REFERENCE RE PUBLIC SERVICE EMPLOYEE RELATIONS ACT (ALTA.) [1987] 1 S.C.R. 313: Freedom of association - Scope of protection in labour relations context - Provincial legislation prohibiting strikes and lockouts - Legislation providing for arbitration

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law - Charter of - Freedom of association - Scope of protection in labour relations context - Provincial legislation prohibiting strikes and lockouts - Legislation providing for arbitration - Whether provincial legislation violated s. 2(d) of the Charter - If so, whether such violation justifiable under s. 1 of the Charter - Public Service Employee Relations Act, R.S.A. 1980, c. P-33, ss. 48, 49, 50, 55, 93, 94 - Labour Relations Act, R.S.A. 1980 (Supp.), c. L-1.1, ss. 117.1, 117.2, 117.3, 117.8 - Police Officers Collective Bargaining Act, S.A. 1983, c. P-12.05, ss. 2(2), 3, 9, 10, 15.

The Lieutenant Governor in Council of Alberta, in accordance with s. 27(1) of the Judicature Act of that province, referred to the Alberta Court of Appeal several constitutional questions which raised two main issues: (1) whether the provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve impasses in collective bargaining, were inconsistent with the Canadian Charter of Rights and Freedoms; and (2) whether the provisions of the Acts relating to the conduct of the arbitration and which limit the arbitrability of certain items and require the arbitration board to consider certain factors in making the arbitration award were inconsistent with the Charter. The first Act applied to public service employees, the second to firefighters and hospital employees and the third to police officers. The majority of the Court of Appeal of Alberta answered the first issue in the negative and declined to answer the second issue. This appeal is to determine whether the Alberta legislation violates the guarantee of freedom of association in s. 2(d) of the Charter and, if so, whether such violation can be justified under s. 1.

Held (Dickson C.J. and Wilson J. dissenting): The appeal should be dismissed.

Per Beetz, Le Dain and La Forest JJ.: The challenged provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act were not inconsistent with the Charter. The constitutional guarantee of freedom of association in s. 2(d) of the Charter does not include, in

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he case of a trade union, a guarantee of the right to bargain collectively and the right to strike. In considering the meaning that must be given to freedom of association in s. 2(d) of the Charter, it is essential to keep in mind that this concept must be applied to a wide range of associations or organizations of rights, religious, social or economic nature, with a wide variety of objects, as well as activity by which the objects may be pursued. It is in this larger perspective, and not simply with regard to the perceived requirements of a trade union, however important they may be, that one must consider the implications of extending a constitutional guarantee, under the concept of freedom of association, to the rights to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

In considering whether it is reasonable to ascribe such a sweeping intention to the Charter, the premise that without such additional constitutional protection the guarantee of freedom of association would be a meaningless and empty one must be rejected. Freedom of association is particularly important for the exercise of other fundamental freedoms, such as freedom of expression and freedom of conscience and religion. These afford a wide scope for protected activity in association. Moreover, the freedom to work for the establishment of an association, to belong to an association, to maintain it, and to participate in its lawful activity without penalty or reprisal is not to be taken for granted. That is indicated by its express recognition and protection in labour relations legislation. It is a freedom that has been suppressed in varying degrees from time to time by totalitarian regimes.

What is in issue here is not the importance of freedom of association in this sense but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection are sought-the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer-are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise. It is surprising that, in an area in which this Court has affirmed a principle of judicial restraint in the review of administrative action, this Court should be considering the substitution of its judgment for that of the Legislature by constitutionalizing in general and abstract terms rights which the Legislature

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has found it necessary to define and qualify in various ways according to the particular field of labour relations involved. The resulting necessity of applying s. 1 of the Charter to a review of particular legislation in this field demonstrates the extent to which the Court becomes involved in a review of legislative policy for which it is really not fitted.

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