Federal Government Dockyard Trades and Labour Council (Esquimalt, B.C.) et al. v. Canada (Attorney General),

Federal Govt. Dockyard v. Can. (A.G.) (2016), 385 B.C.A.C. 283 (CA);

    665 W.A.C. 283

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. AP.035

Federal Government Dockyard Trades and Labour Council (Esquimalt, B.C.) and Des Rogers (appellants/plaintiffs) v. Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada (respondent/defendant) and The Attorney General of the Province of British Columbia (respondent/pursuant to the Constitutional Question Act, R.S.B.C. 1996, s. 68)

(CA39379; 2016 BCCA 156)

Indexed As: Federal Government Dockyard Trades and Labour Council (Esquimalt, B.C.) et al. v. Canada (Attorney General)

British Columbia Court of Appeal

Saunders, Kirkpatrick and Garson, JJ.A.

April 13, 2016.

Summary:

The Government of Canada enacted wage restraint legislation in response to the global financial crisis in 2008-2009. The legislation, the Expenditure Restraint Act (ERA), had the effect of nullifying a wage increase for 2006 awarded through binding arbitration to employees of the Treasury Board of Canada in the Ship Repair West Group. The Federal Government Dockyard Trades and Labour Council was the bargaining agent for those employees. It commenced an action seeking a declaration that the legislation was unconstitutional as a breach of freedom of association guaranteed by s. 2(d) of the Charter, and was not justified by s. 1 of the Charter.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1210, dismissed the action. The ERA did not breach s. 2(d) of the Charter because the wage increase was not a term of the collective agreement as a result of collective bargaining; rather, it was imposed through binding arbitration. Alternatively, the Court held that there was no s. 2(d) breach because the government's efforts to negotiate fulfilled its obligation to consult and bargain in good faith. The Court also concluded that, assuming a breach of s. 2(d), the ERA was saved by s. 1 of the Charter. The Council appealed.

The British Columbia Court of Appeal dismissed the appeal. In relation to s. 2(d), the Court accepted the Council's contention that the judge erred in giving an overly narrow meaning to the term "collective bargaining", and that ཁon a robust view of collective bargaining, one cannot draw the line between a term awarded by this Arbitration Board and a term settled at the bargaining table. However, I also accept Canada's submission ... that the judge erred in finding that s. 2(d) protects the 5.2% wage lift for 2006-7 achieved by the Council because the Act, in my view, does not interfere with the constitutionality protected process of collective bargaining by negating the associational freedom to collectively pursue the goals of the Council's constituent unions or their members.ཁ

The Supreme Court of Canada, on application for leave to appeal, remitted the appeal for disposition in accordance with its decisions in Meredith v. Canada (Attorney General), 466 N.R. 338 ("Meredith"), and Mounted Police Association of Ontario v. Canada (Attorney General), 466 N.R. 199; 328 O.A.C. 1 ("MPAO"): see [2013] S.C.C.A. No. 404. In those decisions, the Supreme Court decided that the ERA did not infringe s. 2(d), as it applied to the RCMP. The issues on appeal were framed as: "(a) What is the test to find that public sector wage restraint legislation unconstitutionally interferes with s. 2(d)? (b) Applying the correct test to the facts of this case, does the ERA impermissibly interfere with the Council members' constitutional rights under s. 2(d)?"

The British Columbia Court of Appeal dismissed the appeal, having found no breach of s. 2(d). (a) The test was one of "substantial interference". The application of that threshold involved a fact specific, contextual inquiry. (b) Applying the broad principles articulated in Meredith and MPAO to the facts of this case would not lead to a result different from the one reached by the summary trial judge, although for somewhat different reasons. The trial judge made no error in his final conclusion that the level of interference was not constitutionally impermissible. "Fiscal and economic context cannot be ignored. The government met its constitutional obligations through its attempts to negotiate until the last moment, and to signal the potential effects of the impending legislation. Its response was proportional to the looming fiscal emergency. Moreover, I do not think it can be said, as contended by the appellants, that this legislation compromised the essential integrity of the collective bargaining process."

Civil Rights - Topic 2103

Freedom of association - General - Scope of right - See paragraphs 35 to 95.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employer or employee groups - See paragraphs 35 to 95.

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - See paragraphs 35 to 95.

Civil Rights - Topic 2157.1

Freedom of association - Limitations on - Regulation of remuneration - See paragraphs 35 to 95.

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - See paragraphs 35 to 95.

Counsel:

J. Arvay, Q.C., and C.J. Boies Parker, for the appellants;

L. Lachance and K. Hucal, for the respondent, Attorney General of Canada;

K. Evans, for the Attorney General of British Columbia.

This appeal de novo was heard on November 5-6, 2015, at Vancouver, British Columbia, before Saunders, Kirkpatrick and Garson, JJ.A., of the British Columbia Court of Appeal. In reasons written by Garson, J.A., the Court delivered the following judgment, dated April 13, 2016.