Q15. Is Bill 75 unconstitutional?

Darned if I know; here are the tools you need to make up your own mind

A15. I know this question isn’t really about the Nova Scotia legislature, but I’ve been asked a lot for my opinion, and it’s relevant to the reason I started this Citizens’ Guide.

To be enforceable, a law has to respect Canada’s constitution. It’s not clear if Bill 75 is constitutional.

In our system of government, a legislature can pass any law it wants. The only restriction is that a law must respect the constitution, which is Canada’s supreme law.  Many people have asserted that Bill 75 violates the constitution.

In this post, I’m not going to try to give a definitive opinion. That’s impossible. I do want to offer a few thoughts that may help you to make up your own mind.

Over the past 10 years or so, the Supreme Court of Canada (SCOC) has issued a series of decisions that “constitutionalize” labour relations. As a result, governments have to be very careful about how they handle labour legislation. Legislatures used to have a free hand. Not any more.

The McNeil government is currently walking several tightropes simultaneously (if that metaphor makes any sense): labour relations with the NSTU; public opinion; and constitutionality. Every move it makes represents a careful consideration of these three tightropes.

The constitutional tightrope is based on s. 2(d) of the Charter of Rights. That clause says that Canadians have the right to “freedom of association”. That’s it. All the SCOC decisions are based on those three words.

The SCOC has decided that “freedom of association” must include the right to form a workplace union. To have a meaningful union, the union has to be able to engage in collective bargaining with the employer. And collective bargaining has to be meaningful. But what is meaningful collective bargaining? That’s what the SCOC is still trying to figure out. The law inches forward, one decision at a time. It is always a work in progress.

On November 10, 2016, the SCOC issued a new decision in this ongoing story. The decision involved a challenge by the BC Teachers’ Federation to a law passed by the BC government in 2002. The SCOC ruled the law was unconstitutional.

In the heated debate around the impasse with teachers, the BC Teachers’ Federation decision was gasoline on the fire. But what did the SCOC actually decide?

All written court decisions are available in a free database called CANLII. If you don’t know about it, this is a fantastic public database. The SCOC decision in the BC Teachers’ Federation case is available in CANLII.

The SCOC decision is very short. Here it is in its entirety:

The majority of the Court would allow the appeal, substantially for the reasons of Justice Donald. Justices Côté and Brown would dissent and dismiss the appeal, substantially for the reasons of the majority in the Court of Appeal.

Yeah, that’s the whole thing. Let me explain in a few easy steps:

  1. Every SCOC decision is an appeal from a lower-court decision.
  2. The BC Teachers’ Federation decision was an appeal from the BC Court of Appeal, which is BC’s highest court.
  3. The BC Court of Appeal had split 4-1. The majority (4) was in favour of the BC government and would have upheld the law. The dissenter (1) was in favour of the BC Teachers’ Federation, and would have found the law to be unconstitutional and therefore unenforceable.
  4. There are nine judges on the SCOC.
  5. In the BC Teachers’ Federation appeal, the SCOC split 7-2.
  6. The SCOC majority (7) sided with the dissenter on the Court of Appeal (his name is Justice Donald). That means the BC Teachers’ Federation won at the SCOC. (And it means Justice Donald probably popped some champagne that night.)
  7. The other two SCOC judges sided with the majority on the Court of Appeal.

Still with me? All of this means that in order to understand what the SCOC decided in the BC Teachers’ Federation case, you have to read Justice Donald’s decision in the BC Court of Appeal. Basically the SCOC said “We agree with that guy.” And that guy—Justice Donald—articulated what is now the law of Canada on s. 2(d) of the Charter, at least until the next decision comes along.

Justice Donald’s decision—in fact the entire BC Court of Appeal decision—is also available on CANLII.  Justice Donald’s decision starts at paragraph 275 and runs to paragraph 401. I know it’s long, but nobody said this was simple. If you feel up to it, try to read it. Justice Donald’s decision is well-written and can, with a bit of effort, be understood by anyone.

I hesitate to lift a single sentence or paragraph out of Justice Donald’s decision and say “Here’s what he decided.” The law is a web, and each decision is a new layer in the web, and you can’t pick out a thread from the web and say “That’s the law”.  Besides, the facts of each case are crucially important.

But if I had to try to summarize Justice Donald’s decision—a decision which the SCOC implicitly adopted—I would pick two short quotations. The first is from paragraph 293:

…if the government negotiates or consults with an association in good faith and nevertheless comes to an impasse, it will likely have satisfied its constitutional duty and may unilaterally pass necessary legislation consistent with that consultation process. If the government does not have time to consult or negotiate with a collective bargaining unit because of exigent circumstances or emergency, it may then be found to have breached s. 2(d), but such a breach may be saved under s. 1.

So the fact that there’s a negotiating impasse, and the government passes a law to deal with the impasse, doesn’t necessarily mean the law is unconstitutional. A lot depends on whether the government has negotiated in good faith.

But what does it mean to negotiate in good faith?  Here’s what Justice Donald says in paragraph 348:

Parties are required to meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other party. Parties’ positions must not be inflexible and intransigent, and parties must honestly strive to find a middle ground. In order to determine whether the government is bargaining in good faith, it may sometimes be necessary to probe and consider the government’s substantive negotiating position.

I’m in no position to say definitively whether Bill 75 complies with this test. I have read opinions from lawyers and (surprise!) they come to different conclusions. That’s to be expected, because it’s a very complex and evolving area of law.

At least you now have the framework within which to make up your own mind. Go ahead and take a look at Justice Donald’s decision.

One last thought: Constitutional cases can take years to work their way through the courts. The BC Teachers’ Federation case was decided in 2016, and was a challenge to a law passed in 2002. It took fourteen years to get a final decision! If Bill 75 is challenged on constitutional grounds, it will likely take many years for a final decision, especially if it’s appealed all the way to the SCOC.

So one thing is for sure: the constitutionality of Bill 75 won’t be decided until after the next election, or maybe the one after that, or the one after that. And that may be the most important factor of all.

Author: Graham Steele

A former MLA in Nova Scotia, currently Professor of Business Law in the Rowe School of Business at Dalhousie University

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