Focus On

Mounties get a labour front win, lawyer says her clients ‘thrilled’

Thursday, January 29, 2015 @ 7:00 PM | By Cristin Schmitz

The Supreme Court has fleshed out the scope of the Charter’s protection of meaningful collective bargaining, underscoring the importance of “choice and independence” in addressing the power imbalance between workers and management.

In a 6-1 judgment delivered on Jan. 16 in Mounted Police Association of Ont. v. Canada (Attorney General) [2015] S.C.J. No. 1, the top court held that regulations barring approximately 16,000 members of the RCMP from forming their own association in pursuit of their workplace goals violate the Charter’s s. 2(d) guarantee of freedom of association. The court also struck down the definition of “employee” in s. 2(1) of the Public Service Labour Relations Act which excluded RCMP members from the collective-bargain regime for federal employees. However, the court suspended its declaration of invalidity for one year to give Parliament time to devise a constitutionally compliant labour relations model for the RCMP.

“Our association members are thrilled,” said Toronto’s Laura Young, counsel for the appellant Mounted Police Associations of Ontario and B.C. Her clients’ Charter attack on the RCMP’s internal, management-controlled labour relations regime had been rejected by the Court of Appeal for Ontario in 2012.

“The Supreme Court makes it clear that the inherent vulnerability of employees, and their lack of bargaining power with management, can only be addressed through an association that is independent of the employer, and chosen by the employees to pursue their collective agenda,” Young said.

She noted that MPAO is the third in a recent Supreme Court trilogy on collective bargaining co-written by Chief Justice Beverley McLachlin and Justice Louis LeBel. By a majority, the court recognized for the first time in Health Services and Support — ​Facilities Subsector Bargaining Assn. v. British Columbia [2007] S.C.J. No. 27, that the Charter’s s. 2(d) protects collective bargaining and requires that employers bargain in good faith with their organized workers on important workplace issues. Four years later, in Ontario (Attorney General) v. Fraser [2011] S.C.J. No. 20, a majority rejected what it termed an “overexpansive” interpretation of Health Services that effectively compelled governments to extend to all organized workers the full-blown, Wagner Act-style collective bargaining protections enshrined in most Canadian labour laws.

“In MPAO, the court brings together those parts of the two previous decisions that were perceived as inconsistent,” Young said. “The uncertainty around the ‘substantial interference’ test [for identifying breaches of the collective bargaining right] is explicitly acknowledged and resolved, and the meaning of the ‘derivative rights’ language previously used by the court is explained.

“More importantly, the court walked through the evolution of its [Charter] s. 2(d) jurisprudence, and the purpose of association in the workplace, to lay the foundation for its discussion on meaningful collective bargaining, and the key issues of choice and independence which were raised in the appeal.”

Young suggested if the high court had given a constitutional pass to the RCMP’s management-imposed and -controlled “staff relations representative program” it would have opened the door to the re-emergence in Canada of non-independent, so-called “company unions.”

The majority emphasizes in MPAO that the purpose of collective bargaining “is to preserve collective employee autonomy against the superior power of management and to maintain equilibrium between the parties. This equilibrium is embodied in the degree of choice and independence afforded to the employees in the labour relations process” — although neither of these requirements are absolute.

The majority also clarified that restrictions on collective bargaining will violate the Charter when they “disrupt the balance between employers and employees that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining.”

In his solo dissent, Justice Marshall Rothstein accused the majority of reversing its interpretation of s. 2(d) in Fraser and Health Services so as to effectively compel an adversarial, Wagner-style model of collective bargaining. He said the majority had also lowered the standard it adopted in Fraser for determining a breach of s. 2(d) which required, in the labour relations context, that the government’s action made “meaningful association to achieve workplace goals effectively impossible.”

In a companion 6-1 judgment handed down the same day in Meredith v. Canada (A.G.) [2015] S.C.J. No. 2, Chief Justice McLachlin and Justice LeBel upheld the constitutionality of Bill C-10, also known as the 2009 federal Expenditure Restraint Act (ERA). The majority ruled that the government’s rollback, after the 2008 financial crisis, of previously agreed-to RCMP wage increases, without first consulting with representatives of RCMP members, did not violate the latter’s constitutional right to collective bargaining.

“The level at which the ERA capped wage increases for members of the RCMP was consistent with the going rate reached in agreements concluded with other bargaining agents inside and outside of the core public administration and so reflected an outcome consistent with actual bargaining processes,” they wrote. Moreover, the ERA did not preclude consultation on other compensation-related issues and an exception for RCMP members in the ERA allowed them to obtain significant benefits as a result of subsequent proposals brought forward.

In her lone dissent, Justice Rosalie Abella would have struck down the federal government’s unilateral decision to roll back the agreed-upon RCMP pay increases. “The absence of any meaningful opportunity for the RCMP to make representations about the extent and impact of the rollbacks had the effect of completely nullifying the right to a meaningful consultation process,” she wrote.

Counsel for the RCMP members who attacked the wage rollback in Meredith, Christopher Rootham of Ottawa’s Nelligan O’Brien Payne, told The Lawyers Weekly if one puts the decisions in MPAO and Meredith side-by-side “it appears as if the Supreme Court of Canada believes in, or protects, freedom of association or the right to engage in collective bargaining in the abstract, but not in practice…RCMP members have the right to join an independent association where they can influence the choices made by that association and what they advocate for, but when it comes time to actually protect the actual bargaining process that takes place, or the actual results of bargaining, the Supreme Court of Canada is not willing to do that.”

On the upside, he suggested the majority in MPAO reached back to the late Supreme Court Chief Justice Brian Dickson’s “more liberal and expansive view” of the Charter guarantee of freedom of association as including protection of “collective activity that allows vulnerable groups to meet on more equal terms the power and strength of other groups and entities so that freedom of association is…more explicitly about redressing power imbalance,” Rootham said.

The majority’s comments on power imbalances may also be relevant to an important case on the right to strike, Saskatchewan Federation of Labour v. Saskatchewan, which the top court has had under reserve since last May.

In light of the court upholding the ERA in Meredith, the intervener Public Service Alliance of Canada (PSAC) and other federal unions representing tens of thousands of workers (e.g. B.C. dock workers and CBC employees in Quebec), are currently evaluating what to do with their separate, and so-far, unsuccessful, Charter attacks on Bill C-10, said PSAC counsel Andrew Raven of Ottawa’s Ravenlaw. The companion appeals of PSAC and the Professional Institute of the Public Service of Canada to the Ontario Court of Appeal were on hold pending the release of Meredith.

At press time, counsel for the Attorney General of Canada, and other intervener attorneys general, had yet to comment.