Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General),

Prof. Institute v. Can. (A.G.) (2016), 351 O.A.C. 44 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. AU.014

John Gordon, Patricia Ducharme, Nick Stein, Chris Aylward, Darrell-Lee McKenzie and Public Service Alliance of Canada (applicants/appellants) v. Attorney General of Canada (respondent/respondent in appeal)

The Professional Institute of the Public Service of Canada/L'Institut Professionel de la Fonction Publique du Canada, Raymond Lazzara, Deborah Anne Chamney, and Humayoun Akhtar (applicants/appellants) v. Her Majesty the Queen in Right of Canada as Represented by the Attorney General of Canada (respondent/respondent in appeal)

(C58501; C58502; 2016 ONCA 625)

Indexed As: Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General)

Ontario Court of Appeal

Hoy, A.C.J.O., Blair and Lauwers, JJ.A.

August 16, 2016.

Summary:

Public sector unions applied for declarations that provisions in the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393 ("ERA"), enacted in response to the 2008 economic crisis, limited their members' freedom of association under s. 2(d) of the Charter. They also challenged the Government's conduct in collective bargaining, before and after the ERA's enactment. They submitted that the Government's conduct and provisions in the ERA substantially interfered with their right to a meaningful collective bargaining process by interfering with bargaining on wages, overriding freely negotiated wage increases, capping wage increases during the restraint period, and preventing bargaining for catch-up after the restraint period. They asserted that these alleged limits were not demonstrably justified under s. 1, and they sought relief under s. 24 of the Charter.

The Ontario Superior Court, in a decision reported at [2014] O.T.C. Uned. 965, dismissed the applications, finding that the associational rights of federal public servants under s. 2(d) of the Charter were not impermissibly limited by the Government's conduct in collective bargaining or provisions in the ERA. Further, the court would have found that the Government had demonstrably justified any such limits under s. 1 of the Charter in light of the global economic crisis then affecting Canada. The unions appealed, submitting that the application judge wrongly applied the "effective impossibility" test in assessing whether there was a limit on the appellants' s. 2(d) Charter rights.

The Ontario Court of Appeal held that, since the Supreme Court of Canada had repudiated the "effective impossibility" test in its 2015 labour trilogy, the court was required to reconsider the application of s. 2(d) to this case in light of the clarified test. The court dismissed the appeals, holding that neither the Government's conduct nor the provisions of the ERA impermissibly limited the appellants' s. 2(d) Charter rights. Further, any such limit was saved under s. 1.

Civil Rights - Topic 2144

Freedom of association - Limitations on - Collective bargaining and right to strike - See paragraphs 1 to 316.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s. 1) - See paragraphs 177 to 316.

Evidence - Topic 7000.1

Opinion evidence - Expert evidence - General - Expert witness - Disqualification - Conflict of interest - See paragraphs 329 to 334 and 341.

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - See paragraphs 319 to 321.

Evidence - Topic 7001

Opinion evidence - Expert evidence - General - Qualification and declaration that a witness is an expert - See paragraphs 317 to 325.

Evidence - Topic 7003

Opinion evidence - Expert evidence - General - Procedural prerequisites to admission of - See paragraphs 326 to 328.

Labour Law - Topic 9580.4

Public service labour relations - Collective agreement - Pay, severance pay and expense allowances - Wage restraint legislation - See paragraphs 1 to 343.

Practice - Topic 6

General principles and definitions - Application of practice rules - See paragraphs 326 to 328.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - See paragraph 290.

Counsel:

Andrew Raven and Andrew Astritis, for the appellants, the Public Service Alliance of Canada et al.;

Fay Faraday, for the appellants, the Professional Institute of the Public Service of Canada et al.;

Kathryn Hucal and Jon Bricker, for the respondent, Attorney General of Canada.

These appeals were heard on November 17 and 18, 2015, by Hoy, A.C.J.O., Blair and Lauwers, JJ.A., of the Ontario Court of Appeal. Lauwers, J.A., delivered the following decision for the court on August 16, 2016.