Robert Hebdon

The appellants, a postal workers' union and its representatives, sought a declaration that federal back-to-work legislation ending rotating strikes in 2018 unjustifiably limited their members' freedom of association under s. 2(d) and freedom of expression under s. 2(b) of the Charter.

The application judge dismissed the application as moot because the legislation was spent and declined to exercise discretion to decide on the merits under the Borowski criteria.

On appeal, the Court of Appeal agreed the application was moot and deferred to the discretionary decision not to hear it on the merits.

In the alternative, the court found the legislation limited s. 2(d) rights but was justified under s. 1, and that neither the Prime Minister's public statement nor the Act limited s. 2(b) rights.

Appeal dismissed.

The Canadian Union of Postal Workers (CUPW) challenged the constitutionality of the Postal Services Resumption and Continuation Act (PSRCA), SC 2018, c 25, arguing it infringed freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms.

The legislation ended a series of rotating strikes and imposed a mediation-arbitration process.

The court found the application moot because the PSRCA was spent legislation, having led to new collective agreements, and there was no live controversy or suitable remedy.

However, in obiter, the court stated that if the matter were not moot, the PSRCA would infringe s. 2(d) but would be justified under s. 1 of the Charter, as it constituted a minimal impairment due to its fair and neutral dispute resolution mechanism, unlike previous unconstitutional back-to-work legislation.

The Crown appealed a Superior Court decision striking down the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which eliminated TTC employees' right to strike and replaced it with binding interest arbitration.

The Court of Appeal dismissed the appeal, holding that the complete ban on strikes violates the employees' right to meaningful collective bargaining under s. 2(d) of the Charter.

The Court further found that the Crown failed to justify the infringement under s. 1, as it did not demonstrate that the complete ban was minimally impairing or that its salutary effects outweighed the deleterious effects on the workers' Charter rights.

The Applicants challenged the Toronto Transit Commission Labour Disputes Resolution Act, 2011, arguing it infringed their freedom of association under s. 2(d) of the Charter by prohibiting the right to strike and replacing it with compulsory binding interest arbitration.

The court found the Act substantially interfered with meaningful collective bargaining and was not justified under s. 1 of the Charter, as the TTC was not an "essential service" in the constitutional sense, and the economic and equity concerns did not justify the complete prohibition of the right to strike.

The Act was declared unconstitutional and of no force and effect.

The applicants, representing various public sector unions, challenged the constitutionality of the Protecting a Sustainable Public Sector for Future Generations Act, 2019 (Bill 124), which limited wage increases for broader public sector employees to 1% per year for a three-year moderation period.

The court found that the Act substantially interfered with the applicants' right to freedom of association under s. 2(d) of the Charter by preventing meaningful collective bargaining over wages and other compensation-related issues.

The court dismissed the applicants' claims under s. 2(b) (freedom of expression) and s. 15 (equality rights).

The court further held that the infringement of s. 2(d) was not saved by s. 1 of the Charter, as the government failed to demonstrate a pressing and substantial objective or that the measure was minimally impairing.

The Act was declared void and of no effect.

The applicant union challenged the constitutionality of the Restoring Mail Delivery for Canadians Act, back-to-work legislation enacted in response to rotating strikes and a nationwide lockout.

The Act mandated the resumption of mail delivery, extended the previous collective agreement, prohibited strike activity, and imposed a final offer selection arbitration process.

The court found that the Act violated the guarantee of freedom of association under s. 2(d) of the Charter by substantially interfering with a meaningful process of collective bargaining.

The court also found that the Act violated freedom of expression under s. 2(b) by prohibiting strike activity, which conveys meaning.

Neither violation was justified under s. 1 of the Charter.

The court declared the Act unconstitutional and of no force or effect retroactively.

The employer applied under section 5 of the Labour Relations and Employment Law Amendment Act, 1995 for a declaration that the existing bargaining unit, which combined full-time and part-time employees, was not appropriate for collective bargaining.

The union opposed the application, arguing that a community of interest existed between the two groups.

The Board heard expert evidence that the nature of part-time work has evolved, with part-time employees now sharing similar interests to full-time employees.

Finding that the full-time and part-time employees performed the same work under virtually identical terms and conditions, the Board concluded that a substantial community of interest existed.

The employer's application to split the bargaining unit was dismissed.