitutional, and there was no “excessively difficult” threshold introduced through the legislation. This finding is consistent with recent jurisprudence which emphasizes that the constitutional right is not one to belong to a union.

The right protects an ability to join association with meaningful collective bargaining – and now – a meaningful dispute resolution mechanism. Not a right to strike, as interpreted by the dissent. In some cases, perhaps most cases, this will mean a right to strike – but not always.

The meaning of that, and how it will work outside a Wagner Model, will keep labour law scholars busy, and intrigued, for many years to come.


  1. Omar, while I agree with your analysis from a purely theoretical standpoint (the law has traditionally been anti-labour and has sought to curtail the right to strike, there is no doubt), it misses the practical reality that, regardless of whether the ‘right to strike’ is written in invisible ink under section 2(d), workers will strike. Striking is actually the only real weapon unions have. And while unions may be better resourced than some civil society institutions (say, for example, Scouts), they never, by necessity, possess greater or even relatively comparable resources to the employers of their members. Which means, of course, they are at a great disadvantage before courts and even tribunals. I should know; I work at a union-side labour law firm (if you haven’t guessed already), and each time one of us shows up at a court or tribunal, we are inevitably outnumbered (by senior counsel, junior counsel, articling student, HR personnel, etc., versus one lawyer, and sometimes a union rep).

    This great disadvantage is only counterbalanced by the real possibility of economic sanction. That is, striking levels the playing field. Recognizing that, as did the SCC last week, may not be commensurate with black letter labour law, but it unquestionably acknowledges the reality that, when backed into a corner and faced with accepting wage cuts or fighting a tedious, mind-numbing, demoralizing, excruciatingly long uphill legal battle, workers will strike, regardless of whether striking is a constitutional right or not.

    What is the alternative? Should strikes be physically (and often brutally) suppressed by police violence, as they often were in the 19th and 20th centuries? Or should we expect workers to just accept their plight?

    Kids only play nice when the rules are fair. In labour law, the rules haven’t been fair for centuries. The SCC’s recognition of a right to strike (and it certainly was recognized, in accordance with the overwhelming consensus in international labour law, ahem) is nothing more than a recognition of a right that was won by workers decades ago.

  2. Excellent synopsis. As you say the tradeoff in the Wagner Model is third party recognition (NLRB) of the union and the employer in a legal relationship and for a no-strike during the life of the collective agreement. the icing on the cake is the Rand formula which is in itself a double edged sword. However in the US, and now in Canada, employers (private and public) chafed at the bit.
    The Wagner Model’s basic elements were the most the government and the employers were prepared to accept to get the unions to agree to not use the wildcat strike for collective bargaining and resolving grievances. As a result it forced a restructuring of the modus operandi of unions giving formal union leaders power over the union instead of the shop stewards who had previously called most of the shots before Wagner.
    The other major change since the 1930s, and 1940s in Canada, is that capital (money) investment has become internationally mobile while labour has become increasingly immobile. A capital strike (refusing to continue investing, running down hard assests, etc.) is very effective against the government and unions. The unions have less bargaining power.
    Having collective bargaining rights, and the right to strike, though important, are less important today than in the past. With today’s new communications, the unions will be further ahead and stronger if they go back to wildcatting, using flying pickets, and secondary picketing against hot and cold moves by the employer(s). When employees have come to grips with the changing situation, coordinate and communicate across the spectrum it may be that the electronic wildcat will be decisive. The Supreme Court is hoping it doesn’t come to that and tosses a few more crumbs. The Gordian knot is cut half way – up to the unions to finish the slice.

  3. Daniel,
    You’re right, I focused on the theoretical in trying to untangle the Court’s language. In practicality, strikes will continue to play a crucial component of a union’s counterbalancing power. One could even say it’s “indispensable component,” even if not always “necessary” from a constitutional perspective under this analysis.

    But the theoretical is also important for envisioning a possibility of labour relations outside of a Wagner Model, perhaps even a cooperative model where there isn’t “violence” and it’s not characterized as a fight. In the “new” Labour Trilogy, this appears to be a door that the Court is supporting for greater exploration by the legislature in the future.

    There is a lot of debate over the reasons for the declining unionization rate in North America, but I’d hypothesize that at least part of it is that labour is increasingly as mobile as capital.

    The offshoring of plants and facilities allows for production with lower production costs is not a new phenomenon, but combined with greater automation, often makes the traditional forms of labour outside the service industries more dispensable.

    What we are dealing with here is not just services, but essential services, and that’s an important limiting factor in interpreting the decision. The section 1 implications are even more pronounced when those services are “essential.”

  4. Could not agree more Daniel. But striking is not the only weapon the workers and unions have. Work to rule has a long and proud history as well. Ah but some will say working to rule is striking, but that is purely like you have said looking at things from a “theoretical point of view”. Perhaps given the heavy reliance on electronic means of communication it will come back to the fore as a means of exerting on the employer. Businesses can and do move capital and money around the world in the flash of instant, on an other level, so can employees. But striking is still at best a weak weapon when businesses can pick up and relocate on a whim like Walmart did in Québec did to escape union recognition. But making lemonade of a lemon has been the unions’ gift to society.

  5. Omar, Danaiel could not agree more. However the real change now is that in the past offshoring took place between developed and developing countries. Beginning in the 1970s business worldwide started to relocate to Latin America and Asia. First to go were electronics, followed by textiles. Now it is a “Niagara Falls” of sectors and businesses. It would not be too bad if this was “natural”. But every analysis has proven that governments were not only pressured but did so willingly and promoted the ease with which companies could transfer and relocate. To imagine that the American, Canadian, European governments were not hell bent on facilitating and continue to facilitate all the while moaning about their inability to effect positive change is to suspend disbelief. International law, if it exists, is now being challenged to encompass more than “victor’s justice” and “might over right”. Right now it does not look good for those hoping for “fair rules” and the end of corruption nor for the majority in civil society from whence come employees.