The Saskatchewan Federation of Labour

File No. 35423 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL OF SASKATCHEWAN)

BETWEEN:

THE SASKATCHEWAN FEDERATION OF LABOUR (IN ITS OWN RIGHT AND ON BEHALF OF THE UNIONS AND WORKERS IN THE PROVINCE OF SASKATCHEWAN); AMALGAMATED TRANSIT UNION, LOCAL 588; CANADIAN OFFICE AND PROFESSIONAL EMPLOYEES' UNION, LOCAL 397; CANADIAN UNION OF PUBLIC EMPLOYEES, LOCALS 7 and 4828; COMMUNICATIONS, ENERGY AND PAPERWORKERS' UNION OF CANADA AND ITS LOCALS; HEALTH SCIENCES ASSOCIATION OF SASKATCHEWAN; INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF U.S., ITS TERRITORIES AND CANADA AND ITS LOCALS 295, 300 and 660; INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2067; SASKATCHEWAN GOVERNMENT AND GENERAL EMPLOYEES' UNION; SASKATCHEWAN JOINT BOARD, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION; SASKATCHEWAN PROVINCIAL BUILDING & CONSTRUCTION TRADES COUNCIL, TEAMSTERS, LOCAL 395; UNITED MINEWORKERS OF AMERICA, LOCAL 7606; UNITED STEEL, PAPER FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION AND ITS LOCALS; and UNIVERSITY OF REGINA FACULTY ASSOCIATION

APPELLANTS (Respondents I Appellants by Cross-Appeal) AND:

HER MAJESTY THE QUEEN, IN RIGHT OF THE PROVINCE OF SASKATCHEWAN

RESPONDENT (Appellant I Respondent by Cross-Appeal)

(Style of Cause continues inside cover pages)

FACTUM OF THE ATTORNEY GENERAL FOR SASKATCHEWAN Filed Pursuant to Rule 42 of the Rules of the Supreme Court of Canada -2-

ATTORNEY GENERAL OF CANADA INTERVENER (Intervener) AND:

ATTORNEY GENERAL OF ONTARIO; ATTORNEY GENERAL OF QUEBEC; ATTORENY GENERAL OF BRITISH COLUMBIA; ATTORNEY GENERAL OF ALBERTA; ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR; SASKATCHEWAN UNION OF NURSES, SEIU-WEST, UNITED NURSES OF ALBERTA, ALBERTA FEDERATION OF LABOUR, PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA, CANADIAN CONSTITUTION FOUNDATION, AIR CANADA PILOTS' ASSOCIATION, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION; CONSEIL DU PATRONAT DU QUEBEC, CANADIAN EMPLOYERS COUNCIL, CANADIAN UNION OF POSTAL WORKERS AND INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, BRITISH COLUMBIA TEACHERS' FEDERATION AND HOSPITAL EMPLOYEES' UNION, CANADIAN LABOUR CONGRESS, PUBLIC SERVICE ALLIANCE OF CANADA, ALBERTA UNION OF PROVINCIAL EMPLOYEES, CONFEDERATION DES SYNDICATS NATIONAUX, REGINA QU' APPELLE REGIONAL HEALTH AUTHORITY, CYPRESS REGIONAL HEALTH AUTHORITY, FIVE HILLS REGIONAL HEALTH AUTHORITY, HEARTLAND REGIONAL HEALTH AUTHORITY, SUNRISE REGIONAL HEALTH AUTHORITY, PRINCE ALBERT PARKLAND REGIONAL HEALTH AUTHORITY, SASKATOON REGIONAL HEALTH AUTHORITY, AND NATIONAL UNION OF PUBLIC AND GENERAL EMPLOYEES, CANADA POST CORPORATION AND AIR CANADA

INTERVENERS (Interveners)

ATTORNEY GENERAL FOR GOWLING, LAFLEUR, SASKATCHEWAN HENDERSON LLP Constitutional Law Branch 2600 - 160 Elgin Street 820- 1874 Scarth Street OTTAWA ON KIP 1C3 REGINA SK S4P 4B3 D. Lynne Watt Graeme G. Mitchell, Q.C. Tel: (613) 786-8695 Tel: (306) 787-8385 Fax: (613) 788-3509 Fax: (306) 787-9111 Email: [email protected] Email: Graeme.Mitchell@gov .sk.ca

Counsel for the Respondent Ottawa Agent for the Respondent Attorney General for Saskatchewan Attorney General for Saskatchewan -3-

Victoria Square Law Office LLP Sack Goldblatt Mitchell LLP 500 - 128 West Pender Street 500 - 30 rue Metcalfe Street VANCOUVER BC V6B 1R8 OTTAWA ON KIP 5L4

Craig Bavis Colleen Bauman Rick Engel, Q.C. Tel: (613) 235-5327 Peter Barnacle Fax: (613) 235-3041 Email: [email protected] Tel: (604) 684-8421 Fax: (604) 684-8427 Agent for the Appellants Email: [email protected] (Respondents/Appellants by Cross-Appeal)

Counsel for the Appellants (Respondents/Appellants by Cross-Appeal) Saskatchewan Federation of Labour et al.

Attorner General of Canada Attorney General of Canada 123 - 2" A venue South 50 O'Connor Street, Suite 500, Room 557 lOth Floor OTTAWA ON KIA OH8 SASKATOON SK S7K 7E6 Christopher M. Rupar Mark R. Kindrachuk, Q.C. Tel: (613) 670-6290 Tel: (306) 975-4765 Fax: (613) 954-1920 Fax: (306) 975-6240 Email: Christopher .ru par@j ustice. gc .ca Email: mark.kindrachuk(a), justice.gc.ca Agent for the Attorney General of Canada Counsel for the Attorney General of Canada

Attorney General of Ontario Burke-Robertson 720 Bay Street 441 MacLaren Street 4th Floor Suite 200 TORONTO ON M5G 2Kl OTTAWA ON K2P 2H3

Robert Earl Charney Robert E. Houston, Q.C. Tel: ( 416) 326-4452 Tel: (613) 236-9665 Fax: (416) 326-4015 Fax: (613) 235-4430 Email: rhoustonl@,burkerobertson.com Counsel for the Attorney General of Ontario Agent for the Attorney General of Ontario -4-

Procureur general du Quebec Noel & Associes I200 route de l'Eglise, 2e etage III, rue Champlain QUEBEC QC GIV 4MI GATINEAU QC J8X 3R1

Caroline Renaud Pierre Landry Tel: (418) 643-1477 Ext: 20780 Tel: (8I9) 77I-7393 Fax: (4I8)644-7030 Fax: (8I9)77I-5397 Email: [email protected] Email: [email protected]

Counsel for the Attorney General of Quebec Agent for the Attorney General of Quebec

Attorney General of British Columbia Gowling Lafleur Henderson LLP 130I - 865 Hornby Street 2600 - 160 Elgin Street VANCOUVER BC V6Z 2G3 Box 466 Station D OTTAWA ON KIP IC3 Karen A. Horsman Tel: (604) 660-3093 Brian A. Crane, Q.C. Fax: (604) 660-3833 Tel: (613) 233-I78I Fax: (613) 563-9869 Counsel for the Attorney General of British Email: [email protected] Columbia Agent for the Attorney General of British Columbia

Attorney General of Alberta GOWLING, LAFLEUR, 9833 - I 09 Street HENDERSON LLP Bowker Building, 4th Floor 2600 - I60 Elgin Street EDMONTON AB T5K 2E8 OTTAWA ON KIP IC3

Roderick Wiltshire D. Lynne Watt Tel: (780) 422-7145 Tel: (613) 786-8695 Fax: (780) 425-0307 Fax: (613) 788-3509 Email: Roderick. wiltshire(a), gov .ab.ca Email: [email protected]

Counsel for the Attorney General of Alberta Agent for the Attorney General of Alberta -5-

Attorney General of Newfoundland and Burke-Robertson Labrador 441 MacLaren Street 4th Floor, East Block Confederation Bldg. Suite 200 P.O. Box 8700, Stn. A OTTAWA ON K2P 2H3 ST. JOHN' S NEWFOUNDLAND & LABRADOR AlB 4J6 Robert E. Houston, Q.C. Tel: (613) 236-9665 Chantelle MacDonald Newhook Fax: (613) 235-4430 Tel: (709) 729-4053 Email: [email protected] Fax: (709) 729-2129 Email: [email protected] Agent for the Attorney General of Newfoundland and Labrador Counsel for the Attorney General of Newfoundland and Labrador Bainbridge Jodouin Cheecham Supreme Advocacy LLP 401-261 First Avenue North 100 - 340 Gilmour Street SASKATOON SK S7K 1X2 OTTAWA ON K2P OR3

Gary Bainbridge Marie-France Major Marcus R. Davies Tel: (613) 695-8855 Ext: 102 Tel: (306) 664-2468 Fax: (613) 695-8580 Fax: (306) 654-2469 Email: [email protected] Email: [email protected] Agent for the Saskatchewan Union ofNurses Counsel for Saskatchewan Union ofNurses

Plaxton & Company Sack Goldblatt Mitchell LLP 500, 402-21 st Street East 500 - 30 Metcalfe Street SASKATOON SK S7K OC3 OTTAWA ON K1P 5L4

Drew S. Plaxton Colleen Bauman Heather M. Jensen Tel: (613) 235-5327 Tel: (306) 653-1500 Fax: (613) 235-3041 Fax: (306) 664-6659 Email: [email protected] Email: contactus(@,plaxtonlaw.com Agent for SEIU-West Counsel for SEIU-West

Chivers Carpenter Sack Goldblatt Mitchell LLP #101, 10426 - 81 Avenue 500-30 rue Metcalfe Street EDMONTON AB T6E 1X5 OTTAWA ON KIP 5L4

Ritu Khullar Colleen Bauman Vanessa Cosco Tel: (613) 235-53 27 Tel: (780) 439-3611 Fax: (613) 235-3041 Fax: (780) 439-8543 Email: cbauman(Q{sgmlaw.com Email: [email protected] Agent for the United Nurses of Alberta Counsel for the United Nurses of Alberta -6-

Chivers Carpenter Sack Goldblatt Mitchell LLP #IOI , I0426- 8I Avenue 500 - 30 rue Metcalfe Street EDMONTON AB T6E IX5 OTTAWA ON KIP 5L4

Ritu Khullar Colleen Bauman Tel: (780) 439-36II Tel: (613) 235-5327 Fax: (780) 439-8543 Fax: (613) 235-304I Email: [email protected] Email: [email protected]

Counsel for the Alberta Federation of Labour Agent for the Alberta Federation of Labour

Sack Goldblatt Mitchell LLP Sack Goldblatt Mitchell LLP 500-30 rue Metcalfe Street 500 - 30 rue Metcalfe Street OTTAWA ON KIP 5L4 OTTAWA ON KIP 5L4

Peter C. Engelmann Colleen Bauman Tel: (613) 482-2452 Tel: (613) 235-5327 Fax: (613) 235-304I Fax: (6I3) 235-304I Email: [email protected] Email: [email protected]

Counsel for the Professional Institute of the Agent for the Professional Institute of the Public Public Service of Canada Service of Canada

McCarthy Tetrault LLP GOWLING, LAFLEUR, Box 48, 5300-66 Wellington St. W. HENDERSON LLP Toronto Dominion Bank Tower 2600 - I60 Elgin Street TORONTO ON M5K I E6 OTTAWA ON KIP IC3

Neil Finkelstein D. Lynne Watt Darryl Cruz Tel: (6I3) 786-8695 Brandon Kain Fax: (613) 788-3509 Ronald Podolny Email: [email protected] Sunil Kapur Tel: (4I6) 362-I8I2 Agent for the Canadian Constitution Foundation Fax: (4I6) 868-0673

Counsel for the Canadian Constitution Foundation -7-

Nelligan O'Brien Payne LLP 1900 - 66 Slater Street OTTAWA ON K1P 5H1

Steve Waller Christopher Rootham Tel: (613) 238-8080 Fax: (613) 238-2098 Email: steve. [email protected]

Counsel for Air Canada Pilots' Association Counsel

Moore, Edgar, Lyster Supreme Law Group 195 Alexander Street 900 - 275 Slater Street 3rd Floor OTTAWA ON K1P 5H9 VANCOUVERBC V6A 1N8 Moira Dillon Lindsay M. Lyster Tel: (613) 691-1224 Tel: (604) 689-4457 Fax: (613) 691-1338 Fax: (604) 689-4467 Email: mdill [email protected] Email: lindsavlyster(a), unionlawyers.com Agent for the British Columbia Civil Liberties Counsel for the British Columbia Civil Association Liberties Association

Norton Rose Fulbright Canada LLP 1, Place Ville Marie Bureau 2500 MONTREAL QC H3B 1R1

Louise Laplante Nancy Menard-Cheng Sebastien Beauregard Tel: (514) 847-4747 Fax: (514) 286-5474 Email: louise. lap [email protected]

Counsel for Conseil du patronat du Quebec -8-

Fasken Martineau DuMoulin LLP Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 55 Metcalfe Street, Suite 1300 Bay Adelaide Centre, Box 20 OTTAWA ON KIP 6L5 TORONTO ON M5H 2T6 Yael Wexler John D. R. Craig Tel: (6I3) 236-3882 Christopher D. Pigott Fax: (6I3) 230-6423 Tel: (4I6) 366-838I Email: [email protected] Fax: (4I6) 364-78I3 Email: [email protected] Agent for the Canadian Employers Council

Counsel for the Canadian Employers Council

Cavalluzzo Shilton Mcintyre Cornish LLP 300 - 474 Bathurst Street TORONTO ON M5T 2S6

Paul J. J. Cavalluzzo Tel: (4I6) 964-Il15 Fax: (4I6) 964-5895 Email: [email protected]

Counsel for the Canadian Union of Postal Workers and International Association of Machinists and Aerospace Workers

Farris, Vaughan, Wills & Murphy LLP Sack Goldblatt Mitchell LLP 25th Floor 500- 30 Metcalfe St. 700 West Georgia Street OTTAWA ON KIP 5L4 VANCOUVER BC V7Y IB3 Colleen Bauman Joseph A. Arvay, Q.C. Tel: (6I3) 235-5327 Catherin J. Boise Parker Fax: (613) 235-304I Tel: (604) 684-9I51 Email: [email protected] Fax: (604) 66I-9349 Email: [email protected] Agent for British Columbia Teachers' Federation and Hospital Employees' Union Counsel for British Columbia Teachers' Counsel Federation and Hospital Employees' Union Counsel -9-

Sack Goldblatt Mitchell LLP Sack Goldblatt Mitchell LLP 20 Dundas St West 500- 30 Metcalfe St. Suite IIOO OTTAWA ON KIP 5L4 TORONTO ON M5G 2G8 Colleen Bauman Steven Barrett Tel : (613) 235-5327 Tel: ( 4I6) 979-6070 Fax: (6I3) 235-304I Fax: (4I6)59I-7333 Email: cbaun1an(a),sgmlaw.com Email: [email protected]

Counsel for Canadian Labour Congress Agent for Canadian Labour Congress Counsel Counsel

Raven, Camerson, Ballantyne & Y azbeck LLP I600 - 220 Laurier A venue West OTTAWA ON KIP 5Z9

Andrew Raven Andrew Astritis Morgan Rowe Tel: (613) 567-290I Fax: (613) 567-292I Email: araven(a{ravenlaw.com

Counsel for the Public Service Alliance of Canada

Nugent Law Office Sack Goldblatt Mitchell LLP 2nd Floor, I 0008 82nd Ave 500 - 30 Metcalfe St. EDMONTON AB T6E IZ3 OTTAWA ON KIP 5L4

Patrick G. Nugent Colleen Bauman Tel: (780) 439-3232 Tel: (613) 235-5327 Fax: (780) 439-3032 Fax: (613) 235-304I Email: [email protected] Counsel for Alberta Union of Provincial Employees Agent for Alberta Union of Provincial Employees -10-

Laroche Martin Noel & Associes 2100 boulevard de Maisonneuve Est Ill rue Champlain Bureau 501 GATINEAU QC J8X 3Rl MONTREAL QC H2K 4S 1 Sylvie L'Abbe Benoit Laurin Tel: (819) 771-7393 Tel: (514) 529-4901 Fax: (819) 77I-5397 Fax: (514) 529-4932 Email: [email protected] Email: [email protected] Agent for Confederation des syndicats Counsel for Confederation des syndicats nationaux Counsel nationaux Counsel

MacPherson Leslie & Tyerman LLP Gowling Lafleur Henderson LLP 1500, 410 - 22nd Street East I60 Elgin Street, Suite 2600 SASKATOON SK S7K 5T6 OTTAWA ON KIP IC3

Leah Schatz Jeffrey W. Beedell Robert Frost-Hinz Tel: (613) 786-0171 Tel: (306) 975-7100 Fax: (613) 788-3587 Fax: (306) 975-7145 Email: [email protected] Email: [email protected] Agent for Regina Qu'Appelle Regional Health Counsel for Regina Qu'Appelle Regional Authority Health Authority

MacPherson Leslie & Tyerman LLP Gowling Lafleur Henderson LLP I500, 410 - 22nd Street East 160 Elgin Street, Suite 2600 SASKATOON SK S7K 5T6 OTTAWA ON KIP IC3

Leah Schatz Jeffrey W. Beedell Robert Frost-Hinz Tel: (613) 786-0171 Evert van Olst, Q.C. Fax: (613) 788-3587 Tel: (306)975-7IOO Email: [email protected] Fax: (306) 975-7145 Email: [email protected] Agent for Cypress Regional Health Authority, Five Hills Regional Health Authority, Heartland Counsel for Cypress Regional Health Regional Health Authority, Sunrise Regional Authority, Five Hills Regional Health Health Authority, Prince Albert Parkland Authority, Heartland Regional Health Regional Health Authority and Saskatoon Authority, Sunrise Regional Health Authority, Regional Health Authority Counsel Prince Albert Parkland Regional Health Authority and Saskatoon Regional Health Authority Counsel -11-

Champ and Associates 43 Florence Street OTTAWA ON K2P OW6

Paul Champ Tel: (613) 237-4740 Fax: (613) 232-2680 Email: [email protected]

Counsel for National Union of Public and General Employees Counsel

Fasken Martineau DuMoulin LLP Fasken Martineau DuMoulin LLP 333 Bay Street, Suite 2400 55 Metcalfe Street, Suite 1300 Bay Adelaide Centre OTTAWA ON KIP 6L5 TORONTO ON M5H 2T6 Yael Wexler Brian W. Burkett Tel: (613) 236-3882 Tel: (416) 865-4466 Fax: (613) 230-6423 Fax: (416) 364-7813 Email: [email protected] Email: [email protected] Agent for Canada Post Corporation and Air Canada Post Corporation and Air Canada Canada Counsel Counsel TABLE OF CONTENTS

I. OVERVIEW 1

STATEMENT OF FACTS 3

II. POINTS IN ISSUE 7

III. ARGUMENT 8

A. Introduction 8

B. Constitutional Question No. 3- Does the PSESA violate section 2(d) of 8 the Charter?

1. Application of the Doctrine of Stare Decisis Suggests Labour 8 Trilogy Should Not Be Overruled

2. A Restrained Interpretation of Section 2(d) ofthe Charter is 10 Appropriate

3. The Right to Strike Is Not Protected Under Section 2(d) 13

a) Characterizing the Right to Strike 13

b) A Purposive Interpretation of Section 2(d) Excludes the Right to 13 Strike

c) International and Comparative Law and the ILO 15

i) Domestic Constitutional Limitations 16

ii) The ILO and its Conventions 17

4. The Nature of the Right to Strike Protected by Section 2(d) 19

a) The Right to Strike is Derivative of the Right to Bargain 19 Collectively

b) The Appropriate Test under Section 2(d) 20

c) Application ofthe Test to the PSESA 21

d) Conclusion 23

c. Constitutional Question No.4- Is the PSESA a Reasonable 23 Limitation Under Section 1?

1. Section 1 of the Charter- The Relevant Test and Contextual 23 Considerations -ii-

TABLE OF CONTENTS (continued)

2. The Minimal Impairment Inquiry 24

a) General Structure ofthe PSESA 24

b) No Consultation Required 26

c) Dispute Resolution Mechanism 26

d) Definitions of Essential Services and Public Employers 27

3. The Deleterious Effects/Salutary Benefits Inquiry 28

4. Conclusion 29

D. Constitutional Question No.1- Does the PSESA Violate Section 2(b) 29 of the Charter?

E. Constitutional Question No. 2- Is the PSESA a Reasonable Limit on 31 Section 2(b) Under Section 1?

F. Constitutional Question No.5- Does the TUAA, 2008 violate Section 31 2(d) of the Charter?

1. Introduction and Relevant Legal Principles 31

2. Application of Relevant Legal Principles 33

G. Constitutional Question No. 6: Is the TUAA, 2008 a Reasonable 35 Limitation Under Section 1 of the Charter?

1. The Pressing and Substantial Objective Inquiry 36

2. The Rational Connection Inquiry 37

3. The Minimal Impairment Inquiry 37

4. The Deleterious Effects/Salutary Benefits Inquiry 38

IV. COSTS 38

V. RELIEF REQUESTED 39

VI. ALPHABETICAL TABLE OF AUTHORITIES 40

VII. STATUTES, REGULATIONS, RULES 44 PART I OVERVIEW

1. In 1987, this Honourable Court in three judgments referred to collectively as the 1 Labour Trilogy , ruled that section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter")2 did not guarantee the right to strike for collective bargaining purposes. To date, this Court has never repudiated the central holding in the Labour Trilogy nor has it departed significantly from the interpretive principles animating the operation of section 2(d) first identified in those cases and applied in a long line of subsequent authorities.

2. The central issue presented on this appeal directly impugns the correctness of both the ratio and reasoning of the Labour Trilogy for the first time. The Appellants, the Saskatchewan Federation of Labour and other trade unions, assert that because The Public Service Essential Services Act ("PSESA"i limits the ability of certain essential services workers in Saskatchewan to engage in strike action, it violates section 2(d) of the Charter and fails to qualify as a reasonable limitation for purposes of section 1. In order for this Court to accept the Appellants' arguments and declare the PSESA unconstitutional, it must repudiate entirely the Labour Trilogy,

4 not to mention much of its progeny including Ontario (Attorney General) v. Fraser . Put simply, such a result would amount to a change in Canadian labour law of seismic proportions. It would effectively constitutionalize most of the constituent elements of Canada's current statutory labour relations regime modeled on the Wagner Act.

5 3. The PSESA together with The Trade Union Amendment Act, 2008 ("TUAA, 2008") , the other statute challenged on this appeal, became law on May 14, 2008. Prior to that time, Saskatchewan had no legislation regulating strike action in · the public sector. 6 Rather, the Government of Saskatchewan resorted to ad hoc back-to-work legislation to end public sector

1 These three cases are: Reference rePublic Service Employee Relations Act (A lta.) , [ 1987] I S.C.R. 813 ("Alberta Reference") Respondent's Authorities ("RA"), Vol. III, Tab 24; PSAC v. Canada, [1987] I S.C.R. 424; Appellant's Authorities ("AA''), Vol. II, Tab 19, and RWDSUv. Saskatchewan, [1987] 1 S.C.R. 460; RA, Vol. ill, Tab26. 2 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. II, s. 2(d) Respondent's Fa<;tum Authorities ("RFA"), Tab 1. 3 The Public Service Essential Services Act, S.S. 2008, c. P-42.2; RFA, Tab 2. 4 (2011] 2 S.C.R. 3; 2011 SCC 20; RA, Vol. II, Tab 14. 5The Trade Union Amendment Act, 2008, S.S. 2008, c.26 ("TVA"); RFA, Tab 3. 6 From 1966 to 1971 , The Essential Services Emergency Act, 1966, S.S. 1966 (2"d Sess.), c. 2 as amended had been in force. The Saskatchewan Legislative Assembly repealed this law in August 1971 . 2

7 strikes - 10 separate times since 197 6 • On one occasion, the Legislature invoked section 3 3 of the Charter to end strike action by the Saskatchewan Government and General Employees Union 8 ("SGEU") . The PSESA seeks to regularize the procedure to ensure continued essential public services in the event of a strike by public sector employees in Saskatchewan.

4. The trial judge declared the PSESA unconstitutional in its entirety because it violated section 2(d) of the Charter. However, he suspended his declaration of invalidity for one year.9 Subsequently, the Saskatchewan Court of Appeal over-turned this ruling principally on the basis of the doctrine of stare decisis and the application of the Labour Trilogy. 10

5. The TUAA, 2008 amended the process for both certification and decertification which operated in Saskatchewan prior to 2008. As well, it loosened the prohibition against employer communications. The Appellants assert that these various amendments individually and collectively suppress the ability of Saskatchewan workers to unionize and, accordingly, are unconstitutional. Both the Saskatchewan Court of Queen' s Bench and the Saskatchewan Court of Appeal found that none of these amendments violated the Charter.

6. The Respondent, the Government of Saskatchewan ("Saskatchewan"), submits that consistent with prior jurisprudence of this Court, especially Ontario (Attorney General) v. Fraser 11 neither the PSESA nor the TUAA, 2008 contravene the Charter. Respecting the PSESA , Saskatchewan submits that the right to strike for collective bargaining purposes is not protected under either section 2(b) or 2(d) of the Charter. Respecting the TUAA, 2008, Saskatchewan submits that none of the changes made by this impugned enactment render the ability of employees to organize and to unionize effectively impossible.

7 See especially: Saskatchewan Federation ofL abour v. Her Maj esty the Queen in right ofSaskatchewan, 201 2 SKQB 62, ("SFL, 2012") at para. 216; Appellants' Full Record ("AR"), Vol. I, at 101; RA, Vol. III, Tab 28. 8 The SGEU Dispute Settlement Act, S.S. 1984-85-86, c. 111 ; AA, Vol. IV, Tab 74. 9 SFL, 201 2, supra n. 7. at para. 284; AR, Vol. I, at AROI 27; RA, Vol. III, Tab 28. 10 Her Maj esty in Right ofSa skatchewan v. Saskatchewan Federation ofLabo ur, 201 3 SKCA 43 ("SFL, 20 13"); AR, Vol. I at 130ff; RA, Vol. I, Tab 10. 11 Fraser, supra, n. 4; RA, Vol. II, Tab 14. 3

STATEMENT OF FACTS

7. On November 7, 2007, a provincial general election took place in Saskatchewan and a new government led by Mr. Brad Wall was elected. 12 The First Session of the Twenty-Sixth Legislature of Saskatchewan opened on December 10, 2007. This Speech from the Throne laid out the public policy and legislative agenda of the new government, including its intention to alter the labour law regime existing in Saskatchewan at the time.13

8. In the period leading up to the introduction of the PSESA and the TUAA, 2008, Saskatchewan faced an increasingly complex labour relations environment, coupled with an outdated approach to negotiating essential services agreements prior to a strike in the public sector. Two strikes, in particular - the Saskatchewan Government and General Employees' Union ("SGEU") strike of December 2006 - February 2007 and the Canadian Union of Public Employees ("CUPE") strike of November 2007 - underscored the challenge of ensuring the provision of sufficient essential services in the event of a walk-out by public employees as well as securing an adequate level of public health and safety in the event of strike action. 14

9. On December 19, 2007, the then-Minister of Advanced Education, Employment and Labour introduced the PSESA and the TUAA, 2008 into the Legislative Assembly. This legislation was modeled on public service essential services legislation which had been in force in Manitoba since approximately 1996. 15 Over the next few months, government officials sought input on these proposed laws from a variety of interested parties including labour unions, labour organizations, public sector employers, representatives from municipal governments as well as members of the general public.16 As well, the Minister and other governmental officials made numerous appearances before the Legislative Assembly's Standing Committee on Human

12 Affidavit of Mary Ellen We II sch dated December 31, 20 I 0 ("Wellsch Affidavit"), (Court of Appeal Book, "CAB") at pp. AI0889-91 , paras. 7, 8 and II ; Respondent's Abridged Record ("RR"), Vol. 1, p. 13. 13 Wellsch Affidavit, supra, CAB, at pp. AI0891-2, para. 13; RR, Vol. I, pp. 15-6; and Exhibit "D", CAB, at p. AI0967; RR, Vol.1, p. 91. 14 Wellsch Affidavit, supra, at Exhibit "KK", Hansard, "First Session: 26th Legislature", March II , 2008, at p. 267, CAB, at p. A11 248; RR, Vol. 2, p. 167. 15 Wellsch Affidavit, supra, CAB, at p. Al0892, para. 14; RR, Vol. 1, p. 16; and Exhibit "E", CAB, at p. AI0975; RR, Vol. 1, p. 99. 16 We IIsch Affidavit, supra, CAB, at pp. A I 0894-90 I; RR, Vol. 1, pp. 18-25. 4

Services to explain these bills and to answer questions, mostly from opposition party members of the Standing Committee. 17

10. As a result of the feedback received from these meetings and committee hearings, recommendations were made for certain amendments to Bill 5, the proposed Public Service Essential Services Act. 18 There were five amendments in total, three of which were informed by the consultations and feedback received from organized labour. 19

11. On May 14, 2008, these two bills received Royal Assent. Each bill provided that it would come into force on assent.20 Saskatchewan accepts the description of these two enactments set out in Richards J .A.'s reasons for judgment in the court below. 21

12. As contemplated by the PSESA, the PSES Regulations ultimately came into effect on July 10, 2009. These regulations enumerate in an Appendix the various services designated by the Government of Saskatchewan as essential. 22

13. Shortly after these laws came into force, litigation ensued. The Appellant, the Saskatchewan Federation of Labour, commenced a declaratory action challenging the PSESA and the TUAA, 2008 under the Charter as well as international law.23 This action was subsequently designated by the then-Chief Justice of the Saskatchewan Court of Queen's Bench to be the lead case relating to the constitutionality of these two statutes. 24 It is the case which has culminated in this appeal.

17 Wellsch Affidavit, supra, CAB, at pp. A10894-901 , paras. 21-39; RR, Vol. 1, pp. I8-25; and Exhibits "00" to "XX", at CAB, at pp. A1I326-AII547; RR, Vo1s. 3-4, pp. 29-37. 18 Wellsch Affidavit, supra, CAB, at p. AI 090I , para. 39; RR, Vol. 1, p. 25. 19 Hansard, "Standing Committee on Human Services", April 30, 2008, CAB, at p. 276; We IIsch Affidavit, supra, Exhibit "UU", at p. A1I46I ; RR, Vol. 3, p. 164. 20 We IIsch Affidavit, supra, CAB, at pp. A I 0905, para. 54, and Exhibit "YY", at pp. A 11549; RR, Vol. 1, p. 29 and Vol. 4, p. 39. See also: PSESA , s. 22, and TUAA , 2008, s. 12; RFA, Tab 2 and 3. 21 See: SFL, 2013, supra n. 10, at paras. 9-I7, and paras. 91-97; AR, Vol. I, at AROI36-39, and AROI64-66; RA, Vol. I, Tab 10. 22 The Public Service Essential Services Regulations, c. P-42 .2 Reg. I (the "Regulations"), RFA, Tab 4. 23 Revised Statement of Claim in Saskatchewan Federation ofLabour et al. v. Her Majesty the Queen in right of Saskatchewan, Q.B.G. No. 1059 of A.D. 2008; Appellants' Abridged Record ("AAR"), Vol. I, Tab 3. 24 See especially: Saskatchewan Federation ofLabour v. Her Majesty the Queen in right ofSaskatchewan, 20 I 0 SKQB 286 per Laing C.J.Q.B.; RA, Vol. III, Tab 27. 5

14. In addition to this declaratory action, applications for judicial rev1ew were also commenced in the Court of Queen' s Bench impugning the constitutionality of the PSESA. The most significant of these is Canadian Union of Public Employees, Local 3967 v. Regina 25 Qu 'Appelle Health Region and the Attorney General for Saskatchewan . CUPE, Local 3967 brought this matter to the Saskatchewan Labour Relations Board under section 10 of the PSESA . It challenged both the constitutionality of the legislation as well as the designations of essential service employees by the employer. The SLRB determined that the PSESA was consistent with the Charter and directed the employer and the Union to negotiate an essential services agreement with respect to 6 classifications in dispute.26 These negotiations did not occur as an application for judicial review was immediately commenced. This application was stayed pending the result in this matter. 27

15. Concurrently in June 2008, the National Union of Public and General Employees on behalf of SGEU filed a complaint with the International Labour Organization attaching both the PSESA and the TUAA, 2008. In March 2010, the Committee of Freedom of Association released its formal report respecting this complaint and containing its recommendations.28

16. On February 6, 2012, the trial judge released reasons for judgment in the declaratory action initiated by the Saskatchewan Federation of Labour. He found the PSESA unconstitutional in its entirety for violating section 2(d) of the Charter in a manner which was not saved by section 1. He suspended his declaration of invalidity for 12 months. However, he concluded that the TUAA, 2008 did not violate the Charter and dismissed this aspect of the claim. Saskatchewan accepts the precis of the trial judge' s conclusions found at paragraphs 18 to 26, and paragraphs 98 to 100 ofRichards J.A. ' s reasons for judgment in the court below.29

25 2010 CanLII 5199 (SK LRB) ("CUPE, Local3967"); AA, Vol. I, Tab 9. 26 Ibid, at paras. 123-5 . 27 See: Saskatchewan Federation ofL abour v. Saskatchewan, supra n. 24, at paras. 7-8, II ; RA, Vol. III, Tab 27. 28 See: Case No. 2654- Complaints against the Government of Canada presented by the National Union of Public and General Employees, the Canadian Labour Congress, the Saskatchewan Federation of Labour supported by the Public Services International ; AA, Vol. III, Tab 41. 29 SFL,s 20 I3, upra n. I 0, at paras. 18-26, and 98-1 00; RA, Vol. I, Tab 10. 6

17. Saskatchewan appealed the trial judge's declaration of invalidity respecting the PSESA to the Court of Appeal while the Appellants cross-appealed the trial judge's ruling respecting the TUAA, 2008.

18. On April 26, 2013 , the Court of Appeal released its judgment, in which it allowed Saskatchewan's appeal and sustained the constitutional validity of the PSESA, and dismissed the Appellants' cross-appeal from the trial judge's ruling on the TUAA, 2008.30 Respecting the PSESA, the Court of Appeal grounded its judgment on the continued precedential value of the Labour Trilogy. As a consequence, it did not assess the correctness of the trial judge's conclusion that section 2(d) now guarantees a right to strike for collective bargaining purposes. Accordingly, this particular issue comes to this Court without the benefit of the appeal court's considered views on it.

19. Respecting the TUAA, 2008, the Court of Appeal concluded the trial judge did not err when he found that it did not violate section 2(d) of the Charter. Accordingly, this holding spared the appeal court from assessing the reasonableness of the impugned provisions of the TUAA, 2008 under section 1.

20. Subsequently on December 4, 2013 , the Government of Saskatchewan introduced Bill No. 128 entitled The Saskatchewan Employment Amendment Act, 2013 31 into the Saskatchewan Legislative Assembly. Bill No. 128 will repeal the PSESA and replace it with a new Part VII to The Saskatchewan Employment AcP2 in relation to essential services. The Legislative Assembly has not yet passed this Bill; however when it does it will come into force on proclamation. 33 The Government has indicated it will not proclaim Bill No. 128 until this Court has released its judgment.

30 ibid. 31 Bill No. 128- The Saskatchewan Employment Amendment Act, 2013 ; RA, Vol. III, Tab 32. 32 Bill No. 85 - The Saskatchewan Employment Act. Bill No. 85 received Royal Assent on May 15, 2013 . It is to come into force on proclamation (Part XI , s. 11-1 ); however it has not yet been proclaimed. 33 Bill No. 128, supra n. 31 , s. 10; RA, Vol. Ill, Tab 32. 7

PART II POINTS IN ISSUE

21. The Constitutional Questions set out in the Order of the Chief Justice dated November 22, 2013 34 read as follows: I. Does [The] Public Service Essential Services Act, S.S. 2008, c. P-42.2, in whole or in part, infringes. 2 (b) of the Canadian Charter ofRights and Freedoms?

2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. I of the Canadian Charter of Rights and Freedoms?

3. Does [The] Public Service Essential Services Act, S.S. 2008, c.P-42.2, in whole or in part, infringe s. 2(d) ofthe Canadian Charter of Rights and Freedoms?

4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. I of the Canadian Charter ofRights and Freedoms?

5. Do ss. 3, 6, 7 and II of [The] Trade Union Amendment Act, S.S. 2008, c. 26, in whole or in part, infringe s. 2( d) of the Canadian Charter of Rights and Freedoms?

6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. I of the Canadian Charter of Rights and Freedoms?

22. Saskatchewan submits that these Constitutional Questions should be answered as follows: I. The PSESA does not violate section 2(b) of the Charter. Issues relating to the right to strike for collective bargaining purposes are to be addressed under section 2(d) which guarantees the fundamental freedom of association. As a result, it is not necessary to answer this question.

2. In view of the answer to Question No. I, there is no need to answer Question No.2.

3. The PSESA does not violate section 2(d) of the Charter. The right to strike for collective bargaining purposes is not constitutionally guaranteed under section 2(d) of the Charter. Neither a purposive interpretation of freedom of association nor this Court's jurisprudence accommodates constitutional recognition of the right to strike for such purposes.

4. In view of the answer to Question No. 3, there is no need to answer Question No. 4. Alternatively, should this Court find that the PSESA violates section 2(d), then it qualifies as a reasonable limitation for the purposes of section I of the Charter.

5. The TUAA , 2008 does not violate section 2(d) of the Charter. It does not render effectively impossible the ability of workers to organize, to unionize and to collectively advocate for workplace goals.

6. In view of the answer to Question No. 5, there is no need to answer Question No. 6. Alternatively, should this Court find that the TUAA , 2008 violates section 2(d), then it qualifies as a reasonable limitation for the purposes of section I of the Charter.

34 Order ofMcLachlin C.J. dated November 22, 2013; AAR, Vol. I, Tab 12, at 277. 8

PART III ARGUMENT

A. Introduction

23. The central issues on this appeal are found in Constitutional Questions Nos. 3 and 4. It is because ofthe centrality ofthese questions, and because Saskatchewan's submissions on these particular questions inform its submissions in respect of the remaining four constitutional questions that Saskatchewan will address them first. Then, its submissions will focus on Questions Nos. 1 and 2, and finally on Questions Nos. 5 and 6.

B. Constitutional Question No. 3- Does the PSESA violate section 2(d) of the Charter? 1. Application of the Doctrine of Stare Decisis Suggests Labour Trilogy Should Not Be Overruled

24. The third Constitutional Question requires this Court to determine if section 2(d) oJ the Charter now accommodates the right to strike for collective bargaining purposes. Any discussion of this question necessarily triggers a consideration of the doctrine of stare decisis, more particularly the " 'horizontal' question" of whether an apex court "such as the Supreme Court of Canada may depart from its own precedents. "35 The resolution of this question involves balancing "the two important values of correctness and certainty."36 Justice Rothstein in Craig emphasized that "the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled."37

25. In such an inquiry the fact that a long-standing precedent of constitutional law may be imperiled must factor into the consideration. This is because "certainty and predictability is 38 required by citizens and governments, particularly in issues of constitutional law" . In Fraser, McLachlin C.J. and LeBel J. acknowledged that overruling a venerable constitutional law

35 Canada (Attorney General) v. Bedford, 2013 SCC 72, at para. 39; AA, Vol. I, Tab 8; RA, Vol. I, Tab 2. 36 Canada v. Craig, [2012] 2 S.C.R. 489, at para. 27 ; RA, Vol. 1, Tab 4. See also: Bedford, ibid., at para. 47. 37 Craig, ibid. , at para. 25. 38 R. v. Caron, 2014 ABCA 71 , at para. 91 per Slatter J.A. (concurring), (emphasis added); RA, Vol. III, Tab 20. 9 precedent is a relevant factor in this balancing exercise and stated it would become decisive "in difficult cases". 39

26. The application of this balancing exercise in this appeal demonstrates that the Labour Trilogy should not be over-ruled. To date, this Court has not repudiated the ratio of the Labour Trilogy either expressly or by implication.40 Indeed, in both Health Services and Support - Facilities Subsector Bargaining Association v. British Columbia41 and Fraser, this Court took pains to clarify that in those appeals only the issue of a constitutionally protected right to collective bargaining was in question and not the right to strike.42

27. More significantly, the majority in Fraser re-affirmed its continued precedential value. In his separate opinion Rothstein J. (Charron J., concurring) criticized the majority in BC Health 43 Services for repudiating the Labour Trilogy. He said : While the basic framework set down in the Trilogy had stood for some 20 years. the Court decided to break with this line of precedent in Health Services. In that case, the majority held that s. 2(d) protects a right to collective bargaining and imposes a duty on employers to bargain in good faith. Such a right could not be accommodated within the framework set down by the Trilogy and followed in subsequent cases and so the majority opted to overturn that line of precedents altogether.

28. In response, McLachlin C.J. and LeBel J. stated that the Labour Trilogy remains good law. They explained that in BC Health Services the Supreme Court resolved a legal issue left unanswered in the Labour Trilogy and denied that this disturbed the Labour Trilogy's 44 precedential value. They said : Justice Rothstein argues that Health Services represents a marked departure from prior jurisprudence. We do not agree.

[I]n brief, the early cases did not consider the issue [of collective bargaining]. Nothing said in them, however, negates the current state of the law, except for the fourth proposition in PIPSC, which was corrected in Dunmore to recognize that s. 2(d) extends to collective, as distinct from individual goals.

39 Fraser, supra n. 4, at para. 58; RA, Vol. II, Tab 14. 40 This was the conclusion reached by the lower court, see especially: SFL, 2013, supra n. 10, at paras. 6 and 28; AR, Vol. I, atAR013, AR0!42per Richards, J.A.; RA, Vol. I, Tab 10. 41 [2007] 2 S.C.R. 391 ("BC Health Services"); RA, Vol. I, Tab 9. 42/bid., at para. 19; Fraser, supra n. 4, at para. 25; RA, Vol. II, Tab 14. 43 Fraser, supra n. 4, at para. 166 (emphasis added); RA, Vol. II, Tab 14. 44Jbid., at paras. 61 , 62 (emphasis added). 10

29. For the past 27 years, the law respecting the Charter and the right to strike for collective bargaining purposes has been settled, providing clarity and continuity to both citizens and governments. Moreover, throughout this time, this Court has never suggested the ratio of the Labour Trilogy needs to be revisited, let alone reversed. To the contrary, this Court has re- . affirmed it numerous times. In the sections below Saskatchewan will demonstrate why this holding is correct, and why the doctrine of horizontal stare decisis dictates that it should be affirmed.

2. A Restrained Interpretation of Section 2(d) of the Charter is Appropriate

30. Section 2(d) of the Charter guarantees to "[e ]veryone" the fundamental "freedom of association". In Fraser, this Court stated that "the core protection of s. 2(d) focuses on the right of individuals to act in association with others to pursue common objectives and goals." The Court also reaffirmed four interpretive propositions identified in its prior section 2(d) jurisprudence, most notably the Labour Trilogy. These propositions hold that section 2(d): • Protects the freedom to establish, belong to and maintain an association. • Does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association. • Protects the exercise in association ofthe constitutional rights and freedoms of individuals. • Extends to collective, as distinct from individual, goals.45

31. This Court's interpretive approach to section 2(d) is more restrained than the expanstve reading given to other fundamental freedoms guaranteed under section 2 of the Charter like freedom of religion and freedom of expression guaranteed in sections 2( a) and 2( b), respectively. Many interveners in the appeal assert that this is unprincipled, saying section 2(d) should also be construed broadly with any limitations left to be defended under section 1. However, an expansive interpretation of section 2(d), particularly in the labour relations context, would invariably inject the judiciary into many workplace disputes.

32. Saskatchewan offers five reasons for why a restrained interpretation given to section 2(d) is both appropriate and warranted. First, although most of the litigation generated in Canada under this section occurs in the labour relations context, freedom of association as a

45 Fraser, supra n. 4, at paras. 25, 22 and 62; RA, Vol. II, Tab 14. 11 constitutional value encompasses a vast array of associational activities and organizations. This reality encourages a careful approach to delineating the parameters of this specific constitutional 46 protection. In Alberta Reference , a majority of this Court accepted this reality as an interpretive guide for purposes of section 2(d). 47

33 . Second, unlike religion or expression, associational activity in this country is very closely regulated. Labour law, perhaps, illustrates this fact best. Throughout Canada there exist extensive statutory infrastructures governing all aspects of labour relations. These statutes, of which The Trade Union Acl8 is one, emulate the National Labour Relations Act of 1935 (the "Wagner Act") in the United States. To read section 2(d) broadly would effectively constitutionalize these statutory regimes with the result that governments would have to defend under section 1 of the Charter each and every legislative revision to such a regime. To date this Court has rejected such a result. 49

34. Third, an unrestrained interpretation of section 2(d) would distort Charter analysis because it necessitates manipulating the application of section 1 to ensure that statutory constraints placed upon certain associational activities are not declared unconstitutional. For example, matters such as the prohibition on strikes during the life of a collective agreement, the requirement to hold a strike vote by secret ballot prior to engaging in strike action, and the requirement to give at least 48 hours written notice of any strike action50 would be jeopardized unless justified under section 1. This Court should strive to avoid such analytical distortion.

35. Fourth, the Charter provides only minimal protection for constitutional rights and freedoms, a floor, as it were, not a ceiling. Legislatures are able to enhance these minimal protections by statute but are not compelled to do so.51 This principle has particular resonance in

46 Alberta Reference, supra n. 1; AA, Vol. II , Tab 25; RA, Vol. Ill, Tab 24. 47 Ibid. , at paras. 188-189. See also: paras. 170-177 per Mcintyre J. 48 R.S.S. 1978, c. T-17 as amended. 49 See especially: Fraser, supra n. 4, at paras. 44, 45 and 47 per McLachlin C.L. and LeBel J. and para. 299 per Deschamps J.; RA, Vol. II, Tab 14. 50 See e.g. : TVA , supra n. 5, ss. 44(2), 11(2)(d), and 11(6) respectively; RA, Vol. IV, Tab 34. 51 R. v. Kuldip, [1990] 3 S.C.R. 618, at 24; per Lamer C.J., over-ruled in part but not on this point; RA, Vol. Ill, Tab 22 : R. v. Henry, [2005] 3 S.C.R. 609, at para. 48; RA, Vol. III, Tab 21 ("The Charter aims to guarantee that individuals benefit from a minimum standard of fundamental rights. If Parliament chooses to grant protection over and above that which is enshrined in our Charter, it is always at liberty to do so.") 12 the labour relations context where extensive statutory regimes exist in all Canadian jurisdictions, regimes that extend rights to workers far exceeding the constitutionally required minimum.

36. Fifth, a restrained yet purposive reading of section 2(d) accommodates the complex and delicate balance legislatures seek to achieve among the interests of labour, management, and the general public in the field of labour relations, especially in the context of public services. As Mcintyre J. asserted in the Alberta Reference: "Care must be taken then in considering whether constitutional protection should be given to one aspect of this dynamic and evolving process while leaving the others subject to the social pressures ofthe day."52

53 37. Similarly, in R. v. Advance Cutting & Coring Ltd. , LeBel J. stated that the legal management of labour relations should properly be left "to Parliament and legislatures as well as to the parties to labour agreements, as the majority of the Court has held consistently since the 54 labour law trilogy of 1987" . He continued: The management of labour relations requires a delicate exercise in reconciling conflicting values and interests. The relevant political, social and economic considerations lie largely beyond the area of expertise of courts. This limited and prudent approach to court interventions in the field of labour relations reflects a proper understanding of the 5 functions of courts and legislatures.5

38. Saskatchewan submits that a purposive interpretation of section 2(d) ensures that associational activity is possible yet at the same time relieves the judicial branch from supervising each and every activity. An expansive interpretation of section 2(d) particularly in the labour relations context upsets this constitutionally appropriate balance.

52Alberta Reference, supra n. I, at p. 414 per Mcintyre J.; RA, Vol. III, Tab 24. See also: Plourde v. Wal-Mart Canada Corporation, [2009] 3 S.C.R. 465 , at paras. 56-57; RA, Vol. II, Tab 16. 53 [2001] 3 S.C.R. 209; RA, Vol. Ill, Tab 18. 54 Ibid, at para. 239. 55 Ibid. See also: Plourde v. Wal-Mart Canada Corporation, [2009] 3 S.C.R. 465, at paras. 56-57; RA, Vol. Ill, Tab 24. 13

3. The Right to Strike Is Not Protected Under Section 2(d) a) Characterizing the Right to Strike

39. For purposes of this appeal, it is important to describe clearly what is meant by the term "right to strike". In the court below, Richards J.A. (now C.J.S.) characterized it as the 56 "contemporary right to strike" . He elaborated as follows: [S]peaking practically, SFL and the unions do not wish to return to a world where employees can withdraw their labour in concert but where employers are not obliged to recognize unions, where union representation is based on something other than exclusive majoritarianism, where employers are not required to bargain, or to bargain in good faith, where employees who participate in strikes can be dismissed for breach of their employment contracts and so forth. The reality is that, in the year 2013, the "right to strike" which SFL and the unions seek to protect is deeply integrated into, and in many 7 ways can be seen as a function of, a specific statutory system. 5

40. Saskatchewan submits that Richards J .A.'s characterization accurately describes the nature of the "right to strike" for which the Appellants now seek constitutional recognition. Yet, a purposive interpretation of freedom of association does not accommodate such a right.

b) A Purposive Interpretation of Section 2(d) Excludes the Right to Strike

41. Any purposive interpretation of section 2(d) must commence with Fraser, this Court's most recent pronouncement respecting freedom of association in the labour relations context. 58 It is critical to ensure this constitutional analysis is not confused with existing statutory regimes 9 governing labour relations in Canada today. 5

42. The trial judge, however, fell into this analytical trap. He conflated the current statutory model with the minimal requirements demanded by the Charter. He determined that section 2(d) must be interpreted so as to comport with contemporary Canadian "labour relations

56 SFL, 2013, supra n. 10, at para. 61 (emphasis in original); AR, Vol. I, at 0155; RA, Vol. I, Tab 10. 57 Ibid, at para. 63 (emphasis added); AR, Vol. I, at 0155-56; RA, Vol. I, Tab 10. 58 See e.g.: Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530 ("AJC'), at para. 22; leave to appeal dismissed: 2013 CanLII 6709 (SCC); RA, Vol. I, Tab 1 ("[W]e must take the law to be as stated by the Supreme Court of Canada in its most recent pronouncement on the issue in Fraser."); Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363 ("MPAO"), at para. 69; RA, Vol. II, Tab 12, and Procureur General du Quebec v. Confederation des Syndicats Nationaux (CSN) eta/., 2011 QCCA 1247, ("CSN, 20 //") at para. 2; leave to appeal dismissed: 2012 CanLII 25155 (SCC); RA, Vol. Ill, Tab 17. 59See: Fraser, supra n. 4, at para. 47 ; RA, Tab 14. See also: MPAO, ibid. , at paras.34, and 139; RA, Vol. II, Tab 12. 14

60 realities" . This meant constitutional recognition for: "(1) the right of employees to speak with one voice through a recognized bargaining representative; (2) the right of employees to bargain collectively with their employer through that representative; and (3) the right of employees to strike. "61

43. Fraser stated unequivocally that section 2(d) does not guarantee a particular model of labour relations or a specific bargaining method. 62 It follows that statutory and common law underpinnings for the many and various activities undertaken by workers throughout the collective bargaining process do not enjoy constitutional recognition. The fact that the common law or the legislature may afford enhanced protection for these activities does not transform them into constitutionally protected rights. 63

44. Fraser also determined that section 2(d) does not guarantee any dispute resolution process after the parties have reached an impasse and it does not guarantee any particular outcome.64 This holding further militates against concluding the right to strike for collective bargaining purposes is a constitutionally recognized aspect of freedom of association. A strike is coercive. It seeks to break an impasse in the collective bargaining process with the goal of attaining the best possible collective agreement for workers. Indeed, the trial judge acknowledged this reality. 65 These factors demonstrate that a right to strike is incompatible with the interpretation given to section 2(d) by this Court.66

45. Two further statements of legal principle laid down in Fraser are also relevant. First, the right to bargain collectively is not a free-standing right. Rather, it "is a derivative right under 67 s. 2(d) of the Charter" . Second, the scope ofthis right is very rudimentary when compared with contemporary Wagner model regimes. The constitutionally recognized right to collective

60SFL, 2012, supra n. 7, at para. 115, RA, Vol. Ill, Tab 28. 61 1bid, at para. 60. 62Fraser, supra n. 4, at para. 41 ; RA, Vol. II, Tab 14 (referencing BC Health Services, supra n. 41 , at paras. 91and 47; RA, Vol. I, Tab 9. 63 See especially: Kuldip, supra, n. 51 ; RA, Vol. III, Tab 22. 64 Fraser, supra n. 6, at para. 41 ; RA, Tab 14 (referencing BC Health Services, supra n. 41, at paras. 102-3, and 47; RA, Vol. I, Tab 9. 65 SFL, 2012, supra n. 7, at para. 63 ; AR, Vol. I, at AR0032; RA, Vol. III, Tab 28. 66 See especially: SFL, 2013, supra n. I 0 at para. 59 per Richards J.A.; AR, Vol. I, at AR0154; RA, Vol. I, Tab 10. 67 Fraser, supra n. 4, at para. 99; RA, Vol. II, Tab 14. 15 bargaining "requires a process of engagement that permits employee associations to make 68 representations to employers, which employers must consider and discuss in good faith" .

46. These two propositions further undermine the trial judge's ruling that section 2(d) protects the right to strike. First, he treated the right to strike and the right to a collective bargaining process as separate yet related rights. Indeed, he described the right to strike as one of the "primary drivers of the collective bargaining process", the other being an employer's ability to lock out workers. 69 Second, he viewed the constitutionally protected right to strike as robust, clothed with all the protections afforded to workers by statute. 70 It is apparent that his conception of the right to strike recognized in section 2(d) is inconsistent with this Court's view of the collective bargaining process generally.

47. Finally, it is instructive to consider the Agricultural Employees Protection Act ("AEPA"/ 1 the constitutionality of which this Court sustained in Fraser. The AEPA plainly lacked the traditional hallmarks of contemporary Wagner model regimes. Indeed, section 18 of the AEPA expressly excluded agriculture workers from the panoply of protections contained in Ontario's Labour Relations Act, 1995. As well, the AEPA omitted entirely the right of farm workers to strike. Instead, farm workers in Ontario had to resort to their common law freedom to ' strike without any of the statutory protections.

48. Accordingly, for all of these reasons, Saskatchewan submits that a purposive interpretation of section 2(d) does not extend constitutional protection for the right to strike for collective bargaining purposes.

c) International and Comparative Law and the ILO

49. The Appellants rely extensively on international law, in particular reports of the Committee of Freedom of Association ("CF A") of the International Labour Organization

68 /bid, at para. 2. See also: MPAO, supra. n. 58, at paras. 120, 121 ; RA, Vol. II, Tab 12. 69SFL, 2012, supra n. 7, at para. 92; AR Vol. I, at AR0046; RA, Vol. III, Tab 28. 10/bid, at paras. 60-63. 11 Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16; RA, Vol. III, Tab 31 . 16

("ILO"), to support their contention that constitutional recognition of the right to strike should now be accommodated within section 2(d) of the Charter. At paragraph 78 of their factum, the Appellants state: "the right to strike is established at international law and the Charter must be interpreted as also providing this fundamental right to Canadian workers". 72 The Court of Appeal correctly rejected the trial judge' s acceptance of this approach. 73

50. Saskatchewan submits that this loose approach to the incorporation of international law into our domestic legal regime is not appropriate. It is important when engaging in comparative law analysis for purposes of interpreting the Charter to take into account Canada's current legal environment, most especially the constitutional principles of federalism and judicial independence. 74 As LeBel J. cautioned in Advance Cutting & Coring Ltd. , the "labour law of a country evidences a social and political compromise about the place of unions in that society and 75 the proper balance between unions and employers" .

i) Domestic Constitutional Limitations

51. The federal principle accommodates various approaches to the regulation of labour relations. This Court has repeatedly affirmed the ability of provinces to craft labour relations regimes tailored to local needs and economic conditions. In Plourde, for example, Binnie J. expressly acknowledged that "in a federal state there is no requirement that provin~ial regulatory schemes must align themselves", and "in matters of provincial labour relations the various provinces are free to strike their own balance according to their varying circumstances and attitudes". 76

52. Saskatchewan submits that it would offend the federal principle if Parliament and provincial legislatures were required to enact uniform protections equivalent to those set out in international labour law such as documents or reports generated by the ILO/CF A. As well, it would seriously undermine Canada' s constitutional order were the Charter to become the vehicle

72 Appellants' Factum, at 23, para. 78 (emphasis added). 73 SFL, 2013, supra n. 10 , at para. 71 per Richards J.A. ; AR, Vol. I, AR0158; RA, Vol. 1, Tab 10. 74 R. v. Advance Cutting & Coring Ltd. , supra n. 53 , at para. 251 per LeBel J.; RA, Vol. III, Tab 18. 75 Ibid. 76P!ourde, supra n.52, at paras. 58, 63 ; RA, Vol. II, Tab 16. 17 whereby an international body like the ILO effectively dictates how two levels of government in a sovereign nation must legislate within their respective areas of legislative jurisdiction.

53 . The principle of judicial independence also is a foundational principle in our system of constitutional governance. In Ell v. Alberta, for example, Major J. stated: "the judiciary's role as arbiter of disputes and guardian of the Constitution require that it be independent from all other bodies."77 This includes the ILO and the CF A. To accept that statements by those bodies bind the Canadian judiciary would offend this foundational principle.

ii) The ILO and its Conventions

54. At the outset, it is essential to distinguish between ILO conventions which Canada has ratified and those it has not. Of the 189 conventions the ILO has generated to date, Canada has ratified 32 of them and denounced two. The ILO has generated two relevant conventions: Convention No. 87 Concerning Freedom ofAssociation and Protection of the Right to Organize which Canada has ratified and Convention No. 98: Right to Organize and Collective Bargaining Convention, 1949 which Canada has not. 78 Neither of these Conventions refers to a right of workers to strike. 79

55. There is a third document generated by the ILO in 1998 known as the Declaration on Fundamental Principles and Rights at Work ("1998 Declaration"). This document lists four "core labour rights" - freedom of association and collective bargaining, and protections against child labour, forced labour and discrimination. The 1998 Declaration states that ILO member states will promote the principles underlying the four core labour rights. 80

77£11 v. The Queen, [2003]S I .C.R. 857, at para. 23; RA, Vol. I, Tab 6. 78 See: Fraser, supra n. 4, at paras. 247-250; RA, Vol. II, Tab 14, and Langille, "Can We Rely on the ILO?'' (2008), 13 C.L.E.L.J. 363, at 369 ("Langille: Can We Rely"); RA, Vol. V, Tab. 46. See also: Langille, "The Freedom of Association Mess: How We Got into it and How We Can Get out of it" (2009), 54 McGill L. J. 177, at 195. ("Langille: Freedom ofAssociation Mess"); RA, Vol. V, Tab 47. 79 Sonia Regenbogen, "The International Labour Organization and Freedom of Association: Does Freedom of Association Include a Right to Strike?" (2012), 16 C.L.E.L.J. 383, at 408-406, 414. ("Regenbogen"); RA, Vol. V, Tab 49. 80Langille: Can We Rely, supra n.78, at 370; RA, Vol. V, Tab 46. 18

56. The 1998 Declaration does not provide a definition of freedom of association as no clear consensus exists among the ILO member states as to its meaning. Indeed, as Professor Tonia Novitz concludes: "No ILO instrument has been adopted which provides systematic protection or even a definition of the right to strike."81

57. Created in 1951 by the ILO's Governing Body to examine violations of workers' and employers' organizing rights, the CFA has now emerged as the principal complaint investigating body of the ILO. It prepares a preliminary assessment for the ILO Governing Body and is more accurately described as a "fact-finding and conciliation service" rather than "a 'judicial' process."82

58. The supervisory and adjudicative function of the ILO is fulfilled by the Application of Standards Committee which is a committee of the International Labour Conference, the "supreme organ" of the IL0.83 Unlike the CFA, the Application of Standards Committee is a tripartite committee co~prised of government, employers and workers delegates84 which is important since any "binding or persuasive legal authority on the part of the ILO and its supervisory bodies is predicated on tripartite agreement."85 The Application and Standards Committee has "found it 'impossible' to reach a consensus" as to whether freedom of association under ILO documents includes a right to strike. 86

59. Saskatchewan submits that in accordance with the general precepts of international law, neither the ILO Conventions nor the recommendations of the ILO/CF A are binding. They are no more persuasive in Canadian courts than judgments of the United States Supreme Court or 87 the European Court of Human Rights • Saskatchewan submits this is what Dickson C.J. truly

81Tonia Novitz, "International and European Protection of the Right to Strike: A Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union", (London: Oxford University Press, 2003), at 173 ; RA, Vol. V, Tab 50. 82 Langille: Can We Rely, supra n. 78, at 377 and 378; RA, Vol. V, Tab 46. 83 Regenborgen, supra n. 79, at 402; RA, Vol. V, Tab 49. 84 Ibid, at 400. 85 Ibid, at 414. 86 Ibid, at413. 87 See: Advance Cutting & Cutting Ltd., supra n. 53, at para. 251 per LeBel J. ("[I]nteresting as it may be, the consideration of [European Court of Human Rights] jurisprudence is not determinative."); RA, Vol. III, Tab 18. 19 meant in the Alberta Reference when he said he did not "believe the judiciary is bound by the norms of international law in interpreting the Charter". 88

4. The Nature of the Right to Strike Protected by Section 2(d)

60. If, contrary to the foregoing submissions, this Court concludes that section 2(d) of the Charter protects some form of the right to strike for collective bargaining purposes, Saskatchewan submits in the alternative that the PSESA does not infringe this newly found protection. The nature of this newly identified right to strike must be informed by this Court's characterization of the constitutionally protected process of collective bargaining.

a) The Right to Strike is Derivative of the Right to Bargain Collectively

61. Both B.C. Health Services and Fraser accepted that section 2(d) guarantees a general process of collective bargaining in the labour relations context. In B. C. Health Services, McLachlin C.J. and LeBel J. characterized it as a "limited right"; a right "to a general process of collective bargaining not to a particular model of labour relations, nor to a specific bargaining method."89 At bottom, the right is procedural and not substantive, and "does not guarantee a certain substantive or economic outcome".90

62. In Fraser, this Court employed its earlier decision in Ontario (Public Safety and Security) v. Criminal Lawyers Association91 to clarify that collective bargaining obtains constitutional recognition not as a free standing associational activity but rather as a right which arises only where it is a "necessary pre-condition"92 to exercising the fundamental freedom of association. It underscored that section 2(d) "guarantees a process, not a result"93 and "only 94 protects 'the right to collective bargaining in the minimal sense of good exchanges"' •

88 Alberta Reference, supra n.l, at para. 64; AA, Vol. II, Tab 25. 89 BC Health Services, supra n. 41 , at para. 91 ; RA, Vol. 1, Tab 9. 90 Ibid. 91 2010 SCC 23, [2010] I S.C.R. 815 ; RA, Vol. II, Tab 15. 92 Fraser, supra n. 4, at para. 46; RA, Vol. II, Tab 14 quoting Ontario (Public Safety and Security) v. Criminal Lawyers Association, ibid. , at para. 30; RA, Vol. II, Tab 15. 93AJC, supra n. 58, at para. 39; RA, Vol. I, Tab 1. 94/bid. , quoting Fraser, supra n. 4, at para. 90; RA, Vol. II, Tab 14. 20

63. Should this Court determine that section 2(d) accords minimal recognition of some form of the right to strike, then the fact that the right to bargain collectively is a derivative right assists in ascertaining the parameters of any protection extended to a right to strike. In order to ensure there is doctrinal consistency, constitutional recognition of a right to strike under section 2(d) should not extend beyond the ability of workers to strike in circumstances where state action has rendered the collective bargaining process effectively impossible. Furthermore, this form of the right to strike does not prohibit employers from dismissing employees who strike or hiring workers to replace striking employees. To this extent then it is compatible with the common law protection for a right to strike. 95

b) The Appropriate Test under Section 2(d)

64. In Fraser, this Court reformulated the test for determining whether in the labour relations context, a violation of section 2(d) has been demonstrated. The operative test is 'effective impossibility'. In paragraph 46, for example, McLachlin C.J. and LeBel J. announced that: "In every case, the question is whether the impugned law or state action has the effect of making it impossible to act collectively to achieve workplace goals."96 Later in their joint opinion, McLachlin C.J. and LeBel J. framed the appropriate inquiry this way: The essential question is whether the [Agricultural Employees Protection Act ("AEPA")] makes meaningful association to achieve workplace goals effectively impossible, as was the case in Dunmore. If the AEPA process, viewed in terms of its effect, makes good faith resolution of workplace issues between employees and their employer effectively impossible, then the exercise of the right to meaningful association guaranteed by section 2(d) of the Charter will have been limited and the law found to be unconstitutional in the absence of justification under s. I of the Charter. The onus is on the farm workers to demonstrate that the AEPA interferes with theirs. 2(d) right to associate in this way.97

65 . The 'effectively impossible' standard appears to be more stringent than the 'substantial interference' standard propounded in BC Health Services. To be sure, the constitutionally offensive provisions in BC Health Services nullified certain collective agreement articles and wholly prohibited negotiating similar terms in future rounds of collective bargaining. The effect of those impugned laws was to make it impossible for the union to achieve such terms ever

95 See e.g. : Canadian Pacific Railway v. Zambri, [ 1962] S.C. R. 609; RA, Vol. I, Tab 3. 96Fraser, supra n. 4, at para. 90; RA, Vol. II, Tab 14 (emphasis added). 91 /bid., at para. 98 (emphasis added). 21

agam. Put another way, in BC Health Services substantial interference and effective impossibility amounted to the same thing. Properly understood, the formulation of the test in Fraser more accurately explains the holding in BC Health Services.

66. Furthermore, the standard for assessing a violation of section 2(d) is not contingent on the nature of the constitutional claim at issue, namely whether it involves the 'positive or negative right' component of section 2(d). The applicable constitutional standard does not fluctuate, it remains the same. Saskatchewan endorses the holding in AJc!8 where Sharpe J.A. addressing this very point stated:

In my view, the substantive content of s. 2(d) must be the same whether raised as a sword to claim the positive right to an effective legislative regime to protect freedom of association or used as a shield to defend against legislation that impinges upon existing statutory protections. It follows that the "effectively impossible" test applies to this case.99

67. Finally, for purposes of this analysis it is important to recognize that "the test of effective impossibility is applied to workers at large, and not to any particular combination of 100 workers" . This is consistent with the characterization of the right to strike as a collective, as opposed to an individual, right.

c) Application of the Test to the PSESA

68. The trial judge found that the PSESA infringed section 2(d) on two different bases. Initially, he ruled that any restriction upon the ability of public sector workers to strike is a prima facie violation of section 2(d) requiring justification under section 1. 101 Later, he invoked the 'substantial interference' standard concluding that "the PSES Act substantially interferes with the freedom of public sector employees in many workplaces to engage in meaningful strike

98AJC, supra n. 58 ; RA, Vol. I, Tab I: This conclusion is supported by the following passage from Fraser, supra n. 4, at para. 47; RA, Vol. II, Tab 14: "What is protected [under section 2(d)] is associational activity, not a particular process or result. If it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established, and the onus shifts to the state to justifY the limit under s. 1 ofthe Charter." [Emphasis added.] 99 AJC, ibid. , at para. 32. 100 MPAO, supra n. 58, at para. 120; RA, Vol. II, Tab 12 . 10 1 SFL, 2012, supra n. 7, at para. 115; AR, Vol. I, AR0056; RA, Vol. III, Tab 28. 22 action" in violation of section 2(d). 102 The Appellants assert the trial judge's conclusion "must be accepted by this Court" unless it is shown to be wrong on the palpable and over-riding standard. 10 3

69. Saskatchewan submits that this is incorrect. The trial judge's conclusion is a determination on a question of law. It is well-established that the interpretation and application of a legal standard, especially a constitutional standard, is a question of law.104 Accordingly, it is reviewable on the standard of correctness. 105

70. The trial judge erred by failing to identify the correct legal standard and to apply it to the PSESA. Saskatchewan submits that the issue is whether the PSESA makes it effectively impossible for unionized public sector workers in this province to bargain collectively in order to achieve workplace goals.106 Only if this is demonstrated on a balance of probabilities is a violation ofthe derivative right to collectively bargain made out and the right to strike engaged.

107 71. In the court below, Richards J.A. correctly stated : The Essential Services Act does not eliminate the right to strike. Rather, it establishes a regime for limiting the number of employees who are allowed to refuse to work in the event of a strike. ln other words, the Act implements a "designated or controlled strike" approach to the regulation of the withdrawal of services by employees.

72. Furthermore, Saskatchewan submits that evidence presented at trial showed that post PSESA collective bargaining agreements were achieved in the provincial public sector demonstrating that public sector workers collectively were able to attain their workplace goals. For example, a collective bargaining agreement between PSC and SGEU for 2009-2012 was formally achieved on March 3, 2010, approximately eight months following the expiry of the previous agreement. 108

102 Ibid, at para. 122; AR, Vol. I, at AR0060; RA, Vol. Ill, Tab 28. 103 Appellants' Factum, at 24, paras. 80-81 . 104 See e.g.: R. v. Araujo, [2000] 2 S.C.R. 992, at para. 18; RA, Vol. III, Tab 19; R. v. Shepherd, [2009]S 2 .C.R. 527, at para. 20; RA, Vol. III, Tab 23. 105 Saskatchewan (Hum an Rights Commission) v. Whatcott, [201 3S] I .C.R. 467, at para. 61 ; RA, Vol. III, Tab 29. 106 See especially: Fraser, supra n. 4, at para. 98 ; RA, Vol. II, Tab 14; MPAO, supra n. 58, at para. Ill ; RA, Vol. II, Tab 12 and, AJC, supra n. 58, at paras. 33-34; RA, Vol. I, Tab I. 107 SFL, 2013, supra n. 10, at para. 9 (emphasis added); AR Vol. I, at AR01 36; RA, Vol. I, Tab 10. 108 Affidavit ofDon Zerr ("Zerr Affidavit"), CAB, at p. A11559, para. 9, and at pp. A11566-All570, paras. 38-52; RR, Vol. 4, pp. 48 and 55-59. 23

73. As well, post-PSESA collective bargaining agreements were achieved outside of the executive government sector. Most notably in August 2011, the Health Services Association of Saskatchewan ("HSAS"), one of the Respondents, formally concluded a collective bargaining agreement with the Saskatchewan Association of Health Organizations ("SAHO") following a lengthy strike. 109 Also in August 2011 , SaskEnergy and _the Corhmunication, Energy and Paperworkers Union ("CEP") Local 649 achieved a three year collective agreement retroactive to February 1, 2010.110

d) Conclusion

74. Saskatchewan submits that the PSESA does not render the ability of Saskatchewan public sector workers collectively to achieve workplace goals effectively impossible. As a consequence, the trial judge erred when he concluded that it violated section 2(d) of the Charter.

C. Constitutional Question No. 4 - Is the PSESA a Reasonable Limitation Under Section 1?

75 . Saskatchewan submits that it is not necessary for this Court to answer this constitutional question. Alternatively, should this Court find that the PSESA violates section 2(d) then Saskatchewan submits it qualifies as a reasonable limitation on section 2(d) under section 1 ofthe Charter.

1. Section 1 of the Charter- The Relevant Test and Contextual Considerations

111 76. The test under section 1 is well-known. It involves the following requirements : • The legislative objective or objectives must be pressing and substantial. • The impugned law must be rationally connected to its objective. • The impugned law must impair the right or freedom in question as minimally as possible. • The deleterious effects of the impugned law must not outweigh its salutary benefits.

109 "Health Sciences Members Ratify New Contract", Health Sciences Association of Saskatchewan, Press Release dated August 5, 2011 ; RA, Vol. V, Tab 51. In RWDSU, Dickson C.J. accepted newspaper articles referenced by the Government of Saskatchewan : RWDSU, supra n. I, at 478-480; RA, Vol. Ill, Tab 26. Saskatchewan submits that press releases should be admitted. The facts are not controversial and the court may take judicial notice of the information contained in them. 110 "Sask.Energy, union reach agreement", Regina Leader-Post, August 16, 20 II ; RA, Vol. V, Tab 52. 111 See especially: R. v. Oakes, [1986] I S.C.R. 103 , at pp. 138-39. 24

77. Saskatchewan acknowledges that under section 1 the state bears the onus. However, the government is not compelled to provide concrete evidence of the problems it seeks to address. The discharge of the burden of proof on a balance of probabilities may be achieved through logic, and the application of reason to what is known. 112

78. Context is always relevant in Charter cases; however, respecting matters of labour relations, it is especially significant. This is because "the jurisprudence acknowledges that legislative policy-making in the domain of labour relations is better left to the political process, as a general rule." 113

79. The Appellants have conceded that the trial judge's conclusions respecting the legislative objective inquiry and the rational connection test are correct. 114 Only the application of the last two aspects of the Oakes test is contested.

2. The Minimal Impairment Inquiry

80. This inquiry assesses whether the impugned law impairs the Charter right as little as reasonably possible in order to meet its public policy objectives. When undertaking this inquiry, this Court recognizes that it "is the role of the legislature to choose among competing policy options" and "[p]rovided the option chosen is one within a range of reasonably supportable alternatives, the minimal impairment test will be met".11 5

a) General Structure of the PSESA

81. Saskatchewan submits that at the outset of this inquiry, it is important to have regard for the structure of the legislation. To begin, the PSESA adopted the "designation" or "controlled strike" model to resolve labour disruptions of essential public services. 116 Several leading labour

112 Harper v. Canada (Attorney General), [2004] I S.C. R. 827, at paras. 77-79; RA, Vol. I, Tab 8. 113 Advance Cutting & Coring Ltd. , supra n. 53 , at para. 257 per LeBel J.; RA, Vol. III, Tab 18. See also: Alberta Reference, supra n. 1 , at para. 190 per LeDain J. ; RA, Vol. III, Tab 24. 114 Appellants' Factum, at 28, para. 97. 115 Whatcott, supra n. 105, at para. 101 (citations omitted); RA, Vol. Ill, Tab 29. 11 6 SFL, 2013, supra n. 10, at para. 9 per Richards, J.A.; AR Vol. 1, at AR0136; RA, Vol. I, Tab 10. 25 law commentators have asserted .that this model "is superior to the alternatives of either totally prohibiting such work stoppages and imposing an arbitrated settlement of the dispute, or[ ... ]ad hoc back-to-work legislation and an imposed arbitrated settlement of the dispute." 117

118 82. The scheme in the PSESA is premised on the principle ofvoluntarism • However, in the event a negotiated essential services agreement cannot be achieved, section 9 authorizes the employer to issue essential service notices and section 10 empowers the Saskatchewan Labour Relations Board to resolve disputes which arise following the issuance of these notices in respect 119 of "the number of essential services employees in each classification" •

83. The trial judge dismissed the voluntary nature of essential service negotiations contemplated by the PSESA asserting "it would be naYve to assume" that these could be conducted in good faith. Indeed, he concluded that under the PSESA , "[g]ood faith negotiation is 120 not possible" •

84. Saskatchewan submits that this holding is contrary to the evidence. Indeed, the trial judge acknowledged that in both the municipal and university sectors, meaningful essential service negotiations occurred. 121 As well, negotiations preceding the 2009-2012 PSC/SGEU collective agreement were completed in the absence of a finalized essential services agreement, while PSC and CUPE were able to arrive at a final agreement respecting essential services.122

117 Geoffrey England, "Evaluating the Merits of the 2008 Reforms to Collective Bargaining Laws in Saskatchewan" (2008), 71 Sask. L. Rev. 307 at 330 ("England"); RA, Vol. V, Tab 48. See also: Bernard Adell, Michel Grant & Allen Ponak, Strikes in Essential Services (Kingston: Queen's University Industrial Relations Centre, 200 I), at 199; AA, Vol. III, Tab 50. 118 PSESA, supra n. 3, ss. 6, 7 and 8(4), RFA, Tab 2. 119 Ibid. , ss. 9 and I 0. 120 SFL, 2012, supra n.7, at para. 190; RA, Vol. Ill, Tab 28. 121 Ibid., at para. 189. 122 Zerr Affidavit, CAB, at pp. A 11566-A 11570, paras. 38-52; RR. Vol. 4, pp. 55-9. 26

b) No Consultation Required

85. There is no general obligation under section 2(d) or section 1 of the Charter upon governments to consult with unions when developing and enacting laws of general application. In BC Health Services, this Court expressly acknowledged there is no constitutional obligation upon governments to consult widely or at all with the public before enacting laws of general application. 123 In Fraser the Ontario Government did not consult with any representatives of farm workers prior to enacting the AEPA. This apparent lack of consultation, however, did not merit comment from this Court.

86. The trial judge correctly held that there was no constitutional duty to consult. Even though he stated the lack of meaningful consultation in this case was to be considered under the 124 minimal impairment inquiry , it is apparent that it did not figure into his analysis.

c) Dispute Resolution Mechanism

87. The PSESA contains a dispute resolution mechanism provided for in section 10. Yet, the trial judge found this mechanism to be inadequate because ·of the limited scope of review given to the Saskatchewan Labour Relations Board, in particular its inability to make a determination respecting essentiality. 125

88. The trial judge erred on this point for three reasons. First, in Fraser, even though section 2(d) "does not guarantee a legislated dispute resolution mechanism in the case of an 126 impasse" , the AEPA did establish the Agriculture, Food and Rural Affairs Tribunal to decide disputes under that statutory scheme. This Court characterized as "premature" arguments that this body was useless and stated the tribunal "should be given a fair opportunity to demonstrate 127 its ability to appropriately handle the function given to it by the AEPA" . The same should

123 BC Health Services, supra n. 41 , at 157; RA, Vol. I, Tab 9. ("Legislators are not bound to consult with affected parties before passing legislation.") 124 SFL, 20I2, supra n. 7, at para. 173 ; AR, Vol. I, at AR0083; RA, Vol. III, Tab 28. 125 Ibid., at paras. 206-211 ; AR, Vol. I, at AR0097-AR0099; RA, Vol. Ill, Tab 28. 126 Fraser, supra n. 4, at para. 41 ; RA, Vol. II, Tab 14. 127 Ibid., at paras. I 10-11. 27 apply to section 10 of the PSESA. It has been invoked in only one case which was never completed.128

89. Second, the requirement of a neutral third party assessing essential services designations emerges from fLO Convention No. 98.129 Canada has not signed, ratified or implemented this Convention, so it cannot be incorporated as a requirement under section 1.

90. Third, the trial judge concluded that because many Canadian essential services statutes provide for some form of arbitration, its absence from the PSESA manifests constitutional infirmity. 130 The minimal impairment inquiry focuses on whether the impugned law falls with a range of reasonable alternatives. It is not resolved through simple mathematics, i.e. whether a majority of essential services statutes impose arbitration to settle disputes. The federal principle accommodates diverse approaches to addressing issues arising in areas of provincial legislative jurisdiction. 131 For example, the Manitoba Essential Services Act (Government and Child and Family Servicesi 32 contains a provision similar to section 10 of the PSESA. This reality 133 demonstrates that the PSESA falls within a range of"reasonably supportable altematives" .

d) Definitions of Essential Services and Public Employers

91 . The definitions in the PSESA relate to categories of public services, narrower even than the kinds of essential services Dickson C.J. tolerated in RWDSU. There Dickson C.J. accepted that work stoppages or strikes that disrupted public services and resulted in severe economic harm to innocent third parties could be prohibited by statute. 134

92. Saskatchewan submits that subsections 2( c)(i)(A ) and (C) are non-controversial. Disruption of public services falling within these two provisions would be significant and their

128 Canadian Union of Public Employees, Local 3967 v. Regina-Qu 'Appelle Health Region and Attorney General for Saskatchewan, 2010 CanLII 5199; AA, Vol. I, Tab 9. 129 England, supra n. 117, at 335 ; RA, Vol. V, Tab 48. 130 SFL, 2012, supra n. 7, at paras. 196-205 ; RA, Vol. Ill, Tab 28. 131 See: Plourde, supra n. 52, at paras. 58 and 63; RA, Vol. Il, Tab 16. 132 C.C.S.M. , c. E-145, ss.8(1) to 8(3); RA, Vol. IV, Tab 38. 133 Whatcott, supra n. 105; RA, Vol. III, Tab 29. 134 RWDSU, supra n. I, at 476-78 per Dickson C.J . concurring; RA, Vol. III, Tab 26. 28 designation as "essential" does not interfere with section 2(d). Subsection 2(c ) (i)(B) pertains to a narrow and specific kind of disruption. It is analogous to the kind of economic harm to innocent third parties contemplated by Dickson C.J. in R WDSU.

93. Subsection 2(c)(i)(D) designates "the courts of Saskatchewan" as essential. This definition is_consistent with this Court's jurisprudence to the effect that courts of law may not be disrupted even during a lawful strike. 135

94. Finally, the trial judge erred in rejecting the definition of "public employer" set out in subsection 2(i) particularly because it includes such entities as SIAST and the Saskatchewan Gaming Corporation. 136 In contemporary society myriad services are offered to the public exclusively through the public sector. Yet only a few of those services are identified in the PSESA. Nor does it follow that because these entities are included in the definition of "public employer", their employees will be designated as essential. That determination will be made by the employer and employees. For example, during a strike at SIAST in Fall 2011 , the employer chose not to designate any employees as essential. This reality further demonstrates the principle of voluntariness embedded in the legislation.

95. Accordingly for all of these reasons, Saskatchewan submits that the trial judge erred in holding that the PSESA failed the minimal impairment inquiry.

3. The Deleterious Effects/Salutary Benefits Inquiry

96. This final element in the section 1 inquiry involves a broad assessment of whether the positive effects of the law warrant its negative impact on guaranteed rights or freedoms. 137 The trial judge ruled that the PSESA failed this inquiry because it "transfers all of the Union's former 138 powers to the employers" .

135 See especially: B.C. G.E. U. v. British Columbia (A ttorney General), [1988] 2 S.C.R. 214; AA, Vol. I, Tab 3, and Newfoundland (A ttorney General) v. N.A. P.E. , [1988] 2 S.C.R. 204; RA, Vol. II, Tab 13. 136 SFL,2012,supra n. 7, atpara. 184; RA, Vol. III, Tab28. 137 Whatcott, supra n. 105, at para. 147; RA, Vol. Ill, Tab 29. See also Reference reMarriage Commissioners Appointed Under the Marriage Act, 1995, 2011 SKCA 3, at para. 90; RA, Vol. III, Tab 25. 138 SFL, 2012, supra n. 7, at para. 220; RA, Vol. III, Tab 28. 29

97. Saskatchewan submits that the trial judge erred. First, he mischaracterized the true effect of the PSESA. As already submitted, its legislative scheme is premised on voluntary negotiation of essential services agreements. Only in the event that such an agreement cannot be achieved, can the employer designate employees as essential, and the union may have that decision reviewed by the Saskatchewan Labour Relations Board. 139

98. Second, when assessing the effect of the PSESA broadly it cannot be ignored that even with essential services legislation in place public sector unions are still able to strike and to achieve collective agreements acceptable to their membership. For example, HSAS concluded a collective bargaining agreement with SAHO following a lengthy strike. This agreement was ratified by approximately 87% of HSAS membership.14° Clearly, there is proportionality between the effects of the PSESA on the protected freedom and its legislative objective.

4. Conclusion

99. Accordingly, for these reasons Saskatchewan submits that the PSESA qualifies as a reasonable limitation upon freedom of association under section 1 of the Charter.

D. Constitutional Question No. 1- Does the PSESA Violate Section 2(b) of the Charter?

100. The Appellants assert as well that the PSESA violates freedom of expresswn guaranteed by section 2(b) of the Charter.141 Both the trial judge142 and the Court of Appeal 143 rejected this line of argument. In particular, Richards J.A. ruled that this Court has consistently preferred "to assess the constitutional status of the right to strike by reference to the Charter's guarantee of freedom of association" which "reflects the reality that in relation to any inquiry into the overall validity of a statute of general application like the Essential Services Act, the

139 PSESA, supra n. 3, ss. 6,7,8,9 and 10; RFA, Tab 2. 140 "Health Sciences Members RatifY New Contract", Health Sciences Association of Saskatchewan, Press Release dated August 5, 2011 ; RA, Tab 51. See further: Zerr Affidavit, CAB, at pp. Al1558-9, paras. 7-9; RR, Vol. 4, pp. 47-8. 141 Appellants' Factum, at pp. 25-6, paras. 87-90. 142 SFL, 2012, supra n. 7, at paras. 55-56; AR, Vol. I, at AR0028; RA, Vol. III, Tab 28. 143 SFL, 2013, supra n. 10, at paras. 72-77; AR, Vol. I, at AR0158 - AR00160; RA, Vol. 1, Tab 10. 30 essence of the impact of the statute is on the associational, rather than the expressive dimension of employee conduct." 144

101. Saskatchewan submits that the lower courts are correct. In the labour relations context all aspects of organizing, certification, collective bargaining and striking are characterized as associational activities. While these activities might also be characterized as expressive activities and analyzed under section 2(b), such an analytical approach would render section 2(d) redundant.

102. In Grain Workers ' Union, Local 333 v. B.C. Terminal Elevator Operations' 145 Association , the Federal Court of Appeal rejected the reasoning ofthe British Court of Appeal in British Columbia Teachers' Federation v. British Columbia Public School Employers' 146 Association , a decision relied upon by the Appellants. The Grain Worker's Union conducted an illegal strike during the existence of their collective agreement in support of members of another union who were striking. A majority of the Federal Court of Appeal found section 2(b) inapplicable. Chief Justice Blais stated that if the union's work-stoppage "was a form of expression protected by section 2(b) then it would be difficult to consider any regulation of human activity as not infringing this section." 147

103. Finally, Richards J.A. was correct in his conclusion that the PSESA "does not purport 148 to limit picketing in any way" • The Appellants' arguments respecting the effects of the impugned legislation on picketing are without merit.

104. Accordingly, for these reasons Saskatchewan submits that the PSESA does not violate section 2(b) ofthe Charter.

144 Ibid., at para. 73 . 145 2009 FCA 201; RA, Vol. I, Tab 7. 146 2009 BCCA 39; AA, Vol. I, Tab 4. 147 Grain Workers' Union Local 333, supra n. 145, at para. 88 and 91 ; RA, Vol. I, Tab 7. Ryer J.A. concurred with Blais J.A. 148 SFL, 2013, supra n. I 0 at para. 76; RA, Vol. I, Tab 10. 31

E. Constitutional Question No. 2 -Is the PSESA a Reasonable Limit on Section 2(b) Under Section 1?

105. Saskatchewan submits that it is not necessary for this Court to answer this question. Alternatively, should this Court find that the PSESA violates section 2(b), then for the reasons set out in paragraphs 76 to 99 above, it qualifies as a reasonable limitation upon freedom of expression for purposes of section 1 of the Charter.

F. Constitutional Question No. 5 - Does the TUAA, 2008 violate Section 2(d) of the Charter?

1. Introduction and Relevant Legal Principles

106. This Constitutional Question asks whether certain provisions of the TUAA, 2008 violate section 2(d) of the Charter. In particular, the Appellants object to (1) raising the threshold for certification applications from 25% to 45% (s .3(1 )); (2) requiring a vote by secret ballot to determine whether a majority of eligible employees wish to be represented by the union (s. 3(1)); (3) decreasing the statutory period of union card validity from "six months" to "90 days" (s. 3(2)), and (4) permitting limited employer communication with employees during an union organizing drive (s. 11(1)(a)). They assert that because these changes make it more difficult to organize and obtain certification orders from the Saskatchewan Labour Relations Board, they contravene section 2(d) ofthe Charter.149

107. Both the trial judge 150 and the Court of Appeal 151 found no merit in these objections and upheld the constitutionality ofthe TUAA , 2008.

108. Saskatchewan submits that none of these impugned provisions violate section 2(d) of the Charter. The first three provisions all relate to the certification process which obtains no constitutional protection from section 2(d) or any other Charter guarantee. Impugned section

149 See e. g.: Appellant's Factum, at 31-32, paras. I 09- 111. 150 SFL, 2012, supra n. 7 at 113- 125, paras. 249 - 279; AR, Vol. I, at AROI13 - AROI25 ; RA, Vol. III, Tab 28. 151 SFL, 2013, supra n. 10, at 167 - 174, paras. 102 -121 ; AR, Vol. I, at AR0167-AR0174; RA, Vol. I, Tab 10. 32

11(1)(a) does not impede in any way employees' ability to express themselves or to organize as guaranteed under section 2(d). Unions and employees are free to carry on organizing campaigns.

109. The Appellants' arguments are fundamentally flawed primarily because they conflate the statutory certification process with the minimal rights of workers to organize and to engage in good faith bargaining which are constitutionally guaranteed by section 2(d). Section 2(d) does not extend to workers the right to a statutorily recognized association. In Delisle v. Canada 52 (Attorney General/ , for example, Bastarache J. concluded that excluding members of the Royal Canadian Mounted Police from the Public Services Staff Relations Act153did not offend 154 section 2(d). He stated : Freedom of association does not include the right to establish a particular type of association defined in a particular statute; this kind of recognition would unduly limit the ability of Parliament or a provincial legislature to regulate labour relations in the public service and would subject employers, without their consent, to greater obligations toward the association than toward their employees individually.

110. Fraser underscores this reality. Plainly, the AEPA lacked most elements of the labour relations regimes currently operating in Canada. Yet this Court found the AEPA, Charter compliant. As the Quebec Court of Appeal observed in CSN, 2011: "[T]he Fraser decision shows that this guarantee [of freedom of association] does not include the right to have access to a certification system (and even less to a particular certification system)." 155

111. Saskatchewan submits that for the purposes of the fifth Constitutional Question the Issue is: does TUAA, 2008 make it effectively impossible for workers in Saskatchewan to organize and to advocate for, and achieve, workplace goals collectively?156 The answer to this question is "no". Accordingly, TUAA, 2008 does not violate section 2(d) of the Charter.

112. Furthermore, for purposes of this analysis it is important to recognize that "the test of effective impossibility is applied to workers at large and not to any particular combination of

152 [1999] 2 S.C. R. 989; RA, Vol. I, Tab 5. 153 R.S.C. 1985, c.P-35. The Public Services Staff Relation Act has been superceded by the Public Service Labour Relations Act, S.C. 2003, c. 22. 154 Delisle, supra n. 152, at para. 33 ; RA, Vol. I, Tab 5. To similar effect, see: MPAO, supra n. 58, at paras. 70-73 and 122-127; RA, Vol. II, Tab 12. 155 CSN, 2011 , supra n. 58, at para. 93 ; RA, Vol. II, Tab 17. 156 SFL, 2013, supra n. 10, at para. 108; AR, Vol. I, at AR0169-0170; RA, Vol. I, Tab 10. 33

157 workers" • For purposes of this appeal, Saskatchewan submits this test applies to workers employed in Saskatchewan.

2. Application of Relevant Legal Principles

113 . The Appellants' principal complaint is that with the advent of the TUAA, 2008 certification success rates in Saskatchewan decreased by approximately 20%-25%. 158 Saskatchewan acknowledges that both the trial judge and the Court of Appeal accepted that the TUAA, 2008 did decrease certification success rates but not to the degree alleged by the Appellants. 159 In the lower courts, Saskatchewan presented evidence which suggested that the decrease was far more modest,160 and that other factors contributed to this downturn, most notably the 2008 global financial crisis. 161

114. In any event, it is significant that both the trial judge and the Court of Appeal concluded that any such decrease was not determinative. As Richards J.A. asserted in the court below: "the fact that the [TUAA, 2008] has made it somewhat more difficult to obtain certification does not in and of itself mean that s. 2(d) of the Charter has been breached", rather "the real question is whether the changes in issue substantially impair the exercise of the s. 2(d) associational right."I62

115. Saskatchewan submits that the impugned prov1s1ons of the TUAA, 2008 neither individually nor collectively so substantially interfere with the freedom of association as to make it effectively impossible for unions to organize and to obtain certifications.

157 MPAO, supra n. 58, at para. 120; RA, Vol. II, Tab 12. 158 See particularly: Appellants' Factum, at paras. 12, 136, 137 and 138. 159 See especially: SFL, 2012, supra n. 7 at para.254; AR, Vol. I, at AROJJ6; RA, Vol. Ill, Tab 28 and SFL, 2013, s~ra n. 10, at para. 103 ; AR Vol. I, at AR0167; RA, Vol. I, Tab 10. 1 Affidavit ofFrederick Bayer, CAB, at pp. A1 3350-A13361 , paras. 9- 10; RR, Vol. 6, p. 207 to Vol, 7, p. 5. See also: 2010-2011 , Annual Report ofthe Saskatchewan Labour Relations Board, at pp. 16-17. 161 Affidavit of Marc Van Audenrode dated March 4, 2011 , CAB, Exhibit A at p. A13929, and Exhibit A, at p. Al3936, para. 26; RR, Vol. 9, pp. 139 and 146. 162 SFL, 2013, supra n. I 0, at para. I 08; AR, Vol. I, at ARO 167 -70; RA, Vo. I, Tab 10. 34

116. Respecting the duration of union card validity (ss. 3(1.2)), this revision does not make it effectively impossible for unions to organize. In his review of the TUAA, 2008, Professor England noted there is "no uniform practice in Canada" respecting the duration of union card validity. He acknowledged that the reduction from six months to ninety days "will make it somewhat more difficult for unions to organize employees, but only in protracted organizing campaigns." However, he accepted that the "choice of ninety days perhaps reflects the government's desire to create a level playing field with our province's chief 'competitor', 163 164 Alberta, where the period is also ninety days" , a fact the trial judge found compelling •

11 7. Respecting the increase in the level of support necessary to apply for certification from 25% to 45% (ss. 3(1.1 )), this revision brings Saskatchewan into line with most other 65 jurisdictions. Indeed, in SFL, 201 i , the trial judge identified a number of provinces as well as the federal jurisdiction which had similar thresholds for demonstrating employee support for a particular union. It cannot be contended, therefore, that this particular amendment renders a union's ability to organize effectively impossible.166

118. Respecting the requirement of a secret ballot for certification purposes (s. 3(1)), it is trite to observe that the secret ballot is the bulwark of every electoral system in the free world. 167 Saskatchewan submits it is consistent with the democratic principle, therefore, to permit workers the ability to use a secret ballot. Indeed, "no less than four other jurisdictions in Canada: Nova Scotia, Ontario, British Columbia and Alberta" 168 utilize a similar system. Justice Richards correctly concluded that "a secret ballot regime does no more than ensure that employees are able to make the choices they see as being best for themselves." 169

119. Respecting the failure of the TUAA, 2008 to establish a statutorily-imposed time frame within which a secret ballot must be held, Richards J.A. concluded that this did not render the

163 England, supra n. 117, at 316; RA, Vol. V, Tab 48. 164 SFL, 2012, supra n. 7, at para. 268; RA, Vol. III, Tab 28. 165 Ibid. , at para. 268. These jurisdictions were: BC, AB, MB , ON , NB and NL as well as Canada. 166 See: England, supra n. 117 at 315; RA, Vol. V, Tab 48. 167 SFL, 2013,supran. 10, at para. 112; AR, Vol. I, atAR0171 ; RA, Vol. I, Tab 10. 168 SFL, 2012, supra n. 7, at para. 269; AR Vol. I, at AR0121 ; RA, Vol. IJJ, Tab 28. 169 SFL, 2013, supra n. 10 , at para. 112; AR Vol. I, at AR0171 ; RA, Vol. I, Tab 10. 35 legislation constitutionally infirm. He reasoned that "discretionary statutory powers must be exercised consistently with the demands of the Charter" 170 which means that "if, in any particular case, the [Saskatchewan Labour Relations Board] delays so long in conducting a vote that employees' s. 2(d) freedoms are demonstrably infringed, those employees would be able to obtain legal redress in relation to that specific failure of the Board." 171

120. Finally, respecting section 11(1)(a) of the TUAA, 2008 both the trial judge172 and the Court of Appeal 173 found it did not violate section 2(d). Not only is it similar to legislative 17 provisions in other Canadian jurisdictions \ it seeks to chart a middle course "between protecting employees from intimidation, on the one hand, and preserving their legitimate entitlement to receive relevant views and information on the other." 175

121. Saskatchewan submits that the lower courts were correct. Section 11(1)(a) limits an employer's freedom of expression and not that of the employees. 176 This limitation on the employers' free expression qualifies as a reasonable limitation under section 1 as the traditional protections against unfair labour practices have not been removed or otherwise interfered with. 177

G. Constitutional Question No. 6: Is the TUAA, 2008 a Reasonable Limitation Under Section 1 of the Charter?

122. If, contrary to the foregoing submissions, this Court should determine that the TUAA, 2008 results in a prima facie violation of section 2(d) of the Charter, then Saskatchewan submits it qualifies as a reasonable limitation on freedom of association under section 1 of the Charter. This is a matter of first impression for this Court as the lower courts found no violation of section 2(d).

170 Ibid. , at para. 114 citing S/aight Communications In c. v. Davidson, [ 1989] I S.C.R. I 038, at I 078-79; AR Vol. I, at AROI72 ; RA, Vol. III, Tab 30. 171 Ibid, at para. 115 ; AR, Vol. I, at AROI72-AROI73 ; RA, Vol. III, Tab 30. 172 SFL, 2012, supra, n. 7, at paras. 271-277; AR, Vol. I, at AROI22-0125; RA, Vol. lll, Tab 28. 173 SFL, 2013, supra n. I 0, at paras. 116-121 ; AR, Vol. I, at AROI73-74; RA, Vol. I, Tab 10. 174 See especially: SFL, 2012, supra n. 7, at para. 276; AR, Vol. I, at AROI24; RA, Vol. III, Tab 28. These jurisdictions include: BC, AB, MN , ON and Canada. See also: SFL, 2013 , supra n. I 0, at para. 119; AR, Vol. I, at AR0173-74; RA, Vol. I, Tab 10. 175 SFL, 2013, supra n. I 0, at para. 117; AR, Vol. I, at AROI73; RA, Vol. I, Tab 10. 176 See especially: S/aight Communications Inc. v. Davidson, [ 1989] I S.C.R. I 038; RA, Vol. Ill, Tab 30. 177 England, supra n. 117, at 320-1 ; RA, Vol. V, Tab 48. 36

1. The Pressing and Substantial Objective Inquiry

123. The governmental objectives the TUAA, 2008 seeks to advance were announced first in the SaskaJchewan Party's platform document in the 2007 General Election and then reiterated by the Lieutenant-Governor in the Speech from the Throne opening the First Session of the Twenty-Sixth Legislature of Saskatchewan. This was to ensure that Saskatchewan's "labour legislative environment must also be competitive with other Canadian jurisdictions, if the Saskatchewan economy is to realize its potential." 178

124. Saskatchewan submits that seeking to maintain the province's competitiveness in an increasingly volatile global economy has to be one of the highest priorities, if not the highest, of a newly elected government. One aspect of the overall strategy to achieving this is to make sure that Saskatchewan businesses, where possible, are not disadvantaged vis a vis firms in other jurisdictions. This would include rationalizing the province's labour laws to make them comparable with those in jurisdictions likely to serve as Saskatchewan's strongest competitors, most notably provinces in Western Canada. 179 For example, Winkler C.J.O. in Independent Electricity System Operator v. Canadian Union of Skilled Workers 180 found as pressing and substantial a legislative objective of facilitating "economic competition and work opportunities for unionized and non-unionized workers" 181 in Ontario.

125. The TUAA, 2008 contributes to the provincial government's over-all strategy of seeking to maintain the economic well-being of this province in turbulent economic times. It brings Saskatchewan's labour laws into line with these other provinces, for example respecting the increase in the threshold for certification applications and a change to secret ballots for

m Wellsch Affidavit, supra, CAB at p. A10890, para. 10, and Exhibit "D" at AJ0967, BE Tab 3; RR, Vol. 1, pp. 14, 91. 179 Wellsch Affidavit, supra, CAB, Exhibits "QQ" at pp. A11370 to A11373, RR, Vol. 3, pp. 73-6; Exhibit "SS" at p. A11422; RR, Vol. 3, p. 125; Exhibit "UU" at p. A11457; RR, Vol. 1, p. 160; and Exhibit "XX" at p. A11537; RR, Vol. 4, p. 27; Affidavit of Dr. Marcel Boyer dated February 28, 2011, CAB, Exhibit "A"- "Union Certification Systems and Their Impact on Competitiveness", at p. A 13867ff.; RR, Vol. 9, p. 77; and Transcript of Dr. Marcel Boyer's Cross-Examination dated May 4, 2011 , especially Qq. 215-216 at pp. AR0435 to AR0439; AR, Vol. 2, pp. 203-7, and Qq. 220-222 at pp. AR0440 to AR0442; AR, Vol. 2, pp. 208-10. 180 2012 ONCA 293 ; RA, Vol. I, Tab 11. 181 Ibid, at para. 104. 37 certl"fi 1cat10n 0 purposes. 182 Accord mgly," Saskatchewan submits that the governmental objectives sought to be achieved by the TUAA, 2008 are "pressing and substantial".

2. The Rational Connection Inquiry

183 126. The rational connection inquiry is "not particularly onerous" . It asks whether the objectives of the impugned law are logically furthered by the means the legislature has chosen to 184 adopt. This may be demonstrated "on the basis of reason or logic" , and does not require direct proof of a relationship between the infringing measure and the legislative objective.

127. Saskatchewan submits that it is logical and reasonable to conclude that amending certain aspects of the TUAA, 2008 to bring the labour law regime operating in this province into line with provinces which the provincial government considers to be its principal economic competitors achieves the government's objectives.

3. The Minimal Impairment Inquiry

128. Respecting the TUAA, 2008, the legislative choices reflected in those amendments were achieved after governmental officials reviewed labour relations from across Canada, including the Canada Labour Code 185 and analyzed various approaches to similar issue adopted in those enactments. 186

129. Furthermore, as has been explained the legislative choices made fall with the range of reasonably supportable alternatives. For example, the increased threshold for seeking a

182 See generally: England, supra n. 117; RA, Vol. V, Tab 48. 183 BC Health Services, supra n. 41, at paras. 148; RA, Vol. I, Tab 9. 184 RJR-Macdonald Inc. v. Canada (Procureur General), [1995] 3 S.C.R. 199, at para. 153; AA, Vol. II, Tab 26. 185 R.S.C., 1985 , c. L-2. 186 Wellsch Affidavit, supra, CAB, Exhibit "VV" at p. Al1504; RR, Vol. 3, p. 207; Exhibit "SS" at p. Al1421; RR, Vol. 3, p. 124 and Exhibit "TT" at pp. A 11435 and A 11441 ; RR, Vol. 3, pp. 138 and 144- Hansard, "Standing Committee on Human Services," where the Government outlines differences among various jurisdictions in the areas of communication, mandatory votes, annual reports, and the duration of agreements. 38 certification application is within the range of all other provincial jurisdictions. The secret ballot, too, has been adopted by a number of Canadian jurisdictions. 187

130. Saskatchewan reiterates the arguments found at paragraphs 85 and 86 above, that no consultation requirement arose in the context of the TUAA, 2008, a law of general application. In any event, the type of consultation which the Appellants seek finds no support in the jurisprudence.

131 . Saskatchewan submits that the policy choices reflected in the TUAA, 2008 fall within a range of reasonably supportable legislative alternatives. They impair the right under section 2(d) as little as reasonably possible to achieve their legitimate objectives. Accordingly, the minimal impairment element of the section 1 inquiry is satisfied.

4. The Deleterious Effects/Salutary Benefits Inquiry

132. This inquiry asks this Court to assess whether the overall benefits of the impugned legislation are worth the cost of the rights limitation at issue. Respecting the TUAA, 2008, Saskatchewan submits that the changes to the certification process it enacted have not had an appreciable effect on the ability of Saskatchewan workers to associate or to unionize. There is proportionality between the effects of the TUAA, 2008 on protected freedoms and its legislative objective.

133. Accordingly, for all these reasons Saskatchewan submits that TUAA, 2008 qualifies as a reasonable limitation upon freedom of association under section 1 of the Charter.

PART IV COSTS

134. Saskatchewan seeks costs throughout.

187 See generally: England, supra n. 117, at 315, 317; RA, Vol. V, Tab 48. 39

PARTV RELIEF REQUESTED

135. Saskatchewan respectfully submits that the Constitutional Questions should be answered as set out in the manner proposed in paragraph 22 above, and the instant appeal should be dismissed .

. ALL OF WHICH IS RESPECTFULLY SUBMITTED.

1 DATED at Regina, Saskatchewan, this 25 h day of April, 2014

Graeme G. Mitchell, Q.C.

Barbara C. Mysko

Kathenne M. Roy

Counsel for Her Majesty in Right of Saskatchewan 40

PART VI ALPHABETICAL TABLE OF AUTHORITIES

Cases Paragraph(s)

Association ofJu stice Counsel v. Canada (Attorney General), 2012 41 , 62, 66 ONCA 530

B.C.G.E. U v. British Columbia (Attorney General), [1988] 2 S.C.R. 214 93

Bedford v. Canada (Attorney General), 2013 SCC 72 24

British Columbia Teachers ' Federation v. British Columbia Public School 102 Employers ' Association, 2009 BCCA 39

Canadian Pacific Railway v. Zambri, [1962] S.C.R. 609 63

Canadian v. Craig, [2012] 2 S.C.R. 489 24

Canadian Union ofPublic Employees, Local 3967 v. Regina Qu 'Appelle 88 Health Region, 2010 CanLII 5199 (SKLRB)

Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989 ' 109

Ell v. The Queen, [2003] 1 S.C.R. 857 53

Grain Workers ' Union, Local 333 v. B. C. Terminal Elevator Operations ' 102 Association, 2009 FCA 201

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827 77

Health Services and Support - Facilities Subsector Bargaining 26, 27, 28, 61 , Association v. British Columbia, [2007] 2 S.C.R. 391 65 , 85 , 126

Her Majesty the Queen in Right ofSaskatchewan v. Saskatchewan 26, 39, 40, Federation ofLabour , 2013 SKCA 43 44,45 , 49, 71 , 81 , 100, 103, 107, 111 , 114, 120 Independent Electricity System Operator v. Canadian Union ofSkilled 124 Workers, 2012 ONCA 293 41

Cases Paragraph(s)

Mounted Police Association of Ontario v. Canada (Attorney General), 41, 45, 67, 70, 2012 ONCA 363 109, 112

Newfoundland (Attorney General) v. NA.P.E. [1988] 2 S.C.R. 204 93

Ontario (Attorney General) v. Fraser, 2011 SCC 20 25, 26, 27, 28, 30,33, 41, 43 , 44, 45 , 47, 54, 61 , 62, 64, 70, 85, 88, 110 Ontario (Public Safety and Security) v. Criminal Lawyers Association, 62 2010 sec 23, [20IOJ 1 s.c.R. 815

Plourde v. Wal-Mart Canada Corporation, [2009] 3 S.C.R. 465 36, 37, 51, 90

Procureur General du Quebec v. Confederation des Syndicats Nationaux 41,110 (CSN) et al., 2011 QCCA 124 7

PSAC v. Canada, [1987] 1 S.C.R. 424 26-30

R. v. Advance Cutting & Coring Ltd. , [2001] 3 S.C.R. 209 37, 50, 78

R. v. Araujo, [2000] 2 S.C.R. 992 69

R. v. Caron, 2014 ABCA 71 25

R. v. Henry, [2005] 3 S.C.R. 609 35

R. v. Kuldip, [1990] 3 S.C.R. 618 35,43

R. v. Oakes, [1986] 1 S.C.R. 103 76

R. v. Shepherd, [2009] 2 S.C.R. 527 69

Reference rePublic Service Employee Relations Act, [1987] 1 S.C.R. 313 26-30, 32, 36, 59, 78 Reference re Marriage Commissioners Appointed Under The Marriage 96 Act, 1995,2011 SKCA 3

RJR-MacDonald Inc. v. Canada (Procureur General), 3 S.C.R. 199 126 42

Cases Paragraph(s)

Saskatchewan Federation ofLabour v. Her Majesty the Queen in right of 42, 44, 46, Saskatchewan, 2012 SKQB 62 68 ,69, 83 , 84, 86, 87, 90, 94, 96, 100, 107, 113, 116-118, 120 Saskatchewan (Human Rights Commission) v. Whatcott, [2013] 1 S.C.R. 69, 80, 90 467

Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 119, 121

Legislation

Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 47

Canada Labour Code, R.S.C., 1985, c. L-2 128

Essential Services Act (Government and Child and Family Services), 90 C.C.S.M., c. E-145 (Manitoba)

Public Services Staff Relations Act, R.S.C. 1985, c. P-35 109

The Public Service Essential Services Act, S.S. 2008, c. P-42.2 82, 97

The Trade Union Act, R.S.S. 1978, c. T-17 33, 34

Secondan Sources

Bernard Adell, Michel Grant & Allen Ponak, Strikes in Essential Services 81 (Kingston: Queen's University Industrial Relations Centre, 2001)

Brian Langille, "Can We Rely on the ILO?'' (2008), 13 C.L.E.L.J. 363 54, 55 , 57

Brian Langille, "The Freedom of Association Mess: How We Got into it 54 and How We Can Get out of it" (2009), 54 McGill L. J. 177

Geoffrey England, "Evaluating the Merits of the 2008 Reforms to 81 , 89, 116, Collective Bargaining Law in Saskatchewan" (2008), 71 Sask. L. Rev. 307 117, 121 , 125

Sonia Regenbogen, "The International Labour Organization and Freedom 54, 58 of Association: Does Freedom of Association Include a Right to Strike?" (2012), 16 C.L.E.L.J. 383, at 408-406, 414 43

Seconda~ Sources

Tonia Novitz, International and European Protection of Right to Strike: A 56 Comparative Study of Standards Set by the International Labour Organization, the Council of Europe and the European Union, (London: Oxford University Press, 2003)

News Releases

"Health Sciences Members Ratify New Contract", Health Sciences 73 , 98 Association of Saskatchewan, Press Release dated August 5, 2011

"SaskEnergy, Union Reach Agreement", Regina Leader-Post, August 16, 73 2011 44

PART VII

STATUTES, REGULATIONS, RULES

Legislation

Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11

The Public Service Essential Services Act, S.S. 2008, c. P-42.2 2

The Trade Union Amendment Act, 2008, S.S. 2008, c.26 3

Regulations

The Public Service Essential Services Regulations, c. P-42.2 Reg. 1 4 CanLII - The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 Page 1 of 1 Ca'hlll Home > Canada (Federal) > Statutes and Regulations > Schedule B to the Canada Act 1982 (UK), 1982, c 11 The Constitution· Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 D

Current version: in force since Apr 17, 1985

Link to the )~t~~~ _ yE_:!r_S[9f.l: http:/ /canlii .ca/t/8q71

Stable link to ~~ _i_s_ y_~~S.l9 _1}_ : http : //canlii . ca/t/ldsx Citation to this version: The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, retrieved on 2014-04- 27 Currency : Last updated from the Justice Laws Web Site on 2014-04-23

The Constitution Act, 1982

Citation: The Constitution Act. 1982, being Schedule B to the Canada Act 1982 (UK), 1982. c 11

PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:

Guarantee of Rights and Freedoms

Rights and 1. freedoms in The Canadian Charter of Riqhts and Freedoms Canada guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental Freedoms

http://www.canlii.org/enlca!laws/stat/schedule-b-to-the-canada-act-1 982-uk-1982-c-11/late... 4/27/2014 CanLII - The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 Page 2 of 17

Fundamental 2. Everyone has the following fundamental freedoms : freedoms (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

Democratic Rights Democratic rights 3. Every citizen of Canada has the right to vote in an of citizens election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein. Maximum 4. (1) No House of Commons and no legislative assembly duration of shall continue for longer than five years from the date legislative bodies fixed for the return of the writs of a general election of its members. Continuation in (2) In time of real or apprehended war, invasion or special insurrection, a House of Commons may be continued by circumstances Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be. Annual sitting of 5. legislative bodies There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Mobility Rights

Mobility of 6. ( 1) Every citizen of Canada has the right to enter, remain citizens in and leave Canada. Rights to move (2) Every citizen of Canada and every person who has and gain the status of a permanent resident of Canada has the right livelihood (a) to move to and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province.

Limitation (3) The rights specified in subsection (2) are subject to

(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

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PARTIE I

CHARTE CANADIENNE DES DROITS ET LIBERTES Attendu que le Canada est fonde sur des principes qui reconnaissent Ia suprema tie de Dieu et Ia primaute du droit :

G ARANTIE DES DROITS ET LIBERTES

Droits et libertes au Canada 1. La Char/e canadienne des droits et liber/es garantit les droits et libertes qui y sont enonces. li s ne peuvent etre restreints que par une regie de droit, dans des li mites qui soient raisonnables et dont Ia justification puisse se demontrer dans le cadre d' une societe libre et democratique.

LIBERTES FONDAMENTALES

Libertes fondamentales 2. Chacun a les libertes fondamentales suivantes : a) liberte de conscience et de religion; b) liberte de pensee, de croyance, d'opinion et d'expression, y compris Ia liberte de Ia presse et des autres moyens de communication;

80 < > Edictee comme l'annexe B de Ia Loi de /982 sur le Canada, 1982, ch. II (R.-U.), entree en vigueur le 17 avril 1982. Texte de Ia Loi de /982 sur le Canada, a I' exception de l'annexe B : ANNEXE A- SCHEDULE A Loi donnant suite a une demande du sc·ilai et de Ia Chambre des communes du Canada Sa Trcs Exce llentc Majestc Ia Reine, considerant : qu 'illa demande et avec le consentement du Canada , le Parlement du Royaume-Uni est invite a adopter une loi visant a do nner etTet aux di spositions enoncees ci-aprcs ct que lc Senat ct Ia Chambre des communes du Canada reunis en Parlement ont presente une ad resse demandant a Sa Tn!s Gracieuse Majeste de bien vou loi r faire depo ser devant le Parlement du Ro yaume-Uni un pro jet de loi it cette fin , sur I' avis et du consentement des Lords spirituels et temporels et des Commu nes reun is en Parlement, et par l'autorite de ce lui-ci , edicte : I. La Loi conslillltionnelle de 1982, enoncee it l'annexe B, est edictee pour le Canada et y a fo rce de loi. Elle entre en vigueur conformement ases dispositions. 2. Les lois adoptees par le Parlement du Royaume-Uni apres !'entree en vigueur de Ia Loi constitutionnelle de 1982 ne fo nt pas partie du droit du Canada. J. La partie de Ia version fran9aise de Ia presente loi qui figure it I' annexe A a force de Ioi au Canada au meme titre que Ia version anglaise correspondante. 4. Titre abrege de Ia presente Ioi : Loi de 1982 sur /e Canada.

53 Loi constitutionnelle de 1982

c) liberte de reunion pacifique; d) liberte d'association.

D ROITS DEMOC RA TIQUES

Droits democratiques des citoyens 3. Tout citoyen canadien a le droit de vote et est eligible aux elections legisla tives federates ou provinciales.

Mand a! maximal des assembl ees 4. (I) Le mandat maximal de Ia Chambre des communes et des assemblees le gislatives est de cinq ans a compter de Ia date fixee pour le retour des brefs relatifs 81 aux elections generales correspondantes. < )

Prolongati ons speci ales (2) Le mandat de Ia Chambre des communes ou celui d' une assemblee legisla tive peut etre prolonge respectivement par le Parlement ou par Ia legislature en question au-dela de cinq ans en cas de guerre, d' invasion ou d' insurrection, reelles ou apprehendees, pourvu que cette prolongation ne fasse pas !'objet d'une opposi tion exprimee par les voix de plus du tiers des deputes de Ia Chambre des com munes ou de l'assemblee legislative. <82 l

Sean ce annuelle 5. Le Parlement et les legislatures tiennent une seance au mains une fois taus les douze mois. <83 l

LIBERTE DE CIRCU LATION ET D'ETABLISS EMENT

Liberte de circulati on 6. (I) Tout citoyen canadien a le droit de demeurer au Canada, d'y entrer ou d'en sortir.

Liberte d'etablissement (2) Tout citoyen canadien et toute personne ayant le statut de resident permanent au Canada ant le droit :

<81 l Voir !'article 50 de Ia Loi constitutionnel/e de 1867 et les notes en bas de page (40) et (42) relatives aux articles 85 et 88 de cette loi.

<82 l Rem place en partie Ia categorie I de. I' article 91 de Ia Loi constitutionnel/e de I 867, qui a ete abrogee com me l'indique le paragraphe 1(3) de l'annexe de Ia Loi constitu tionne/le de 1982.

<83 l Voir les notes en bas de page (10), (41) et (42) relatives aux articles 20, 86 et 88 de Ia Loi constitutionnelle de 1867.

54 The Public Service Essential Services Act

being

Chapter P-42.2 of the Statutes of Saskatchewan, 2008 (effective May 14, 2008)

NOTE: This consolidation is not official. Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law. In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation. Table of Contents

PART I PART IV Short Title, Interpretation and Application General 1 Short title 13 Obligations of public employers 2 Interpretation 14 Obligations of employees 3 Application of Act 15 Obligations of trade union 4 Act to prevail 16 No person to prevent compliance with this Act 5 Crown bound 17 No person to aid, abet or counsel non-compliance with this Act PART II 18 Essential services employees to continue or Essential Services Agreements resume work 6 Negotiations for essential services agreement 19 Power of board required 20 Offence and penalties 7 Contents of essential services agreement 21 Regulations 8 Termination PARTV PART III Coming into Force Provision of Essential Services if no Essential Services Agreement 22 Coming into force 9 Notice if no essential services agreement 10 Trade union may apply to Labour Relations Board re numbers of employees 11 Employer or trade union may apply for further orders 12 Effect of order re number of employees CHAPTER P-42.2 An Act respecting Essential Public Services

PART I

Short Title, Interpretation and Application

Short title 1 This Act may be cited as The Public Service Essential Services Act. Interpretation 2 In this Act: (a) "board" means the Labour Relations Board; (b) "employee" means an employee of a public employer who is represented by a trade union; (c) "essential services" means: (i) with respect to services provided by a public employer other than the Government of Saskatchewan, services that are necessary to enable a public employer to prevent: (A) danger to life, health or safety; (B) the destruction or serious deterioration of machinery, equipment or premises; (C) serious environmental damage; or (D) disruption of any of the courts of Saskatchewan; and (ii) with respect to services provided by the Government of Saskatchewan, services that: (A) meet the criteria set out in subclause (i); and (B) are prescribed; (d) "essential services agreement" means an agreement concluded pursuant to section 6; (e) "essential services employee" means an employee who, during a work stoppage, is required to provide essential services in accordance with: (i) an essential services agreement; or (ii) a notice given by a public employer pursuant to section 9 or 12; (f) "last collective bargaining agreement" means the collective bargaining agreement last in effect between a public employer and a trade union before a work stoppage; (g) "minister" means the member of the Executive Council to whom for the time being the administration of thi$ Act is assigned; 4 c. P :42.2 PUBLIC SERVICE ESSENTIAL SERVICES

(h) "prescribed" means prescribed in the regulations; (i) "public employer" means: (i) the Government of Saskatchewan; (ii) a Crown corporation as defined in The Crown Corporations Act, 1993; (iii) a regional health authority as defined in The Regional Health Services Act; (iv) an affiliate as defined in The Regional Health Services Act; (v) the Saskatchewan Cancer Agency continued pursuant to The Cancer Agency Act; (vi) the University of Regina; (vii) the University of Saskatchewan; (viii) the Saskatchewan Institute of Applied Science and Technology; (ix) a municipality; (x) a board as defined in The Police Act, 1990; (xi) any other person, agency or body, or class of persons, agencies or bodies, that: (A) provides an essential service to the public; and (B) is prescribed; G) "trade union" means a trade union representing employees of a public employer; (k) "work stoppage" means a lock-out or strike within the meaning of The Trade Union Act. 2008, c.P-42.2, s.2.

Application of Act 3 This Act applies to every public employer, · every trade union and every employee. 2008, c.P-42.2, s.3.

Act to prevail 4 This Act is to prevail if there is any conflict between this Act and: (a) any other Act or law; or (b) any collective bargaining agreement, arbitral or other award or decision or any obligation, right, claim, agreement or arrangement of any kind. 2008, c.P-42.2, s.4. 5

PUBLIC SERVICE ESSENTIAL SERVICES c. P-42.2

Crown bound 5 The Crown in right of Saskatchewan is bound by this Act. 2008, c.P·42.2, s.5.

PART II

Essential Services Agreements

Negotiations for essential services agreement required 6(1) If a public employer and a trade union do not have an essential services agreement that is in effect, the public employer and the trade union shall begin negotiations with a view to concluding an essential services agreement: (a) at least 90 days before the expiry of the collective bargaining agreement; or (b) as soon as is reasonably possible if: (i) on the day this Act comes into force, there are fewer than 90 days before the expiry of the collective bargaining agreement; or (ii) there is no collective bargaining agreement in effect. (2) On beginning negotiations pursuant to this section, a public employer other than the Government of Saskatchewan shall advise the trade union of those services of the public employer that the public employer considers as essential services for the purposes of an essential services agreement. (3) For the purposes of an essential services agreement between the Government of Saskatchewan and a trade union, the prescribed services are the essential services for the purposes of an essential services agreement. (4) For the purpose of facilitating the negotiation of an essential services agreement, the public employer may give a notice to the trade union setting out the information the public employer is required to provide pursuant to subsection 9(2) if: (a) either: (i) at any point during the 30-day period before the expiry of the collective bargaining agreement, the public employer and trade union have not concluded an essential services agreement; or (ii) there is no collective bargaining agreement in effect and the public employer and trade union have not concluded an essential services agreement; and (b) the public employer considers it appropriate to give the notice. (5) For the purpose of facilitating the negotiation of an essential services agreement, the public employer shall give, as soon as is reasonably possible, a notice to the trade union setting out the information the public employer is required to provide pursuant to subsection 9(2) if: (a) either: (i) at any point during the 30-day period before the expiry of the collective bargaining agreement, the public employer and trade union have not concluded an essential services agreement; or 6 c. P-42.2 PUBLIC SERVICE ESSENTIAL SERVICES

(ii) there is no collective bargaining agreement in effect and the public employer and trade union have not concluded an essential services agreement; and (b) the trade union has requested that notice. (6) Every employee who is covered by an essential services agreement is deemed to be an essential services employee. 2008, c. P-42.2, s.6.

Contents of essential services agreement 7(1) An essential services agreement must include the following provisions: (a) in the case of an employer other than the Government of Saskatchewan, provisions that identify the essential services that are to be maintained; (b) provisions that set out the classifications of employees who must continue to work during the work stoppage to maintain essential services; (c) provisions that set out the number of employees in each classification who must work during the work stoppage to maintain essential services; (d) provisions that set out the names of employees within the classifications mentioned in clause (b) who must work during the work stoppage to maintain essential services; (e) any other prescribed provisions. (2) For the purposes of clause (1)(c), the number of employees in each classification who must work during the work stoppage to maintain essential services is to be determined without regard to the availability of other persons to provide essential services. 2008, c.P-42.2, s.7.

Termination 8(1) An essential services agreement continues until it is terminated in accordance with this section. (2) A party to an essential services agreement may terminate the essential services agreement only if: (a) the parties have a collective bargaining agreement; and (b) there are at least 100 days left before the expiry of the collective bargaining agreement. (3) A party may terminate an essential services agreement pursuant to subsection (2) by giving the other party written notice. (4) Nothing in this section affects the obligation of a public employer and a trade union to negotiate with a view to concluding an essential services agreement in accordance with section 6. 2008, c.P -42.2, s.8. 7

PUBLIC SERVICE ESSENTIAL SERVICES c. P -42.2

PART III

Provision of Essential Services if no Essential Services Agreement

Notice if no essential services agreement 9(1) A public employer shall serve a notice on the trade union in accordance with this section if: (a) there is a work stoppage or a potential work stoppage; and (b) there is no essential services agreement concluded between the public employer and the trade union. (2) A notice served pursuant to subsection (1) must set out the following: (a) the classifications of employees who must continue to work during the work stoppage to maintain essential services; (b) the number of employees in each classification who must work during the work stoppage to maintain essential services; (c) the names of employees within the classifications mentioned in clause (a) who must work during the work stoppage to maintain essential services; (d) in the case of a public employer other than the Government of Saskatchewan, the essential services that are to be maintained. (3) The public employer shall notify each of the employees named in a notice served pursuant to subsection (1) that he or she must work during the work stoppage to maintain essential services. (4) If at any time the public employer determines that more employees in one or more classifications set out in the notice served pursuant to subsection (1) are required to maintain essential services and there is no essential services agreement concluded between the public employer and the trade union, the public employer may serve a further notice on the trade union setting out: (a) the additional number of employees in those classifications who must work during all or any part of the work stoppage to maintain essential services; and (b) the names of the employees within those classifications who must work. (5) The public employer shall notify each of the employees named in a notice served pursuant to subsection (4) that he or she must work during the work stoppage to maintain essential services. (6) Every employee who is named in a notice pursuant to this section, other than a further notice served pursuant to subsection (7), is deemed to be an essential services employee. (7) If at any time the public employer determines that fewer employees in one or more classifications set out in the notice served pursuant to subsection (1) are required to maintain essential services and there is no essential services agreement concluded between the public employer and the trade union, the public employer may serve a further notice on the trade union setting out: (a) the number of employees in those classifications who are no longer required to work during all or any part of the work stoppage; and 8 c. P-42.2 PUBLIC SERVICE ESSENTIAL SERVICES

(b) the names of the employees within those classifications who are no longer required to work during all or any part of the work stoppage. (8) The public employer shall notify each of the employees named in a notice served pursuant to subsection (7) that he or she is no longer required to work during all or any part of the work stoppage. 2008, c.P-42.2, s.9.

Trade union may apply to Labour Relations Board re numbers of employees 10(1) If the trade union believes that the essential services can be maintained using fewer employees than the number set out in a notice pursuant to section 9, the trade union may apply to the board for an order to vary the number of essential services employees in each classification who must work during the work stoppage to maintain essential services. (2) If a trade union applies to the board pursuant to subsection (1), the trade union shall serve a written copy of the application on the public employer. (3) On receiving an application pursuant to this section, the board may hold any hearings and conduct any investigation that the board considers necessary to determine whether or not to issue an order varying the number of essential services employees in each classification who must work during the work stoppage to maintain essential services. (4) Within 14 days after receiving an application pursuant to subsection (1) or any longer period that the board considers necessary, the board shall issue an order confirming or varying the number of essential services employees in each classification who must work during the work stoppage to maintain essential services. (5) The board shall cause a copy of every order issued pursuant to this section to be served on the public employer and the trade union. (6) The public employer, the trade union and the employees of the public employer who are represented by the trade union are bound by an order of the board issued pursuant to this section. 2008, c.P-42.2, s.lO.

Employer or trade union may apply for further orders 11(1) A public employer or trade union may apply to the board for an order to amend, vary, rescind or rescind and replace an order issued pursuant to section 10 or any further order issued pursuant to this section. (2) If a public employer or trade union applies to the board pursuant to subsection (1) , it must serve a written copy of the application on the other party. (3) On receiving an application pursuant to this section, the board may hold any hearings and conduct any investigation that the board considers necessary to determine whether or not to amend, vary, rescind or rescind and replace an order issued pursuant to section 10 or any further order issued pursuant to this section. 9

PUBLIC SERVICE ESSENTIAL SERVICES c. P-42.2

( 4) Within 14 days after receiving an application pursuant to subsection (1) or any longer period that the board considers necessary, the board shall issue an order: (a) confirming the order issued pursuant to section 10 or the further order issued pursuant to this section; or (b) amending, varying, rescinding or rescinding and replacing the order issued pursuant to section 10 or the further order issued pursuant to this section. (5) The board shall cause a copy of every order issued pursuant to this section to be served on the public employer and the trade union. (6) The public employer, the trade union and the employees of the public employer who are represented by the trade union are bound by an order of the board issued pursuant to this section. 2008, c.P·42.2, s.ll.

Effect of order re number of employees 12(1) If the result of an order of the board issued pursuant to section 10 or 11 is to reduce the number of essential services employees in each classification who must work during the work stoppage to maintain essential services, the public employer shall, as soon as possible after being served with the order: (a) vary the notice served pursuant to section 9 to comply with the order of the board; (b) serve a copy of the varied notice on the trade union; and (c) notify any affected employee that he or she is no longer required to work during the work stoppage. (2) If the result of an order of the board issued pursuant to section 10 or 11 is to increase the number of essential services employees in each classification who must work during the work stoppage to maintain essential services, the public employer shall, as soon as possible after being served with the order: (a) vary the notice served pursuant to section 9 to comply with the order of the board; (b) serve a copy of the varied notice on the trade union; and (c) notify any affected employee that he or she must work during the work stoppage to maintain essential services. (3) An order of the board issued pursuant to section 10 or 11 is effective 48 hours after the public employer was served with the order. 2008, c.P·42.2, s.l2.

PART IV

General

Obligations of public employers 13 No public employer shall authorize, declare or cause a work stoppage of essential services employees. 2008, c. P·42.2, s.l3. 10 c. P-42.2 PUBLIC SERVICE ESSENTIAL SERVICES

Obligations of employees 14 No essential services employee shall participate in a work stoppage against his or her public employer. 2008, c.P-42.2, s. l 4.

Obligations of trade union 15(1) No trade union shall authorize, declare or cause a work stoppage of essential services employees. (2) Neither the trade union nor any person acting on behalf of the trade union shall in any manner: (a) discipline any essential services employee for the reason that the essential services employee complies with this Act; or (b) direct, authorize or counsel another person to discipline any essential services employee for the reason that the essential services employee complies with this Act. 2008, c.P -42.2, s. l 5.

No person to prevent compliance with this Act 16 No person or trade union shall in any manner impede or prevent or attempt to impede or prevent any essential services employee from complying with this Act. 2008, c. P-42.2, s. l6.

No person to aid, abet or counsel non-compliance with this Act 17 No person or trade union shall do or omit to do anything for the purpose of aiding, abetting or counselling any essential services employee not to comply with this Act. 2008, c.P-42.2, s. l7.

Essential services employees to continue or resume work 18(1) If there is a work stoppage: (a) every essential services employee shall continue or resume the duties of his or her employment with the public employer in accordance with the terms and conditions of the last collective bargaining agreement, if any; (b) the public employer shall permit each of its essential services employees to continue or resume the duties of his or her employment in accordance with the terms and conditions of the last collective bargaining agreement, if any; and (c) every person who is authorized on behalf of the trade union to bargain collectively with the public employer shall give notice to the essential services employees that they must continue or resume the duties of their employment in accordance with the terms and conditions of the last collective bargaining agreement, if any. (2) If there is a work stoppage, no essential services employee shall, without lawful excuse, fail to continue or resume the duties of his or her employment with the public employer. 11

PUBLIC SERVICE ESSENTIAL SERVICES c. P-42.2

(3) Neither the public employer nor any person acting on behalf of the public employer shall, without lawful excuse, refuse to permit or authorize, or direct or authorize another person to refuse to permit or authorize, any essential services employee from continuing or resuming the duties of his or her employment as required by this Act. 2008, c.P-42.2, s. l8.

Powers of board 19(1) For the purpose of carrying out the intent of this Act, in addition to the powers conferred on it by this Act, the board has all the powers conferred on it by The Trade Union Act. (2) An order made by the board pursuant to this Act or the regulations is enforceable in the same manner as an order of the board made pursuant to ·The Trade Union Act. (3) There is no appeal from an order or decision of the board pursuant to this Act, and the proceedings, orders and decisions of the board are not reviewable by any court of law or by any certiorari, mandamus, prohibition, injunction or other proceeding. ( 4) The chairperson of the board may make any rules of practice and procedure that the board considers necessary to carry out its responsibilities pursuant to this Act. 2008, c.P-42.2, s.l9.

Offence and penalties 20(1) No person or trade union shall fail to comply with this Act, the regulations or an order of the board. (2) Every person who or trade union that contravenes any provision of this Act is guilty of an offence and liable on summary conviction: (a) in the case of an offence committed by a public employer or a trade union or by a person acting on behalf of a public employer or the trade union, to a fine of not more than $50,000 and, in the case of a continuing offence, to a further fine of $10,000 for each day or part of a day during which the offence continues; and (b) in the case of an offence committed by any person other than one described in clause (a), to a fine of not more than $2,000 and, in the case of a continuing offence, to a further fine of $400 for each day or part of a day during which the offence continues. (3) In the case of default of payment of a fine imposed on a person pursuant to this section, the convicting court shall, on the request of the Attorney General, furnish the Attorney General with a certified copy of the order of conviction and fine imposed and, on its filing in the office of the local registrar of the Court of Queen's Bench, that order is enforceable as a judgment of that court. 2008, c. P-42.2, s.20. 12 c. P-42.2 PUBLIC SERVICE ESSENTIAL SERVICES

Regulations 21 The Lieutenant Governor in Council may make regulations: (a) defining, enlarging or restricting the meaning of any word or expression used in this Act but not defined in this Act; (b) prescribing, for the purposes of this Act, services provided by the Government of Saskatchewan for the purposes of subclause 2(c)(ii); (c) prescribing any person, agency or body, or class of persons, agencies or bodies, for the purposes of subclause 2(i)(xi); (d) for the purposes of clause 7(1)(e) prescribing other provisions that must be included in an essential services agreement, including prescribing the contents of those provisions; (e) prescribing any other matter or thing that is authorized or required by this Act to be prescribed in the regulations; (f) respecting any other matter or thing that the Lieutenant Governor in Council considers necessary to carry out the intent of this Act. 2008, c.P-42.2, s.21.

PARTV

Coming into Force

Coming into force 22 This Act comes into force on assent. 2008, c.P-42. 2, s. 22.

(Assented to May 14, 2008)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Saskatchewan, enacts as follows:

Short title 1 This Act may be cited as The Trade Union Amendment Act, 2008. R.S.S. 1978, c.T-17 amended 2 The Trade Union Act is amended in the manner set forth in this Act. Section 6 amended 3(1) Subsection 6(1) is repealed and the following substituted: "(1) Subject to subsections (1.1) and (2), in determining what trade union, if any, represents a majority of employees in an appropriate unit of employees, in addition to the exercise of any powers conferred upon it by section 18, the board must direct a vote to be taken by secret ballot of all employees eligible to vote to determine the question. "(1.1) No vote shall be directed pursuant to subsection (1) unless the board is satisfied, on the basis of the evidence submitted in support of the application and the board's investigation in respect of that evidence, that at the time of the application at least 45% of the employees in the appropriate unit support the application. "(1.2) The board must require as evidence of each employee's support mentioned in subsection (1.1) written support of the application, as prescribed in the regulations made by the Lieutenant Governor in Council, made within 90 days of the filing of the application". (2) Clause 6(2)(b) is amended: (a) by striking out "25%" and substituting "45%"; and (b) by striking out "six months" and substituting "90 days". (3) Clause 6(2)(c) is repealed. Section 10.1 amended 4(1) Clause 10.1(b) is repealed and the following substituted: "(b) there is insufficient evidence before the board that shows that 45% or more of the employees in the appropriate unit support the application". 2 c.26 TRADE UNION 2008

(2) Clause 10.1(c) is repealed and the following substituted: "(c) the board finds that sufficient evidence of support mentioned in clause (b) would have been obtained but for the unfair labour practice or violation of this Act". Section 10.2 amended 5(1) Clause 10.2(b) is repealed and the following substituted: "(b) there is insufficient evidence before the board that shows that 45% or more of the employees in the appropriate unit support the application". (2) Clause 10.2(c) is repealed and the following substituted: "(c) the board finds that sufficient evidence of support mentioned in clause (b) would have been obtained but for the unfair labour practice or violation of this Act". Section 11 amended 6 Clause 11(1)(a) is repealed and the following substituted: "(a) to interfere with, restrain, intimidate, threaten, or coerce an employee in the exercise of any right conferred by this Act, but nothing in this Act precludes an employer from communicating facts and its opinions to its employees". New section 12.1 7 The following section is added after section 12:

"Deadline to report unfair labour practice 12.1(1) Subject to subsection (2), the board may refuse to hear any allegation of an unfair labour practice that is made more than 90 days after the complainant knew, or in the opinion of the board ought to have known, of the action or circumstances giving rise to the allegation, unless the respondent has consented in writing to waive or extend the deadline. (2) The board must hear any allegation of an unfair labour practice that is made after the deadline mentioned in subsection (1) if the respondent has consented in writing to waive or extend the deadline". Section 17 amended 8 Subsection 17(2) is amended by adding the following clause after clause (b): "(c) for the purposes of subsection 6(1.2)". Section 18 amended 9 Section 18 is amended: (a) in clause (f) by adding "subject to the regulations made by the Lieutenant Governor in Council," before ''to determine"; and (b) in clause (g) by adding "subject to the regulations made by the Lieutenant Governor in Council," before ''to determine". 3

2008 TRADE UNION c.26

New sections 21.1 and 21.2 10 The following sections are added after section 21:

"Deadline for board decision 21.1(1) Any decision of the board shall be provided to the parties within six months of the last day of the hearing unless the board is reasonably justified in requiring more time. (2) Notwithstanding section 21 and subsection 40(1), any party to a proceeding before the board may apply to the Court of Queen's Bench for an order directing the board to provide its decision ifthe deadline in subsection (1) has not been met. (3) Any failure to comply with subsection (1) does not affect the validity of a decision.

"Annual report 21.2(1) In each fiscal year, the board shall, in accordance with The Tabling of Documents Act, 1991, submit to the minister an annual report on the activities of the board for the preceding fiscal year. (2) The minister shall, in accordance with The Tabling of Documents Act, 1991, lay before the Legislative Assembly each report received by the minister pursuant to this section. (3) Notwithstanding subsection 40(1), the annual report shall include the following information: (a) a list of all matters filed with the board; (b) a list of all decisions rendered by the board; (c) with respect to each decision listed: (i) the date the matter was initially filed; (ii) the date the matter was heard by the board; (iii) the members of the board that heard the matter; and (iv) the length of time between the last day of the hearing and the rendering of the decision; and (d) a summary, by member, of: (i) the number of decisions rendered; (ii) the type of decision whether interim or final disposition; and (iii) the average period between the last day of a hearing and the rendering of the decision for each type of decision". Section 33 amended 11 Subsection 33(3) is repealed. Coming into force 12 This Act comes into force on assent. REGINA, SAsKATCHEWAN Printed by the authority of THE Q UEEN'S PRINTER Copyright©2008 The Public Service Essential Services Regulations

being

Chapter P-42.2 Reg 1 (effective J uly 10, 2009).

1 Title 2 Interpretation 3 Government services prescribed as essential services 4 Coming into force CHAPTER P-42.2 REG 1 The Public Service Essential Services Act

Title 1 These regulations may be cited as The Public Service Essential Services Regulations. Interpretation 2 In these regulations: (a) "Act" means The Public Service Essential Services Act; (b) "ministry" means a ministry of the Government of Saskatchewan; (c) "Table" means the Table set out in the Appendix to these regulations. 24 Jly 2009 cP-42.2 Reg 1 s2.

Government services prescribed as essential services 3 For the purposes of subclause 2(c)(ii) of the Act, the services set out in Table 1, including the services provided by the Government of Saskatchewan at the facilities, by the organizational units or for the purposes of the programs set out in Table 1, are prescribed as essential services. 24 Jly 2009 cP-42.2 Reg 1 s3.

Coming into force 4 These regulations come into force on the day on which they are filed with the Registrar of Regulations. 24 Jly 2009 cP-42.2 Reg 1 s4. 4

P-42.2 REG 1 PUBLIC SERVICE ESSENTIAL SERVICES

Appendix TABLE 1 [Section 3]

Ministry Service/Program Column 1 Column 2 Advanced Education, Employment and Labour Occupational Health and Safety Agriculture Irrigation Asset Management Unit Corrections, Public Safety and Policing Adult Corrections Program Young Offender Program Community Training Residences Community Corrections Adult Probation Services Youth Open Custody Facilities Protection and Emergency Services Licensing and Inspections - Boiler & Pressure Vessels Licensing and Inspections - Elevators Policing Services, Licensing of Private Investigators and Security Guards Energy and Resources Emergency Response Team Environment Northern Air Operations/Fire Management and Forest Protection Branch Covert Operations Spill Response Program - Provincial Hazardous Materials Coordinators Government Services Air Ambulance Program Legislative Power Plant Water/Wastewater Management Services Building Access/Security Saskatchewan Hospital Power Plant Valley View Centre Power Plant Activities related to the prevention of destruction or serious deterioration of machinery, equipment or premises in support of the services set out in this Table, including the services provided by the Government of Saskatchewan at the facilities, by the organizational units or for the purposes of the programs set out in this Table. Health Saskatchewan Disease Control Laboratory Health Emergency Management Branch Health Information Solutions Centre 5

PUBLIC SERVICE ESSENTIAL SERVICES P-42.2 REG 2

Highways and Infrastructure Winter Snow and Ice Control Highway Hotline for Road Information Equipment Maintenance Information Technology Office support for systems related to the services set out in this Table, including the services provided by the Government of Saskatchewan at the facilities, by the organizational units or for the purposes of the programs set out in this Table Justice and Attorney General Court Services Branch Victim Services Branch, Victim/Witness Services Public Prosecutions Fine Collection Branch Social Services Child Protection/Foster Care Emergency Social Services Youth in 24-hour facilities Community Living Division -Valley View Centre (laundry, food services, resident care, physical therapy, housekeeping, dental clinic, medical equipment repair, drivers) Community Living Division- Community Resources (Northview Home, Southview Home, Crisis Therapy, Community Intervention, Community Service) Tourism, Parks, Culture and Sport Water Systems in Provincial Parks