A different ERA?

The ERA – the the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393 – is actually the same that was at issue in Association des Réalisateurs c. Canada (Procureur Général), 2012 QCCS 3223, which I blogged about a month ago. But the conclusion of the Ontario Court of Appeal in Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530, is different from the one Québec’s Superior Court reached in Réalisateurs. The two cases are alike, however, in being very much about the specific facts at issue.

As I explained in the post about Réalisateurs,

The Expenditure Restraint Act sets out upper limits on the extent of pay raises that the government and a number of crown corporations are entitled to grant their employees, as part of a package of measures responding to the global economic crisis and the ensuing budgetary difficulties. Provisions of collective bargaining agreements stipulating higher raises are invalid to the extent that they exceed the limits allowed by the statute …

In  Réalisateurs, the ERA operated retroactively to modify an agreement concluded between the union and CBC/Radio-Canada. The court found that an interference with the union members’ Charter right to engage into a meaningful collective negotiation over fundamental conditions of their employment (which, it went on to hold, which not justified by s. 1 of the Charter).

The situation in Justice Counsel is different. By the time the ERA came into force, the union and the government had not yet concluded a collective agreement. Despite lengthy negotiations, they had been unable to agree, and decided to resort to arbitration. In these circumstances, the Court holds,  “the ERA had the effect of taking wages off the table for the arbitration, [but] that does not, standing alone, amount to an infringement” of the right to negotiate collectively (par. 39). That right entails an ability to make representations, which must be listened to in good faith, but no particular outcome need follow, and binding arbitration is not constitutionally required. The union was able to make representations over the course of the negotiations, and the negotiations’ failure is no proof that they were not listened in good faith. On these facts, the ERA didn’t take away from the union anything it had a right to.

The decision is thus quite narrow, because the circumstances of the parties involved are unusual. It does not tell us very much about the ERA‘s constitutionality as applied to other unions. In my post about Réalisateurs, I criticized the courts for not showing sufficient restraint in extending constitutional protection to civil service union contracts. What I had in mind were the substantive rules applied in these cases. But here is another mode of judicial restraint: deciding a case on narrow – but relevant – facts, and avoiding broad issues altogether.

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