The Ontario Superior Court of Justice has dismissed a constitutional challenge brought by the Canadian Union of Postal Workers (CUPW) against the 2018 Postal Services Resumption and Continuation Act (PSRCA).
The PSRCA was enacted six years ago and it spawned a new collective agreement between CUPW and Canada Post. Since then, the parties have committed to be bound, and have been bound, by successive collective agreements, the court said.
The court ruled the matter moot — but provided an interesting analysis of the Charter issues involved, which could prove instructive to guide future disputes.
Justice E.M. Morgan presided over the case, which was argued by CUPW and the Attorney General of Canada, with Canada Post Corporation intervening. The union contended that the PSRCA, which ended rotating strikes and imposed a new collective agreement, infringed on their members’ freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms.
Mootness of the case
The court’s primary rationale for dismissing the case was its mootness. Justice Morgan noted that the PSRCA had long since served its purpose and was no longer in effect, having led to subsequent collective agreements between CUPW and Canada Post.
“The PSRCA is a matter of history… its force is spent,” it said
Despite CUPW’s argument that ruling on this case could provide valuable guidance for future labour disputes, the judge concluded that such guidance would be too abstract and hypothetical to warrant judicial resources.
“There is nothing left to consider, nothing left to remedy,” the court said, emphasizing that judicial decisions require a live controversy to ensure relevance and applicability.
Charter issues and labour rights
Even though the court found the matter moot, Justice Morgan did take the opportunity to provide a “admittedly abbreviated version of my analysis of the Charter issues.” This was done to “ward of any need for the parties to have to repeat the hearing on the merits in the event that the mootness doctrine is later held not to apply.”
“There were serious social and economic dislocations resulting from CUPW’s strike actions during the fall of 2018,” the court said, noting that counsel for CUPW submitted that a “strike is not a picnic.”
Inflicting pain on the employer and, as a spin-off, on the employer’s customers and public is precisely the effect that a union’s exercise of the right to strike is meant to have, the union said.
The court said it is generally understood that Charter protections don’t give workers an unfettered right to strike “while insisting that the state remain idle and indifferent to the infliction on others of serious economic harm,” pointing to the 1987 Supreme Court of Canada ruling in RWDSU v. Saskatchewan.
But, at the same time, it is also equally understood that “a legislative provision cannot substantially interfere with freedom of association, either in purpose or in effect, without infringing s. 2(d)” of the Charter, it said — noting the 2024 Supreme Court of Canada ruling in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec.
It is difficult for back-to-work legislation to avoiding infringing that Charter right, the court said, regardless of the harm it may be causing.
“Unless the Attorney General and Canada Post could establish that collective bargaining was so utterly futile that there was nothing to interfere with when the PSRCA was introduced, the legislation amounts to interference with collective bargaining and an infringement of freedom of association,” the court said. “While there is certainly evidence of an impasse here, and the government appears to have been convinced that further collective bargaining would not lead to a negotiated result, that prospect remains speculative.”
‘Cooling off’ period offered
The Ontario Superior Court of Justice noted that Canada Post and Ottawa had offered a “cooling off” period to end the rotating strikes in December 2018 through to the end of the holiday season, and that parties would engage in mediation. If negotiations didn’t prove fruitful, then strikes could resume at the end of January 2019.
“The idea was to engage in further negotiations in a calmer atmosphere, and to take the heat off of the busiest postal season by alleviating the public pressure on Canada Post over the spectre of a Christmas strike,” the court said.
CUPW rejected that proposal — one that the court said signalled that Canada’s Post primary concern was its own economic fortunes. But it also indicated the prospect of a settlement was not entirely futile.
“Negotiations were just taking longer than expected, and they were moving into the most economically significant season of the year for postal services. In fact, counsel for Canada Post stresses the evidence showing that Canada Post suffered a $260 million loss in 2018, whereas in the previous calendar year it had earned a profit of $17 million,” the court said.
That rationale for legislative action does not fit with the Supreme Court’s understanding of the scope of s. 2(d)’s provisions, it said.
“A government that imposes back-to-work legislation in order to protect a fragile economic sector can do so, but if that is the impetus for the legislation then it will be a Charter breach, at least in the first instance,” it said.
Was legislation justified under s. 1 of the Charter?
The court, though, said while the PSRCA would have infringed s. 2(d) of the Charter, it would be justified under s.1.
It pointed to the 2011 Restoring Mail Delivery for Canadians Act (RMDCA), legislation passed by Ottawa that — similar to the PSRCA — put an end to a strike by CUPW. That was also challenged as an infringement of the Charter and a court ultimately ruled the RMDCA could not be justified under s. 1.
But here, the court noted that the PSRCA avoided the RMDCA’s flaws by ensuring a fair and neutral arbitration process. The PSRCA allowed for consultation on arbitrator selection, avoided predetermined arbitration terms, and included a conventional arbitration approach.
These measures were seen as minimally impairing rights and thus potentially justifiable under section 1. Expert testimony confirmed the PSRCA’s fairness and neutrality, highlighting the successful negotiation of new collective agreements.
“Counsel for CUPW argues that a lingering deleterious effect of the PSRCA is that its enactment fostered a feeling of powerlessness, and engendered a level of cynicism on the part of some union members,” it said. “While I do not doubt that such sentiments exist, the positive results of the process for CUPW, for Canada Post, and for the economy at large, certainly outweigh them.”
It noted that cynicism by dissatisfied individuals over the way the system workers “may be an unfortunate byproduct of a labour dispute, but it is not ground for constitutional challenge.”
The Supreme Court has consistently said that, “Legislation substantially interfering with a meaningful bargaining process by limiting the right to strike might nevertheless be justified under s. 1, as long as an appropriate alternative mechanism is put in place”: Société des casinos, at para. 119. That is precisely what Parliament did in enacting the PSRCA, the court said.
Conclusion
The application was ruled moot and dismissed by the Ontario Superior Court of Justice. If it were not moot, the PSRCA would infringe s. 2(d) of the Charter but would be justified under s. 1, it said.
Both sides were asked to make submission on costs.
For more information, see Canadian Union of Postal Workers v. Canada, 2024 ONSC 3787 (CanLII).
