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This paper offers some predictions about the impact of the Supreme Court of Canada's landmark ruling in Saskatchewan Federation of Labour on the numerous limitations on the right to strike currently in effect in every Canadian jurisdiction. In the Saskatchewan Federation of Labour case the Court - strongly affirming its earlier decision in B.C. Health, in which it held that freedom of association under section 2(d) of the Charter encompasses the right to a "meaningful process of collective bargaining," and that "substantial interference" with that right will give rise to an infringement - declared that the right to strike is an essential component of a meaningful process of collect- ive bargaining, and as such is protected under the Charter. The author (who points out that this is not his first attempt at "reading constitutional tea leaves ") expresses surprise at the breadth of the majority's interpretation of what will constitute "substantial interference," as it is likely to result in many of the exist- ing schemes for regulation of strikes in essential services being held to violate section 2(d) and therefore to require justification under section 1 as a reason- able limit. Equally surprising, in the author's view, is the Court's section 1 analysis itself which suggests that the Court is prepared to undertake a detailed, searching review of "controlled strike" and "no-strike" schemes for designation of essential services and essential employees and the adequacy of any alterna- tive dispute resolution mechanism provided under such schemes as a substitute for the right to strike. Based on the Court's reasons in Saskatchewan Federation of Labour, the author posits that numerous Charter challenges can be expected in the coming years against legislated restrictions on collective bargaining and strike activity, including the ad hoc "instant" back-to-work model to which the federal government has repeatedly resorted. Nevertheless, he cautions, given the considerable uneveness of the jurisprudential road which led from B.C. Health to Saskatchewan Federation of Labour, one should be wary of trying to predict the course of the Supreme Court's pronouncements.
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Providing his prognosis for the future of a right to strike, in light of the Supreme Court of Canada's decision in B.C. Health, the author argues that the Court will likely recognize constitutional protection for such a right. In his view, based on the scope offreedom of association set out in that decision, as well as the adoption of a "substantial interfer- ence" test, government measures will probably be held to violate s. 2(d) of the Charter if they totally remove the right to strike, or restrict it so severely as to deny access to a meaningful process of collective bargain- ing. However, turning to a consideration of the problems and concerns that would arise from Charter protection for a right to strike, the author suggests that recognition of a broad, open-ended right may open the door to challenges to the numerous restrictions on strike activity found in Canadian labour relations statutes, and embroil the courts in ongoing review of legislative choices on policy issues. Thus, he expects that the Supreme Court will recognize only a limited right to strike - one in which the legislature would be permitted to substitute strikes with some other fair impasse resolution mechanism (such as interest arbitration), in situations where there are policy reasons for withholding the right to strike or for bringing an end to a strike that threatens the public interest.
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For a clear understanding of the legal protections and remedies available to employers and workers in Canada, this convenient survey and analysis is ideal. Although it may be said that there are eleven distinct systems of labour law in Canada - encompassing ten provinces and the Federal government - the authors ensure depth of treatment by focusing on common policy themes and typical legal solutions, with significant departures noted in whatever province or area of law they may arise. However, the relevant law of the three most populous and influential provinces - Quebec, Ontario, and British Columbia - is covered in particular detail, as is Federal labour legislation and case law. Among the important areas of Canadian law and practice emphasised are the following: the tension between trade union power and business flexibility; collective "labour law" and individual "employment law"; the effect of the North American Free Trade Agreement; the central place of the legal concept of the employment contract; labour standards legislation; the influence of the 1982 Charter of Rights and Freedoms; court intervention in labour law, both under common law principles and Quebec's civil code; the role of labour relations boards; and judicial review of administrative decisions and arbitration awards. As an accurate and usable guide for lawyers not expert in Canadian law, Labour Law in Canada is without peer. --Publisher's description
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