Friday, January 30, 2015

SFL v Saskatchewan - What Comes Next? by Greg

Obviously, today's Supreme Court decision affirming a Charter right to strike (Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4) will have significant ramifications for Canadian labour law. And plenty of other observers are weighing in on what the decision might mean more broadly.

But what effect will it have on Saskatchewan's own laws governing strike activity?

The immediate impact is limited to a suspended declaration that the Public Service Essential Services Act, S.S. 2008, c. P‑42.2 ("PSESA") is invalid. Which means that in theory, the PSESA could stay on the books for up to a year.

But that delay might not be required if Saskatchewan's government decides to proclaim in force the new essential services provisions of the Saskatchewan Employment Amendment Act, 2014 ("SEAA") (PDF). The SEAA represented a retreat from some of the more obviously unconstitutional aspects of the PSESA, but might still be subject to challenge on the "substantial impairment" threshold which now applies to the right to strike (as well as the right to collective bargaining).

Meanwhile, some question will also arise as to the new rules setting limiting the availability of job action under the Saskatchewan Employment Act, SS 2014, c S-15.1 ("SEA"). While the SEA's restrictions are primarily process-oriented, they too might run afoul of a substantial impairment threshold - both in general terms, and particularly if they prove unduly onerous under the circumstances of a particular planned strike.

In sum, while we now know that the right to strike exists and the PSESA represents an unconstitutional violation, there's still plenty more to be done in assessing whether Saskatchewan's legislation is Charter-compliant in its effect on strike activity. And Saskatchewan's government may have to go back to the drawing board in a few more areas than it anticipated.

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