T-2557-86
International Longshoremen's and Warehouse-
men's Union—Canada Area Locals 500, 502, 503,
504, 505, 506, 508, 515 and 519; Every person
ordinarily employed in longshoring or related
operations at a port on the West Coast of Canada
and who is subject to the provisions of the Main
tenance of Ports Operations Act, 1986 (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
INDEXED AS: INTERNATIONAL LONGSHOREMEN'S AND WARE-
HOUSEMEN'S UNION-CANADA AREA LOCAL 500 v. CANADA
(T.D.)
Trial Division, Rouleau J.—Vancouver, Septem-
ber 19, 20, 21, 22, 26, 27, 28 and October 2 and 3,
1989; Ottawa, March 8, 1990.
Labour relations — Back to work legislation — Mainte
nance of Ports Operations Act, 1986, prohibiting lockout or
strike at British Columbia ports, not violating Charter guar
anteed freedom of association as right to strike not guaranteed
— Act, s. 13 violating Charter, s. 7 right to life, liberty and
security of person in creating absolute liability offence for
failing to attend for work, punishable by imprisonment if fine
not paid.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of association — Back to work legisla
tion not violating freedom of association guaranteed by Chart
er, s. 2(d) as right to strike not guaranteed — Whether
Charter, s. 2(d) extending to right to bargain collectively
unnecessary to decide as legislation did not prohibit plaintiffs
from engaging in collective bargaining.
Constitutional law — Charter of Rights — Life, liberty and
security — Back to work legislation prohibiting strike —
Prohibition not violating Charter, s. 7 as statutory right to
strike not within traditional, common law fundamental rights
and freedoms contemplated by s. 7 — Act s. 13, violating
Charter, s. 7 by creating absolute liability offence for failing to
attend for work, punishable by imprisonment if fine not paid
— Crown suggestion no prosecution where justifiable reason
for absence irrelevant as issue constitutionality of provision,
not enforcement policy — Charter, s. I cannot justify s. 7
violation herein — Circumstances not exceptional enough to
warrant sacrificing Charter, s. 7 rights to administrative
expediency.
The collective agreement applying to over 4,000 union and
non-union employees working as regular or casual longshore
men in west coast ports was to expire in December, 1985.
Following an exchange of notices to bargain, direct bargaining
took place for a two month period beginning October 4, 1985.
The Union then informed the Minister of Labour, by notice of
dispute, that contract negotiations had broken down. Following
lengthy and unsuccessful conciliation meetings and further
direct negotiations, the employer's association implemented a
lockout in October, 1986. A month later, Parliament adopted
back to work legislation, the Maintenance of Ports Operations
Act, 1986 (M.O.P.O.A.), which, essentially, ordered the
employers to resume operations, the employees to return to
work, extended the terms of the previous collective agreement,
prohibited strikes and lockouts during the term of the extended
collective agreement, allowed the parties to vary or amend any
of the provisions of the agreement except with respect to its
termination date, and, in section 13 thereof, made violations of
the Act punishable, on summary conviction, by fines.
In this action, the plaintiffs claimed that the M.O.P.O.A.
infringed the constitutionally protected rights and freedoms
guaranteed by paragraph 2(d) (freedom of association) and
section 7 (right to life, liberty and security of the person) of the
Charter and that the Act should therefore be declared of no
force or effect.
Held, the action should be dismissed, except as to section 13
of the Act, which should be declared to be inconsistent with
section 7 of the Charter and of no force or effect.
Freedom of association
The principles which could be abstracted from the Supreme
Court of Canada decisions in Reference Re Public Service
Employee Relations Act (Alta.); PSAC v. Canada and
RWDSU v. Saskatchewan were that paragraph 2(d) of the
Charter guaranteed the right to organize, maintain the exist
ence of a trade union and to participate therein but it did not
guarantee the right to strike. The M.O.P.O.A. therefore did not
violate the plaintiffs' freedom of association by prohibiting
strikes and lockouts during the term of the extended collective
agreement.
This was not a proper case to decide whether the constitu
tional guarantee of freedom of association extended to the right
to bargain collectively, an issue which has not yet been resolved
by the Supreme Court, since the impugned legislation did not
prohibit the plaintiffs from engaging in collective bargaining.
Life, liberty and security
To prove that the M.O.P.O.A. violated section 7 of the
Charter, the plaintiffs first had to establish that the right to
strike fell within the purview of "life, liberty and security of the
person". Consideration of the case law led to the conclusion
that an interpretation which restricted section 7 to freedom
from, bodily restraint was too narrow. Section 7 was designed to
safeguard those liberties which have generally been recognized
and accepted at common law. The right to strike, which now
finds its expression in statute law, is still a relatively new
concept which does not fall within the category of fundamental
rights and freedoms as contemplated by section 7. It has not
become so much a part of our social and historical traditions
that it has acquired the status of an immutable, fundamental
right, firmly embedded in our traditions, our political and social
philosophy.
The penalty provision of the M.O.P.O.A., section 13, did,
however, violate the plaintiffs' constitutionally protected rights
under section 7 of the Charter. Any longshoreman who did not
return to work for whatever reason could be convicted of a
summary conviction offence for which he would be liable to a
fine and, pursuant to the Criminal Code, in default of payment,
to imprisonment. No exceptions were provided for. It was
therefore an absolute liability offence. While it may be, as the
defendant suggested, that an individual who was absent for a
justifiable reason would not have been prosecuted, the issue was
the constitutionality of the legislation, not that of the enforce
ment policy. An absolute liability offence for which imprison
ment is available as a penalty offends the principles of funda
mental justice and the right to liberty under section 7 of the
Charter. Even though in this case, it was not the breach of the
impugned legislation but the breach of a Court order to pay a
fine which created the possibility of imprisonment, that was
enough to constitute a violation of Charter section 7. Nor could
section 1 of the Charter save section 13. Section 1 may, for
reasons of administrative expediency, rescue a statutory provi
sion otherwise in violation of section 7, but only in cases arising
out of exceptional conditions, such as natural disasters, the
outbreak of war, epidemics, and the like. The circumstances
herein were not exceptional enough to warrant sacrificing the
plaintiffs' Charter rights to administrative expediency.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, s. 163(b) (as
am. by S.C. 1972, c. 18, s. 1), 195 (as enacted idem).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], ss. 1, 2(d), 7, 8 to 14.
Criminal Code, R.S.C., 1985, c. C-46, s. 787 (as am. by
R.S.C., 1985 (1st Supp.), c. 27, s. 171).
Maintenance of Ports Operations Act, 1986, S.C. 1986, c.
46, ss. 3, 5, 6, 7, 8, 11, 12, 13.
CASES JUDICIALLY CONSIDERED
APPLIED:
Reference Re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313; (1987), 78 A.R. 1; 38
D.L.R. (4th) 161; [1987] 3 W.W.R. 577; 51 Alta. L.R.
(2d) 97; 87 C.L.L.C. 14,021; [1987] D.L.Q. 225; 74 N.R.
99; PSAC v. Canada, [1987] 1 S.C.R. 424; (1987), 38
D.L.R. (4th) 249; 87 C.L.L.C. 14,022; 32 C.R.R. 114;
[1987] D.L.Q. 230; 75 N.R. 161; RWDSU v. Saskatche-
wan, [1987] 1 S.C.R. 460; (1987), 38 D.L.R. (4th) 277;
[1987] 3 W.W.R. 673; 87 C.L.L.C. 14,023; [1987]
D.L.Q. 233; 74 N.R. 321; Re B.C. Motor Vehicle Act,
[1985] 2 S.C.R. 486; (1985), 24 D.L.R. (4th) 536;
[1986] 1 W.W.R. 481; 69 B.C.L.R. 145; 23 C.C.C. (3d)
289; 48 C.R. (3d) 289; 18 C.R.R. 30; 36 M.V.R. 240; 63
N.R. 266; Irwin Toys Ltd. v. Quebec (Attorney General),
[1989] 1 S.C.R. 927; (1989), 58 D.L.R. (4th) 577; 25
C.P.R. (3d) 417; 94 N.R. 167.
DISTINGUISHED:
Smith, Kline & French Laboratories Limited v. Attorney
General of Canada, [1986] 1 F.C. 274; (1985), 24 D.L.R.
(4th) 321; 7 C.P.R. (3d) 145; 19 C.R.R. 233; 12 F.T.R.
81 (T.D.); affd [1987] 2 F.C. 359; (1986), 34 D.L.R.
(4th) 584; 11 C.I.P.R. 181; 12 C.P.R. (3d) 385; 27
C.R.R. 286; 78 N.R. 30 (C.A.); Weyer v. Canada (1988),
83 N.R. 272 (F.C.A.); leave to appeal to the S.C.C.
refused [1988] 1 S.C.R. xv; Re Gershman Produce Co.
Ltd. and Motor Transport Board (1985), 22 D.L.R.
(4th) 520; [1986] 1 W.W.R. 303; 36 Man. R. (2d) 81; 16
Admin. L.R. 1; 17 C.R.R. 132; 37 M.V.R. 96 (Man.
C.A.); Milk Bd. v. Clearview Dairy Farm Inc.; Clearview
Dairy Farm Inc. v. Milk Bd. (1986), 69 B.C.L.R. 220
(S.C.); affirmed [1987] 4 W.W.R. 279; (1987), 12
B.C.L.R. (2d) 116 (B.C.C.A.); Noyes v. South Cariboo
Sch. Dist. 30 Bd. of Sch. Trustees (1985), 64 B.C.L.R.
287 (S.C.); R. v. Quesnel (1985), 53 O.R. (2d) 338; 24
C.C.C. (3d) 78; 12 O.A.C. 165 (Ont. C.A.); Attorney
General of Quebec v. Quebec Association of Protestant
School Boards et al., [1984] 2 S.C.R. 66; (1984), 10
D.L.R. (4th) 321; 9 C.R.R. 133; 54 N.R. 196.
CONSIDERED:
R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 63 O.R.
(2d) 281; 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 62
C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1; Re
Mia and Medical Services Commission of British
Columbia (1985), 17 D.L.R. (4th) 385; 61 B.C.L.R. 273;
15 Admin. L.R. 265; 16 C.R.R. 233 (B.C.S.C.); Wilson
v. British Columbia (Medical Services Commission)
(1988), 53 D.L.R. (4th) 171; [1989] 2 W.W.R. 1
(B.C.C.A.).
COUNSEL:
P. N. M. Glass and R. B. Noonan for
plaintiffs.
Eric A. Bowie, Q.C. and M. N. Kinnear for
defendant.
SOLICITORS:
Swinton & Company, Vancouver, for plain
tiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for judgment
rendered in English by
ROULEAU J.:
FACTS
In this action, the plaintiffs claim that the
Maintenance of Ports Operations Act, 1986 [S.C.
1986, c. 46] declared in force on November 18,
1986, infringes the constitutionally protected
rights and freedoms guaranteed by paragraph 2(d)
and section 7 of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]]
and, that this back to work legislation should
therefore be declared to be of no force or effect.
The facts on which this action is based are
straightforward.
The plaintiff, locals 500, 502, 503, 504, 505,
506, 515 and 519, of the International Longshore-
men's and Warehousemen's Union—Canada
Area, represent persons ordinarily employed in
longshoring or related operations at ports of Brit-
ish Columbia. These parties are hereinafter
referred to as the "Union Locals". The plaintiffs
also include every person who is ordinarily
employed in longshoring or related operations at a
port on the west coast of Canada and who is
subject to the provisions of the Maintenance of
Ports Operations Act, 1986. These parties are
hereinafter referred to as "the employees". The
employees are all members of various bargaining
units distinguished by different employers and,
depending on geographic area, different Union
Locals. Each bargaining unit is represented in
bargaining by one of the Union Locals. The Union
Locals at issue are situated in the ports of Vancou-
ver, New Westminster, Port Alberti, Victoria,
Prince Rupert, Chemainus, Port Simpson and
Stewart.
The origin of this action stems from a break
down in negotiations between the British
Columbia Maritime Employer's Association
(B.C.M.E.A.) and the International Longshore-
men's and Warehousemen's Union—Canada Area
(I.L.W.U.) concerning the renewal and revision of
a collective agreement between the parties. The
collective agreement, which had expired on
December 31, 1985, applied to over 4,000 union
and non-union employees working as regular and
casual longshoremen in west coast ports.
According to the terms of the existing collective
agreement, notice to bargain was served by the
Union on the employer by double registered letter
dated September 30, 1985 and by the employer on
the Union by hand delivered letter, also dated
September 30, 1985. Direct bargaining took place
between the parties from October 4 to December
2, 1985. On December 2, 1985 the I.L.W.U. filed
a notice of dispute with the Minister of Labour
pursuant to paragraph 163(b) of the Canada
Labour Code, R.S.C. 1970, c. L-1, as amended [by
S.C. 1972, c. 18, s. 1], informing the Minister of a
breakdown in contract negotiations.
In response, the Minister appointed a concilia
tion officer and direct negotiations between the
parties continued throughout January, 1986. From
February 3 to March 14, 1986 the parties held
conciliation meetings with the conciliation officer
but failed to resolve the issues in dispute. During
the first week of April 1986, the parties held two
further days of direct negotiations. However, they
were adjourned during the second week of April,
1986 during which the I.L.W.U. elected a new
President, Mr. Don Garcia. Mr. Garcia immedi
ately requested that the conciliation officer file his
report and that no further third party assistance be
provided.
Following the procedure laid out in the Canada
Labour Code, on May 30, 1986, the Minister of
Labour appointed Dalton Larson as Conciliation
Commissioner. Hearings were held before Com
missioner Larson from June 5 to 26, 1986. There
after the parties made written submissions to the
Commissioner in support of their respective posi
tions. Mr. Larson's report and recommendations
were submitted to the Minister, who in turn
released them to the parties on September 8, 1986.
Although strike or lockout was legally permissi
ble on September 16, 1986, the parties neverthe
less resumed direct negotiations on September 25
and October 3, 1986. On October 6, 1986 at 1:00
a.m., the B.C.M.E.A. implemented a lockout of
the work force. On that same date, the Minister of
Labour sent a telex to the B.C.M.E.A. and the
I.L.W.U. requesting the parties to allow resump
tion of grain shipments. The I.L.W.U. agreed but
B.C.M.E.A. refused to allow movement of grain
only but did agree to lift the lockout for thirty days
in order to permit further negotiations between the
parties to resume. Longshoring operations were
restored on October 8, 1986 and negotiations
reconvened on October 15, 1986.
On October 29, 1986 the Minister appointed
two mediators pursuant to section 195 [as enacted
by S.C. 1972, c. 18, s. 1] of the Canada Labour
Code. However, as of November 14, 1986 the
parties had failed to negotiate the terms of a new
collective agreement. On that date the Minister
met with the B.C.M.E.A. and the I.L.W.U. for
approximately twenty minutes in an attempt to
encourage the resolution of the dispute through
negotiation. They were, at that time, warned of
imminent back to work legislation unless they took
immediate steps to resolve the dispute themselves.
At 1:00 a.m. on November 15, 1986 the
B.C.M.E.A. reintroduced a lockout.
On November 17, 1986, Bill C-24, the Mainte
nance of Ports Operations Act, 1986 was tabled in
the House of Commons and was enacted the fol
lowing day ordering immediate resumption of
longshoring operations. The Act came into force
on November 19, 1986; on November 20 and 21,
the bargaining units returned to work.
In essence, the Maintenance of Ports Operations
Act, 1986 (M.O.P.O.A.) provided the following:
(a) each company was to resume operations and
each person ordinarily employed in longshoring
was to return to the duties of longshoring forth
with (section 3);
(b) the terms of the previous collective agree
ment were extended to the earlier of December
31, 1988 or the date of a new agreement being
entered into by the parties (section 5);
(c) lockouts and strikes were prohibited during
the term of the Extended Collective Agreement
(section 8);
(d) the terms of the collective agreement were
deemed to be amended by the amendments
recommended by the Conciliation Commissioner
(section 6); a dispute on the wording of an
amendment would be decided by a referee (sec-
tion 11);
(e) an industrial inquiry commission was
appointed to determine all matters concerning
the container provision in the collective agree
ment (section 7);
(f) the parties to the Extended Collective
Agreement could vary or amend any of the
provisions of the agreement, except with respect
to its termination date (section 12);
(g) contraventions of the M.O.P.O.A. were
made offences punishable on summary convic
tion. In the case of an individual convicted
thereof, a fine of between $500 and $1,000 was
payable for each day or partial day that the
offence continued. If the individual was an offi
cer or representative of the union or employer,
the fine was between $10,000 and $50,000 per
day or partial day and the individual was pro
hibited from acting in that capacity for five
years from the date of his conviction. If the
union or the employer was convicted of an
offence, the fine levied was between $20,000 and
$100,000 for each day or partial day (section
13).
ARGUMENTS OF THE PLAINTIFFS
The plaintiffs maintain that the M.O.P.O.A.
violates the right to life, liberty and security of the
person guaranteed by section 7 of the Charter by
prohibiting the plaintiffs from taking strike action.
While the plaintiffs' concede that pure economic
rights may not be protected by the Charter, they
maintain that rights with an economic element
should not be denied the protection of the Charter
solely for that reason. The right to refuse to work
under terms and condition which have not been
consented to is inextricably tied to the concept of
human dignity and involves a fundamental person
al decision which an individual should be free to
make without government interference. To collec
tively bargain with the right to strike standing
behind it, are the only effective means by which it
has been possible for trade unions to achieve
improvements for their members, and other work
ing people. Accordingly, the plaintiffs argue, these
rights are not purely economic interests and clear
ly do come within the ambit of section 7 of the
Charter.
The plaintiffs further submit that the
M.O.P.O.A. infringes their right to liberty in that
it infringes or denies the plaintiffs' freedom of
movement. The Act, it is argued, goes far beyond
the permissible arena of legislative activity in that,
plaintiffs while waiting for a satisfactory contract
to be settled, may not wait at home or afford
themselves a temporary job. Employees are
required by the legislation to return forthwith to
their duties and is to continue their employment
until the earlier of December 31, 1988 or until
they agree to a new collective agreement. Sections
3, 4 and 5 of the M.O.P.O.A., according to the
plaintiffs, effectively force employees to resume
the duties of their employment until December 31,
1988. The Act, by incorporating the terms of the
outstanding collective agreement, prescribes and
defines the duties of their employment and the
remuneration they will receive. The plaintiffs
submit that Parliament by these provisions, com
pelled the individual plaintiffs to work, at a set
price and in a set place until December 31, 1988.
While the legislation was in effect, the plaintiffs
were locked into providing their services on terms
and conditions that had not been negotiated but
were in fact imposed. Defiance of the Act would
have resulted in the imposition of the penalties set
out in section 13.
The plaintiffs further contend that section 8 of
the M.O.P.O.A. infringes their liberty to bargain
collectively and to strike. There can be little doubt,
according to plaintiffs' counsel, that the legislation
restricts collective bargaining and removes the
right of the individual plaintiffs to withhold or
withdraw their labour until after December 31,
1988. Although sections 5 and . 12 of the Act
contemplate that the parties may arrive at a differ
ent agreement on an earlier date, counsel main
tains that because of the removal of sanctions such
as strike or lockout, these sections are of no real
consequence in labour relations terms. The rights
and freedoms of workers to maintain the existence
of a trade union, to collectively bargain and to
strike are rooted not only in statute law but also
and more importantly in common law. As such,
the plaintiffs argue, collective bargaining and
striking should be considered to be so deeply
rooted in our traditions as to be regarded as funda
mental liberties.
Having submitted that the M.O.P.O.A.
infringes or denies their right to liberty, the plain
tiffs go on to argue that this infringement was not
in accordance with the principles of fundamental
justice as required by section 7 of the Charter. In
support of this argument, the plaintiffs first point
to the procedures under which the Act was tabled
as a Bill and passed into law: these procedures fell
hopelessly short of the requirements of fundamen
tal justice. The plaintiffs, either individually or
through their union representatives were provided
no opportunity to be heard by a Parliamentary
committee or other appropriate body answerable
to Parliament. In Canada, say the plaintiffs, the
rights accorded to an accused person who stands to
be deprived of his liberty, even when the punish
ment is only a fine, are so sanctified under Canadi-
an law, that the merest slip by a police officer in
his procedures would allow an accused to go free
and unencumbered by any restriction to his liberty.
In the plaintiffs' view, none of the usual safeguards
available to an accused about to be deprived of his
or her liberty are made available to the plaintiffs
under the M.O.P.O.A.
Second, the plaintiffs contend that sections 3, 4
and 5 of the M.O.P.O.A. contravene Parliament's
duty to enact legislation which is in conformity
with the general duty to act fairly, and the rule of
natural justice of audi alterem partem, which
requires that persons be tried at a fair hearing
before being condemned. These sections infringe
the plaintiffs' liberty without allowing them an
opportunity to be heard. Prior to the back to work
order and imposition of terms and conditions of
employment contained in the Act, neither the
union nor individual longshoremen were given the
opportunity to voice their position before any Par
liamentary committee or representative of the
legislative body that considered the passage of
back to work legislation. In particular, the plain
tiffs submit, the entire scheme of the Act providing
for the imposition of terms and conditions of
employment is in violation of the procedural prin
ciples of fundamental justice. The Act imposes
working conditions ordinarily negotiated through
collective bargaining. According to the plaintiffs,
since this is a legislative exercise of judicial
powers, there lies no right of appeal or judicial
review.
The third argument submitted by the plaintiffs
concerns the violation of principles of fundamental
justice. The Act is said to violate not only the
procedural principles of fundamental justice but
also the substantive principles. The fundamental
right to which the plaintiffs refer is the right to be
a free person, who is allowed to choose, subject to
any contractual obligations, where, when, and on
what terms he will provide his or her labour, and
to negotiate as a free person with his employer. In
addition, the plaintiffs submit that the liberty to
maintain a trade union, collectively bargain, and
strike are integral parts of a basic tenet of our
legal system: the right to pursue an occupation or
profession; to choose it or reject it with the person
al sacrifices this may entail. Section 8 of the
M.O.P.O.A., according to the plaintiffs, seriously
offends against the basic tenet of our legal system
and therefore, the infringement or denial of the
plaintiffs' right to liberty cannot be said to have
been "in accordance with the principles of funda
mental justice". This section, which prohibits
strikes or lockouts during the term of the collective
agreement, infringes or denies the time-honoured
rights of workers, through their trade union, to
collectively withdraw their services through strike
action. This denial of the liberty to strike imposed
by section 8 of the Act threatens the very existence
of trade unions since, without it, collective bar-
gaining is virtually meaningless. Without this basic
tenet, trade unionism loses its raison d'ĂŞtre.
In addition to violating their rights guaranteed
by section 7 of the Charter, it is further submitted
that section 8 of the M.O.P.O.A. contravenes the
freedom of association provision found in para
graph 2(d) of the Charter. The plaintiffs contend
that "freedom of association" guarantees to the
plaintiffs the following freedoms: to maintain the
existence of a trade union; to bargain collectively
with employers, to obtain the best possible terms
and conditions of employment, and, when
required, to strike.
The question of whether or not the freedom to
collectively bargain and strike are included within
the ambit of freedom of association has been con
sidered by the Supreme Court of Canada in Ref
erence Re Public Service Employee Relations Act
(Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada,
[1987] 1 S.C.R. 424; RWDSU v. Saskatchewan,
[1987] 1 S.C.R. 460, collectively known as the
"trilogy". In all three cases, the Court was unani
mous in deciding that the scope of freedom of
association includes the right of employees to
maintain the existence of a trade union; three of
the six judges held that the constitutional guaran
tee of freedom of association did not encompass
the freedom to engage in collective bargaining;
four of the six judges held that the freedom to
strike is not protected under paragraph 2(d) of the
Charter.
The plaintiffs submit that the M.O.P.O.A., by
imposing a collective agreement and removing the
right to strike, seriously hinders the raison d'ĂŞtre
of the plaintiff trade union. By removing the abili
ty to bargain with respect to terms and conditions
of employment, the Act strikes at the freedom to
maintain the union, as well as the right to collec
tively bargain and to strike.
The plaintiffs rely on the decision of McIntyre,
J. in the Alberta Reference case wherein his Lord
ship emphasized at pages 413-420 the undesirabili
ty of judicial interference with labour legislation
which is designed to create a delicate balance
between unions, employers and the public interest.
The labour legislation at issue in the Alberta
Reference case was intended and designed to
maintain that balance. As well, argue the plain
tiffs, the Canada Labour Code provides a system
under which unions and employers can, with a
reasonable degree of certainty, conduct their
affairs without interference, thereby protecting the
delicate balance between labour, management and
the public interest while maintaining stability
within the system. It is the plaintiffs' position that
the aforementioned labour legislation stands in
sharp contrast to the M.O.P.O.A. which does not
seek to add greater certainty to the system or to
maintain the delicate balance referred to in the
Alberta Reference case; rather it is destabilizing
and, in the long term, more likely to increase
imbalances and uncertainties.
It is accepted that organization and mainte
nance of trade unions are without question within
the ambit of freedom of association enjoyed by
individuals: the plaintiffs suggest, however, that
the authorities are divided on whether freedom of
association is wide enough in scope to encompass
the rights to collectively bargain and strike. They
contend that striking is inextricably intertwined
with collective bargaining since, without it, collec
tive bargaining is meaningless in practice. To con
cede that the existence of trade unions is covered
within the concept of freedom of association but to
fail to extend that coverage to collective bargain
ing and striking is logically untenable.
Concerning collective bargaining, the plaintiffs
maintain that the trilogy does not provide binding
authority one way or the other since only three of
the six judges decided that this right was not
protected under the rubric of freedom of associa
tion; further, that the circumstances in this case
are distinguishable from those in the trilogy. The
decision most closely analogous to this litigation is
the Government of Saskatchewan case. Although
the impugned legislation in that case was back to
work legislation, it provided for a fifteen day
period during which the union and employers
could negotiate a new or amended collective agree-
ment, after which the dispute was to be submitted
to final and binding arbitration in accordance with
the legislation. This procedure, submit the plain
tiffs, is substantially more fair than the manner in
which the terms and conditions are imposed in the
M.O.P.O.A., and does not constitute such an
intrusion into the freedom of association as is that
contemplated by the legislation challenged in the
case at bar.
ARGUMENTS OF THE DEFENDANT
The defendant submits that the M.O.P.O.A.
does not breach either section 2 or 7 of the Chart
er. In the alternative, if the M.O.P.O.A. does
breach either section, it is a reasonable limit pre
scribed by law which is demonstrably justified in a
free and democratic society in accordance with
section 1 of the Charter.
Concerning paragraph 2(d) of the Charter, the
defendant maintains that the M.O.P.O.A. does not
prohibit or restrict the plaintiffs from collective
bargaining but, in fact, encourages such bargain
ing. Sections 5 and 12 permit the parties to mutu
ally agree to renegotiate terms and to vary any
provision of the collective agreement.
In any event, the defendant argues, the Supreme
Court of Canada has established in the trilogy that
the constitutional guarantee of freedom of associa
tion in paragraph 2(d) of the Charter does not
extend to the protection of the right to bargain
collectively. Further, although section 8 of the
M.O.P.O.A. unequivocally prohibits all stoppages
of work by reason of a strike or lockout during the
term of the extended collective agreement, the
trilogy has established that the right to strike or
lockout is not a constitutionally protected right.
Turning to section 7, the defendant submits
first, that rights therein can only be enjoyed by
individuals and there can therefore be no breach
with respect to the Union Locals. As for the
individual plaintiffs, the defendant argues that the
Act merely requires longshoremen not to be absent
from work because of a strike. It does not, as
suggested, legislate an absolute obligation to work
and permits the usual absences such as sick leave,
vacation, retirement and resignation. The defend
ant maintains that section 7 does not create a
constitutional right to strike or to bargain collec
tively and accordingly, the deprivation of the right
to strike and the requirement to work on terms
imposed by the M.O.P.O.A. cannot be contrary to
section 7.
It is the Crown's position that the breach of
liberty of which the plaintiffs complain is essen
tially a purely economic right and the Supreme
Court of Canada has decided that economic rights
are not within the ambit of section 7 of the Chart
er, with the possible exception of economic rights
fundamental to human life or survival. The rights
claimed under section 7 in this case are not, the
defendant argues fundamental to human life or
survival.
The defendant further submits that even if the
rights in question cannot be characterized as
purely economic ones, they are not those which are
protected by section 7. They are not economic
rights, fundamental to human life or survival, nor
are they traditional, long standing rights. What
the plaintiffs are attempting to assert are private
rights stemming from private disputes in the con
text of a statutory scheme related to labour
relations.
The defendant also maintains that the plaintiffs
were treated in a fundamentally just manner and
were given ample opportunity to be heard. Prior to
the M.O.P.O.A. being enacted, they met twice
with the Minister of Labour and communicated
with numerous members of Parliament who even
tually participated during the debate in the House
of Commons.
In the alternative, the defendant argues that
even if the M.O.P.O.A. constitutes a violation of
the plaintiffs Charter rights, it is nonetheless valid
legislation pursuant to section 1 of the Charter,
being a reasonable limit prescribed by law which
can be demonstrably justified in a free and demo
cratic society. It is submitted that the objective of
the legislation is of sufficient importance to over
ride the constitutionally protected rights in ques-
tion. The purpose of the impugned legislation was
to ensure the continued operation of the west coast
ports, thereby preserving jobs, revenue and reputa
tion of those who depend on the ports for their
livelihood. This, maintains the Crown, was critical
to the economic well being of thousands of
Canadians whose jobs depended on the ports being
operational, many of whom live or work beyond
the immediate ports area and are strangers to the
labour dispute between the B.C.M.E.A. and the
I.L.W.U., but who would nonetheless be seriously
affected by the work stoppage of the ports. These
would include for example, thousands of Prairie
citizens involved in the grain trade who had to
transport their product through the west coast
ports.
Continuing on to the section 1 argument, the
defendant further submits that nothing less than
the provisions found in the M.O.P.O.A. would
achieve the legislative objectives that were sought
in this case. Prior to the enactment of the
M.O.P.O.A., government officials made multiple
efforts to encourage a negotiated settlement to
prevent a port shutdown while discussions con
tinued; they appointed mediators and conciliators,
and the Minister of Labour played an important
role by having the October 6, 1986 lock-out lifted.
Given the dismal bargaining history of the
I.L.W.U. and the B.C.M.E.A. and the entrenched
impasse over the container issue, the defendant
contends that it could not have obtained its legisla
tive objectives by waiting for the parties to resolve
the dispute.
Finally, the defendant argues on balance, the
deleterious effects of the M.O.P.O.A. on the plain
tiffs' rights are minimal compared to the harm
averted by the legislation. In effect, the
M.O.P.O.A. simply required the I.L.W.U. and the
B.C.M.E.A. to maintain the status quo while
negotiating a new collective agreement. This is to
be offset against the several job losses, revenue and
reputation for reliability of west coast ports in both
the short and long term and the potentially perma
nent damage to Canadian exports which the work
stoppage would threaten.
PLAINTIFFS' REPLY ARGUMENT: SECTION 1 OF
THE CHARTER
The plaintiffs' position with respect to the sec
tion 1 argument is that the provisions of the
M.O.P.O.A. which infringe the plaintiffs' rights
and freedoms guaranteed under paragraph 2(d)
and section 7 of the Charter, do not constitute
"reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society".
They submit that the defendant was unable to
provide any reliable evidence concerning losses or
serious economic consequence flowing from the
port work stoppages which have occurred at regu
lar intervals following the expiry of longshore
labour contracts; similar disputes arose every two
or three years over the last decade. There is an
obligation on the defendant to substantiate its
interference under section 1 in such a way that it
can be "demonstrably" justified: the concerns
addressed by the legislation after the second day of
work stoppage in November, were not sufficiently
pressing nor substantial to meet the first threshold
of the substantive section 1 test.
Second, the plaintiffs argue that even if the
defendant's concerns could be deemed as "pressing
and substantial" in the circumstances, the means
chosen, that is the imposition of terms and condi
tions of employment upon the plaintiffs by the
M.O.P.O.A., was arbitrary and unfair. There
were, in their view, other procedures or options
available to the defendant which could have been
implemented without infringing on the rights of
the plaintiffs.
Finally, they submit that the effects of the
M.O.P.O.A. compared to the objective identified
by the Minister were grossly disproportionate.
There could be no detectible problem after only
two days of work stoppage which could be related
to pressing and substantial concerns. The plaintiffs
maintain that if any transgression of their consti
tutionally protected rights could ever be justified
in the circumstances of this case, it would arise, at
the earliest, when the life, health or safety of
Canadians was threatened; even then, the Minister
should be restricted to the institution of measures
which would limit the strike, lockout or work
stoppage only as they relate to life, health and
safety.
FREEDOM OF ASSOCIATION: PARAGRAPH 2(d) OF
THE CHARTER
I intend to first deal with the issue of whether
the M.O.P.O.A. violates the freedom of associa
tion guaranteed to the plaintiffs by paragraph 2(d)
of the Charter. As previously enunciated, the ques
tion of whether or not the freedom to collectively
bargain and strike are included within the ambit of
freedom of association has been considered by the
Supreme Court of Canada in the three cases which
have heretofore been referred to as the trilogy. A
brief analysis of these three cases is necessary.
In the Alberta Reference case, the Court was
required to determine whether certain provisions
of the Public Service Employee Relations Act,
R.S.A., 1980, c. P-33; the Labour Relations Act,
R.S.A., 1980 (Supp.), c. L-1.1; and the Police
Officers Collective Bargaining Act, S.A. 1983, c.
P-12.05, which prohibited strikes and imposed
compulsory arbitration to resolve impasses in col
lective bargaining were inconsistent with para
graph 2(d) of the Charter. The first Act applied to
public service employees, the second to firefighters
and hospital workers and the third to police
officers.
The majority held, for reasons that differed
among their Lordships, that the challenged provi
sions of the legislation were not inconsistent with
the Charter because the constitutional guarantee
of freedom of association in paragraph 2(d) did
not include, in the case of a trade union, a guaran
tee of the right to bargain collectively and the
right to strike. In this regard, McIntyre J. stated
at pages 409-410:
It follows from this discussion that I interpret freedom of
association in s. 2(d) of the Charter to mean that Charter
protection will attach to the exercise in association of such
rights as have Charter protection when exercised by the
individual. Furthermore, freedom of association means the
freedom to associate for the purposes of activities which are
lawful when performed alone. But, since the fact of association
will not by itself confer additional rights on individuals, the
association does not acquire a constitutionally guaranteed free
dom to do what is unlawful for the individual.
When this definition of freedom of association is applied, it is
clear that it does not guarantee the right to strike. Since the
right to strike is not independently protected under the Charter
it can receive protection under freedom of association only if it
is an activity which is permitted by law to an individual.
Accepting this conclusion, the appellants argue that freedom of
association must guarantee the right to strike because individu
als may lawfully refuse to work. This position, however, is
untenable for two reasons. First, it is not correct to say that it is
lawful for an individual employee to cease work during the
currency of his contract of employment ....
The second reason is simply that there is no analogy whatever
between the cessation of work by a single employee and a strike
conducted in accordance with modern labour legislation. The
individual has, by reason of the cessation of work, either
breached or terminated his contract of employment. It is true
that the law will not compel the specific performance of the
contract by ordering him back to work as this would reduce
"the employee to a state tantamount to slavery" (I. Christie,
Employment Law in Canada (1980), p. 268). But, this is
markedly different from a lawful strike. An employee who
ceases work does not contemplate a return to work, while
employees on strike always contemplate a return to work. In
recognition of this fact, the law does not regard a strike as
either a breach of contract or a termination of employment."
Le Damn, J. writing for himself and Beetz and
La Forest JJ. stated at pages 390-391 the
following:
I agree with McIntyre J. that the constitutional guarantee of
freedom of association in s. 2(d) of the Canadian Charter of
Rights and Freedoms does not include, in the case of a trade
union, a guarantee of the right to bargain collectively and the
right to strike, and accordingly I would dismiss the appeal and
answer the constitutional questions in the manner proposed by
him. I wish to indicate, if only briefly, the general consider
ations that lead me to this conclusion.
In considering the meaning that must be given to freedom of
association in s. 2(d) of the Charter it is essential to keep in
mind that this concept must be applied to a wide range of
associations or organizations of a political, religious, social or
economic nature, with a wide variety of objects, as well as
activity by which the objects may be pursued. It is in this larger
perspective, and not simply with regard to the - perceived
requirements of a trade union, however important they may be,
that one must consider the implications of extending a constitu
tional guarantee, under the concept of freedom of association,
to the right to engage in particular activity on the ground that
the activity is essential to give an association meaningful
existence.
In PSAC v. Canada, the appellants sought a
declaration that the Public Sector Compensation
Restraint Act, S.C. 1980-81-82-83, c. 122 was
inconsistent with the Charter. Paragraph 6(1)(a)
of that Act, by continuing in force the terms and
conditions of compensation plans for public ser
vants, precluded collective bargaining on compen
satory components of collective agreements. Para
graph 6(1)(b) similarly precluded collective
bargaining on all issues, including non-compensa
tory matters, subject to the operation of section 7,
which permitted the parties to a collective agree
ment to amend non-compensatory terms and con
ditions by agreement only.
The majority of the Supreme Court dismissed
the appeal. Beetz, Le Dain and La Forest JJ.
followed their reasoning in the Alberta Reference
case holding that the guarantee of freedom of
association in paragraph 2(d) of the Charter does
not include a guarantee of the right to bargain
collectively and the right to strike.
McIntyre J. held that the impugned legislation
did not interfere with collective bargaining so as to
infringe the Charter guarantee of freedom of asso
ciation. The Act did not restrict the role of the
trade union as the exclusive agent of the
employees. It required the employer to bargain
and deal with the unionized employees through the
union and it also permitted continued negotiations
between the parties with respect to changes in the
terms and conditions of employment which did not
involve compensation. His Lordship found that the
only effect of the Act was to deny the use of the
"economic weapons" of strikes and lockouts for a
two year period. Although this may have constitut
ed a limit on the bargaining power of the trade
union, it did not violate paragraph 2(d) of the
Charter which, McIntyre J. again stated, does not
include a constitutional guarantee of a right to
strike.
In the Government of Saskatchewan case, the
Supreme Court was asked to consider the constitu
tional validity of The Dairy Workers (Mainte-
nance of Operations) Act, S.S. 1983-84, c. D-1.1,
passed by the provincial legislature in response to
strike notices served by respondent unions on the
major dairy businesses in the province. The Act
temporarily prohibited the dairy employees from
striking and the dairies from locking out their
employees. Once again, the majority dismissed the
appeal on the grounds that the impugned legisla
tion did not violate paragraph 2(d) of the Charter
because freedom of association does not embody
the right to strike.
In all three cases, Dickson C.J.C. and Wilson J.
disagreed with the majority and held that in the
context of labour relations, the guarantee of free
dom of association in paragraph 2(d) included the
freedom to bargain collectively and to strike. In
their opinion, the purpose of the constitutional
guarantee of freedom of association in paragraph
2(d) is to "recognize the profoundly social nature
of human endeavour and to protect the individual
from state-enforced isolation in the pursuit of his
or her ends". The minimum guarantee of para
graph 2(d) is the liberty of persons to be in
association or belong to an organization. However,
in order to have any meaning it must also extend
beyond a concern for associational status in order
to give effective protection to the interests to which
the constitutional guarantee is directed and must
protect the pursuit of the activities for which the
association was formed. In their view, the overrid
ing consideration in such cases is whether a legisla
tive enactment interferes with the freedom of per
sons to join and act with others in common pursuit.
Such legislation will be rendered constitutionally
invalid if there is an attempt by the state to
disallow associational conduct because of its con
certed or associational nature.
The principles which I abstract from these three
cases are that paragraph 2(d) of the Charter guar
antees the right to organize, maintain and partici
pate in a trade union but it does not guarantee the
right to strike. The question of whether the right to
bargain collectively is included in the right of
freedom of association appears to be unanswered
since only three of the six judges decided that
collective bargaining was not protected under the
rubric of paragraph 2(d).
Applying these principles to the facts of the case
before me, I conclude that the M.O.P.O.A. does
not violate the plaintiffs' freedom of association
guaranteed by paragraph 2(d) of the Charter by
prohibiting strikes and lockouts during the term of
Extended Collective Agreement. Counsel for the
plaintiffs, in his written argument, invites my com-
ments on this issue. I am not, however, prepared to
entertain a re-argument of these decisions made by
the Supreme Court of Canada for the purpose of
commenting as to how my views may differ from
the conclusion reached by the majority. The
Supreme Court has held quite determinatively that
the right to strike is not within the scope of
paragraph 2(d); that finding is unquestionably
binding on this Court and there remains nothing
further to be said on this issue.
After considering the plaintiffs' extensive argu
ments regarding the M.O.P.O.A.'s violation of
paragraph 2(d) by prohibiting the right to collec
tively bargain, I find myself unable to agree. First,
the plaintiffs maintain that the trilogy provides no
binding precedent for the principle that collective
bargaining is not protected by paragraph 2(d) of
the Charter. This argument is based on the fact
that only three of the six judges concluded that the
protection offered by the constitutional guarantee
of freedom of association did not extend to the
right to collectively bargain; under the circum
stances that does not constitute a majority. I agree
that only three of their Lordships were definitive
in excluding collective bargaining from the protec
tive umbrella of paragraph 2(d). The split over
this issue was as follows: Three of the judges
(Le Dain, Beetz, La Forest JJ.) held that para
graph 2(d) did not include the right to collectively
bargain, two (Dickson and Wilson JJ.) concluded
that it did and one judge (McIntyre J.) said
nothing on the issue. In that context, it is my
opinion that the question is still an open one to be
decided when the appropriate case is presented.
The case at bar however, is not such a case. I
conclude, based on the provisions of the
M.O.P.O.A. and the facts before me, that the
impugned legislation did not prohibit the plaintiffs
from engaging in collective bargaining.
Sections 5 and 12 of the Act provide as follows:
5. The term of the collective agreement to which this Act
applies is extended to include the period beginning on January
1, 1986 and ending on the day on which a new collective
agreement entered into between the parties thereto in amend
ment or revision thereof comes into effect, or on December 31,
1988, whichever is the earlier.
12. Nothing in this Act shall be deemed to limit or restrict
the rights of the parties to the collective agreement to which
this Act applies to agree to vary or amend any of the provisions
of the agreement as amended pursuant to this Act, other than a
provision relating to the term of the agreement, and to give
effect thereto.
My reading of those provisions leads me to
understand that section 5 entitles the parties to
renegotiate their entire collective agreement and
section 12 entitles them to vary any provision.
The evidence presented to the Court during the
hearing of this matter indicated that, in fact, there
was renegotiation of a relatively complex pension
agreement which was agreed to by the parties
subsequent to the passage of the impugned legisla
tion. Collective bargaining therefore could and did
take place subsequent to the M.O.P.O.A. being
passed.
For these reasons, I conclude that the Act does
not violate the plaintiffs' rights under paragraph
2(d) of the Charter.
SECTION 7 OF THE CHARTER
I turn now to the issue of whether the Act
violates section 7 of the Charter by infringing on
the plaintiffs' right to "life liberty and security of
the person and the right not to be deprived thereof
except in accordance with the principles of funda
mental justice".
In cases of this nature, where the Court is asked
to determine whether a legislative enactment has
breached a provision of the Charter, regard must
be had to the principles of Charter interpretation
established by the Supreme Court of Canada in Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.'
There, Lamer J. set out the two-stage approach to
Charter interpretation which is to be followed. The
first stage requires an examination of whether the
freedom claimed has been breached by the legisla
tion. The individual who challenges the constitu
tionality of the law bears the onus of proving that
there has been a prima facie breach of the right
claimed, with the standard of proof being a civil
one. If the plaintiffs can establish a prima facie
breach of a right, the burden shifts to the Crown
to prove that the legislation constitutes a reason
able limit prescribed by law which can be
demonstrably justified in a free and democratic
society pursuant to section 1 of the Charter. The
standard of proof under this section is also the civil
standard; if the Crown discharges this onus the
legislation will be constitutional.
In the case at bar, the plaintiffs, in order to
prove that the M.O.P.O.A. violates section 7, must
first establish that there is an existing right which
falls within the scope of section 7. The catalogue
of protected rights under the Charter is finite; the
objective is not to subject every legislative enact
ment to an inspection under section 1 for the
purpose of ascertaining whether it should be vin
dicated or impeached.
In Irwin Toys Ltd. v. Quebec (Attorney Gener
al), [1989] 1 S.C.R. 927, one of the issues before
the Court was whether certain provisions of the
Consumer Protection Act, R.S.Q., c. P-401, which
prohibited commercial advertising directed at per
sons under the age of thirteen, infringed the free
dom of expression provision, paragraph 2(b), of
the Charter. The Court held that the first step was
to answer the question of whether or not the
plaintiffs activity fell within the sphere of conduct
protected by freedom of expression. Dickson C. J.
stated at pages 967-968:
Does advertising aimed at children fall within the scope of
freedom of expression? This question must be put even before
deciding whether there has been a limitation of the guarantee.
Clearly not all activity is protected by freedom of expression,
and governmental action restricting this form of advertising
only limits the guarantee if the activity in issue was protected in
the first place. Thus, for example, in Reference Re Public
Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313;
PSAC v. Canada, [1987] 1 S.C.R. 424; and RWDSU v.
Saskatchewan, [1987] 1 S.C.R. 460, the majority of the Court
found that freedom of association did not include the right to
strike. The activity itself was not within the sphere protected by
s. 2(d); therefore the government action in restricting it was not
contrary to the Charter. The same procedure must be followed
with respect to an analysis of freedom of expression; the first
step to be taken in an inquiry of this kind is to discover whether
the activity which the plaintiff wishes to pursue may properly
be characterized as falling within "freedom of expression". If
the activity is not within s. 2(b), the government action obvious
ly cannot be challenged under that section. [Emphasis added.]
Applying that principle to the case at bar, one
must ask whether the activities which the plaintiffs
wish to pursue, namely, the right to strike, fall
within the purview of "life, liberty and security of
the person". In order to answer this question on
examination of the jurisprudence regarding the
character and content of section 7 is necessary.
There are many and varied judicial statements
analyzing the scope and context of section 7, some
to the effect that the protection offered is restrict
ed to freedom from bodily restraint and others
which maintain that "life, liberty and security of
the person" extends to a full range of conduct
which an individual is entitled to pursue.
For example, in Smith, Kline & French
Laboratories Limited v. Attorney General of
Canada, [1986] 1 F.C. 274 (T.D.), Strayer J. had
opportunity to consider the concepts of "life, liber
ty and security of the person". He held that the
concepts take on a colouration by association with
each other and have to do with the bodily well-
being of a natural person. As such, they are not
apt to describe any rights of a corporation nor are
they apt to describe purely economic interests of
an individual. His Lordship stated at pages
314-315:
In so construing "liberty" and "security of the person" I
adopt the view expressed by Pratte J. in R. v. Operation
Dismantle Inc., [1983] 1 F.C. 745 (C.A.), at page 752 to the
effect that these terms refer to freedom from arbitrary arrest or
detention, which views I also similarly adopted in my decision
in Le Groupe des Ă©leveurs de volailles de l'est de ['Ontario v.
Canadian Chicken Marketing Agency, [1985] 1 F.C. 280;
(1984), 14 D.L.R. (4th) 151 (T.D.), at page 323 F.C.; 181
D.L.R. See also, to the same effect, Public Service Alliance of
Canada v. The Queen, [1984] 2 F.C. 562; 11 D.L.R. (4th) 337
(T.D.) (affirmed [1984] 2 F.C. 889; II D.L.R. (4th) 387
(C.A.) 3 without reference to this point); Re Becker and The
Queen in right of Alberta (1983), 148 D.L.R. (3d) 539 (Alta.
C.A.), at pages 544-545.
With respect to the contention that property rights are
implicitly protected by section 7, this possibility is equally
precluded by my characterization of the words "life, liberty and
security of the person". While there may be some situations in
which section 7 would protect, incidentally, the property of an
individual, I can see no way in which the patent rights of an
inventor or multi-national corporate patentee could be said to
be incidentally involved in the protection of the bodily integrity
of anyone. Further, it is well known that an amendment
specifically to include "property" in the protection of section 7
was withdrawn during the consideration of the Charter by the
Joint Parliamentary Committee on the Constitution. This indi-
cates that at least in its origins section 7 was not understood to
provide protection for property.
These findings and the reasoning by which they
were arrived at were confirmed by the Federal
Court of Appeal in Smith, Kline & French
Laboratories Ltd. v. Canada (Attorney General),
[1987] 2 F.C. 359 and more recently in Weyer v.
Canada (1988), 83 N.R. 272 (F.C.A.); leave to
appeal to the Supreme Court of Canada refused on
May 16, 1988 [[1988] 1 S.C.R. xv].
Some Courts have held that property rights and
commercial or economic rights are not protected
by the Charter and that an interest which includes
an economic component is not included in section
7. For example, see Re Gershman Produce Co.
Ltd. and Motor Transport Board (1985), 22
D.L.R. (4th) 520 (Man. C.A.); Smith, Kline &
French Laboratories Limited v. Attorney General
of Canada, [1986] 1 F.C. 274 (T.D.); Milk Bd. v.
Clearview Dairy Farm Inc.; Clearview Dairy Farm
Inc. v. Milk Bd. (1986), 69 B.C.L.R. 220 (S.C.);
affirmed [1987] 4 W.W.R. 279 (B.C.C.A.); Noyes
v. South Cariboo Sch. Dist. 30 Bd. of Sch. Trus
tees (1985), 64 B.C.L.R. 287 (S.C.); and R. v.
Quesnel (1985), 53 O.R. (2d) 338 (Ont. C.A.).
There are however, many judicial statements of
import to the effect that section 7 is not confined
to mere freedom from bodily restraint and the
simple fact that an alleged infringement of section
7 might have an economic component would not
exclude it from the protection of the section. In R.
v. Morgentaler, [1988] 1 S.C.R. 30, the Supreme
Court of Canada discussed the meaning of the
right to liberty. Wilson J. stated at pages 164-165:
The Charter-and the right to individual liberty guaranteed
under it are inextricably tied to the concept of human dignity.
Professor Neil MacCormick ... Legal Right and Social
Democracy: Essays in Legal and Political Philosophy (1982),
speaks of liberty as "a condition of human self-respect and of
that contentment which resides in the ability to pursue one's
own conception of a full and rewarding life" (p. 39). He says at
p. 41:
To be able to decide what to do and how to do it, to carry out
one's own decisions and accept their consequences, seems to me
essential to one's self-respect as a human being, and essential to
the possibility of that contentment. Such self-respect and con
tentment are in my judgment fundamental goods for human
beings, the worth of life itself being on condition of having or
striving for them. If a person were deliberately denied the
opportunity of self-respect and that contentment, he would
suffer deprivation of his essential humanity. [Emphasis added.]
In Re Mia and Medical Services Commission of
British Columbia (1985), 17 D.L.R. (4th) 385
(B.C.S.C.), Chief Justice McEachern stated with
regard to section 7, at pages 412-415, that "there
are some rights enjoyed by our people including
the right to work or practice a profession that are
so fundamental that they must be protected even if
they include an economic element". That conclu
sion was confirmed by the British Columbia Court
of Appeal in Wilson v. British Columbia (Medical
Services Commission) (1988), 53 D.L.R. (4th)
171, wherein the Court stated at pages 186-187:
To summarize: "Liberty" within the meaning of s. 7 is not
confined to mere freedom from bodily restraint. It does not,
however, extend to protect property or pure economic rights. It
may embrace individual freedom of movement, including the
right to choose one's occupation and where to pursue it, subject
to the right of the state to impose, in accordance with the
principles of fundamental justice, legitimate and reasonable
restrictions on the activities of individuals.
After considering the cases cited above and
other decisions pertinent to the issue, I am con
vinced that an interpretation which restricts
section 7 to freedom from bodily restraint is too
narrow. It is true that the majority of cases where
section 7 has been applied involve the infringement
or the danger of infringement of the complainant's
physical liberty. The classic examples of where
section 7 clearly applies are imprisonment and
detention by the state. Nevertheless, there is ample
jurisprudence to support the proposition that sec
tion 7 extends beyond the pure legal rights guaran
teed by sections 8 through 14 of the Charter. On
the other hand, section 7 is obviously not intended
to bestow upon individuals the freedom to engage
in any activity which the law does not prohibit.
Neither is the Charter intended to characterize all
legislative enactments which place restrictions on
human conduct as infringements of constitutional
ly protected rights.
The more reasonable approach to interpreting
section 7 is embodied in the notion that the con
cept of protected liberty is rooted in privileges
which have been enduringly recognized at common
law. This inclination to view the Charter as secur
ing fundamental and widely acknowledged values
is evident in the reasoning of the Supreme Court of
Canada in Attorney General of Quebec v. Quebec
Association of Protestant School Boards et al.,
[1984] 2 S.C.R. 66 wherein the Court makes
reference [at page 79] to "a codification of essen
tial, pre-existing, and more or less understood
rights that are being confirmed and perhaps clari
fied, extended or amended ...". Section 7 is
designed to safeguard those liberties which have
generally been recognized and accepted at
common law.
The next issue is whether the right to strike is
protected under section 7. In my opinion it is not.
It is true that strikes are not uncommon in Canada
and have not been for a number of years. But the
right to strike which now finds its expression in
statute law is still a relatively new concept which
does not fall within the category of fundamental
rights and freedoms as contemplated by section 7.
It is, in the words of Le Dain J. in the Alberta
Reference case, at page 391, "the creation of
legislation, involving a balance of competing inter
ests in a field which has been recognized by the
courts as requiring a specialized expertise". If
there was any doubt as to whether or not the right
to strike should be accorded the status of a consti
tutionally protected right, it has, in my view, been
laid to rest by the following statement of McIntyre
J. on the Alberta Reference case at pages 413-414:
Furthermore, it must be recognized that the right to strike
accorded by legislation throughout Canada is of relatively
recent vintage. It is truly the product of this century and, in its
modern form, is in reality the product of the latter half of this
century. It cannot be said that it has become so much a part of
our social and historical traditions that it has acquired the
status of an immutable, fundamental right, firmly embedded in
our traditions, our political and social philosophy ... It may
well be said that labour relations have become a matter of
fundamental importance in our society, but every incident of
that general topic has not. The right to strike as an element of
labour relations has always been the subject of legislative
control. It has been abrogated from time to time in special
circumstances and is the subject of legal regulations and con-
trol in all Canadian jurisdictions. In my view, it cannot be said
that at this time it has achieved status as a fundamental right
which should be implied in the absence of specific reference in
the Charter.
While I have reached a conclusion and expressed the view
that the Charter upon its face cannot support an implication of
a right to strike, there is as well, in my view, a sound reason
grounded in social policy against any such implication. Labour
law, as we have seen, is a fundamentally important as well as
an extremely sensitive subject. It is based upon a political and
economic compromise between organized labour—a very pow
erful socio-economic force—on the one hand, and the employ
ers of labour—an equally powerful socio-economic force—on
the other. The balance between the two forces is delicate and
the public-at-large depends for its security and welfare upon
the maintenance of that balance. One group concedes certain
interests in exchange for concessions from the other. There is
clearly no correct balance which may be struck giving perma
nent satisfaction to the two groups, as well as securing the
public interest. The whole process is inherently dynamic and
unstable. Care must be taken then in considering whether
constitutional protection should be given to one aspect of this
dynamic and evolving process while leaving the others subject
to the social pressures of the day. Great changes—economic,
social, and industrial—are afoot, not only in Canada and in
North America, but as well in other parts of the world.
Changes in the Canadian national economy, the decline in
resource-based as well as heavy industries, the changing pat
terns of international trade and industry, have resulted in great
pressure to reassess the traditional approaches to economic and
industrial questions, including questions of labour law and
policy....It is, however, clear that labour policy can only be
developed step by step with, in this country, the Provinces
playing their "classic federal role as laboratories for legal
experimentation with our industrial relations ailments" (Paul
Weiler, Reconcilable Differences: New Directions in Canadian
Labour Law (1980, at p. 11). The fulfilment of this role in the
past has resulted in the growth and development of the body of
labour law which now prevails in Canada. The fluid and
constantly changing conditions of modern society demand that
it continue. To intervene in the dynamic process at this early
stage of Charter development by implying constitutional pro
tection for a right to strike would, in my view, give to one of the
contending forces an economic weapon removed from and made
immune, subject to s. 1, to legislative control which could go far
towards freezing the development of labour relations and cur
tailing that process of evolution necessary to meet the chang g
circumstances of a modern society in a modern world. This, I
repeat, is not to say that a right to strike does not exist at law
or that it should be abolished. It merely means that at this
stage of our Charter development such a right should not have
constitutional status which would impair the process of future
development in legislative hands. [Emphasis added.]
For the above reasons, I find that the Mainte
nance of Ports Operations Act, 1986 does not
violate section 7 of the Charter by reason that it
prohibits the plaintiffs from taking strike action.
However, it is my view that the penalty provi
sion of the M.O.P.O.A., section 13, does violate
the plaintiffs' constitutionally protected rights
under section 7 of the Charter. There was argu
ment made by both parties concerning the fines
imposed by section 13. But the section goes much
further than imposing a fine. It reads as follows:
13. (1) Where an individual, the union or a company con
travenes any provision of this Act, the individual, union or
company, as the case may be, is guilty of an offence punishable
on summary conviction and is liable, for each day or part of a
day during which the offence continues, to a fine
(a) subject to paragraph (b), of not less than $500 and not
more than $1,000, in the case of an individual who is
convicted of the offence;
(b) of not less than $10,000 and not more than $50,000
where, in the case of an individual who is convicted of the
offence, the individual was an officer or representative of the
union or of the company and the offence was committed
while the individual was acting in that capacity; or
(c) of not less than $20,000 and not more than $100,000, in
the case of a company or the union that is convicted of the
offence.
(2) No officer or representative of a union who is convicted
of an offence under this Act that was committed while the
officer or representative was acting in that capacity shall be
employed in any capacity by, or act as an officer or representa
tive of, the union at any time during the five years immediately
after the date of the conviction.
(3) No officer or representative of a member of the employ
ers association, including any corporation listed in Schedule I,
who is convicted of an offence under this Act shall be employed
in any capacity by, or act as an officer or representative of, the
employers association at any time during the five years immedi
ately after the date of the conviction. [Emphasis added.]
Any person who contravenes any provision of
the Act is guilty of an offence punishable on
summary conviction. Accordingly, any longshore
man who did not return to work for whatever
reason; a wilful act of disobedience, illness, obtain
ing a job elsewhere, death in the family or any
other unforeseeable circumstance that prevented
attendance at work on the day prescribed by the
Act would be guilty of a summary conviction
offence. The legislation makes no exceptions. The
only conclusion can be that section 13 creates an
absolute liability offence.
Counsel for the defendant suggested that had
any individual been unable to return to work for
justifiable reasons, these facts would have been
taken into account and the individual not subjected
to the penalties contained in section 13.
That may well be. But the policy of those
administering the M.O.P.O.A. is not what con
cerns this Court. The only thing on which I can
rely in order to determine whether there exists a
violation of a constitutionally protected right is the
legislation as it is written. In that regard, section
13 is unequivocal: any longshoreman who does not
comply with the legislation and return to work is
guilty of a summary conviction offence. The
defendant cannot rely on the supposed reasonable
ness of those persons responsible for administering
the Act to render it constitutionally valid where it
could not otherwise be so found.
In order to understand the significance of the
summary conviction offence created by section 13,
one must turn to Part XXVII of the Criminal
Code, R.S.C., 1985, c. C-46 as amended [by
R.S.C., 1985, (1st Supp.), c. 27, s. 171], which
deals with summary conviction offences. Section
787 of the Code provides as follows:
787. (1) Except where otherwise provided by law, every one
who is convicted of an offence punishable on summary convic
tion is liable to a fine of not more than two thousand dollars or
to imprisonment for six months or to both.
(2) Where the imposition of a fine or the making of an order
for the payment of money is authorized by law, but the law
does not provide that imprisonment may be imposed in default
or payment of the fine or compliance with the order, the court
may order that in default of payment of the fine or compliance
with the order, as the case may be, the defendant shall be
imprisoned for a term not exceeding six months.
Pursuant to subsection 787(2) a court of com
petent jurisdiction is authorized to order the
accused to pay a fine; in the case at bar, the fine is
set out in subsection 13(1) of the M.O.P.O.A. In
the event that the accused breaches that order and
fails to pay the fine he may be subject to a term of
imprisonment not exceeding six months. An order
of imprisonment pursuant to subsection 787(2) of
the Code is within the discretion of the Court, but
the possibility of such a sentence exists without a
doubt. Therefore, by creating a summary convic
tion offence, section 13 of the M.O.P.O.A. opens
the door to the possibility of imprisonment.
In Re B.C. Motor Vehicle Act, supra, the
impugned legislative provision created an absolute
liability offence and at the same time provided for
mandatory imprisonment when a breach of the
section occurred. The Supreme Court held that an
absolute liability offence for which imprisonment
is available as a penalty offends the principles of
fundamental justice and the right to liberty under
section 7 of the Charter. Lamer J. stated at
page 515:
I am therefore of the view that the combination of imprison
ment and of absolute liability violates s. 7 of the Charter and
can only be salvaged if the authorities demonstrate under s. 1
that such a deprivation of liberty in breach of those principles
of fundamental justice is, in a free and democratic society,
under the circumstances, a justified reasonable limit to one's
rights under s. 7.
There is however an important distinction to be
made between the case at bar and the Re B.C.
Motor Vehicle Act case. In the present case, it is
not the breach of the impugned legislation which
creates the possibility of imprisonment; rather, it is
the breach of the court order to pay a fine made
pursuant to subsection 787(2) of the Criminal
Code which may lead to imprisonment, whether or
not that scenario constitutes a violation of section
7 is a question which has been left unanswered by
the Supreme Court in the Re B.C. Motor Vehicle
Act case wherein Lamer J. stated at
pages 515-516:
As no one has addressed imprisonment as an alternative to
the non-payment of a fine, I prefer to express any views in
relation to s. 7 as regards that eventuality as a result of a
conviction for an absolute liability offence ... Those issues
were not addressed by the court below and it would be unwise
to attempt to address them here. It is sufficient and desirable
for this appeal to make the findings I have and no more, that is,
that no imprisonment may be imposed for an absolute liability
offence and, consequently, given the question put to us, an
offence punishable by imprisonment cannot be an absolute
liability offence.
I am of the opinion that imprisonment as an
alternative to the non-payment of a fine as a result
of a conviction for an absolute liability offence
violates section 7 of the Charter. It is uncon-
tradictable that the possibility of imprisonment is
not inevitable in such a case as it is when absolute
liability and imprisonment are coupled together.
Nevertheless, the possibility of imprisonment is
certain. And that fact convinces me that the dicta
of the Supreme Court in the Re B.C. Motor
Vehicle Act case is applicable to cases of this
nature. At page 515 Lamer J. states:
In my view it is because absolute liability offends the princi
ples of fundamental justice that this court created presumptions
against legislatures having intended to enact offences of a
regulatory nature falling within that category. This is not to
say, however, and to that extent I am in agreement with the
Court of Appeal, that, as a result, absolute liability per se
offends s. 7 of the Charter.
A law enacting an absolute liability offence will violate s. 7
of the Charter only if and to the extent that it has the potential
of depriving of life, liberty, or security of the person.
Obviously, imprisonment (including probation order)
deprives persons of their liberty. An offence has that potential
as of the moment it is open to the judge to impose imprison
ment. There is no need that imprisonment, as in s. 94(2), be
made mandatory. [Emphasis added.]
In my view, section 13 of the M.O.P.O.A., like
subsection 94(2) of the British Columbia Motor
Vehicle Act, is a law which has the potential to
convict a person who has not really done anything
wrong. Furthermore, it has the potential of depriv
ing the plaintiffs of their right to life, liberty and
security of the person by resorting to the summary
conviction provisions of the Criminal Code, which
leaves it open to a judge to impose a term of
imprisonment for non-payment of a fine. It would
be, as far as I am concerned, inconsistent with the
reasoning of the Supreme Court in the Re B.C.
Motor Vehicle Act case to conclude that the pro
tection of section 7 did not extend to cover these
circumstances. For these reasons, I find that sec-
tion 13 of the M.O.P.O.A. is offensive to section 7
of the Charter.
As to whether section 1 of the Charter can save
section 13 of the M.O.P.O.A., I conclude that it
cannot and adopt the dicta of Lamer J. in the Re
B.C. Motor Vehicle Act case at page 518:
Administrative expediency, absolute liability's main suppor
tive argument, will undoubtedly under s. 1 be invoked and
occasionally succeed. Indeed, administrative expediency cer
tainly has its place in administrative law. But when administra
tive law chooses to call in aid imprisonment through penal law,
indeed sometimes criminal law and the added stigma attached
to a conviction, exceptional, in my view, will be the case where
the liberty or even the security of the person guaranteed under
s. 7 should be sacrificed to administrative expediency. Section 1
may for reasons of administrative expediency, successfully
come to the rescue of an otherwise violation of s. 7, but only in
cases arising out of exceptional conditions, such as natural
disasters, the outbreak of war, epidemics, and the like. [Empha-
sis added.]
I have not commented this far on the eight or
nine days of extensive evidence led by the Crown
concerning the possible economic impact that the
stoppage of work at the west coast ports could
have brought about. All that evidence was directed
to section 1 arguments under the Charter in an
attempt to justify the impugned legislation. I do
not take issue with the fact that it was highly
desirable for the labour dispute between the plain
tiffs unions and the B.C.M.E.A. to be resolved.
But the question which I must ask is whether the
defendant has demonstrated as justifiable that the
risk of imprisonment of a few innocent plaintiffs is,
given the desirability of ending the labour dispute
between the parties, a reasonable limit in a free
and democratic society. I do not hesitate to find
that this demonstration has not in the least been
satisfied. The defendant not only failed to provide
any sound evidence of losses or serious economic
consequences resulting from previous port work
stoppages (which lasted anywhere from sixteen to
forty-seven days) but did not satisfy me that the
work stoppage in this case (which lasted for only
five days) caused any hardship whatsoever.
In the result, I find that the Maintenance of
Ports Operations Act, 1986 does not violate para
graph 2(d) or section 7 of the Charter, with the
exception of section 13 of the Act, which I declare
to be inconsistent with section 7 of the Charter and
of no force or effect. Costs to the plaintiffs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.