February 17, 2015

On January 30, the Supreme Court of Canada issued a decision affirming, for the first time, constitutional protection for the right to strike in Canada. Applying this principle, it quashed Saskatchewan legislation which prohibited strikes in essential services without providing for a meaningful dispute resolution mechanism. In this upcoming audio session, an expert panel moderated by Professor Michael Lynk of the Faculty of Law at Western University discusses the Court’s rationale and explores the implications of this decision for labour and management. Questions addressed include:

  • On what grounds does the majority base its determination that freedom of association includes the right to strike?
  • How does the five-member majority’s reasoning differ from that of the two-member minority? What are the key points on which the majority and minority disagree? Is the division among the members of the Court legal or ideological?
  • What test does the Court apply in determining that the right to strike is a fundamental right worthy of Charter protection rather than part of a statutory scheme entitled to deference by the judiciary?
  • What role do international law, historical context and judicial precedent play in the Court’s reasoning? How much influence is attributable to academic articles cited by the Court?
  • How does the Court deal with concepts such as “substantial interference”, “derivative rights” and “good faith bargaining”?
  • On what basis does the Court decide that Saskatchewan essential services legislation does not “minimally impair” the right to strike? What are the requisite elements of a meaningful dispute resolution mechanism where one can be substituted for the right to strike?
  • Given that the Court’s declaration of invalidity was suspended for one year to allow the Saskatchewan government to bring its legislation into compliance with the Charter, what options does the Saskatchewan government now have in drafting new legislation?
  • What are the implications of this decision for back-to-work legislation? Legislative criteria affecting the independence of interest arbitrators? Statutory restrictions on the scope of arbitrable issues? Recognition strikes? Wage restraint legislation?

The panel’s discussion will also include comment on two earlier Supreme Court decisions involving the RCMP, one relating to the right to choose an independent bargaining agent, and the other to the permissible ambit of wage restraint legislation.