Call Us Now

Blog

Legislation Restricting Right to Strike Deemed Unconstitutional: Saskatchewan Court

Posted On: January, 21 2015

The Court of Queen’s Bench for Saskatchewan has ruled that the right to strike is protected by the freedom of association provisions of Charter of Rights and Freedoms.

In a decision released in February 2012, the Saskatchewan Court held that that province’s Public Service Essential Services Act (“PSES Act”) substantially infringes on the right of employees to engage in collective bargaining and collective strike action, rights which are protected by the Charter’s section 2(d) freedom of association provision.

The intent of the PSES Act is to allow the Saskatchewan government to designate certain public sector employees as providing “essential services,” thereby requiring these employees to remain at work, even while their representative union is engaged in lawful strike activities. 

The Saskatchewan Court found that the PSES effectively allows the government, as a public sector employer, to unilaterally designate certain employees as essential, and does not provide a dispute resolution mechanism whereby an affected union can challenge the “essential service” designation. 

The Court held that the right to strike is a fundamental freedom protected by section 2(d) of the Charter, along with the interdependent rights to organize and to bargain collectively.  According to the Court, the PSES Act is unconstitutional as it substantially interferes with this constitutionally protected right to engage in meaningful strike activities, as an essential aspect of collective bargaining.

The Court went on to find this substantial interference with the right to strike could not be justified under section 1 of the Charter.  This was so, in part, because the government had adopted an overly restrictive approach to the essential service designation process, which did not allow an affected union to challenge an employer’s decision on which employees must remain at work during a strike. 

According to the Saskatchewan Court, no other essential services legislation in Canada comes close to prohibiting the right to strike as broadly and significantly as the PSES Act.  And, no other essential services legislation in Canada was “devoid of access to independent, effective dispute resolution processes to address employer designations of essential services workers.”

The Saskatchewan Court’s holding that the right to engage in meaningful strike action is protected by the Charter is an issue which could make its way to the Supreme Court.  The Saskatchewan Court has given the government a twelve month window in which to remedy the Charter deficiencies contained in the PSES Act.   

 

Contact Us

RECENT NEWS & EVENTS

5 STAR REVIEWS

  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by SB

    I just wanted to let you know how happy I am with the outcome and how very grateful I am for the guidance and support that you and your team provided.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Google user

    Patrick James is really a great lawyer who is smart and great to deal with. He's been our litigation counsel for over 5 years on several different matters. Patrick recently gave our company great strategic advice that resulted in a big commercial litigation win for our company. He's fierce, tenacious, and really cares about getting the best outcome for his clients.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Google user

    Patrick is a very good lawyer. He recently successfully defended a lawsuit against my company and has pursued several litigation claims for us in the past. All claims settled input favour. Mr. James is smart and quickly gives you great strategic advice. Patrick has been a real asset to our business.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Sandra L.

    Andrew Wray and Patrick James recently helped settle a difficult situation for me and my family. The results were exactly what we were hoping for. They are honest, strategic and will provide you with the best advice for you and your financial situation. I highly recommend them to everyone I know.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Mark C.

    Their team is highly focused and incredibly professional - from our experience it would be difficult not to believe that Pinto Wray James are one of Ontario's leading Firms in Labor and Employment law. The mindful client care and complete understanding of the case eased fears and the stress that comes with any legal dispute. Expect to find high level smartly crafted legal solutions at Pinto Wray James LLP - couldn't recommend more.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Sherry C.

    Patrick is knowledgeable, strategic, supportive, and patient. His guidance and advice helped me to maintain focus and to keep things in perspective. His experience and keen perception provides him with an edge that allows him to assess the situation, the people involved, and to offer a strategic resolution that works best for all involved. If you ever require legal advice and assistance, I highly recommend him and his team. They will be there 100% for you.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Christian V.

    Patrick is a fearless advocate for diverse clients. His strategic approach, and his empathy, are what set him apart as a litigator, and champion of the underdog.
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by A Google User

    I have no hesitation recommending Andrew Wray of Pinto Wray James LLP. He provided me with legal advice regarding an employment law issue and his council was practical and honest. Andrew's approach is very much one of blending legal excellence with good common sense. An excellent lawyer!
  • Rating: 5 Lawyer Toronto - 5 Star Reviews
    Pinto Wray James Reviewed by Larry S.

    Patrick listens to his clients and shows compassion, empathy and professionalism. He cares deeply that the individual that has been wrongfully terminated gets the best judgment available to him. I would not hesitate in recommending him to friends or family.
Submit