Well, here it is folks. The Supreme Court of Canada this morning overturned its earlier decisions in the Labour Trilogy and found that Section 2(d) of the Charter does protect the right to collective bargaining.
"We conclude that the grounds advanced in the earlier decisions for the exclusion of collective bargaining from the Charter’s protection of freedom of association do not withstand principled scrutiny and should be rejected."
all I can say is WOW!
Even more significant is the substantial unanimity in the judgment. We have seen substantial debate in the past over the content of the 2(d) right, but in this case, both the majority of 6, and the minority judgment of Justice Deschampes, found the right, and found that it had been infringed (albeit to differing extents) and found that the infringement(s) (also to differing extents) to be unjustifiable under a section 1 analysis.
What a fabulous day this is. (oh, and by the way, my convocation is also today...LL.B., here I come)
time to get ready.
Ryan.
Friday, June 8, 2007
Wednesday, March 21, 2007
still waiting...
Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2004] S.C.C.A. No. 587
On February 8th, 2006, over a year ago now, the Supreme Court of Canada heard arguments in this case relating to the B.C. Government's imposition of a "collective agreement" on health care workers during the term of an existing negotiated agreement. Both the B.C. Supreme Court and the B.C. Court of Appeal rejected arguments that Bill 29 violated health care workers' freedom of association guaranteed under Section 2(d) of the Canadian Charter of Rights and Freedoms, and that it also discriminated on the basis of sex, or on the analogous ground of "women who work in female-dominated sectors, doing work associated with women". This naturally begs the question of what might be taking so long. Though this is clearly not yet near the longest that our highest court has taken to render a decision, the Court's average time from hearing to decision is presently around six months.
In comparison, the Court's landmark decisions in the so-called "labour trilogy" of Reference re Public Service Employee Relations Act (Alta.), P.S.A.C. v. Canada, and R.W.D.S.U. v. Saskatchewan, did take almost a year and a half from and October, 1985 when the latter two of the three were heard, until April 8th, 1987 when judgment was rendered; however, that was three judgments, rendered simultaneously. Later decisions on Section 2(d) in PIPSC and Dunmore took six and ten months respectively from hearing to the rendering of judgment. Delisle, another case in which both Section 2(d) and Section 15 were at issue in relation to collective bargaining rights of R.C.M.P. officers, took just shy of 11 months from the date of hearing in October of 1998 until it was decided in September of 1999.
Could it be that the highest court in the land is preparing a judgment that will break new ground in Canadian labour law? Four of the Court's justices that heard this case also sat in judgment on Dunmore, but only two sat on Delisle only two years earlier, and none of the current justices participated in the earlier judgment in PIPSC or were around for the trilogy. Along with many others, I wait with baited breath for the pending outcome of this appeal and will be intrigued to find out both on which side the court will fall, and whether that result will be a definitive ruling by most or all of the seven, or whether we will be digging through multiple concurring and/or dissenting judgments for days understand where we go from here.
Ryan.
On February 8th, 2006, over a year ago now, the Supreme Court of Canada heard arguments in this case relating to the B.C. Government's imposition of a "collective agreement" on health care workers during the term of an existing negotiated agreement. Both the B.C. Supreme Court and the B.C. Court of Appeal rejected arguments that Bill 29 violated health care workers' freedom of association guaranteed under Section 2(d) of the Canadian Charter of Rights and Freedoms, and that it also discriminated on the basis of sex, or on the analogous ground of "women who work in female-dominated sectors, doing work associated with women". This naturally begs the question of what might be taking so long. Though this is clearly not yet near the longest that our highest court has taken to render a decision, the Court's average time from hearing to decision is presently around six months.
In comparison, the Court's landmark decisions in the so-called "labour trilogy" of Reference re Public Service Employee Relations Act (Alta.), P.S.A.C. v. Canada, and R.W.D.S.U. v. Saskatchewan, did take almost a year and a half from and October, 1985 when the latter two of the three were heard, until April 8th, 1987 when judgment was rendered; however, that was three judgments, rendered simultaneously. Later decisions on Section 2(d) in PIPSC and Dunmore took six and ten months respectively from hearing to the rendering of judgment. Delisle, another case in which both Section 2(d) and Section 15 were at issue in relation to collective bargaining rights of R.C.M.P. officers, took just shy of 11 months from the date of hearing in October of 1998 until it was decided in September of 1999.
Could it be that the highest court in the land is preparing a judgment that will break new ground in Canadian labour law? Four of the Court's justices that heard this case also sat in judgment on Dunmore, but only two sat on Delisle only two years earlier, and none of the current justices participated in the earlier judgment in PIPSC or were around for the trilogy. Along with many others, I wait with baited breath for the pending outcome of this appeal and will be intrigued to find out both on which side the court will fall, and whether that result will be a definitive ruling by most or all of the seven, or whether we will be digging through multiple concurring and/or dissenting judgments for days understand where we go from here.
Ryan.
Monday, March 12, 2007
Adjudicative independence
McKenzie v. British Columbia (Minister of Public Safety and Solicitor General), 2006 BCSC 1372
Ryan.
excerpted from “Judicial Independence: Beyond the Courts? An analysis of the requirements for independence of administrative tribunals in Canada” (Ryan Goldvine: unpublished)
Following an extensive review of administrative justice in British Columbia, the Government of British Columbia introduced the Administrative Tribunals Appointment and Administration Act (ATAAA) including a section allowing for administrative tribunal chairs, vice chairs, and members, to be terminated for cause; however, it also modified the Public Sector Employers Act (PSEA) with the seemingly contradictory provision in s. 14.9 that “The appointment of a person referred to in subsection (1) may be terminated without notice before the end of the term of their appointment on payment of the lesser of (a) 12 months' compensation, or (b) the compensation in an amount equal to the remuneration otherwise owing until the end of the term.”
On April 14, 2005, Mary McKenzie, a residential tenancy arbitrator in the Province of British Columbia, had her appointment as an arbitrator rescinded mid-term, without cause, pursuant to s. 14.9 of the PSEA. This gave the B.C. Supreme Court the opportunity to address practically the effect of this section on the adjudicative independence of administrative tribunals. In this case, the Court found that s. 14.9, in the context of the ATAAA and the PSEA does not allow for the mid-term termination of residential tenancy arbitrators; however, s. 14.9 was nonetheless struck down as “violating the constitutionally protected principle of independence required in the circumstances.”
While the earlier case of Ocean Port appeared to shut the door on the possibility that any administrative tribunal could inhere with it a requirement for independence that could not be undone by clear statutory language, McKenzie, in part, appears to have reopened the debate, though without strong enough facts to make the finding it did. The wording of s. 14.9 of the PSEA, as stated in both Farmer Construction and McKenzie is equivocal at best. The statute cannot be read to imply the words “without cause” to be included in the notion of “without notice,” especially in light of a requirement for cause in other statutes relating to the same tribunal members. As such, based on the facts of this case, the reasoning in Ocean Port and Farmer Construction should likely stand to dispose of McKenzie in the same way as it has been, but without the striking down of the relevant section. In fact, there has not been legislation that unequivocally derogates from the independence of an administrative tribunal that does have court-like functions as contemplated in both Farmer Construction and McKenzie and until a government feels so bold enough as to enact such legislation, or until the Supreme Court of Canada proclaims otherwise, Ocean Port will stand as good law.
Ryan.
Time to start adding something useful to the world (wide web)
Okay, well I won't start right away. This is just one of those "test" posts to make sure everything is working.
Ryan.
Ryan.
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