File No. 35423 in the Supreme Court of Canada (On Appeal from the Court of Appeal of Saskatchewan)

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; SASKATCHEW AN JOINT BOARD, RETAIL, WHOLESALE AND DEPARTMENT STORE UNION; SAKSATCHEWAN 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 / APPELLANTS BY CROSS-APPEAL) AND:

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

RESPONDENT (APPELLANT / RESPONDENT BY CROSS APPEAL)

(Style of Cause continues inside cover pages)

FACTUM OF THE INTERVENER, ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR (pursuant to Rule 42 of the Rules o/the Supreme Court o.fCanada) - 2 -

ATTORNEY GENERAL OF CANADA INTERVENER (Intervener)

AND: ATTORNEY GENERAL OF ONTARIO; ATTORNEY GENERAL OF QUEBEC; ATTORNEY GENERAL OF BRITISH COLUMBIA; ATTORNEY GENERAL OF ALBERTA; ATTORNEY GENERAL OF NEWFOUNDLAND AND LABRADOR; SASKATCHEWAN UNION OF NURSES, SEW-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, ALBERT 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 OF BURKE-ROBERTSON NEWFOUNDLAND AND LABRADOR 441 MacLaren Street 4th Floor, East Block Confederation Bldg. Suite 200 P.O. Box 8700, Stn. A OTTA WA, ON K2P 2H3 ST. JOHN'S, NL AlB 4J6 Robert E. Houston, Q.c. Chantelle MacDonald Newhook Tel: (613) 236-9665 Tel: (709) 729-4053 Fax: (613) 235-4430 Fax: (709) 729-2129 Email: [email protected] Email: [email protected]

Counsel for the Attorney General of Agent for the Attorney General of Newfoundland and Labrador Newfoundland and Labrador - 3 -

Attorney General for Saskatchewan Gowling, Lafleur, Henderson LLP Constitutional Law Branch 2600 - 160 Elgin Street 820 - 1874 Scarth Street OTTAWA, ON KIP IC3 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: [email protected]

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

Victory Sqnare Law Office LLP Sack Goldblatt Mitchell LLP 500 - 128 West Pender Street 500 - 30 rue Metcalfe Street VANCOUVER, BC V6B IRZ 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.

Attorney General of Canada Attorney General of Canada 123 - 2nd Avenue South 50 O'Connor Street, Suite 50, Room 557 10th Floor OTTAWA, ON KIA 5L4 SASKATOON, SK S7K 7E6

Mark R. Kindrachuk, Q.c. Christopher M. Rupar Tel: (306) 975-4765 Tel: (613) 670-6290 Fax: (306) 975-6240 Fax: (613) 954-1920 Email: [email protected] Email: [email protected]

Counsel for the Attorney General of Canada Agent for the Attorney General of Canada -4-

Attorney General of Ontario Burke-Robertson 720 Bay Street 441 MacLaren Street 4th Floor Suite 200 TORONTO,ON M5G2Kl OTT AW A, ON K2P 2H3

Robert Earl Charney Robert E. Houston, Q.C. Tel: (4 I 6) 326-4452 Tel: (613) 236-9665 Fax: (416) 326-4015 Fax: (613) 235-4430 Email: [email protected]

Counsel for the Attorney General of Ontario Agent for the Attorney General of Ontario

Procurenr general du Quebec Noel et Associl\s 1200 route de I'Eglise, 2e etage Ill, rue Champlain QUEBEC, QC GlV 4Ml GATINEAU, QC J8X 3RI

Caroline Renaud Pierre Landry Tel: (418) 643-1477, ex. 20780 Tel: (819) 771-7393 Fax: (418) 644-7030 Fax: (819) 771-5397 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 1301 - 865 Hornby Street 2600 - 160 Elgin Street VANCOUVER, BC V6Z 2G3 Box 466, Station D OTTAWA, ON KIP lC3 Karen A. Horsman Tel: (604) 660-3093 Brian A. Crane, Q.c. Fax: (604) 660-3833 Tel: (613) 233-1781 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 9833 - 109 Street Gowling Lafleur Henderson LLP Bowker Building, 4th Floor 2600 - 160 Elgin Street EDMONTON, AB T5K 2E8 OTTAWA, ON KIP lC3

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

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

Bainbridge Jodouin Cheecham Supreme Advocacy LLP 401-261 First Avenue North 100 - 340 Gilmour Street SASKATOON, SK S7K lX2 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 of Counsel for Saskatchewan Union of Nurses Nurses

Plaxton & Company Sack Goldblatt Mitchell LLP 500,402 - 21 st Street East 500 - 30 Metcalfe Street SASKATOON, SK S7K OC3 OTTAWA, ON KIP 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: [email protected] Agent for SEIU - West Counsel for SEIU-West

Chivers Carpenter Sack Goldblatt Mitchell LLP #101,10426 - 81 Avenue 500 - 30 Metcalfe Street EDMONTON, AB T6E lX5 OTTAWA, ON KIP 5L4

Ritu Khullar Colleen Bauman Vanessa Cosco Tel: (613) 235-5327 Tel: (780) 439-3611 Fax: (613) 235-3041 Fax: (780) 439-8543 Email: [email protected] E-mail: [email protected]

Counsel for the United Nurses of Alberta Agent for the United Nurses of Alberta - 6 -

Chivers Carpenter Sack Goldblatt Mitchell LLP #101, 10426 - 81 Avenue 500 - 30 Metcalfe Street EDMONTON, AB T6E IX5 OTTAWA, ON KIP 5L4

Ritn Khnllar Colleen Bauman Tel: (780) 439-3611 Tel: (613) 235-5327 Fax: (780) 439-8543 Fax: (613) 235-3041 E-mail: [email protected] Email: [email protected]

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

Sack Goldblatt Mitchell LLP Sack Goldblatt Mitchell LLP 500- 30 Metcalfe Street 500 - 30 Metcalfe Street OTTA W A, ON KIP 5L4 OTTAWA, ON KIP 5L4

Peter C. Engelmann Colleen Bauman Tel: (613) 482-2452 Tel: (613) 235-5327 Fax: (613) 235-3041 Fax: (613) 235-3041 Email: [email protected] Email: [email protected]

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

McCarthy Tetrault LLP GowJing Lafleur Henderson LLP Box 48,5300 - 66 Wellingston St. W. 2600 - 160 Elgin Street Toronto Dominion Bank Tower OTTAWA, ON KIP IC3 TORONTO,ON M5KIE6 D. Lynne Watt Nell Finkelstein Tel: (613) 786-8695 Darryl Cruz Fax: (613) 788-3509 Brandon Kain Email: [email protected] Ronald PodoIny SunllKapur Agent for the Canadian Constitution Tel: (416) 362-1812 Foundation Fax: (416) 868-0673

Counsel for the Canadian Constitution Foundation -7-

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

Steve Waller Christopher Rootham Tel: (613) 231- 8248 Fax: (613) 788 - 3664 Email: [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 KIP 5H9 VANCOUVER, BC V6A IN8 Moira Dillon Lindsay M. Lyster Tel: (613) 691-1224 Tel: (604) 689-4457 Fax: (613) 691-1338 Fax: (604) 689-4467 Email: [email protected] Email: [email protected] Agent for the British Columbia Civil Counsel for the British Columbia Civil Liberties Association Liberties Association

Norton Rose Fulbright Canada LLP I, Place Ville Marie Bureau 2500 MONTREAL, QC H3B IRI

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

Counsel for Counseil 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 M5H2T6 Yael Wexler John D. R. Craig Tel: (613) 236-3882 Christopher D. Pigott Fax: (613) 230-6423 Tel: (416) 366-8381 Email: [email protected] Fax: (416) 364-7813 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 M5T2S6

Paul J.J. Cavalluzzo Tel: (416) 964-1115 Fax: (416) 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 30 Metcalfe Street, Suite 500 700 West Georgia Street OTTAWA ON KIP 5L4 VANCOUVER, BC V7Y IB3 Colleen Bauman Joseph J. Arvay, Q.C. Tel: (613) 235-5327 Catherin J. Boise Parker Fax: (613) 235-3041 Tel: (604) 684-9151 Email: [email protected] Fax: (604) 661-9349 Email: [email protected] Agent for the British Columbia Teachers' Federation and Hospital Employees' Union Counsel for the British Columbia Teachers' Counsel Federation and Hospital Employees' Union Counsel - 9 -

Sack Goldblatt Mitchell LLP Sack Goldblatt Mitchell LLP 20 Dundas Street West 500 - 30 Metcalfe Street Suite 1100 OTTAWA, ON KIP 5L4 TORONTO,ON M5G2G8 Colleen Bauman Steven Barrett Tel: (613) 235-5327 Tel: (416) 977-6070 Fax: (613) 235-3041 Fax: (416) 591-7333 Email: [email protected] Email: [email protected] Agent for the Canadian Labour Congress Counsel for the Canadian Labour Congress Counsel Counsel

Raven, Camerson, Ballantyne & Yazbeck LLP 1600 - 220 Laurier Avenue West OTTAWA, ON KIP 5Z9

Andrew Raven Andrew Astritis Morgan Rowe Tel: (613) 567-2901 Fax: (613) 567-2921 Email: [email protected]

Counsel for the Public Service Alliance of Canada

Sack Goldblatt Mitchell LLP Nugent Law Office nd nd 500 - 30 Metcalfe Street 2 Floor, 10008 82 Avenue OTTAWA, ON KIP 5L4 EDMONTON, AB T6E IZ3 Colleen Bauman Patrick G. Nugent Tel: (613) 235-5327 Tel: (780) 439-3232 Fax: (613) 235-3041 Fax: (780) 439-3032 Email: [email protected]

Counsel for the Alberta Union of Provincial Agent for the Alberta Union of Provincial Employees Employees - 10 -

Laroche Martin Noel et Associes 2100 boulevard de Maisonneuve Est III rue Champlain Bureau 501 GATINEAU, QC J8X 3Rl MONTREAL, QC H2K 4S1 Sylvie L'Abbe Benoit Laurin Tel: (819) 771-7393 Tel: (514) 529-4901 Fax: (819) 771-5397 Fax: (514) 529-4932 Email: [email protected] Email: [email protected] Agent for Confederation des syndicats Counsel for the Confederation des syndicats nationaux Counsel nationaux Counsel

MacPherson Leslie & Tyermau LLP Gowling Lafleur Henderson LLP 1500,410 - 22nd Street East 2600 - 160 Elgin Street SASKATOON, SK S7K 5T6 OTTAWA, ON KIP IC3

Leah Schatz Jeffery 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]

Counsel for Regina Qu' Appelle Regional Agent for Regina Qu' Appelle Regional Health Authority Health Authority

MacPherson Leslie & Tyerman LLP Gowling Lafleur Henderson LLP 1500, 410 - 22nd Street East 2600 - 160 Elgin Street SASKATOON, SK S7K 5T6 OTTAWA, ON KIPIC3

Leah Schatz Jeffery W. Beedell Robert Frost-Hinz Tel: (613) 786-0171 Evert van Olst, Q.c. Fax: (613) 788-3587 Tel: (306) 975-7100 Email: [email protected] Fax: (306) 975-7145 Email: [email protected] Agent for the Cypress Regional Health Counsel for the Cypress Regional Health Authority, Five Hills Regional Health Authority, Five Hills Regional Health Authority, Heartland Regional Health Authority, Heartland Regional Health Authority, Suurise Regional Health Authority, Sunrise Regional Health Authority, Prince Albert Parkland Regional Authority, Prince Albert Parkland Regional Health Authority and Saskatoon Regional Health Authority and Saskatoon Regional Health Authority Counsel 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 the 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 OTTA W A, ON KIP 6L5 TORONTO, ON M5H2T6 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

Page I. OVERVIEW 1

STATEMENT OF FACTS 2 n. ISSUES 3 m. ARGUMENT 4

A. Introduction 4

B. Purposive Approach to Interpretation of s. 2(d) 5

C. The Supreme Court's Recent s. 2(d) Jurisprudence 7

D. Public Sector Labour Relations Regimes in Canada 10

and the Right to Strike

E. Implications of Constitutionalizing the Right to Strike 13

F. The Appropriate Use ofInternational Law 16

O. Conclusion 19

IV. COSTS 20

V. ORDER SOUGHT 20

VI. ALPHABETICAL TABLE OF AUTHORITIES 21 PART I OVERVIEW

1. This appeal concerns the constitutionality of two Saskatchewan labour relations statutes, The Public Sector Essential Services Act ("PSESA "/ and The Trade Union Amendment Act ("TUA "/' The challenge to the PSESA raises squarely the issue of whether the Court should reverse its longstanding position that the Charter does not guarantee a right to strike.

2. The Appellants and supporting interveners invite this Court to reverse a series of rulings that have stood the test of time for over 25 years that the Charter does not guarantee such a right. The Attorney General of Newfoundland and Labrador intervenes in this appeal to urge the Court to clearly and unequivocally reject this invitation. The conclusion that the Charter3 does not protect a right to strike reflects a purposive interpretation of the Charter and a proper appreciation of labour relations, and particularly public sector labour relations, including the nature and role of strikes and the range of dispute resolution mechanisms within Canadian public sector labour relations regimes.

3. Although there has been an evolution in this Court's s. 2(d) jurisprudence in the labour relations context in recent years, constitutional entrenchment of a right to strike does not flow from this recent jurisprudence. To the contrary, it would be inconsistent with the clear guidance and parameters laid down by those decisions, including the Court's recoguition that s. 2(d) does not guarantee a particular model of labour relations in all circumstances, nor does it protect economic outcomes or objectives.

1 The Public Service Essential Services Act, S.S. 2008, c. P-42.2; Respondent's Factum Authorities ("RFA"), Tab 2. 2 The Trade Union Amendment Act, 2008, S.S. 2008, c.26 ("TUA "); RFA, Tab 3. 3 Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. II, s. 2(d) RFA, Tab 1. 2

STATEMENT OF FACTS

4. The Attorney General of Newfoundland and Labrador relies on the facts as set out in the factum of the Attorney General of Saskatchewan. 3

PART II ISSUES

5. The Chief Justice stated six constitutional questions in this appeal. The Attorney General of Newfoundland and Labrador directs its submissions to Question 3:

Does the Public Sector Essential Services Act, S.S. 2008, c. P-42.2, in whole or in part, infringe s. 2( d) of the Canadian Charter ofRights and Freedoms?

6. The Appellants have framed the legal issues raised by this question as:

Does the freedom of association guaranteed by s. 2( d) of the Charter protect workers' right to strike and does the PSESA breach section 2( d)?

7. The Attorney General of Newfoundland and Labrador submits that s. 2(d) of the Charter does not guarantee a right to strike for collective bargaining pnrposes and that as a result, the PSESA does not, by placing legislative parameters around strike activity by essential public employees in Saskatchewan, infringe s. 2( d). 4

PART HI ARGUMENT

A. Introduction

8. In 1987 this Honourable Court decided three cases, collectively known as the Labour Trilogy,4 which held that the Charter does not guarantee a right to strike.

9. The ratio of these cases has been repeatedly affirmed by this Court and has never been overturned. 5 The Court has consistently taken care to point out when its decisions should not be taken as overruling this position. For example, in Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia ("Health Services"), the majority stated that "the present case does not concern the right to strike which was considered in earlier litigation on the scope of the guarantee of freedom of association.,,6

10. The authorities are clear that this Court may overrule its own previous decisions, but that this step should not be undertaken lightly. A high threshold must be met - the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled. 7

11. There is no compelling reason to overrule the conclusion in the Labour Trilogy that the Charter does not protect the right to strike. To the contrary, while there has undoubtedly been an evolution in the Court's s. 2(d) jurisprudence in recent years, the principles elucidated in those

4 Reference re Public Service Employee Relations Act (Alta.), [1987]1 S.C.R. 313 (the "Alberta Reference") Newfouudland and Labrador's Autborities ("NLA"), Tab 5; PSAC v. Canada, [1987]1 S.C.R. 424, Appellant's Authorities ("AA"), Vol. II, Tab 19; and RWDSU v. Saskatchewan, [1987]1 S.C.R. 460, RA, Vol. III, Tab 26 5 See, for example, Professional Institute ofthe Public Service of Canada v. Northwest Territories (Commissioner), [1990]2 S.C.R. 367, AA, Vol. II, Tab 18 6 Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391 at para. 19, RA, Vol. t, Tab 9 7 Canada v. Craig, [2012]2 S.C.R. 489 at para. 24-27, RA, Vol. I, Tab 4; Ontario (Attorney General) v. Fraser, [20Jl] 2 S.C.R. 3 at para. 56 (per MeLaehlin C.J. and LeBel J.) and para. 129-139 (per Rothstein J.), RA, Vol. U, Tab 14; R. v. Henry, [2005]3 S.C.R. 609 at para. 44, RA, Vol. III, Tab 21 5 recent cases and a purposive and contextual approach to the issue before the Court confirm that the holding of the Labour Trilogy on the absence of a constitutionally entrenched right to strike remains as valid today as it was when those cases were decided.

B. Purposive Approach to Interpretation of s. 2( d)

12. The overarching approach to Charter interpretation is encapsulated in the oft-quoted passage of Dickson J. (as he then was) in R. v. Big M Drug Mart:

This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter. In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.8

13. The analysis of purpose must be rigorous and focused on the particular right or freedom under consideration. As Dickson J. stated in Hunter v. Southam, the case which first propounded the purposive approach to Charter interpretation:

8 R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at para. 117, AA, Vol. II, Tab 20 6

The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines ...

Since the proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one, before it is possible to assess the reasonableness or unreasonableness of the impact of a search or of a statute authorizing a search, it is first necessary to specify the pnrpose nnderlying s. 8: in other words, to delineate the nature of the interests it is meant to protect.9 [emphasis added]

14. A purposive approach to Charter interpretation cannot be replaced by a broad appeal to general values such as dignity, autonomy, or respect. Undoubtedly, specific manifestations of these worthy general values may constitute the purpose or part of the purpose of a particular Charter right, but a purposive approach demands that litigants and the courts carefully articulate the purpose of the particular right or freedom, rather than simply alluding to general values which underlie human rights instruments such as the Charter.

15. An emphasis on general values without sufficient precision as to the purpose of the particular right or freedom will seriously run the risk of "overshooting the actual purpose of the right or freedom" and capturing a wide range of activities that were not intended to be addressed by the particular right. While the Charter deserves a "generous" and not a "legalistic" interpretation, a purposive interpretation is not necessarily expansive. As Professor Peter Hogg has succinctly put it, "the goal of generosity of interpretation" should not be "set free from the limiting framework of purpose". 10

16. The insistence on defining the scope of a right or freedom carefully by reference to its purpose is also consistent with the stringent standard of justification this Court has developed under s. 1 of the Charter. Once a right is properly confined to its specific purpose, the requirement that government carefully justify limitations on the right is appropriate. Conversely if an overly expansive and loosely defined scope is given to a Charter right or freedom, the rationale for a rigorous s. I justification disappears.

9 Hunter v. Southam Inc., [1984]2 S.C.R. 145 at pp. 156-157, NLA, Tab 3 10 P.W. Hogg, Constitutional Law o/Canada, 5" ed. supp., atpp. 36-30 - 36-31, NLA, Tab 7 7

17. Thus, the inquiry necessarily begins with an analysis of the purpose of freedom of association as guaranteed by s. 2( d) and a consideration of what this fundamental freedom was intended to protect.

18. This Court engaged in a detailed consideration of the purposes of the Charter's guarantee of freedom of association in the Alberta Reference, the leading case in the Labour Trilogy. Both McIntyre J. and Dickson c.J. held that at its core, s. 2(d) is concerned with protecting the freedom of individuals to interact and associate with others, both to satisfy the profoundly social nature of human beings and to pursue common goals. As Dickson C.J. stated:

What freedom of association seeks to protect is not associational activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage. II

19. That is, it is the associational aspect, not the activity per se, which is deserving of constitutional protection under s. 2( d).

20. The Attorney General of Newfoundland and Labrador agrees with the Attorney General of Saskatchewan that the right to strike which the Appellants seek to have constitutionally entrenched was accurately characterized by Richards J.A. (now C.J.S.) in the Court of Appeal,

and that a purposive interpretation of s. 2( d) does not accommodate such a right. 12

C. The Supreme Court's Recent s. 2(d) Jurisprudence

21. This Court has identified its decision in Dunmore as the start of a new stage in the development of its s. 2( d) jurisprudence in the context of labour relations. In that case, the

11 Alberta Reference, supra, note 4, p. 366, at para. 88, NLA, Tab 5. See also tbe reasons of Mcintyre J. at pp. 395- 397 12 Factum of the Attorney General of Saskatchewan at para. 39-40 8 majority held that s. 2( d) guarantees freedom of associational activity in the pursuit of individual and common goals, and that the common goals extend to some collective bargaining activities, including the right to organize and present submissions to the employer. The Court took care to emphasize that what is required is a process that allows meaningful pursuit of these goals, but that no particular outcome is guaranteed. The effect of a process that renders impossible the meaningful pursuit of collective goals is to substantially interfere with freedom of association. 13

22. In Health Services, the majority of the Court applied the principles from Dunmore to conclude that s. 2( d) of the Charter includes a procedural right to collective bargaining, i.e. a right of workers to make collective representations and to have those collective representations considered in good faith by their employer. 14

23. The Court placed several clear parameters around that right:

a) s. 2( d) does not protect all aspects of the associational activity of collective bargaining. It protects only against "substantial interference" with associational activity in accordance with the test set out in Dunmore.

b) the right to collective bargaining is a right to a process; it does not guarantee substantive or economic outcomes. Union members' objectives, which they may seek to attain through a process of collective bargaining, are not protected.

c) the right is to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method. Is

24. In Fraser the Court returned to the issue of the labour relations regime applicable to agricultural workers, this time addressing the constitutionality of Agricultural Employees

13 Dunmore v. Ontario (Attorney General), [2001]3 S.C.R. 1016, AA, Vol. I, Tab 13; Fraser, supra, note 7 at para. 26-33, RA, Vol. II, Tab 14 14 Health Services, supra, note 6 at para. 19, RA, Vol. I, Tab 9 15 Health Services, supra, at para. 90-91, RA, Vol. I, Tab 9 9

Protection Act ("AEPA,,)16 which was enacted by Ontario in response to the Court's decision in Dunmore. The Ontario Court of Appeal held that the AEPA infringed s. 2( d) because it failed to provide for "meaningful collective bargaining". At minimum, the Court of Appeal held, meaningful collective bargaining required: (1) a statntorily prescribed duty to bargain in good faith; (2) statutory recognition of the principles of exclusivity and majoritarianism; and (3) a statutorily prescribed mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements. 17

25. The majority of this Court rejected the approach of the Ontario Court of Appeal and its interpretation of Health Services. McLachlin C.J. and Lebel J. wrote:

... Health Services does not support the view of the Ontario Court of Appeal in this case that legislatures are constitutionally required, in all cases and for all industries, to enact laws that set up a uniform model of labour relations imposing a statutory duty to bargain in good faith, statutory recognition of the principles of exclusive majority representation and a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements. IS

26. The majority characterized the ONCA's approach as constitutionalizing a "full-blown Wagner model of collective bargaining", whereas the ambit of Health Services was significantly more modest. Health Services explicitly states that s. 2( d) does not gnarantee a particular model of collective bargaining and does not constitutionally protect results sought to be achieved via a process of collective bargaining. Moreover, the idea that s. 2(d) protected any particular model of collective bargaining was inconsistent with the logic and principles underlying Dunmore and Health Services which confirmed that what s. 2(d) protects is the right to associate in pursuit of collective goals. 19

16 Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16; RA, Vol. nl, Tab 31. 17 Fraser v. Ontario (Attorney General), 2008 ONCA 760 at para. 80, NLA, Tab 2 18 Fraser, supra, note 7 at para. 47, RA, Vol. n, Tab 14. See also Association ofJustice Counsel v. Canada (Attorney General), 2012 ONCA 530 at para. 41, RA, Vol. I, Tab 1. 19 Fraser, supra, note 7 at para. 44-46, 48, RA, Vol. II, Tab 14. 10

27. Consistent with this scope of s. 2(d), the majority clarified the natnre of the procedural right to collective bargaining identified in Health Services, explaining that it is not an independent constitntional right, but a "derivative" right, that is, it is "simply a necessary condition of meaningful association in the workplace".2o

28. The majority in Fraser further held that the fundamental question concerns the impact of the legislation on associational rights. The threshold for finding a violation of s. 2( d) in the labour relations context is significant. McLachlin C.J. and Lebel J. stated:

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.

The question ... is whether the legislative scheme ... renders association in pursuit of workplace goals impossible, thereby substantially impairing the exercise ofthe s. 2( d) associational right. 21 (emphasis added)

29. The question of whether or not legislation meets this standard of 'effective impossibility' or 'substantial interference' with associational rights is a question of law. 22 The trial judge's conclusions in this regard are not findings of fact entitled to deference by this Court.

D. Public Sector Labour Relations Regimes in Canada and the Right to Strike

30. The predominant model for labour relations regimes throughout Canada today is the Wagner model. It was described by Rothstein J. in Fraser, as follows:

The Wagner model refers to Canadian variants of the National Labor Relations Act, 49 Stat. 449 (1935) (the "Wagner Act"), which was enacted into law in the United States during the Depression. By the end of the 1930s, most Canadian provinces had passed legislation incorporating the main objectives of the Wagner Act. The Wagner model has four legislative hallmarks: explicit recognition of the

20 Fraser, supra, note 7 at para. 43, 54, RA, Vol. II, Tab 14 21 Fraser, supra, note 7 at para. 46, 48, RA, Vol. II, Tab 14 22 Health Services, supra, note 6 at para. 90, RA, Vol. I, Tab 9; Fraser, supra, note 7, RA, Vol. II, Tab 14; cf. Appellants' Factum para 80-81 11

right of employees to belong to a trade union of their choice; protections against employer coercion or interference with organizing activities, known as unfair labour practices provisions; a duty upon employers to bargain in good faith with their employees' unions; and a dispute resolution mechanism for resolving impasses: see G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), vol. 1, at p. 1_11.23

31. The Canadian Wagner model is not a single statutory template which prescribes a uniform set of rights, obligations, and procedures, including the right to strike. Rather, it is a descriptor which encompasses a range of legislative labour relations processes that incorporate the four legislative hallmarks noted above. A legislative scheme may give effect to these principles through the use of a variety of provisions and applicable procedural steps, including a variety of dispute resolution mechanisms.

32. Over time, Canadian legislatures have developed several variants based on the Wagner Act for sector-specific use to best reflect the particular interests at stake and the appropriate accommodation of those interests in the particular contexts.

33. Canadian public sector labour relations models promote hannonious relations between employer and employees, achieve labour stability, and recognize the paramount importance of public health, safety and security. It is this recognition of the paramount importance of public health, safety and security which has resulted in Canadian legislators designating essential services that must continue to be provided to the public in the event of strike or lockout. The importance of essential services was canvassed by this Court in Canadian Union of Public Employees, Local 301 v. Montreal (City/4:

... When "public" employees strike, the pressure exerted on the employer is not largely financial, as in the private sector, but rather arises from the disruption of services upon which society depends for the daily activities of its members. While consumers may simply go to another source for goods and services provided by

23 Fraser, supra, note 7 at para. 169, RA, Vol. IT, Tab 14. 24 Canadian Union of Public Employees, Local 301 v. Montreal (City) [1997]1 S.C.R. 793 at para. 32-34, NLA, Tab 1 12

private enterprise, alternatives to the services targeted by the special regimes may be unavailable or very difficult and expensive to obtain ...

While the public, through its elected representatives, has chosen to sustain a certain level of disruption in order to extend the same rights to public employees as are available to other workers, this cannot be unlimited. The government must balance the right to strike against other entitlements aud needs such as those established in human rights and social legislation ...

The health and safety of the greater populace will thus always take priority over the workers' and/or employers' interests in achieving a fair and equitable settling of the terms of employment. Where these parties are willing to provide advance assurance that these basic public interests will be protected, some disruption of services will be tolerated. However, where the parties fail to do so or otherwise fail to respect the requirements for the legal exercise of pressure tactics, the public will not tolerate interference with fundamental services as a means for parties to a labour dispute to acquire concessions from one another ... (emphasis added)

34. In Canada, strike activity for the purpose of collective bargaining is an "economic pressure tactic,,25 employed near the end of the collective bargaining process to augment settlement incentive between the bargaining parties. Canadian public sector strike models include an unfettered strike model, a designation model where some portion of employees or services are deemed essential prior to job action, and an interest arbitration model where interest arbitration replaces strike activity.

35. The majority of Canada's Wagner model public sector variants have evolved to include strike activity constraints while yielding largely successful and hannonious labour relations. It is also important to recognize that the current range of public sector labour relations regimes, including their range of permissible strike activity, are not the only potential models that may be adopted. Economic, industrial, social and political pressures or changes may lead to a reassessment of current approaches and examination of alternative models, including those used in other countries. In R. v. Advance Cutting & Coring Ltd., LeBel J. said:

The management of labour relations requires a delicate exercise in reconciling conflicting values and interests. The relevant political, social and economic

"CUPE v. Montreal, supra, note 24 at para. 22, NLA, Tab 1 13

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 functions of courts and legislatures.26

36. Labour law is a dynamic field and one that should be allowed to develop incrementally. As McIntyre J. stated 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 of the day.,,27 The constitutional entrenchment of the right to strike would unnecessarily hamper this important flexibility and adaptability.

E. Implications of Constitutionalizing the Right to Strike

37. The right to strike in the context of a collective bargaining dispute is a powerful tool. Its primary purpose in the private sector is as an economic weapon, exerting pressure on the employer and compelling the employer to accept the union's position on terms and conditions of employment, the most significant of which are generally salary and/or other economically quantifiable benefits.28 In the public sector, strike activity is an equally effective pressure tactic, notwithstanding the fact that public sector employers may save money during a strike.

38. There are differences central to the process of private and public sector bargaining:

In a private sector employer situation, the confrontation, if it comes to that, is between the employer, the union and the employees. Unless the employer is the dominant economic power in the community, no direct economic pressures are brought to bear on the public. The parties can slug away at each other, literally and metaphorically, but the public is not involved. In a public employer strike or lock-out, the public necessarily becomes directly involved, in that the services that were being provided and for which it has paid its tax dollars are removed. Thus, one of the parties uses an economic club on an outside party, the public, in

26 R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209 at para. 239, NLA, Tab 4. See also Alberta R~ference, supra, note 4 at pp. 419-420. 27 Alberta Reference, supra, note 4, p. 414, at para 182, NLA, Tab 5 28 Health Services, supra, note 6 at para. 54, 63, RA, Vol. I, Tab 9 14

the hopes that the resulting pain and outrage will result in generating pressure for settlement. 29

39. The Charter's section 2, and s. 2( d) in particular, protects fundamental freedoms. The economic implications of the right to strike are not merely secondary or incidental to the exercise of a fundamental freedom; rather, they are the primary purpose and an important effect of the exercise of strike activity. Constitutional recognition of the right to strike would afford protection to what is, at its core, an economic pressure tactic.

40. As an alternative to strike activity, interest arbitration has been a widely adopted means of resolving bargaining impasses when public health, safety and security concerns simply cannot pennit strike action by essential service workers:

Where the right to strike is denied, the use of "interest" arbitration, i.e. arbitration to settle the tenns of the collective agreement, is the substitute for economic action. The effectiveness of arbitration as a replacement to economic warfare is difficult to assess. Some union advocates maintain that the loss of the right to strike has done serious damage to their members' economic position. On the other hand, given the substantial economic gains that hospital workers achieved in Ontario during the late 1960's and early 1970's, one has to question whether strikes would have led to a more generous outcome. As in many other areas, assessment is both anecdotal and subjective.3o

41. Final offer selection is another collective bargaining dispute resolution mechanism which provides an alternative to strike activity. In final offer selection, an arbitrator has to choose between the two final offers of the parties and cannot take a middle position. Some commentators herald final offer selection as a means by which parties can minimize the incidence of impasse leading to arbitration when strike activity is prohibited.31

29 John P. Sanderson, The Art o/Collective Bargaining, Second Edition, (Canada Law Book Inc., 1989) at p. 90, NLA, Tab 11 30 Wesley B. Rayner, Canadian Collective Bargaining Law, Second Edition (2007) at p. 542, NLA, Tab 10 31 Rayner, supra, note 30 at p. 543, NLA, Tab 10 15

42. There are multiple potential dispute resolution mechanisms which have yet to be canvassed or implemented under current Canadian labour relations regimes. As social and economic priorities shift, employers, unions and employees may be motivated to consider alternatives to the current default to a strike-based culmination of the collective bargaining process.··

43. Further, there are instances in our modem Canadian labour environment where strike activity is perceived as a blunt force and largely ineffective weapon in the collective bargaining process.32

44. Affording constitutional protection to the right to strike under s. 2( d) would impose striking as the selected dispute resolution mechanism on every Canadian Wagner model variant such that interest arbitration would, in practice, become available only through the oversight of the Court under s.l of the Charter. This would be the effect of failing to base s. 2( d) protection on the principles this Court has elaborated and instead taking a categorical approach and constitutionalizing a single aspect of a single variant of the Canadian Wagner model. The latter categorical approach would disregard and devalue the decades of adaptation of public sector labour relations models which were nurtured to effect the public sector labour relations balance and stability we generally see today, and would dissuade further evolutionary labour law refonn.

45. Constitutional protection of the right to strike under s. 2( d) would be a dramatic departure from this Court's recent statements in Health Services and Fraser that what s. 2(d) protects is the right to associate in pursuit of collective goals, not the economic objectives of the associational activity.

32 See T. Archibald, "Collective Bargaining under Managed Competition in Health Care: The Ontario Home Care Experience" (Queen's L. J. Spring 2003) in which the author opines at p. 26 that "the strike weapon is largely ineffective in the competitive contracting context" of Ontario homecare nurses, and at p. 27 that evidence-based arbitration might be better able than either strike activity or interest arbitration to achieve healthcare labour relations harmony, NLA, Tab 6 16

46. Moreover, if the constitutional guarantee of freedom of association does not uniformly require a particular model of labour relations, as this Court held in Health Services and Fraser, then a fortiori the constitutional guarantee of freedom of association cannot require a particular component of a particular variant of a particular model.

F. The Appropriate Use of International Law

47. Caution is required when relying on international law, Canada's international commihnents, and the interpretation of those commitments by various international bodies, in the interpretation of the Charter ofRights, and in particular in this case, in the analysis of whether s. 2( d) constitutionally guarantees the right to strike.

48. While international human rights instruments and nonns may be a relevant and sometimes persuasive source of guidance in the interpretation of Charter provisions, they are no more than that - a potential source of guidance that in no way bind Canadian courts in their interpretation of the Charter. This principle, which was recoguized by Dickson C.J. in the Alberta Reference, flows inexorably from the exclusive jurisdiction of Canadian courts, and snpremacy of this Court, in the interpretation of Canadian law, including constitutional law.

49. To the extent that Dickson C.J.'s reasons in the Alberta Reference have been relied upon to suggest that the Charter must be interpreted in conformity with international law or that there should be an automatic presumption that the Charter incorporates all rights and obligations in agreements to which Canada is a siguatory, the Attorney General of Newfoundland and Labrador respectfully disagrees.

50. Such a presumption does not reflect the reality that the Charter enshrined carefully chosen and articulated rights and freedoms and that the framers also deliberately declined to include certain other rights and freedoms. While a "living tree" approach to Charter 17 interpretation is appropriate, that interpretation must still be rooted in the text of the rights aud freedoms guarauteed therein.

51. Moreover, such a presumption is inconsistent with both the separation of powers aud the principle of federalism. The incorporation of the obligations contained in treaties into domestic Cauadian law requires a two-step process. The federal executive has the power to enter into treaties that bind Canada internationally. However, if a treaty requires a chauge in the internal law of Canada, it can only be implemented by the enactment of legislation by the relevant legislature.33

52. A presumption that the Charter incorporates Canada's international commitments allows the federal executive to unilaterally and on an ongoing basis affect the scope and meaning of Charter rights. Not only does this usurp the power of Parliament aud the provincial legislatures with respect to treaty implementation, it does so by reading the international obligations into the Constitution, which limits the possible content of legislation passed by either level of government. 34

53. In areas such as labour relations which are primarily within provincial legislative jurisdiction, this approach is also in conflict with the division of powers.

54. In this case, not only do the Appellants rely on international conventions entered into by Canada, they also place considerable weight on reports of the ILO Committee on Freedom of Association ("CFA"). This reliance is misplaced. The CFA is a representative, non-jndicial body, staffed by non-lawyers. Under the ILO Constitution, the CFA is incapable of "making law".

th 33 Hogg, Constitutional Law of Canada, 5 ed. supp. at p. 11-6 - 11-7, NLA, Tab 7 34 Beujamin Oliphant, "Interpreting the Charter with International Law: Pitfalls & Principles" (2014), 19 Appeal 105-129 at p. 115- 119, NLA, Tab 9 18

Rather, the body is tasked with finding ad hoc, politically acceptable compromises between labour, employers and governments' interests.35

55. Moreover, the substance of intemational law and Canada's intemational commitments do not support the position that the constitutional guarantee of freedom of association in s. 2(d) of the Charter includes the right to strike.

56. Of the intemational conventions to which Canada is a signatory that are relied upon by the Appellants (the Intemational Covenant on Civil and Political Rights (ICCPR)36, the Intemational Covenant on Economic, Social and Cultural Rights (ICESCR)37 and ILO Convention 87 - Freedom of Association and Protection of the Right to Organize)38, only the ICESCR references the right to strike in its text, and it does so in the form of a carefully circumscribed right:

Article 8

1. The State Parties to the present Convention llildertake to ensure:

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country. (emphasis added)

57. This articulation of a right to strike in no way supports a constitutionally entrenched right to strike as a component of freedom of association lli1der s. 2( d) of the Charter, subject only to limits under s. 1 of the Charter.

35 Oliphant, supra, at p. 126, NLA, Tab 9; Brian Langille and Benjamin Oliphant, "From the Frying Pan to the Fire: Fraser and the Shift from International Law to International "Thonght" in Charter Cases" (2011) 16 C.L.E.J. 181 at p. 126, NLA, Tab 9 36 International Covenant on Civil and Political Rights (ICCPR), AA, Vol. III, Tab 46 37 International Covenant on Economic, Social and Cultural Rights (ICESCR), AA, Vol. III, Tab 47 38 ILO Convention No. 87, Freedom ofAssociation and Protection ofthe Right to Organise, AA, Vol. III, Tab 45 19

G. Conclusion

58. A purposive approach to the guarantee of freedom of association in s. 2(d), applied with a proper appreciation of the nature of labour relations, the interests which must be accommodated in public sector labour relations regimes, and the nature and role of the right to strike leads to the conclusion that 2(d) does not constitutionally guarantee the right to strike.

59. Therefore, the fact that the PSESA places legislative parameters around strike activity by essential public service employees in Saskatchewan does not, because of those restrictions; result in an infringement of s. 2(d). PART IV -COSTS

60. The Attorney General of Newfoundland and Labrador does not seek his costs in this appeal and requests that no costs be awarded against him.

PART V - ORDER SOUGHT

61. The Attorney General of Newfoundland and Labrador respectfully requests that this appeal be dismissed and that Question 3 of the Constitutional Questions stated in this appeal be answered "No".

62. The Attorney General of Newfoundland and Labrador intends to present oral argument at the hearing of this appeal.

Respectfully submitted this 30th day of April, 2014

Chantelle MacDonald Newhook

Barbara Barrowman

Counsel for the Attorney General of Newfoundland and Labrador

20 21

PART V!

ALPHABETICAL TABLE OF AUTHORITIES Cases Paragraph(s)

Association ofJustice Counsel v. Canada (Attorney General) 2012 ONCA 18 530

Canada v. Craig, [2012]2 S.C.R. 489 10

Canadian Union ofPublic Employees, Local 301 v. Montreal (City) [1997] 33,34 1 SCR 793

Dunmore v. Ontario (Attorney General), [2001]3 SCR 1016 21,22,23,24, 26 Fraser v. Ontario (Attorney General), 2008 ONCA 760 24

Health Services and Support Facilities Subsector Bargaining Association v. 9,22,23,25, British Columbia, [2007] 2 S.C.R. 391 26,27,37,45, 46 Hunter v. Southam, [1984]2 S.C.R. 145 12,13

Ontario (Attorney General) v. Fraser, [2011]2 S.C. R. 3 24, 28, 30, 45, 46 Professional Institute of the Public Service ofCanada v. Northwest 9 Territories (Commissioner), [1990]2 S.C.R. 367

PSAC v. Canada, [1987]1 S.C.R. 424; 8,11,18

R. v. Advance Cutting & Coring Ltd., [2001]3 S.C.R. 209 35

R. v. Big M Drug Mart, [1985]1 SCR 295 12

R. v. Henry, [2005] 3 S.C.R. 609 10

Reference re Public Service Employee Relations Act, [1987]1 S.C.R. 313 8,11, 18,35, 36,48,49 RWDSUv. Saskatchewan, [1987]1 S.C.R. 460 8, 11, 18

Legislation

Agricultural Employees Protection Act, 2002 S.O. 2002, c. 16 24

The Public Service Essential Services Act, S.S. 2008, c. P-42.2 1,6,7,59 22

The Trade Union Amendment Act, 2008, S.S. 2008, c.26 ("TUA '? 1

Secondan: Sources

Archibald, T., "Collective Bargaining under Managed Competition in 32 Health Care: The Ontario Home Care Experience" (Queen's L.J. Spring Footnote 32 at 2003) page 15

Hogg, Peter W., Constitutional Law ofCanada, 5th ed. 15,51

Langille, Brian and Oliphant, Benjamin, "From the Frying Pan to the Fire; 54 Fraser and the Shift from International Law to International "Thought" in Charter Cases" (2011) 16 C.L.E. J. 181

Oliphant, Benjamin, "Interpreting the Charter with International Law: 52 Pitfalls & Principles" (2014), 19 Appeal 105-129

Rayner, Wesley B., Canadian Collective Bargaining Law, Second Edition 41 (LexisN exis Canada, 2007)

Sanderson, John P., The Art of Collective Bargaining, Second Edition 38 (Canada Law Book Inc., 1989)

Intemational Instruments

International Covenant on Civil and Political Rights (ICCPR), Adopted by 56 the General Assembly of the United Nations on 19 December 1966.

International Covenant on Economic, Social and Cultural Rights (ICESCR), 56 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 3 January 1976, in accordance with article 27

ILO Convention 87 - Freedom ofAssociation and Protection of the Right to 56 Organize, 1948 (No. 87), (Entry into force: 04 Jul1950)