To the barricades! Saskatchewan Court finds a Charter protected right to stike

The rapid developments in Canadian labour law keep on coming. Yesterday Justice Dennis Ball of the Court of Queen's Bench For Saskatchewan released a groundbreaking decision that found the right to strike is freedom protected under the Canadian Charter of Rights and Freedoms. The case dealt with a Charter challenge to two provincial laws: The Public Service Essential Services Act and The Trade Union Amendment Act 2008 (for the actual changes, see: here and here).

Some background is necessary here.  Back in 2007 Brad Wall was elected premier of Saskatchewan on the Saskatchewan Party ticket. The party is politically conservative and sought, unsurprisingly, to severely curtail the power of Unions through anti-worker initiatives. One of the first legislative initiatives that Brad Wall brought in was essential services legislation. This type of legislation is fairly common in Canada, but Saskatchewan's approached differed significantly in that the legislation covered almost the entire public sector and gave employers ultimate authority to decide which employees are providing essential services.

The decision finds that the right to strike is protected under the "freedom of association" clause found in section 2(d) of the Charter. This case pushes the ball forward from the previous high-water mark established in the Supreme Court's B.C. Health Services decision that found a limited right to collective bargaining. This case flies in the face of recently decided Fraser case, which was a heavily divided decision and marked a significant retreat from the language previously used in B.C. Health Services. This undoubtedly sets the stage for an epic legal battle at the Supreme Court on whether the right to strike is actually protected under the Charter, remember this is ruling of a lower Court and there are two appellate Courts that will review this decision.

What hit me while reading the decision is how much Justice Ball rooted his analysis in international law. The decision is seeped with references to UN treaties (the ICESCR and ICCPR), jurisprudence emanating out of the International Labour Organization (mostly Committee on Freedom of Association and the Committee of Experts) , and the Universal Declaration of Human Rights. It's heartening to see such a thorough discussion of the implications arising out of Canada's obligations under international law.

That all on this case for now. For additional commentary, check out the following: Doorey's Law Blog has posted a very thorough analysis; also, the CBC has coverage of the decision up.