The Effect of Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia on the Labour Trilogy, PIPSC v. Northwest Territories (Commissioner) & Its Potential Effect ...

by E. Wayne Benedict

In 1987 the Supreme Court of Canada released three decisions concurrently that collectively became known as “The Labour Trilogy”. Part II of this paper will refresh the reader’s mind regarding the legal principles which came out of the Alberta Reference, Dairy Workers and PSAC, and of the facts that gave rise to those decisions. The Labour Trilogy generally stood for the proposition that the Charter section 2(d) freedom of association did not include the right to strike.

In 1990 the Supreme Court of Canada released its reasons in Professional Institute. The case stood for the proposition that the Charter section 2(d) freedom of association did not include the right to collectively bargain. Part III of this paper will refresh the reader’s mind regarding the legal principles which came out of Professional Institute.

Fourteen years after the Labour Trilogy was decided, the Supreme Court signalled a shift in its interpretational views concerning the Charter section 2(d) freedom of association in the context of labour when it released its reasons in Dunmore. The Court favourably discussed international and democratic human rights principles, and left open the possibility of its future interpretation of the Charter section 2(d) freedom of association as mirroring Canada’s international commitments to honour International Labour Organization [“ILO”] principles including the right of workers to organize, bargain collectively, and strike. Part IV of this paper discusses Dunmore.

On June 8, 2007 the Supreme Court released its reasons in Health Services. The decision represents a sea change in the Court’s interpretation of the Charter section 2(d) freedom of association in the context of labour. Health Services expressly reverses Professional Institute and some, but not all, of the law represented by the Labour Trilogy. The Court has now interpreted the Charter section 2(d) freedom of association as including the procedural right to collective bargain; however the constitutional status of workers’ right to strike was explicitly not addressed in the decision, leaving its status less certain. Part V of this paper discusses Health Services and the present state of judicial interpretation regarding the Charter section 2(d) freedom of association in the context of workers’ procedural right to collectively bargain.

Part VI of this paper examines the right to strike in Canada as the law presently stands, and how it may evolve in future decisions of the Supreme Court. Part VII discusses possible effects that the decision in Health Services may have on Alberta’s Labour Relations Code. Part VIII concludes with a summary of the principle points addressed in the paper.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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