Update on Bill 148 Legal Challenge

This article appeared in the Spring 2021 issue of our quarterly magazine, The Union Stand:

On January 15^th, 2021, the Court of Appeal released a decision in which it denied the Unions’ request to file evidence in the constitutional reference, including affidavits from the union negotiators about the impact of Bill 148 on collective bargaining, expert evidence on the effect that taking wages and important monetary benefits off the table has on a union’s bargaining power, expert evidence on the protection of collective bargaining in international law, expert evidence on the Province’s finances during the relevant time, and the Cabinet documents that show that the Province had a legislative plan in place before bargaining began. 

This is obviously very disappointing, as the Court will go on to decide the constitutionality of Bill 148 based only on the evidence filed by the Province.

However, the Unions will be asking the Supreme Court of Canada for permission to appeal the decision of the Nova Scotia Court of Appeal. The “application for leave” will be filed with the Supreme Court of Canada by March 15^th, 2021.

In the meantime, the Court of Appeal has set dates for the hearing of the constitutional reference: September 22^nd and 23^rd, 2021. 

If the Supreme Court of Canada grants the Unions permission to appeal the evidentiary decision of the Court of Appeal, the Unions will ask that the September hearing dates before the Court of Appeal be adjourned pending the hearing before the Supreme Court of Canada. 

It is important to note that the Supreme Court of Canada only grants permission to appeal in a small number of cases involving matters of national and public importance. The Unions believe that the decision of the Court of Appeal is a matter of national and public importance, given that it means that the constitutionality of legislation that interferes with collective bargaining can be determined in a reference without receiving any evidence from the affected unions or their members.

BACKGROUND ON BILL 148

Stephen McNeil’s Liberal government proclaimed Bill 148 – the Public Service Sustainability Act in 2017. This piece of legislation did three things that interfere with your right to full, free, collective bargaining:

1. It imposed a non-negotiated wage pattern on the entire public sector (0%, 0%, 1.0%, 1.5% & an additional 0.5% on the last day of the agreement);

2. It removed long-standing articles from the Civil Service master agreement (ending the retirement allowance/public service award as of April 1, 2015);

3. Prohibiting an arbitrator from awarding anything above the above-noted wage pattern.

Even before government proclaimed the Bill into force, the threat of legislation hobbled the unions’ bargaining power and prevented us from being able to freely conclude the collective bargaining process, because it took away the leverage of wages and monetary items like the service award off the table completely. After a significant amount of time with very little progress in bargaining at any major tables, the NSGEU announced in late summer 2017 that it would apply to the Labour Board to appoint an Interest Arbitration Board to settle the Civil Service Master Agreement, as is our right under the legislation that applied. Government proclaimed the legislation to prevent the interest arbitrator from awarding any monetary increases that were higher than was set out in the legislation.

Since the legislation was passed, the NSGEU has been working hard alongside seven other unions who represent unionized workers to try and have this unjust legislation overturned by the courts.

The unions’ argument is that Bill 148 breaches Section 2(d) of the Charter, which guarantees Canadians Freedom of Association and protects the right to collective bargaining and the right to strike.

The unions knew pursuing legal action would be a slow process, and that has proven to be true, especially since the government is delaying every step of the way.