@momcqueen wrote:
ypdc_dennis said in an earlier post on another thread (I think) that the legislation itself was not deemed unconstitutional but that dictating the wages was the part that crossed the line. If I understand that correctly.
I don't know how ypdc_dennis got to that conclusion, but it's incorrect. Perhaps he was remembering that the Corporation's dictating wages was what caused the impasse that led to back-to-work legislation.
I decided (since I have time with my store closed, and I used to be a legal researcher anyway) to read through the Reasons for Judgment of Justice Firestone, and it was clearly a declaratory judgment of unconstitutionality. I know you like cites, so I'll reproduce the summary of the Judgment here:
"For the reasons that follow I find that:
(a) the Act violates the rights to freedom of association and freedom of expression under
ss. 2(d) and 2(b) of the Charter.
(b) such violations of the rights to freedom of association and freedom of expression are
not saved under s. 1 of the Charter.
(c) the Act is unconstitutional and of no force and effect. Such declaration of invalidity is
to be applied retroactively.
(d) the applicants are not entitled to a s. 24(1) Charter remedy in addition to the
declaration of invalidity granted under s. 52(1) of The Constitution Act, 1982."
Here is Justice Firestone's summary of the legislation in question:
"The Act is back-to-work legislation. Its key provisions mandated the resumption and continuation of mail delivery services, and imposed a final offer selection process of arbitration (FOS) for resolving the dispute between Canada Post and CUPW. It also contained an enforcement mechanism; non-compliance with its provisions would constitute a summary conviction offence punishable by fines accruing daily."
It's interesting to look at the whole context at the time this challenge was brought by CUPW (in 2015). It related to legislation passed in 2011, when the Harper government was still in power. This case was heard in the Ontario Superior Court of Justice in 2015, and at that time Liberals were in power in Ontario (under Kathleen Wynne). Justice Firestone was appointed in April, 2013 by Rob Nicholson, the PC federal Minister of Justice at the time. I don't know the Justice's politics, but I expect that with Harper near the end of his term (ended in November, 2015), Firestone, J. was keeping an eye on politics as well as the Charter.
Secondly, and just as importantly, this was a retroactive declaration only, and was never challenged by the government in the higher courts (including the Supreme Court of Canada). I expect the new Liberal government's lawyers advised letting sleeping dogs lie, and the CUPW lawyers told union leadership they'd live to fight another day with this precedent (and moral victory) in their pockets. It's notable that the Court in the above matter refused to grant monetary damages under s.24(1) of the Charter (point (d) above).
So here we are. Will CUPW challenge the legislation again? The problem is that by the time these challenges get to onto the court dockets, the situation itself is long past. It would only do CUPW immediate good if they could get an emergency declaration or injunction against the government, an unlikely prospect. No doubt federal government lawyers know that too.
One thing I did do while I was checking this case was a bit of online research on whether any private corporation (aside from CPC of course) had ever sued CUPW (or unions in analogous situations) for damages, as I suggested might be feasible earlier in this (or another) thread. There are a couple of interesting cases that are tangentially related, but nothing on point that has been reported.
That doesn't mean it has never been done; the vast majority of cases settle and of those that actually get to court, the majority never get written up in the legal reports. A full search of all Judgments in all registries across the country would be necessary to definitively answer the question. Which means lawyers and registry agents. Which means money. Which means having a small business organization with the money to do it.
And no, sorry, I'm out of the game, I'm retired. But I'd join any independent organization (i.e. not eBay) willing to try it the next time there's a strike, heaven forbid. We should never forget that eBay's stake in this issue is getting the strike resolved so they can earn their fees from us, not help us recoup our losses. 🙂
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