|
Charter - s.2(d) Freedom of Association v Freedom of Expression. Canadian Union of Postal Workers v. Canada (Attorney General)
In Canadian Union of Postal Workers v. Canada (Attorney General) (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here brought against a dismissal of an application for "a declaration that the [SS: Postal Services Resumption and Continuation Act] is of no force and effect under s. 52 of the Constitution Act, 1982" under Charter s.2(d) ['freedom of association'] and s.2(d) ['freedom of expression']. This was back-to-work legislation addressing rotating postal strikes in 2018.
Here the court considers commonality between the Charter freedoms s.2(b) expression and s.2(d) association:ii. The Freedom of Expression of CUPW Members and Union Officials
[27] CUPW argues that the Act limited the rights of the union’s members, officers, and representatives to freedom of expression under s. 2(b) of the Charter in three ways: by stopping the strike, by limiting picketing, and by compelling speech on the part of the union, its officers and representatives.
[28] The first limit was accounted for in the application judge’s mootness analysis. He referred to freedom of expression in the act of striking itself. He observed, at para. 60: “While a strike is expressive activity in the most generalized understanding of that term, the right to strike has been addressed by the Supreme Court directly under s. 2(d) rather than obliquely under s. 2(b).”
[29] We agree with the application judge that the freedom of expression exercised by striking was fully subsumed in the strike action itself, which was properly analyzed under s. 2(d) and was therefore encompassed by his mootness determination. The other two claimed s. 2(b) limits on free expression in picketing and compelled speech were also subsumed in the s. 2(d) analysis as strike-related activity because each of these alleged s. 2(b) limits arises directly from the very thing being challenged under s. 2(d) – the legislated end of the strike and resumption of employment duties. Accordingly, they are also moot for the reasons given by the application judge.
[30] A granulated approach that differentiates between s. 2(d) and s. 2(b) Charter rights in the context of back-to work legislation would be unwise. We agree with the Attorney General of Ontario, who was an intervener in this appeal, that “[a]dopting a s. 2(b) analytical approach in the context of back-to-work legislation would upset the labour relations balance established by statutory collective bargaining regimes, undermine the principled application of the s. 2(d) analytical framework, and place ss. 2(b) and 2(d) in potential conflict” (footnotes omitted). We see no benefit in prolonging the dispute between these parties by giving additional life to the contextually peripheral s. 2(b) claims.
....
2. Did the application judge err in alternatively finding that the Act limited CUPW members’ s. 2(d) Charter right to freedom of association relating to strike action and in declining to find the other s. 2(d) and s. 2(b) limits alleged by CUPW?
[40] We reach this issue in the alternative and address it briefly, giving four reasons for concluding that the application judge did not err in his alternative analysis. First, for the reasons set out in OPSEU, at paras. 14-18, applied with necessary modifications, we conclude that the Act, as back-to-work legislation, limited CUPW members’ s. 2(d) right to strike. As a matter of principle, back-to-work legislation that ends a strike that was properly called under the legislation, as was CUPW’s strike, limits the rights of affected union members under s. 2(d) of the Charter and must be demonstrably justified by the government under s. 1.
[41] Second, we find that the Prime Minister’s statement did not limit CUPW members’ s. 2(d) rights. The Prime Minister was engaged in political speech about government policy in a matter of national interest. Courts should be loath to interfere with or condemn political speech of this nature given the respective roles of the legislative, executive and judicial branches. Further, the Prime Minister’s statement was made well into a lengthy strike and could not have surprised the bargaining parties or affected their bargaining positions. The parties’ long history of collective bargaining is marked by strikes sometimes ended by legislation. These sophisticated bargainers were fully alive to the options and how they might unfold.
[42] Third, CUPW argues that the Act indirectly prohibited picketing because the legislative extension of the previous collective agreements triggered the application of s. 88.1 of the Canada Labour Code, which prohibits mid-contract “strike” activity including picketing. Picketing is a traditional form of strike activity aimed at disrupting the employer’s business. Ending picketing is normal under strike-ending legislation. As explained earlier, it would not be appropriate to treat separately the Act’s effect on the act of striking under s. 2(d) of the Charter and its effects on the expressive rights of CUPW members under s. 2(b). CUPW’s constitutional position gathers no extra force by drawing on s. 2(b) rights related to picketing.
[43] Fourth, CUPW asserts that in requiring the union, its officers, and representatives to notify employees of their obligation to return to work, the Act limited their personal freedom of expression. Section 5 of the Act provides:The union and each of its officers and representatives must
(a) without delay on the coming into force of this Act, give notice to the employees that, by reason of that coming into force, postal services are to be resumed or continued, as the case may be, and that the employees, when so required, are to resume without delay, or continue, the duties of their employment[.] [44] CUPW’s argument does not distinguish between the personal expression of individuals and their responsibilities as union officers and representatives. This distinction is critical. Union officers and representatives gain official status from labour relations legislation, which also imposes certain duties on them, for example, to follow the legislation in arriving at and implementing a strike mandate. But nothing in the Act prevented the union, its officers and representatives from expressing their personal views by deploring what the legislation did in ending the strike.
[45] We find that the Act did not limit the personal expressive rights of CUPW members under s. 2(b) of the Charter.
|
