Court of Appeal of Quebec

AG Canada v. Union of Canadian Correctional Officers - CSN

June 05, 2019


Duval Hesler, Morissette, Hogue

Appeal from a judgment of the Superior Court declaring paragraph 113(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2) unconstitutional. Allowed.

The trial judge did not err in concluding that paragraph 113(b) of the Act substantially interferes with freedom of association guaranteed under section 2(d) of the Canadian Charter of Rights and Freedoms (R.S.C. 1985, App. II, No. 44, Schedule B, Part I). Indeed, it was established that the pension plan and staffing are subjects of vital importance to the employees (correctional officers), and the prohibition on including these matters in the collective agreement does not respect their freedom of choice or the notion of balanced bargaining forces between management and the union. However, the judge erred in concluding that the infringement on freedom of association resulting from paragraph 113(b) of the Act was not justified under section 1 of the Charter. He required an excessive degree of proof.

The objective of the restrictions imposed by paragraph 113(b) of the Act is pressing and substantial. The government’s position, in adopting this provision, is logical and reasonable. Provided the option chosen by the legislator is one within a range of reasonably supportable alternatives, the minimal impairment test will be met. The prohibition on negotiating the pension plan forms part of the reasonable solutions available to the legislator, due, in particular, to public interest considerations, to the fact that public finances are involved, and that the solution serves to achieve the government’s objective in a real and substantial manner. Staffing on the basis of the merit system is an important principle. Negotiated staffing could compromise the Public Service Commission’s independence, because negotiations could introduce other factors into the process. All the salutary effects of the prohibition on negotiating these issues outweigh the deleterious effects on freedom of association. Given that the measures implemented are proportional to the appellant’s objective, the requirements of section 1 of the Canadian Charter have been met.

Legislation interpreted: paragraph 113(b) of the Federal Public Sector Labour Relations Act.

*Summary by SOQUIJ
Official English translation : AG Canada v. Union of Canadian Correctional Officers - CSNThis link open a pdf file in a new window.(565 KB)

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