Back to Work Legislation Ruled Unconstitutional

The back to work legislation imposed by the Federal Government in 2011 was ruled unconstitutional. What does it mean for the 50,000 workers affected? They feel being short changed again.

April 28, 2016. The Canadian Government Act to resume postal services, the Restoring Mail Delivery for Canadians Act, S.C. 2011, c. 17, was ruled unconstitutional by an Ontario Superior Court Judge and further declared having no force or effect.

In layman’s terms, it means the law was struck from the Canadian Government’s legal code. It no longer exists. Too late for those affected. The purpose it was designed for already accomplished.

Mike Palecek, National President of the Canadian Union of Postal Workers (CUPW) believes “This is a win for workers everywhere.”[1]

A closer look at the judgement shows that Mr Palecek took an optimistic look at something that has far-reaching and potentially negative consequences in the greater Canadian mosaic.

The problem is not in defining the infringement as unconstitutional. The difficulty lies in the remedy to the situation. The judged ruled the law was unconstitutional and declaratory relief was a sufficient remedy. In other words, the law was unconstitutional and nothing more. No slap on the hands to the Government. No apology. No compensation for violating a basic right. Nothing. The Federal Government and Canada Post have said nothing in response. They don’t have to. It doesn’t matter.

This is an unfortunate ruling because Restoring Mail Delivery for Canadians Act forced the CUPW members to choose between ratifying an unfavourable new collective agreement proposed by Canada Post or go into Final Offer Selection – a method outlined in the Act that considerably favoured the employer. Given the choice between two bad choices, CUPW members ratified an unfavourable collective agreement rather than gamble on FOS. CUPW and its members liked neither, as both were not the result of the traditional collective bargaining process – a constitutional right the Ontario Superior Court recognised as being denied.

A remedy should have named 2011 collective agreement being null and no effect as well because it is a direct descendant of this Act.

The judge certainly agreed that the Act interfered with CUPW and its members with signing a negotiated collective agreement in 2011. As found at line [194] of the Judge’s ruling;

The Act abrogated the right to strike of CUPW members. The effect of this abrogation was to substantially interfere with – and to disrupt the balance of – a meaningful process of collective bargaining between CUPW and Canada Post. I find accordingly that the Act infringed the s. 2(d) freedom of association of union members and must be justified under. s. 1 of the Charter.[2]

So why didn’t the Judge logically proceed and state, “Yes, the Act substantially interfered with the collective bargaining process, that the Act infringed the s. 2(d) freedom of association of union members, etc., This Act consequently created a forced agreement that would not otherwise have been produced. Since the collective agreement was created out of a framework brought on by unlawful interference, the 2011 collective agreement is of no effect or force. The previous agreement applies until a resolution between Canada Post and CUPW can be properly made within the confines of constitutional guarantees.”

The Judge has the right to impose such a provision in such cases but declined. However, it is known that most section 24(1) remedies are reserved for individual not corporate or collective entities.[3]

J. Firestone took a narrow definition on when a remedy for Section 24(1) would apply:

“. . . a high threshold that applicants must satisfy before a court of competent jurisdiction will award them Charter damages. Something more than gross negligence is required on the part of government actors, although malice is not required to satisfy the threshold. . . [4]
The Supreme Court of Canada has stressed that s. 24(1) remedies exist for the purpose of compensation, vindication, and deterrence in the face of conduct by state actors. There was no conduct on the part of government officials in this case that would warrant an award of Charter damages.”[5]

Firestone believes gross negligence by the Government when violating the Constitution is not considered a trigger for compensation. This only occurs if a Government representative misapplies, misrepresents, or oversteps their boundaries in applying a law. Theoretically then, the Government agent is no longer representing the will of the Government but own self-interests. This is when a remedy then is triggered.[6]

Marilyn L. Pilkington wrote on the topic of damage and remedy when a violation has occurred in La Revue Du Barreau Canadien and concluded that a four step process must occur in determining a remedy and does not dwell on the idea of agent liability:

  • “(1) What are the purposes of the constitutional guarantee?
  • (2) What other remedies are available to redress the infringement of that guarantee? Do they provide an effective means of vindicating the plaintiff’s rights and deterring similar unconstitutional conduct without interfering disproportionately with the implementation of legitimate government policy? Would a remedy in damages achieve these purposes any more effectively, taking into account who will eventually pay?
  • (3) Was the conduct of the defendants so egregious as to warrant punishment through the imposition of damages? Is there any other mechanism available for effective punishment?
  • (4) Has the plaintiff suffered consequential injuries which should be compensated?”[7]

The final ruling fails to answers these questions and falls more on the subjective opinion of the judge.

The reality of this type of application means that the Government can wilfully violate the Constitution with little fear of any consequences, especially as it relates to collective entities such as labour unions, religious organisations, or corporations. When they do violate the Constitution, as per the ruling on Restoring Mail Delivery for Canadians Act, it took almost five years to determine that it was unconstitutional – too late after the damage had been done by the Act. And when it was determined that damage had happened, only a trite recognition was made in a legal sense, but it makes no difference in application to the problem at hand. In the case of the violation to CUPW and its members, there is no apology or compensation to the 50,000 or so people affected.

Not only this, but such a conclusion demonstrates the Government can enact legislation that potentially violates the Constitution and can continue persistently because only those entities that can afford the time, money, or expertise to challenge can bring correction. Even if they do succeed, it may take years to take a violation off the books. And even when that happens, don’t expect the Government to say sorry or compensate for their wrongful actions.

This is a serious weakness in the Canadian system that can lead to an abuse of power, which happened in the Restoring Mail Delivery for Canadians Act. There has to be a better mechanism in place to control and remedy such abuses. This should be a warning for Canadians to close this loophole before something worse does come down the pipeline.

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  • [1]http://www.cupw.ca.c.cupw.ent.platform.sh/en/posties-win-big-tory-back-work-legislation-ruled-unconstitutional
  • [2] Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016. Court File No.: CV-11-436848. 20160428. The Judgement can be downloaded from here: https://canadasmodernpost.files.wordpress.com/2016/04/cupw-reasons-for-judgment.pdf
  • [3] See Marilyn L. Pilkington. Damages as a Remedy for Infringement of the Canadian Charter of Rights and Freedoms. Osgoode Hall Law School of York University. As found in La Revue Du Barreau Canadien. Vol. 62. 1984. Pg. 543 “Canadian courts may be prepared to permit such a third party to challenge the validity of legislation under section 52 of the Charter, but the opportunity to apply for a remedy under section 24(1) of the Charter is limited to those whose own constitutional rights have been infringed.”
  • [4] IBID Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016. Line [241]
  • [5] IBID Canadian Union of Postal Workers v. Her Majesty in Right of Canada, 2016. Line [244]
  • [6]See David Stratas Heenan Blaikie LLP, Toronto, Remedies for 24(1) Violations. http://www.davidstratas.com/15.pdf
  • [7]IBID Marilyn L. Pilkington. Pg. 541
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