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BC Court of Appeal rejects Charter challenge to Bill 29
July 8, 2004

On July 5, 2004, the BC Court of Appeal upheld the constitutional validity of Bill 29, the Health and Social Services Delivery Improvement Act, S.B.C. 2000, c.2 (the “Act”).

The Act came into force on January 28, 2002. The Act voids collective agreement restrictions on the contracting out of non-clinical services previously performed by unionized health care workers. It also expands health sector employers’ rights to lay off employees, restricts bumping, and allows employers to transfer and assign workers and services between different sites. In addition, the Act eliminates extensive retraining and assistance benefits for laid of employees which were previously required under health sector collective agreements.

When the Act came into force, certain health care sector unions, associations of bargaining agents, and employees (the “Unions”) challenged its constitutionality, claiming that it:

  • impedes the freedom of individuals to join, establish and maintain an association (i.e., a trade union), in violation of Section 2(d) of the Canadian Charter of Rights and Freedoms;
  • discriminates against women who work in female-dominated sectors, contrary to Section 15 of the Charter; and
  • infringes the rights to “life, liberty, and security of the person” protected by Section 7 of the Charter. In this regard, the Unions argued that Section 7 embraces the principle that an employee will not be terminated from his or her employment without cause or notice except in accordance with the principles of fundamental justice, and claimed that the Act allows union members to be terminated in contravention of their collective agreements and without adherence to such principles.

The Unions’ action was initially heard by a judge of the BC Supreme Court in Chambers. The judge ruled that the Act did not violate the Charter. She held that the regulation of the plaintiffs’ collective agreements was not protected by Section 2(d) of the Charter because that provision does not protect the right to engage in collective bargaining. The Chambers judge also held that Section 15 of the Charter did not apply because the provisions of the Act affected all unionized non-clinical health care workers, not just women. Finally, the Chambers judge determined that Section 7 of the Charter did not protect the right to maintain employment. She reasoned that if Section 7 applied, any layoffs that resulted from governmental action in the public sector or any job losses in the private sector that resulted from governmental action or policies would be subject to challenge.

The Unions appealed the lower court’s decision to the BC Court of Appeal. On appeal, they abandoned their Section 7 argument, but proceeded with their claims that the Act contravenes Section 2(d) and Section 15 of the Charter. The Court rejected both arguments, and upheld the decision of the Chambers judge.

The Unions argued that the Act interfered with their right to freely associate because it weakened the power of the bargaining unit. Although the Court of Appeal recognized that the purpose of Section 2(d) is to make individuals more powerful by ensuring they can associate with others to pursue objectives which they could not accomplish on their own, it held that “the right to freedom of association does not [have] as its purpose the near absolute levelling of the playing field that is achieved in labour legislation, particularly in the public sector.”

In determining that the Act did not contravene Section2(d), the Court considered Dunmore v. Ontario (Attorney General) 2001 SCC 94, an important case from the Supreme Court of Canada. The Unions argued that the because the Dunmore decision protects an individual’s right to join a trade union, it must also protect “those inherent collective activities of the union that make that right meaningful”. In other words, Dunmore must protect the right to bargain collectively.

The Court rejected this argument, noting that while Dunmore opens the door to the possibility that some limited aspects of collective bargaining, such as the freedom to make representations to an employer, may warrant constitutional protection, the Supreme Court was clear that the ability to bargain collectively is not protected by the Charter. The Court concluded that the Act’s prohibition on renegotiating certain terms, such as restrictions on contracting out, did not violate the Unions’ right to freedom of association:

    It follows that while Bill 29 may affect the appellants’ bargaining strength it does not interfere with the protected aspects of their collective bargaining rights.

In their alternative submission, the Unions argued that because the vast majority of health care workers affected by the Act are female, their collective activity should be given protection under the equality provisions of Section 15 of the Charter. They contended that the Act contravenes Section15 by discriminating against these workers on the basis of their sex.

The Court dismissed this argument as well. It held that while the plaintiffs had lost several hard fought gains, they had not lost them because they were female. Those gains were lost across the board in the legislative restructuring of the labour scheme applicable to all non-clinical health care workers. The Court adopted the following reasoning of the Chambers judge:

    The government has made a policy decision with respect to the health care system that has adversely affected the employment interests of a group whose composition is linked to Section 15 characteristics. The fact that this group is predominately female does not constitutionally shield it from governmental action that may advsersely affect them without evidence that it is being subject to differential treatment on the basis of the Section 15 characteristics. I do not find this to be the case.

Finally, the Unions contended that the Act infringed upon their dignity, depriving them of “access to a fundamental social institution” and “equal membership and full participation in Canadian society”. The Court determined that this argument was “more of a political assault than a legal argument”:

    It is suggested in Nova Scotia (Workers’ Compensation Board) v. Martin, … that economic deprivation may lead to a loss of dignity and that economic disadvantage may be related to human dignity. However, in my opinion, this is a far cry from holding that economic downturns suffered by individuals are subject to Charter protection.

    In the result, the Court determined that the Act was not unconstitutional and did not contravene the Charter.

    In a news release issued on July 5, 2004, the Unions declared that they will likely seek leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada.

    Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia 2004 BCCA 377, July 5, 2004.