A-462-84
Public Service Alliance of Canada (Appellant)
v.
The Queen in right of Canada as represented by
Treasury Board and Attorney General of Canada
(Respondents)
Court of Appeal, Mahoney, Marceau and Huges-
sen JJ.—Ottawa, June 7, 8 and 26, 1984.
Constitutional law — Appeal from judgment of Trial Divi
sion dismissing action for declaration Public Sector Compen
sation Restraint Act inconsistent with Constitution Act, 1982
and Canadian Bill of Rights — Trial Judge correctly finding
Act not abridging right to freedom of association guaranteed
in s. 2(d) of Charter nor right to equality guaranteed by s. 1(b)
of Canadian Bill of Rights — Act depriving appellant of rights
to strike and to bargain collectively — Trial Judge refusing to
apply Broadway Manor case, where held 'freedom of associa
tion" necessarily including right to strike in order to give right
to collective bargaining meaning — Decision of British
Columbia Court of Appeal in Dolphin Delivery Ltd. v. Retail,
Wholesale and Dept. Store Union, Loc. 580 applied — Free
dom of association intended to protect right of "everyone" to
associate as they please and to form associations of all kinds,
from political parties to hobby clubs — Freedom to associate
not protecting purposes of association or means of achieving
purposes — Rule of liberal construction of constitutional
document not applying unless uncertainty or ambiguity in
words of Charter — Association meaning same today as in
1982 — Trial Judge's observations as to whether, if Act
abridging appellant's freedom of association, abridgment
reasonable limit justified under s. 1, constituting obiter dicta
— Judicially developed opinions pertinent to interpretation of
s. I ought not be developed on hypothetical foundations par
ticularly where based on expert opinion of dubious value —
Act not abridging right to equality before law under Canadian
Bill of Rights as having valid federal objective of curbing
inflation — Public Sector Compensation Restraint Act, S.C.
1980-81-82-83, c. 122 — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(d), 6(2) —
Canadian Bill of Rights, R.S.C. 1970, Appendix III, s. 1(b).
Public service — Public Sector Compensation Restraint Act
depriving appellant of rights to strike and to bargain collec
tively — Appeal from Trial Judge's finding Act not abridging
right to freedom of association guaranteed by s. 2(d) of
Charter nor equality before law guaranteed by s. 1(b) of
Canadian Bill of Rights — Appeal dismissed — Broadway
Manor case not followed — Dolphin Delivery Ltd. v. Retail,
Wholesale and Dept. Store Union, Loc. 580, wherein 'freedom
of association" held to protect right of everyone to form
associations, from political parties to hobby clubs, but not
purposes of association or means of achieving purposes,
applied — Public Sector Compensation Restraint Act, S.C.
1980-81-82-83, c. 122 — Canadian Charter of Rights and
Freedoms, being Part I of the Constitution Act, 1982, Schedule
B, Canada Act 1982, 1982, c. 11 (U.K.), ss. 1, 2(d) — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, s. 1(b).
CASES JUDICIALLY CONSIDERED
APPLIED:
Dolphin Delivery Ltd. v. Retail, Wholesale and Dept.
Store Union, Loc. 580, [1984] 3 W.W.R. 481 (B.C.C.A.);
Collymore v. Attorney-General of Trinidad and Tobago,
[1969] 2 All E.R. 1207 (P.C.); Law Society of Upper
Canada v. Skapinker, [1984] 1 S.C.R. 357.
NOT FOLLOWED:
Re Service Employees' International Union, Local 204
and Broadway Manor Nursing Home et al. and two
other applications (1983), 44 O.R. (2d) 392 (H.C.).
REFERRED TO:
Edwards v. Attorney-General for Canada, [1930] A.C.
124 (P.C.); Her Majesty The Queen v. Drybones, [1970]
S.C.R. 282; Attorney General of Canada v. Lavell,
[1974] S.C.R. 1349; R. v. Burnshine, [1975] 1 S.C.R.
693; Prata v. Minister of Manpower and Immigration,
[1976] 1 S.C.R. 376; MacKay v. The Queen, [1980] 2
S.C.R. 370.
COUNSEL:
Maurice W. Wright, Q.C. and Peter Hogg,
Q.C. for appellant.
E. A. Bowie, Q.C. and G. R. Garton for
respondents.
SOLICITORS:
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for appellant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This is an appeal from a judg
ment of the Trial Division, [1984] 2 F.C. 562,
dismissing the appellant's action for a declaration
that the Public Sector Compensation Restraint
Act,' hereinafter "the Act", is of no force or effect
by reason of inconsistency with the Constitution
Act, 1982 [Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)]; a declaration that it is inoperative by
reason of inconsistency with the Canadian Bill of
Rights 2 and a declaration that certain directions
made pursuant to the Act are, consequently, inval
id. Certain issues on which the appellant did not
succeed at trial were not pursued on the appeal.
The issues remaining are:
1. Does the Act abridge the right to freedom of
association guaranteed by paragraph 2(d) of the
Canadian Charter of Rights and Freedoms,
hereinafter "the Charter"?
2. If so, is that abridgment a reasonable limit on
that right justified under section 1 of the
Charter?
3. Does the Act abridge the right to equality
before the law guaranteed by paragraph 1(b) of
the Canadian Bill of Rights?
The learned Trial Judge answered questions 1 and
3 in the negative and also said that, had she
answered 1 in the affirmative, she would have
answered 2 in the negative. The respondents
appeal the latter finding.
The appellant will be considered throughout this
judgment in the collective sense of its membership
as well as an entity. The finding that the Act
deprived the appellant of the right to bargain
collectively was amply supported by the evidence.
That finding is a sufficient factual basis for con
sideration of the first issue.
The Charter provides:
1. The Canadian Charter of Rights and Freedoms guaran
tees 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.
2. Everyone has the following fundamental freedoms:
(d) freedom of association.
' S.C. 1980-81-82-83, c. 122.
2 S.C. 1960, c. 44 [R.S.C. 1970, Appendix III].
In asserting that the right to bargain collectively
is included in its constitutionally guaranteed free
dom of association, the appellant relies on the
decision of an Ontario Divisional Court in what
has become known as the Broadway Manor case,'
which the learned Trial Judge declined to follow.
It decided that a provision of the provincial Infla
tion Restraint Act, 4 which, to quote the headnote
[at page 393], "extends the life of collective agree
ments covering public sector employees and thus
has the effect during the period of extension of
depriving workers of the right to be represented by
a union of their choice and the right to bargain
collectively, and to strike, in regard to non-com
pensatory matters" infringed the guarantee of
freedom of association. Each Judge delivered sepa
rate, concurring reasons. The rationale of each is, I
think, fairly stated as follows by O'Leary J., at
pages 443 and 445:
I am satisfied ... that "freedom of association" includes the
right of employees to join or form trade unions of their choice,
and to bargain collectively.
But is the right to strike included in the expression "freedom of
association"? The ability to strike, in the absence of some kind
of binding conciliation or arbitration, is the only substantial
economic weapon available to employees. The right to organize
and bargain collectively is only an illusion if the right to strike
does not go with it. The main reason that the right to organize
and bargain collectively is assured employees is that they may
effectively bargain with their employer. To take away an
employee's ability to strike so seriously detracts from the
benefits of the right to organize and bargain collectively as to
make those rights virtually meaningless. If the right to organize
and bargain collectively is to have significant value then the
right to strike must also be a right included in the expression
"freedom of association", and I conclude that it is.
Following the trial but prior to delivery of judg
ment herein, the British Columbia Court of
Appeal gave judgment in Dolphin Delivery Ltd. v.
Retail, Wholesale and Dept. Store Union, Loc.
3 Re Service Employees' International Union, Local 204 and
Broadway Manor Nursing Home et al. and two other applica
tions (1983), 44 O.R. (2d) 392 (H.C.).
S.O. 1982, c. 55, para. 13(b).
580. 5 The issue there was whether an injunction
against picketing violated, inter alla, the picketers'
guaranteed right to freedom of association. Com
menting on the Broadway Manor decision, Esson
J.A., Taggart and Hutcheon JJ.A., concurring on
the point, said:
In none of the judgments does there appear to be any
consideration given to the ordinary meaning of "association". It
is not clear whether the members of the court considered that
freedom of association extends to any form of association other
than trade unions but the reasoning implies an assumption that
"freedom of association" is a kind of code referring to trade
unions, their purposes, objects and means of obtaining their
purposes and objects. That assumption cannot be right. The
freedom must be intended to protect the right of "everyone" to
associate as they please, and to form associations of all kinds,
from political parties to hobby clubs. Some will have objects,
and will be in favour of means of achieving those objects, which
the framers of the Charter cannot have intended to protect. The
freedom to associate carries with it no constitutional protection
of the purposes of the association, or means of achieving those
purposes.
The basic fallacy in the approach is in having resort to rules
of construction without regard to the question whether the
words of the Charter create any uncertainty or ambiguity. It is
no doubt right to apply the rule of liberal construction to the
fundamental freedoms in the Charter. But that does not
empower courts to construct edifices of policy without regard
for the plain meaning of the words of the Charter.
"It is a cardinal principle applicable to all kinds of statutes
that you may not for any reason attach to a statutory
provision a meaning which the words of that provision cannot
reasonably bear. If they are capable of more than one
meaning, then you can choose between those meanings, but
beyond that you must not go." (Lord Reid, Jones v. D.P.P.,
[1962] A.C. 635, at p. 662)
That cardinal principle is equally applicable to a written
constitution. It may be of greater importance that it be
observed in relation to the Charter. If problems are created by
over expansive judicial interpretation, they cannot be readily
remedied by amendment as they can in the case of a statute.
That this cardinal principle is to be applied to
construction of the Charter is made clear by the
even more recent decision of the Supreme Court of
Canada in Law Society of Upper Canada v.
Skapinker, 6 which considered the use of the head
ing Mobility Rights in the interpretation of sub
section 6(2), and concluded:
5 [1984] 3 W.W.R. 481 (B.C.C.A.), at p. 492.
6 [1984] 1 S.C.R. 357, at p. 377.
For the purpose of examining the meaning of the two para
graphs of s. 6(2), I conclude that an attempt must be made to
bring about a reconciliation of the heading with the section
introduced by it. If, however, it becomes apparent that the
section when read as a whole is clear and without ambiguity,
the heading will not operate to change that clear and unambig
uous meaning.
The present issue is even more basic than those
considered in the Broadway Manor and Dolphin
Delivery cases which, respectively, dealt with the
right to strike and the right to picket as essential
incidents of collective bargaining and, indirectly,
of freedom of association. Here it was the right to
bargain collectively that was directly abrogated.
In Collymore v. Attorney-General of Trinidad
and Tobago,' the Judicial Committee of the Privy
Council upheld the judgment of the Court of
Appeal of Trinidad and Tobago which held that
legislation abridging the right to bargain collec
tively and to strike did not breach the right to
freedom of association guaranteed by that coun-
try's constitution. In so doing, the judgment of the
Court of Appeal was quoted with approval [at
page 1211]:
In my judgment, then, freedom of association means no more
than freedom to enter into consensual arrangements to promote
the common interest objects of the association group.
I agree.
The appellant relied heavily on the "living tree"
metaphor 8 in arguing that the Charter, being a
constitutional document, ought to be interpreted
more liberally than a statute. I do not question the
validity of the thesis and have no doubt that over
the years many words and terms used in the
Charter will come to embrace ideas not likely to
have actually been in the minds of its authors.
Perhaps "association" will be among them. How
ever, even the liveliest of living trees takes time to
grow—it is a tree, not a weed—and I am not
persuaded that the growth during two years can
reasonably sustain an interpretation of "associa-
tion" in any but its ordinary, everyday meaning in
1982, which is, I am confident, precisely what its
' [1969] 2 All E.R. 1207 (P.C.).
8 Edwards v. Attorney-General for Canada, [1930] A.C. 124
(P.C.), at p. 136.
authors intended. It means the same today.
The right of freedom of association guaranteed
by the Charter is the right to enter into consensual
arrangements. It protects neither the objects of the
association nor the means of attaining those
objects.
The learned Trial Judge held [at page 589]:
In my view the clause "freedom of association" guarantees to
trade unions the right to join together, to pool economic
resources, to solicit other members, to choose their own internal
organizational structures, to advocate to their employees and
the public at large their views and not to suffer any prejudice or
coercion by the employer or state because of such union
activities. But it does not include the economic right to strike.
I do not think it desirable to attempt to catalogue
the rights and immunities inherent in a trade
union's guaranteed freedom of association. Clear
ly, collective bargaining is, or should be, the pri
mary means by which organized labour expects to
attain its principal object: the economic better
ment of its membership. However fundamental, it
remains a means and, as such, the right to bargain
collectively is not guaranteed by paragraph 2(d) of
the Charter, which guarantees freedom of associa
tion. I would dismiss the appeal on the first issue.
The observations of the learned Trial Judge as
to whether, if the Act did abridge the appellant's
guaranteed freedom of association, that abridg
ment would have been a reasonable limit justified
under section 1 are, in view of her negative finding
on the first issue, entirely obiter dicta as, of
course, mine would also be. I shall, therefore,
merely observe that judicially developed principles
pertinent to the interpretation of section 1 will be
as important, and as difficult to remedy if they are
too broadly or too narrowly stated, as those perti
nent to any other provision of the Charter. Accord
ingly, those principles ought not be developed on
hypothetical foundations. That is, if possible, even
more the case when the hypothetical foundations
are themselves largely based on expert opinion of
dubious value, in this case the conflicting opinions
of four "macro-economists".
There is a cliché, repeated more than once
during the argument of this appeal, to the effect
that wheresoever two practitioners of the "dismal
science" are gathered, so likewise are at least three
opinions. I have carefully perused the entire evi
dence of all four experts who testified at trial.
Credibility, in the conventional sense, was not put
in issue nor remarked by the learned Trial Judge. I
have concluded that macro-economic expertise is a
good deal like theological expertise: it may be
useful to explain terms of art, to describe different
schools of thought and to equip the expert for
missionary and pastoral work, but it is no basis
upon which a court should be expected to pro
nounce, on a balance of probabilities, the one true
path. In macro-economics, at least on the evidence,
the difficulty posed to the court is compounded by
the absence of an accepted orthodoxy against
which to assess the competing heresies professed
by the witnesses.
I now turn to the third issue: whether the Act
abridged the appellant's right to equality before
the law declared and recognized by paragraph
1(b) of the Canadian Bill of Rights.
1. It is hereby recognized and declared that in Canada there
have existed and shall continue to exist...
(b) the right of the individual to equality before the law ...
The learned Trial Judge found, as a fact, referring
to the time the Act was enacted, that [at pages
590-591]:
... I accept the evidence given that it was a reasonable
economic judgment to have concluded, at the time, that infla
tion was a problem which needed government intervention ....
I accept also the evidence that two options open to the
government to deal with the inflation problem were (1) policies
of fiscal and monetary restraint and (2) wage-price control
measures.
Those findings are not to be disturbed.
In so far as it is offensive to the appellant, the
Act is indisputably a wage control measure.
Implicit in the foregoing findings of fact is a
finding that it has a valid federal objective.
The learned Trial Judge reviewed numerous
authorities at some length.' It would serve no
useful purpose to repeat that review. Accepting
that the Act does, in fact, apply to an identifiable
group and not generally, it has a valid federal
objective. That is the end of the matter. The
reasonableness of the means chosen to achieve that
objective is not part of the test.
I would dismiss the appeal with costs.
HUGESSEN J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J.: I have had the advantage of
considering the reasons for judgment prepared by
Mr. Justice Mahoney in support of a dismissal of
this appeal, a conclusion with which I readily
agree.
As to the first of the three questions to be
answered, namely whether, by denying temporari
ly the right to strike to a group of employees, the
Public Sector Compensation Restraint Act, S.C.
1980-81-82-83, c. 122, had abridged the freedom
of association of those employees, in breach of the
guarantee given to them by the Canadian Charter
of Rights and Freedoms, I unhesitatingly sub
scribe, as does Mr. Justice Mahoney, to the views
expressed by the British Columbia Court of
Appeal in Dolphin Delivery Ltd. v. Retail, Whole
sale and Dept. Store Union, Loc. 580, [1984] 3
W.W.R. 481. I fail to see on the basis of which
rule of construction, however liberal it may be, one
can be able to give to the words "freedom of
association" a meaning broad enough to include
the right to strike. As observed by Esson J.A. in
the course of his reasons [at page 492]:
9 Her Majesty The Queen v. Drybones, [1970] S.C.R. 282;
Attorney General of Canada v. Lavell, [1974] S.C.R. 1349; R.
v. Burnshine, [1975] 1 S.C.R. 693; Prata v. Minister of Man
power and Immigration, [1976] 1 S.C.R. 376; Mackay v. The
Queen, [1980] 2 S.C.R. 370.
It is no doubt right to apply the rule of liberal construction to
the fundamental freedoms of the Charter. But that does not
empower courts to construct edifices of policy without regard
for the plain meaning of the words of the Charter.
As to whether the impugned Act had violated
the right of the Public Service employees to equal
ity before the law guaranteed by paragraph 1 (b) of
the Canadian Bill of Rights, S.C. 1960, c. 44
[R.S.C. 1970, Appendix III], one of the other two
questions raised, I think that by imposing wage
control measures on one group of employees only,
in the hope that other groups would follow suit and
adopt voluntarily (and maybe more effectively)
measures to the same effect, Parliament, in its
efforts to achieve a valid federal objective, the
curbing of inflation, was adopting a means reason
able enough to force one to reject any thought of
discrimination.
There remains the third question posed by the
litigation, i.e. whether, if the impugned Act did
abridge the guaranteed freedom of association of
the appellant, such abridgment could be seen as a
reasonable limit justifiable under section 1 of the
Charter. The question of course has no meaning
after a finding that the freedom of association has
in no way been affected but the Trial Judge never
theless thought it preferable to consider the issue
in case her initial position were to be found errone
ous. Madam Justice Reed's answer was that the
abridgment would not be acceptable under section
1 of the Charter, a conclusion she was led to draw
exclusively from an analysis of the conflicting
testimonies of four economists called upon to
express their views of the actual circumstances in
which the Act was adopted and to give their
opinions as to the efficacy and wisdom of the
policy which Parliament was then seeking to
implement. I have very serious doubts as to the
validity of the approach adopted by the Trial
Judge for verifying the possible application of
section 1 of the Charter: it implies an interpreta
tion of this introductory section of the Charter
which I am not prepared to endorse. For that
reason, since the question is here purely academic,
I wish to leave it aside altogether and will refrain
from any comment on this part of the judgment.
I would dismiss the appeal with costs.
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