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.