Example of Fight Against Alberta’s Bill 9,
the Public Sector Wage Arbitration Deferral Act

Appeals Court Quashes Injunction against Bill 9

Protest in Edmonton, September 10, 2019, following Court of Appeal ruling on Bill 9.

The Court of Appeal of Alberta on September 6 quashed the lower court ruling and injunction suspending Bill 9, the Public Sector Wage Arbitration Deferral Act. Bill 9 effectively tears up the sections of legal collective agreements requiring arbitration of a wage reopener to have been concluded by June 30. Bill 9, which can now be enforced, directly impacts the wages of more than 180,000 Alberta public sector workers. In delaying arbitration and a settlement on wages, the clear intent of the legislation is to give the Kenney government time to wage a propaganda war to enact further legislation imposing unilateral wage freezes and/or rollbacks.

Justice Eric Macklin of the Alberta Court of Queen’s Bench in granting the injunction against Bill 9 last July 31, which the Court of Appeal has now overturned, ruled that the legislation was not in the public interest. He wrote, “It is in the long-term public interest for the public to see that its government cannot unilaterally change its contractual obligations through legislation that may interfere with Charter rights.”

“Further, it may be difficult, if not impossible, to confidently negotiate detailed terms and conditions of a collective agreement knowing that at any time after an agreement was reached, the terms and conditions could be unilaterally amended or nullified by legislation,” Macklin added.

The Court of Appeal in a 2-1 decision rejected this argument stating, “The underlying issue is whether: a) Bill 9 involves a breach of the Charter, and if so b) whether it is demonstrably justified in a free and democratic society. The issue was not, as the trial judge reasoned, whether Bill 9 was in the ‘long-term public interest.'”

The Court of Appeal judgement referred to the decision in RJR-McDonald Inc v Canada (AG) to argue that the courts should not become involved in inquiring as to whether legislation is in the public interest. In that case, the tobacco company unsuccessfully sought to overturn legislation restricting advertising of cigarettes as a violation of its freedom of expression.

The Court of Appeal ruling quashing the injunction against Bill 9 states in part, “When the nature and declared purpose of legislation is to promote the public interest, a motions court should not be concerned whether the legislation actually has such an effect. It must be assumed to do so. In order to overcome the assumed benefit to the public interest arising from the continued application of the legislation, the applicant who relies on the public interest must demonstrate that the suspension of the legislation would itself provide a public benefit.”

The Court of Appeal judgement concludes with harsh words admonishing the lower court Justice Macklin: “No part of the tripartite test gives the chambers judge a mandate to assess whether validly enacted legislation is in the public interest.”

According to the judgement, how the “nature” of Bill 9 promotes the public interest is better left unsaid and just assumed because the government has the right to declare it so.

The judgement goes on to dismiss the case law used by trial judge Macklin, who had cited a Supreme Court decision finding that it is in the public interest that contracts be upheld. Wrong, said the Court of Appeal. The case cited concerns private interests, private contracting parties and does not apply to governments signing collective agreements. Governments should not be similarly held to their contractual agreements with workers the Court of Appeal argues:

“Although collective agreements are rarely disturbed by legislation in Canada, the government has the right to legislate with respect to labour relations, within constitutional limits. At the initial stage, it is up to the Legislature (not the courts) to decide if the public policy advantages of legislation like Bill 9 outweigh the disadvantages, and such legislation is entitled to the presumption of constitutional validity. The test at trial will be whether there is a breach of s. 2(d) of the Charter, and if so whether it is demonstrably justified in a free and democratic society.”

This article was published in:

Renewal Update No. 14, September 18, 2019

Article Link:
Appeals Court Quashes Injunction against Bill 9