



COURT OF
APPEAL FOR BRITISH COLUMBIA




Citation:



British
  Columbia Teachers' Federation v. British Columbia Public School Employers'
  Assn.,









2009 BCCA 39




Date: 20090204

Docket: CA034975; CA034982

Docket: CA034982

Between:

British
Columbia Teachers Federation

Appellant

(
Petitioner
)

And

British
Columbia Public School Employers Association and

Attorney
General of British Columbia

Respondents

(
Respondents
)

And

Business
Council of British Columbia

Intervenor





- and -

Docket: CA034975

Between:

Hospital
Employees Union

Appellant

(
Petitioner
)

And

Health
Employers Association of British Columbia and
Attorney General of British Columbia

Respondents

(
Respondents
)

And

Business
Council of British Columbia

Intervenor

Corrected Judgment:  The text of the
judgment was corrected
at paragraphs [9], [13], [17], and [59] on June 19, 2009




Before:



The Honourable Mr. Justice Mackenzie





The Honourable Madam Justice Levine





The Honourable Mr. Justice Frankel









J. Rogers, Q.C.
and M. Brown



Counsel for the British Columbia Teachers
  Federation





C. Boies Parker



Counsel for the Hospital
Employees Union





K. Murray



Counsel for the British Columbia  Public
  School Employers Association





G.H. Copley, Q.C.
E.W. Hughes and
K. Wolfe



Counsel for the Attorney General of British Columbia





E. Harris, Q.C.



Counsel for the Health Employers Association
  of British Columbia





E.F. Miller



Counsel for the British Columbia Labour
  Relations Board





D. Sartison
and B. Korenkiewicz



Counsel for the Business Council of
  British Columbia





Place and Date of
  Hearing:



Vancouver, British Columbia





12-14 November 2008





Place and Date
  of Judgment:



Vancouver, British Columbia





4 February 2009









Written
  Reasons by
:





The Honourable Mr.
  Justice Mackenzie





Concurred in
  by:





The Honourable Madam
  Justice Levine

The Honourable
  Mr. Justice Frankel




Reasons for
Judgment of the Honourable Mr. Justice Mackenzie:

[1]

The appellants British
Columbia Teachers Federation (BCTF) and Hospital Employees Union (HEU)
challenge the definition of strike in s. 1 of the British Columbia
Labour
Relations Code
, R.S.B.C. 1996, c. 244 (the 
Code
) on the ground
that it restricts their ability to engage in political protests and thereby infringes
their rights under s. 2 of the
Canadian Charter of Rights and Freedoms,
Part
I of the
Constitution Act, 1982
, being Schedule B to the
Canada
Act 1982
(U.K.), 1982, c. 11.  The main challenge to the definition of
strike is based on the right to freedom of expression under s. 2(b) of the
Charter
but BCTF also advances submissions under ss. 2(c) and 2(d).

[2]

The BCTF and HEU staged
work stoppages to protest legislation interfering with their conditions of
employment.  The work stoppages went ahead notwithstanding anticipatory
declarations of the Labour Relations Board (the Board) that the intended work
stoppages were strikes that contravened s. 57 of the
Code
.  The
appellants
Charter
challenges followed.  The appellants essentially
define a protest work stoppage as one directed at government action, in these instances
legislation, as distinguished from collective bargaining work stoppages aimed
at their direct public sector employers.  For convenience I will refer to them
as protest strikes and collective bargaining strikes.

[3]

The definition of
strike in s. 1 of the
Code
was amended in 1984 to include all concerted
work stoppages that restrict production or services.  Previously the definition
had been limited to strikes for a collective bargaining purpose.  In short, the
amendment replaced a purpose based definition of strike with an effects
based definition, thereby extending it to include protest strikes.  Section 57
of the
Code
prohibits strikes during the term of a collective agreement,
referred to as mid-contract strikes.

[4]

For the reasons that
follow, I have concluded that the effect of the strike definition infringes the
freedom of expression guaranteed by s. 2(b) of the
Charter
but the
infringement is justified under s. 1.  There is no infringement of s. 2(c) or
s. 2(d).

Adjudicative Facts

[5]

On Friday, 25 January 2002, the
provincial government introduced three bills in the Legislature imposing a
collective agreement on the BCTF and modifying the terms of the HEUs
collective agreement.  The three bills, Bill 27,
Education Services
Collective Agreement Act
, 2nd sess., 37th Parl., British Columbia, 2002 (Bill
27), Bill 28,
Public Education Flexibility and Choice Act
, 2nd sess.
37th Parl., British Columbia, 2002 (Bill 28

), and Bill 29,
Health
and Social Services Delivery Improvement Act
, 2nd sess., 37th Parl.,
British Columbia, 2002 (Bill 29), were passed by the Legislature and became
law on Monday, 28 January 2002.  Bill 27 and Bill 28 designated education
as an essential service and precluded school boards and teachers from
bargaining class sizes as well as overriding other existing contractual
rights.  Bill 29 modified the terms of HEUs existing collective agreement to
allow contracting out of work and restricting bumping and layoff rights.

[6]

The BCTF work stoppage occurred on
28 January 2002, the date Bills 27 and 28 were enacted.  The HEU work stoppage
occurred on the anniversary date one year later, 28 January 2003.  Both one day
stoppages contravened interim orders of the Board enjoining the work stoppages
obtained by the respective employer respondents, the British Columbia Public
School Employers Association (BCPSEA) and the Health Employers Association
of British Columbia (HEABC).

[7]

The circumstances of the BCTF
protest were summarized by Vice-Chair Saunders of the Board in his original
decision on the legality of the work stoppage: BCLRB No. B92/2004 (19 March
2004), at para. 10 (the BCTF Original Decision).  Teachers throughout British
Columbia engaged in a concerted withdrawal of services following a request not
to attend work by the BCTF.  A large majority of teachers chose not to attend
work, leading to widespread disruption of classes.  The large majority of
students in the public school system did not receive instruction that day. 
Teachers participated in protest rallies and demonstrations across the Province
but schools were not picketed.  Participation by teachers was voluntary and no
disciplinary action was taken by the BCTF against non-participating teachers. 
Teachers who did participate were paid $50 from the BCTF Collective Bargaining
Defence Fund.  The BCTF Original Decision (at para. 185) estimated that
hundreds of thousands of students were likely affected and inferred that
thousands of parents of young children would have had to make alternative
arrangements for supervision.  Vice-Chair Saunders declined to draw any
inference as to the extent of serious parental inconvenience or hardship in the
absence of evidence on that point.

[8]

The work stoppage by the HEU
members one year later was the subject of a separate hearing and decision by
Vice-Chair OBrien: BCLRB No. B64/2004 (24 February 2004) (the HEU Original
Decision).  The parties filed an agreed statement of facts which summarized
the context of the protest and the details of the concerted work stoppage.  At
about 6:00 a.m., without notice, HEU members put up picket lines at
healthcare facilities in the Lower Mainland.  The HEU directed members
reporting for the morning shift into work to provide essential service levels
generally as determined by the Board for a 2001 healthcare dispute.  HEU
members not designated essential were directed not to report for work and they
converged for a protest rally at Vancouvers Plaza of Nations.  There were some
instances of picket line intimidation and at least one instance where a car
driven by a management employee was banged on by fists, as it entered
Childrens & Womens Hospital.  As a result of the work stoppage and picket
lines, elective surgeries were cancelled and services to patients were
disrupted.  Patients, physicians and non-HEU staff had difficulty gaining
access to hospitals and delivery of hospital supplies, including
pharmaceuticals and oxygen, was impeded.  Picket lines came down shortly after
noon and the work stoppage ended by the commencement of the afternoon shift at
4:00 p.m.

The Procedural History

[9]

The Board issued its interim
orders on an expedited basis in advance of the work stoppages, deferring a
hearing on the merits.  The BCTF and the HEU raised the
Charter
challenge to the definition of strike and the Supreme Court directed that the
constitutional issues be addressed first by the Board.  The Board held separate
hearings resulting in the HEU Original Decision and the BCTF Original Decision,
upholding the injunctions.  The BCTF and the HEU applied to the Board for
reconsideration.  The Board granted leave and, following a hearing before a
three member panel, dismissed the applications in a decision indexed at BCLRB
No. 395/2004 (17 December 2004) (the 
Reconsideration Decision
)
,
Associate Chair Fleming
dissenting with respect to the BCTF order.

[10]

Both the BCTF and the HEU
petitioned for judicial review of the Boards orders.  The petitions were heard
together by the chambers judge.  They were dismissed with reasons dated 20
March 2007, indexed at 2007 BCSC 372.

[11]

The reasons of the several Board
members and the chambers judge varied on the
Charter
issues.  Both
original decisions characterized the work stoppages and related activity as
political protests that were strikes as defined by the
Code
and, as
mid-contract strikes,
prima facie
prohibited by s. 57.  Both
Vice-Chair OBrien in the HEU Original Decision

and Vice-Chair Saunders
in the BCTF Original Decision concluded that the protests involved expressive
activity within the meaning of s. 2(b) of the
Charter
and the strike
prohibition infringed s. 2(b) rights.  They differed on whether or not the
infringement was justified under s. 1.  Vice-Chair OBrien concluded that the
definition of strike was largely justified but a complete prohibition was
overbroad.  In her view, the
Charter
required an exception for the occasional
day of protest types of political protest strikes that do not undermine the
integrity of the labour relations regime and do not have a significant adverse
impact on the public interest.  However, she also concluded that the picketing
activity by HEU members was inconsistent with the nature of constitutionally
protected political protest strikes and excluded from protection.

[12]

Vice-Chair Saunders in the BCTF
Original Decision concluded that an exception as outlined by Vice-Chair OBrien
was unworkable and the adverse effects of protest strikes justified their
complete prohibition during a collective agreement.

[13]

The reconsideration panel agreed
without further detailed analysis that protest strikes can be distinguished
from collective bargaining strikes and that the work stoppages in issue were
political strikes with a free expression dimension that engaged s. 2(b) of the
Charter
. 
They addressed the s. 1 issue  Is a complete prohibition of mid-contract
protest strikes justified under s. 1 of the
Charter
?  The majority
agreed with Vice-Chair Saunders that a complete prohibition was justified, with
Chair Mullin adding the caveat that any exception that might be recognized in
the HEU circumstances of a unilateral drastic legislative modification of an
existing collective agreement was a matter for the courts.
Associate Chair Fleming
dissenting with respect to the BCTF order, agreed
with Vice-Chair OBrien that a day of protest type exemption to a general
prohibition was constitutionally required.

[14]

The chambers judge accepted that
the protest strikes involved expressive activity but, contrary to the Board
consensus, she concluded that it did not engage s.  2(b) protection.  In
the alternative, she concluded that any infringement was justified under s. 1. 
Accordingly she dismissed the petitions for judicial review.

[15]

On 8 June 2007, the Supreme Court
of Canada delivered judgment in
Health Services and Support  Facilities
Subsector Bargaining Assn. v. British Columbia,
[2007] 2 S.C.R. 391, 2007
SCC 27 (
Health Services
), declaring that certain sections of Bill 29
infringed health care employees right to a process of collective bargaining
under s. 2(d) of the
Charter
and that the impugned provisions failed the
test of minimal impairment under s. 1.  A similar challenge by the BCTF to
Bills 27 and 28 is at the pre-trial stage of litigation.

The Legislative History

[16]

The issues are raised
against a background of the legislative history of the definition of strike in
British Columbia.  The current definition is the result of an amendment to the
Labour
Relations Code,
R.S.B.C. 1979, c. 212 in 1984.  The definition now reads;

"strike"
includes a cessation of work, a refusal to work
or to continue to work by employees in combination or in concert or in
accordance with a common understanding, or a slowdown or other concerted
activity on the part of employees
that is designed to or does restrict or
limit production or services
, []

[Underlining added]

The
pre-1984 definition limited strikes to work stoppages for the purpose of
compelling employers to agree to terms and conditions of employment.

[17]

The current definition of strike
accords with the definition of strike in the
Canada Labour Code
, R.S.C.
1985, c. L-2, s. 3(1) and the labour relations statutes of six other provinces:
Industrial Relations Act
, R.S.N.B. 1973, c. l-4, s. 1;
Labour
Relations Act
, R.S.N.L. 1990, c. l-1, s. 2(v);
Labour Relations Act
,
S.O. 1995, c. 1, s. 1(1);
Labour Act
, R.S.P.E.I. 1988, c. L-1, s. 7(1)(l);
Labour Code
, R.S.Q. c. C-27, s. 1(g);
Trade Union Act
, R.S.S.
1978, c. T-17, s. 2(k.1).

[18]

Under the earlier definition, a
Board panel chaired by then-Chairman Paul Weiler concluded that a work stoppage
by electrical workers protesting a federal anti-inflation program was not a
strike as then defined because the purpose was not employer related:
BC
Hydro
&
Power Authority v. International Brotherhood of Electrical
Workers Locals 258 & 213, et al.,
[1976] B.C.L.R.B.D. No. 71 (
BC
Hydro
).  The Board noted the definition of strike was of long standing in
British Columbia, and that it contrasted sharply with the Ontario definition
which was expressly directed to the effects of a concerted work stoppage as designed
to restrict or limit output.  The Board concluded that the contrast between a
purpose based and an effects based definition was a matter of legislative
policy and it was not for the Board to stretch the British Columbia wording to
accord with an effects based result.  The Board noted that the purpose
definition was integrated with other provisions of the
Code
that would
have to be revised if an effects based test was substituted, otherwise such
innocuous activity as a small group of mining company employees unilaterally
taking time off work together to go fishing would contravene no-strike
provisions.  The Board recognized that the exclusion of protest strikes not
directed at employers was the primary difference between the BC and Ontario provisions.

[19]

The purpose based definition in
British Columbia can be traced to the federal
Industrial Disputes
Investigation Act,
S.C. 1907, c. 20

made applicable in British Columbia
by the
Industrial Disputes Investigation Act,
S.B.C. 1925, c. 19.  It
was continued in revised labour relations statutes enacted in 1937, 1947, 1954,
and 1973.  In 1983, political protests organized by the Solidarity Coalition in
opposition to a broad package of legislative initiatives culminated in
widespread work stoppages in the education and other public sectors.  The Board
refused to declare the work stoppages to be strikes, relying on its earlier
decision in
BC Hydro
that political protest work stoppages fell outside
the purpose based definition:
Pacific Press

Limited and
Vancouver-New Westminster Newspaper Guild, Local 115 et al
.,

[1985]  B.C.L.R.B.D.
No. 140.  The 1984 amendment followed.

Issues

[20]

The appellants raise the following
issues:

1.         Does
the definition of strike, in conjunction with s. 57 of the
Code
,
infringe the appellants right to freedom of expression under s. 2(b) of the
Charter
? 
BCTF also raises the issue of infringement of the rights of freedom of peaceful
assembly and freedom of association under ss. 2(c) and 2(d) of the
Charter
.

2.         If
strike so defined infringes s. 2 rights, is the infringement a reasonable
limit prescribed by law as can be demonstrably justified in a free and
democratic society under s. 1 of the
Charter
?

3.         Does
the engagement by some individual members of the HEU in some acts of
intimidation and violence exclude the entire protest strike from the protection
of s. 2(b)?

The Context of Public Sector Collective Bargaining and
Strikes

[21]

Before addressing the issues
directly, it may be of assistance to reflect briefly on the context of public
sector strikes.  Public sector unionism is a relatively recent development in
the history of collective bargaining, gaining impetus beginning in the 1970s: Paul
Weiler,
Reconcilable Differences
(Toronto: Carswell, 1980) at 61-62.  In
my view, public sector bargaining has a different dynamic than the system prevailing
in the blue-collar private sector which, according to Weiler, had by the end
of the 1970s become relatively mature.  Government is intimately involved in
the delivery of public services by members of public sector unions.  Government
revenues pay for the services and governments are accountable at the ballot box
for the quality and quantity of the services.  Public sector employers are
formally the bargaining agents and the parties to the collective agreements
but, unlike private sector employers, they are substantially constrained by
government determination of available resources and policy.  A public sector
strike has a different
impact

than
a strike in the private sector.  Typically a public sector employer saves money
during a work stoppage.  There may be little or no loss of revenue to the
employer, and it does not have to pay the wages of the striking employees.  The
adverse impact is felt by the public in the interruption of public services;
the union objective is to influence the government to direct or allow the public
sector employer to make concessions.  In that sense a public sector strike is
more a political than an economic weapon.

[22]

The appellants protest strikes
were political in the sense that they were aimed at the government but the
legislation they were protesting changed conditions of employment and overrode
collective bargaining processes.  The protests illustrate the symbiotic
relationship between governments and public sector employers that blurs the
line between bargaining and politics.

Freedom of Expression  Application of the
Irwin Toy
Analysis

[23]

The parties are agreed that the
standard of review of the chambers judges decision and the underlying
decisions of the Board is correctness.

[24]

Section 2(b) of the
Charter
guarantees freedom of expression as a fundamental freedom.  The appropriate
analytical framework is outlined in
Irwin Toy Ltd. v. Qu
é
bec
(Attorney General),
[1989] 1 S.C.R.
927 (
Irwin Toy
).  It sets out a two-stage approach to the issue of
whether a law infringes the right to freedom of expression.  The first stage
addresses the question whether the activity affected by the law is expressive
activity presumptively protected by the s. 2(b) guarantee.

i)

Expressive
Activity

[25]

Any activity is expressive if it
attempts to convey meaning:
Irwin Toy
at 968.  The chambers judge and
the Board all accepted that the conduct in issue was expressive activity, so
defined, and the purpose was political protest directed at an attempt to
influence government rather than their public sector employers.

[26]

The
Code
contains a broad
endorsement of free expression.  Section 8 states:

8
Subject to the regulations, a person has the
freedom to express his or her views on any matter, including matters relating
to an employer, a trade union or the representation of employees by a trade
union, provided that the person does not use intimidation or coercion.

[27]

Free expression in a collective
bargaining context extends to leafleting, non-coercive distribution of
information at secondary sites for the purpose of discouraging purchase of an
employers products during the course of a strike or lockout.
U.F.C.W.,
Local 1518 v. KMart Canada Ltd.,
[1999] 2 S.C.R. 1083

(
KMart
)
held that non-coercive consumer leafleting was protected under s. 2(b) of
the
Charter
and could not be restricted under picketing provisions of
the
Code
.
Allsco Building Products Ltd. v. U.F.C.W., Local 1288P,
[1999]
2 S.C.R. 1136 followed
KMart
and relied on the New Brunswick equivalent of
s. 8 in the interpretation of the New Brunswick
Industrial Relations Act,
R.S.N.B.
1973, c. I-4 to exclude leafleting from picketing restrictions.

[28]

The chambers judge noted that the
BCTF protest strike was peaceful and it was not excluded from s. 2(b)
protection by reason of its method and location.  She concluded that the HEU
protest strike was excluded because of the instances of picket line violence
and intimidation.  The HEU accepts that the picket line activity is not within
the
Charter
guarantee.  It contends that the picket line activity is
severable from the protest strike
per se
and that the strike activity
apart from picketing should not have been excluded.  I will come back to this
issue later in these reasons.

[29]

The respondents and the Attorney
General do not challenge the conclusion that peaceful protest strikes meet the
first stage of the
Irwin Toy
criteria and involve expressive activity
presumptively not excluded from the s. 2(b) guarantee.

[30]

The second stage is whether the
purpose or effect of the law restricts freedom of expression.

ii)

Purpose

[31]

Irwin Toy
, at 971-73, distinguishes between restrictions aimed
at controlling content of expression or form of expression tied to content,
which trenches upon the
Charter
guarantee and restrictions aimed only at
control of the physical consequences of particular conduct not tied to content,
which does not.  The appellants contend that the purpose of the amendment is to
restrict the right of unionized employees to participate in political protest. 
The respondents and the Attorney General say that the purpose is to control the
consequences of mid-contract work stoppages, politically protest motivated or
otherwise.  The chambers judge concluded that the purpose is to address the
disruptive consequences of mid-contract work stoppages.

[32]

While the appellants contend that
the prohibition curtails the ability of union members to attend protest rallies,
the restriction only affects their attendance during working hours.  The
content and form of protest rallies is otherwise unconstrained.

[33]

The background to the 1984
redefinition of strike was widespread and escalating politically motivated work
stoppages as part of the Operation Solidarity protests in 1983.  Mid-contract
production and services were disrupted.  The 1984 amendment was a government
response.  The objective apparent on the face of the 1984 definition is the
prohibition of mid-contract strikes that restrict services or production,
irrespective of purpose.  No distinction is made between collective bargaining
strikes and protest strikes.  The emphasis is on the consequences of strike
action and not on the expressive purpose of the strike or the form of
expression tied to its expressive content.

[34]

In
Dunmore v. Ontario (Attorney
General
), [2001] 3 S.C.R. 1016, 2001 SCC 94, Bastarache J. (at para. 33)
stressed the difficulties of assessing legislative intent and discouraged
attempts to go behind the wording of a statute in search of a subjective
legislative intent.  It is generally more appropriate to be guided by the
effects of the impugned provision.  With that caution in mind, I do not read
the statements of the Minister of Labour and the Attorney General in the
Legislature, to which we have been referred, as inconsistent with the objective
of constraining the effects of work stoppages involved in political protests
and not the otherwise free expression of the protest.  That is the purpose of
the redefinition of strike on the face of the wording.  I agree with the
chambers judge that the purpose of the definition of strike does not trench
upon the s. 2(b) guarantee.  I turn to the effects of the strike definition.

iii)

Effect

[35]

The chambers judge in considering
the effects of the mid-contract political strike prohibition emphasized the
contractual nature of the obligation to attend at the workplace during normal
working hours.  She drew an analogy between union members under a collective
agreement and non-union employees under contracts of personal service.  Neither
has a contractual right to unilaterally withdraw services.  She observed that a
right to political expression has never been associated with a right to breach
employment contracts and political messages can be effectively communicated by
other means.

[36]

In my respectful view, the
chambers judges analysis fails to adequately reflect the effects of strike
action as an economic weapon to convey a message, particularly in the context
of the changing face of public sector employment.

[37]

Public sector unions have been
given the right to strike for collective bargaining purposes, apart from
essential services staffing requirements, and the political dimension of such
strikes cannot be ignored.  Unlike the private sector, the primary target of
the strike weapon is the government and public opinion; the strike is in that
sense political.  Theoretically a protest strike could be directed at a
political issue unrelated to employment but the instances where unions mobilize
their strike forces for a purely altruistic objective are likely to be rare. 
Certainly it was not the case with the work stoppages at issue here.  I accept
that the objectives were not restricted solely to the economic interests of
union members.  No doubt teachers are genuinely interested in the effects of
class size on the quality of education as well as the personal burden of the
teaching load.  Health care workers are properly concerned about the quality of
patient care as well as their job security and other directly-related
employment conditions.  Motivations are mixed and strike objectives in the
public sector cannot be conveniently divided into political protest and
collective bargaining categories.  In both cases, the strike exerts pressure
directed beyond the formal public sector employers to the governments that are
their masters.  It is a form of effective expression that is curtailed by its
inclusion within the strike definition.  In my view, the effect of the
mid-contract strike prohibition is a restriction on an effective means of
expressive action and for that reason alone, it trenches on the s. 2(b)
guarantee of free expression.

[38]

It is therefore necessary
to address the question of whether the infringement can be justified under s. 1
of the
Charter
.

Infringement of Freedom of Peaceful
Assembly 
Charter
s. 2(c)

[39]

The BCTF submission
under this heading is linked to the rallies scheduled by the BCTF to protest
Bills 27 and 28.  The BCTF contends that the strike prohibition infringes the
right of teachers to peacefully assemble at protest rallies.  The chambers
judge agreed with Vice-Chair Saunders that there was no s. 2(c) infringement
because there was no restriction on the right to peacefully assemble away from
the workplace outside of working hours.  In my view, in the context of the BCTF
protest, any s. 2(c) issue of infringement is subsumed under the issues related
to the right of free expression under s. 2(b).  The fact that teachers went to
rallies when they withdrew their services is a means of expression but in this
case the withdrawal of services to engage in free expression is the central
fact rather than the means of expression at rallies or otherwise.  I do not
think that the infringement issues are advanced by characterizing them as
issues of freedom of assembly as an alternative or in addition to infringement
of freedom of expression.

Freedom of Association 
Charter
s.
2(d)

[40]

Collective bargaining
rights are included within the right to freedom of association protected by s.
2(b) of the
Charter
.  Strikes are part of the system of collective
bargaining.  In
Health Services
(at para. 75) McLachlin C.J. endorsed
the principle, taken from the dissenting reasons of Dickson C.J. in
Reference
re: Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313 (the

Alberta Reference
), that the ability to form and organize unions,
even in the public sector, must include freedom to pursue the essential
activities of unions, such as collective bargaining and strikes, subject to
reasonable limits.
Health Services
overruled the opinion of the
Alberta
Reference
majority that the
Charter
guarantee of freedom of
association did not extend to collective bargaining.  McLachlin C.J. did note
at para. 19 of
Health Services
that the issues did not concern the right
to strike.
In the
Alberta Reference
,
McIntyre J. concluded in separate reasons that a right to strike is outside
Charter
guarantees.  He warned of the dangers inherent in attempting to determine the
limits of strike action as a matter of constitutional law (at 416-19).  He
cautioned that the courts are ill-equipped to deal with the political, social
and economic questions that arise frequently in labour disputes.  In his view, judicial
re-engagement in those disputes under a constitutional rubric would be a
retrograde step.  Complicated and sophisticated questions would arise where
there would be no clearly correct answers and for which the courts are
ill-equipped to resolve.

[41]

Strikes remain an
integral feature of systems of collective bargaining in the private sector and they
have also become a feature of public sector bargaining in British Columbia.  In
the light of
Health Services
, it is an open question whether a right to
strike is within the ambit of the freedom of association guarantee.  For the
purposes of these reasons, I assume that a right to strike is included within
the
Charter
guarantee in principle.  The question then is whether the
statutory restriction on the right to strike consequent on the 1984
redefinition is within reasonable limits.

[42]

The BCTF accepts that a
statutory prohibition of mid-contract strikes is a reasonable limitation in the
context of collective bargaining, but it contends that the prohibition ceases
to be a reasonable limit when extended to protest strikes.  As discussed
earlier the boundary between collective bargaining strikes and protest strikes is
blurred.  The BCTF and HEU protests were directed at legislation impacting the
collective bargaining process and part of Bill 29 was struck down because it
unjustifiably infringed
Charter
protection of that process.  A similar
challenge to Bills 27 and 28 by the BCTF is pending.  The appellants contend
that the difference between a collective bargaining strike and a protest strike
is that the former is directed at the employer and the latter at the
government.  The associative dimension of the BCTF protest, as distinct from
its s. 2(b) expressive dimension is directed at an interference with free
collective bargaining, which is properly the subject of the s. 2(d) challenge
to Bills 27 and 28, rather than the strike issue.

[43]

In my view, the BCTF
Charter
challenge before us stands or falls on the issue of justification of the s.
2(b) infringement of freedom of expression.  Infringement issues related to
freedom of association are properly addressed in the proceedings challenging
Bills 27 and 28, which are not part of this appeal.

[44]

I would not give effect
to BCTFs submissions on ss. 2(c) and 2(d) of the
Charter
.  I turn to

the issue of justification of the s. 2(b) infringement of the guarantee of
freedom of expression under s. 1 of the
Charter
.

Justification of Infringement under s. 1 of
the
Charter
 the
Oakes
Analytical Framework

[45]

The chambers

judge
addressed the s. 1 issue, in the event she was in error in her conclusion that
there was no s. 2(b) infringement.

[46]

The analytical
framework for determining whether a law infringing the
Charter
can be
saved under s. 1 as a reasonable limit is outlined in
R. v. Oakes
,
[1986] 1 S.C.R. 103, at 138-39.  The objective of the law must be of pressing
and substantial concern.  The means chosen by the law must be reasonably and
demonstrably justified under a three part test.  The means must be rationally
connected to the objective.  They should impair the right as little as
possible.  Finally, there must be proportionality between the effects of the
chosen measures and the objective.  The government has the onus of establishing
each of the
Oakes
components.

[47]

The BCTF submits that
principles of international law inform the
Charter
scrutiny of the
strike definition.  In
Health Services
, McLachlin C.J. (at para. 20)
observed that collective bargaining is an integral component of freedom of
association in international law.  BCTF and HEU were parties to complaints
concerning Bills 27, 28 and 29 under
Convention (No. 87) Concerning Freedom
of Association and Protection of the Right to Organize
, 68 U.N.T.S. 17 (
Convention
No. 87
).  Report No. 330 of the committee investigating the complaints was
critical of the legislation but the thrust of the criticism was directed to the
adverse effects of the legislative intrusion into the collective bargaining
process: International Labour Office, Committee on Freedom of Association,
Report No. 330, Cases Nos. 2166, 2173, 2180 and 2196, "Complaints against
the Government of Canada concerning the Province of British Columbia",
I.L.O.
Official Bulletin, vol. LXXXVI
, 2003, Series B, No. 1 (Report No. 330). 
That was also the focus of
Health Services
which declared much of Bill
29 to be an unjustified infringement of collective bargaining rights protected
by s. 2(d) of the
Charter
.  McLachlin C.J. noted (at para 19) that
Health
Services
was not concerned with the right to strike and Report No. 330
did not comment on the protest strike dimension of the dispute.  While Report
No. 330 and Convention No. 87 inform the collective bargaining rights aspects
of
Charter
guarantees they do not address the strike dimension.

[48]

The issues here are
framed in terms of the prohibition of mid-contract protest strikes generally,
but mid-contract is a controversial designation in the particular
circumstances because the contracts were not the result of normal collective
bargaining.  The terms and conditions were imposed unilaterally by legislative
fiat over strong union opposition.  The several opinions at the Board level
indicate that the Board members were troubled by the heavy handed nature of the
government intervention and understandably sensitive to the override of the
Codes
collective bargaining process.  Neither the Board nor the chambers judge had
the benefit of
Health Services
where the HEU successfully attacked the
validity of much of Bill 29 on the ground that it unjustifiably infringed the
right to freedom of association under s. 2(d) of the
Charter
.  BCTF is challenging
Bills 27 and 28 in similar litigation that is in the pre-trial stage.
Health
Services
decided that there were
Charter
limits to the Legislatures
power to override collective bargaining rights.  That decision highlights the
fact that while the protests here were politically aimed at the government, the
subject of the protests had a central collective bargaining dimension
vulnerable to a
Charter
challenge on other grounds.

i)
Pressing and
Substantial
Objective

[49]

There is broad
agreement that the objective of the prohibition of mid-contract work stoppages
in the context of collective bargaining is to create certainty and stability in
the workplace during the term of a collective agreement.  The appellants accept
the validity of the pre-1984 strike definition that prohibited mid-contract
collective bargaining strikes to prevent workplace disruption.  The prohibition
of mid-contract strikes is balanced by the requirement that every collective
agreement must contain an arbitration provision to resolve mid-contract
disputes.

[50]

In
RWDSU v. Dolphin
Delivery Ltd.,
[1986] 2 S.C.R. 573, McIntyre J. (at para. 23) emphasized
the social costs of industrial conflict:

When
the parties do exercise the right to disagree, picketing and other forms of
industrial conflict are likely to follow.  The social cost is great, man-hours
and wages are lost, production and services will be disrupted, and general
tensions within the community may be heightened.  Such industrial conflict may
be tolerated by society but only as an inevitable corollary to the collective
bargaining process.

[51]

His observations were
made specifically in the context of picketing, which the appellants exclude
from their concept of limited
Charter
protection, but it has equal
application to disruptions caused by strikes apart from picketing.  The
appellants accept that the right to engage in protest strikes is not unlimited.
 From that fair concession it follows that at some point the disruption of
services and production caused by a protest strike must become a pressing and
substantial legislative objective.  The strike definition satisfies the
Oakes
tests objective requirement.

[52]

The appellants note that the
definition of lockout was not amended when the strike definition was amended in
1984.  The lockout purpose definition has been retained, limiting a lockout
to suspension of employment for the purpose of compelling employees to agree to
conditions of employment.  They submit that the lack of symmetry is unfair as
it allows employers to engage in lockouts for non-collective bargaining
purposes.  The hypothetical illustration advanced is an employer led shutdown
of businesses to support or protest the 2010 Olympics in Vancouver.

[53]

The chambers judge considered that
a political protest lockout was without historical precedent and improbable. 
The 1984 amendment of the strike definition was a response to work stoppage
activity actual or threatened by employees and unions.  There was no similar
apprehension concerning lockouts and redefining lockout simply to achieve
formal legislative symmetry would serve no practical purpose and could have
added unnecessary complications.  Employers may be required to suspend or
permanently shut down operations and lay off employees for legitimate business
reasons unrelated to collective bargaining, and a broad effects-based
definition of lockout that fails to recognize the range of non-collective
bargaining reasons for lay-offs or terminations would be problematic.

[54]

The appellants also unfavorably
contrast the position of unionized employees, whose right to strike is
restricted, with non-union employees who are not so restrained by legislation. 
This submission ignores the collective bargaining rights that unionized
employees are given under the
Code
.  The
quid pro quo
of those
rights is regulation of the right to strike, including prohibition of
mid-contract strikes.  Non-union employees have no
Code
protection and
employers would be free to exercise contractual remedies for breach.  In my
view, there is no merit in the proposition that the prohibition of protest
strikes unfairly prejudices employees subject to a collective agreement in comparison
to non-union employees.


ii)          Rational
Connection

[55]

A prohibition of all
mid-contract strikes is intended to curtail the disruption caused to services
or production caused by such strikes and therefore is rationally connected to
the laws objective.

[56]

The real issues of
justification are whether the complete prohibition of mid-contract strikes can
meet the tests of minimal impairment and proportionality.

iii)         Minimal Impairment and
Proportionality

[57]

The BCTF acknowledges
that employers and the public must be protected against the more severe
effects of protest activities.  Essentially it contends that a complete
mid-contract prohibition is overbroad and the limited work stoppages in issue
were within the limits of
Charter
protection.  The BCTF submits that the
proper limits of legislative intervention are set by the wrongful action
model outlined in
R.W.D.S.U. Local 558 v. Pepsi-Cola Canada Beverages
(West) Ltd.,
[2002] 1 S.C.R. 156
,
2002 SCC 8,

(
Pepsi
). 
In
Pepsi
, the Court held that
Charter
values required common law
limits on secondary picketing to be modified to accord with core principles of
collective bargaining.  Secondary picketing is lawful at common law unless it
involves violence, intimidation or other tortious conduct.  The Legislature may
modify the common law balance between free expression and protection of neutral
third parties provided limits on the
Charter
value of free expression
can be justified.  The BCTF contends by analogy with peaceful secondary
picketing incident to a lawful strike that mid-contract protest strikes also
involve core principles that should be
Charter
protected provided they
are peaceful and avoid tortious or criminal conduct.  Notwithstanding
Charter
protection, the BCTF raises the possibility that employers could invoke
grievance and arbitration procedures for breach of the collective agreement. 
On this point Vice-Chair Saunders observed:  It seems an odd rationale, to
declare legislation an impermissible infringement of
Charter
rights in
part because those same rights are adequately restricted elsewhere.

[58]

In my view, the
wrongful action model, while appropriate to regulate secondary picketing
ancillary to a lawful strike, fails to provide a practical test for strikes. 
Under that model, peaceful protest work stoppages of indefinite scope and
duration could not be restrained in the absence of tortious or criminal
conduct.  Accepting the BCTFs questionable assumption that
Charter
protection would not insulate protest strikes from breach of contract
grievances by employers, arbitral compensation remedies would be ineffective in
the public sector as employers would not typically suffer financial losses and
disciplinary suspensions would be a questionable and perhaps a
counterproductive deterrent.  The harm to the public as third parties would be
outside the arbitral purview.

[59]

The HEU accepts that
political strikes may be curtailed to the extent that they result in undue harm
to the public.  It suggests that notice of job action (absent in this case) and
staffing of essential services would address the risk of harm.  The HEU
supports the opinion of Vice-Chair OBrien in the HEU Original Decision (at
paras. 218 -19) that a general prohibition against mid-contract strikes is
largely justifiable but overbroad to the extent that it prohibits short,
occasional political protest strikes which neither threaten the integrity of
the labour relations system nor have a significant adverse impact on the public
interest.  Vice-Chair OBrien concluded that the disruption of medical
services caused by the one shift HEU work stoppage while undoubtedly causing
hardship to some individuals, did not pose a significant threat to the public
interest.  Associate Chair Fleming on the Reconsideration Panel agreed with
Vice-Chair OBrien that limited mid-contract political work stoppages were
Charter
protected, with the caveat that reasonable notice of the work stoppage be
provided to the employer to permit an application to the Board in opposition.

[60]

Vice-Chair Saunders
rejected a
Charter
-based exception to the strike prohibition on the
ground that it would be too uncertain and unworkable:  BCTF Original Decision at
para. 154.  He addressed those considerations at paras. 135 to 154 of the BCTF
Original Decision.  His view is summarized as follows:

151      My point in citing these examples is not to
be judgemental of this phenomenon one way or another.  But in assessing the
viability of an exception to the strike definition  or, conversely, the
Legislatures need for certainty in respect to it  the reality of the
situation must be taken into account.  Labour disputes (and political strikes,
to the extent that they are part of an ongoing conflict) are a type of economic
and political warfare.  Each side uses various tactics to maximize its leverage
and achieve the best results.  Neither side judges success at the end of the
day by the accuracy or objectivity of its communications during the conflict.  The
purpose of those communications is not to present the most objective depiction
of matters, but to present the depiction most likely to cause relevant
individuals to believe or act in a manner favourable to one side or the other.

152      It is into this impassioned and essentially
political environment that a
Charter
-created exception to the strike
definition would be injected.  The Legislatures compelling need for certainty
in this area is simply not compatible with the application of principled
case-by-case exceptions to the strike definition.  And, as I stated earlier, in
my view a principled exception is the only kind of exception mandated by the
Charter
.

153      In conclusion, an exception for certain
political strikes would create far more uncertainty than the difficulty of
distinguishing between political strikes and collective bargaining ones  which
the Ontario Board found prohibitive in General Motors.  The
objective
of
a strike is typically ascertainable, because it is intended to compel a
reaction of some sort, and is less likely to do so if it is unclear at whom the
strike is directed and why it is taking place.  Where the labour board can
identify what would end the strike, it can determine its objective. (See e.g.,
The
Government of the Province of British Columbia
, BCLRB No. 28/80, [1980] 2
Can LRBR 355;
Ontario Hospital Association
,
supra
.).  This
approach is not available in the abstract balancing of interests that an
exception for certain political strikes would require.

[61]

The chambers judge
reached a similar conclusion at paras. 194 to 205 of her reasons.  Vice-Chair
Brown agreed with the conclusion of Vice-Chair Saunders and emphasized the importance
of clear and practical tests for all those involved in collective bargaining to
provide certainty and stability in the workplace.  In his view, the definition
of strike provided necessary bright line clarity for the benefit of the
participants.  An indeterminate test would require hearings and adjudication in
particular cases, leading to undesirable uncertainty and instability in the
workplace.

[62]

Chair Mullin generally
agreed with Vice-Chairs Saunders and Brown although he considered that the unique
nature of the government rewriting of an existing collective agreement through
Bill 29 might support a
Charter
-based exception to the general
prohibition.  Subsequently,
Health Services
has provided a
Charter
remedy for Bill 29, albeit by a different route.

[63]

The chambers judge considered
the boundary between collective bargaining strikes and protest strikes to be
uncertain.  She quoted extensively from the opinion of the Ontario Labour
Relations Board in
General Motors of Canada Ltd.,
[1996] O.L.R.D. No.
2056 (at para. 199) emphasizing the definitional difficulty and supporting a
blanket prohibition of mid-contract strikes by the Ontario
Labour Relations
Act,
S.O. 1995, c. 1, irrespective of purpose, as a legislative response to
the objective of containing industrial conflict which was not disproportionate
to that goal.

[64]

There is general
agreement that at some point legislative intervention to restrict political
protest work stoppages is justified.  The Legislature has imposed a standard
based on the effects of the work stoppage, one that is designed to or does
restrict or limit production or services.  This can be fairly described as a
bright line test, leaving little ambiguity or discretion in the Board charged
with the supervision of its application.  No distinction is made between
collective bargaining strikes and protest strikes and no question of
characterizing a strike as one or the other arises.  Part 5 of the
Code
permits strikes by public sector unions, subject to certain essential services
staffing obligations, as part of the collective bargaining process with certain
pre-requisites and limits.  Vice-Chair Brown referred to this as the controlled
strike/essential services model.  The prohibition on mid-contract strikes is an
integral part of the labour relations scheme.

[65]

The test supported by Vice-Chair OBrien
and Associate Chair Fleming would protect protest strikes that do not
significantly affect the public interest.  That standard is wide open to
differing conclusions.  Here, the BCTF work stoppage deprived hundreds of
thousands of school children of one days educational instruction and the HEU
stoppage resulted in the cancellation of some elective surgeries and disrupted
some patient care, notwithstanding that the union provided essential service
staffing.  Vice-Chair OBrien recognized that the HEU work stoppage
undoubtedly caus[ed] hardship to some individuals, but did not pose a
significant threat to the public interest.  Associate Chair Fleming was of a
similar view that the BCTF work stoppage did not have a significant adverse
impact on the public interest.  A patient whose elective surgery was cancelled
and parents whose routines were disrupted and whose children lost a days class
instruction likely would disagree.

[66]

The appellants contend that there
was no evidence presented to demonstrate harm caused by protest strikes to
support their prohibition as justified infringement.  The chambers judge
concluded (at para. 198) that harm to school children entitled to a certain
level of educational services and to patients needing a certain level of health
care services could be inferred from the context of the work stoppages.  There
was evidence that school instruction and patient care were disrupted by the
BCTF and HEU protest strikes and I agree that it can be inferred generally that
a collective work stoppage in the public sector will cause an adverse impact on
public services.  An impact is obvious and self-evident.  The variable will be
the degree of harm not harm
per se
.  I do not accede to the appellants
evidentiary submission.

[67]

The leafleting cases protected
expressive conduct that did not involve harm to third parties.  In
KMart
,
Cory J., writing for the court, emphasized (at para. 56) that the consumer
leafleting in issue was not coercive and left consumers free to choose without
being unduly disrupted by the message of the leaflets or the manner in which they
were distributed.  It was not distinguishable from other forms of publicity and
communication of the message and was conduct that could not be restrained under
the common law.  In
Allsco
, following
KMart
, the picketing
provisions of the New Brunswick
Industrial Relations Act
were
interpreted to exclude leafleting on s. 2(b)
Charter
grounds.  Iacobucci
J. observed (at para. 28) that the freedom of expression protected by the
Charter
in leafleting was limited to the extent that those who are engaged in
persuasive expression have respected the right of those receiving the message
not to be coerced or intimidated into undertaking a particular course of
conduct.  Peaceful protest strikes do not directly involve coercion or
intimidation but they nonetheless cause harm to neutral third parties through
the disruption of services.  I do not think that the leafleting cases assist
the appellants position.

[68]

The difficulty is that significant
disruption of the public interest is a vague standard capable of a wide
variation in application.  As Associate Chair Fleming observed, the concerted
withdrawal of services is a powerful and effective way of communicating a
political message.  Its power and effectiveness is reinforced by its economic
weapon, the disruption of public services.  There is an inherent tension
between the effectiveness of the protest strike and the disruptive impact on
the public.  As Associate Chair Fleming summarized his position: If the harm
caused by the expressive activity is sufficient, the freedom of expression can
be overridden under a Section 1 analysis.  Who is to decide how much harm is
sufficient?  Attempting to draw a line at a point of
significant
disruption seeks a balance that is at best elusive.  It tempts a weighing of
the merits of the protest against the harm to the public interest.  The higher
the threshold of significant harm, the more powerful the protest.  In my view,
this type of balancing is primarily a political policy judgment that is incompatible
with the neutral adjudicative function of labour boards and courts.

[69]

A majority of the Board expressed
serious reservations about its capacity to apply an indefinite standard in a
politically charged atmosphere, even with the benefit of the Boards
specialized expertise.  The difficulty is particularly acute when the strike is
said to be a political protest outside collective bargaining norms.  I agree
with the conclusion of Vice-Chairs Saunders and Brown and the chambers judge
that a vague test that leaves a wide discretion to the Board or the courts is
not compatible with
Charter
standards.

[70]

It is not clear from the
appellants submissions whether the jurisdiction to supervise
Charter
protected protest strikes would reside in the courts or with the Board.  Either
way, supervision of protest strikes under a standard requiring case by case
evaluation would be particularly problematic.  The warning by McIntyre J. in
the
Alberta Reference
about judicial re-engagement in the control of
strikes reflects the lessons of past experience.  They reinforce the degree of
deference to be accorded to the Legislature in imposing limits on strike action
that avoid the exercise of judicial or administrative discretion.  In my view,
the effects based definition of strike satisfies the requirements of minimal
impairment.

[71]

Unions and their members are free
to engage in protest activities outside working hours.  The mid-contract strike
prohibition is limited in its restriction of those activities and proportionate
to the disruption of services or production resulting from the prohibited
strike activity.

[72]

As I have concluded that the
impugned definition of strike satisfies the
Oakes
test of justified
infringement under s. 1, it is unnecessary to address the BCTF submission,
relying on
Allsco
, that s. 57 of the
Code
be read down to exclude
protest strikes.

Conclusion

[73]

The pre-1984 definition prohibited
mid-contract collective bargaining strikes; the 1984 amendment extends that
mid-contract prohibition to strikes for any purpose.  The right to strike when
no collective agreement is in force is maintained, subject to
Code
procedural requirements and essential services limits.  The object of the
prohibition is the prevention of disruption of services or production.  That
objective is pressing and substantial; the mid-contract prohibition is
rationally connected to that objective.  The prohibition extends a limit that
is non-controversial in a collective bargaining context to a political protest
context.  Means of free expression other than through work stoppages remain
unimpaired.  The mid-contract prohibition meets the standard of minimal
impairment and is proportionate to the balance between free expression and
harmful impact.  The indeterminate and politically charged dimensions of a
Charter
guarantee of limited protest strike action reinforces the validity of the
Legislatures imposition of a clear standard.

[74]

In the result, I conclude that the
impugned definition of strike, through its effects, infringes the guarantee of
free expression in s. 2(b) of the
Charter
but the infringement is
justified under s. 1.  It follows that the HEU protest strike was properly
enjoined, independent of the picketing activity and the severance issue raised
by the HEU is immaterial.  Accordingly, I would dismiss the appeals.

The Honourable
Mr. Justice Mackenzie

I AGREE:

The Honourable Madam Justice Levine

I AGREE:

The Honourable Mr. Justice Frankel


