Jonathan Michael Bricker

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.

Following a judgment that retroactively struck down the Restoring Mail Delivery for Canadians Act (Bill C-6), the applicants sought further declaratory relief under s. 24(1) of the Charter.

They argued that the collective agreement, which had been extended by s. 6 of the invalidated Act, should remain enforceable despite the Act's retroactive invalidity.

The court was asked to determine if this was a "remaining remedial issue" under a prior consent agreement, and if it had jurisdiction to grant such relief.

The court found that the applicants' request was not a "remaining remedial issue" as defined by the consent agreement, which was limited to s. 52(1) declarations and s. 24(1) monetary damages.

The court also determined it lacked jurisdiction to alter its final judgment by granting a new constitutional remedy, emphasizing the principle of finality in judicial decision-making.

The issue of the collective agreement's enforceability was deemed properly before the Québec Superior Court.