Wednesday, 6 July 2016

You Don't Have to Unionize but you Can't Stay Here: Supervisory Employees and the Saskatchewan Employment Act

[I've also posted this to the Usask Law Blog.]

The City of Moose Jaw recently made an application to the Labour Relations Board to remove "supervisory employees" from the existing bargaining unit of city employees. The Saskatoon Public Library made noises about doing the same thing in March and it appears that the Library has now commenced its own application. (I was recently interviewed  on this issue.)

These two employers - with, one assumes, more to come - have taken this action because The Saskatchewan Employment Act, proclaimed on April 29, 2014, set out that "supervisory employees" could not be included in the same bargaining unit as those employees they supervise. That provision, however, did not take effect until April 29, 2016; and now employers seem to have decided that it's in their best interests to attempt to have supervisors removed from the bargaining units in which they've operated for a number of years.

(A good, quick summary by employer counsel Kevin Wilson, Q.C., can be found here.)

I should note that this is all contingent on these supervisors being found to be "supervisory employees" under the statute. Most of them, I would imagine, probably are; there may be some edge cases where someone who is ostensibly a "supervisor" isn't a "supervisory employee" under the Act. That's not something I can comment on in these particular cases. But the definition of "supervisory employee" is pretty broad - "assigning hours of work and overtime" seems to include schedulers, for instance, who are only "supervisory" by the most tenuous definition.

The statutory language in the SEA is as follows, and it's unique in Canada:

6-1(o) "supervisory employee" means an employee whose primary function is to supervise employees and who exercises one or more of the following duties:

(i) independently assigning work to employees and monitoring the quality of work produced by employees;

(ii) assigning hours of work and overtime;

(iii) providing an assessment to be used for work appraisals or merit increases for employees;

(iv) recommending disciplining employees...

[exceptions are excluded]
And:

6-11(3) Subject to subsections (4) to (6), the board shall not include in a bargaining unit any supervisory employees.

(4) subsection (3) does not apply if:

(a) the employer and union make an irrevocable election to allow the supervisory employees to be in the bargaining unit; or

(b) the bargaining unit determined by the board is a bargaining unit comprised of supervisory employees.

(5) An employee who is or may become a supervisory employee:

(a) continues to be a member of a bargaining unit until excluded by the board or an agreement between the employer and the union; and

(b) is entitled to all the rights and shall fulfil all the responsibilities of a member of the bargaining unit.

(6) Subsections (3) to (5) apply only on or after two years after the date on which subsection (3) comes into force.
Our labour relations system is based upon "majoritarian exclusivity" - that unionization occurs when the majority of workers within an "appropriate bargaining unit", as determined by the Board, have indicated that they wish to be represented by and collectively bargain through a particular union. That union then has the exclusive right (and accompanying responsibility) to bargain for that group of workers. It's a model that is subject to growing criticism, but there's little appetite among Canadian governments to change it.

Historically, Saskatchewan (and indeed every other Canadian jurisdiction) did not necessarily prevent supervisors and the workers they supervise from being within the same bargaining unit - governed by the same contract, bargaining at the same table, represented by the same union reps, and so on. There have been scenarios where various Labour Relations Boards have declined to certify a unit that included both supervisory and supervised employees, but it's not been required and many "mixed" bargaining units have existed and do exist.


The main argument raised in favour of supervisory exclusion is that supervisors who are within the same bargaining unit as the employees they supervise may find themselves in a conflict of interest, for example between their duties to their employer and their duties and/or loyalties as union members. It's also been argued that supervisors' bargaining priorities may not be respected within the larger bargaining unit, and that supervisors will be better off bargaining with the employer within their own bargaining unit. For instance, the City of Moose Jaw's news release (from the Regina Leader-Post article linked above) stated:

“The City has opted to structure its operations in accordance with the new legislative provisions and believes it can better manage its operations with supervisory exclusion,” the city wrote in a news release. “The concern is that supervisors and employees in the same bargaining unit can create conflict situations in disciplinary, performance assessment or grievance situations.”
 
(I have to make a quick distinction: these are supervisory employees. Managerial employees are already excluded from collective bargaining under the Act entirely. A "managerial" employee is an exception to the definition of "employee" under the Act and means "...a person whose primary responsibility is to exercise authority and perform functions that are of a managerial character..." (s. 6-1(h)(i)(A)). The distinction between a "supervisor" and a "manager" isn't always easy to draw (and is a prime subject for labour law exam questions), and I won't get into the distinction overmuch here.) 

Needless to say, unions in Saskatchewan are greeting applications to exclude supervisors less than enthusiastically.  The major concern is that such changes, first, fragment the existing bargaining unit, weakening its bargaining power; and second, disempower supervisory employees by effectively decertifying them - rendering them non-union - by removing them from the bargaining unit, and then by mandating that they collectively bargain as a smaller unit, if at all, reducing their bargaining power further. It also means that an employer must now deal with the supervisors as individual employees (if the supervisors choose not to re-certify) or as a separate bargaining unit (if they choose to re-certify). There's also uncertainty about the supervisory employees' future and what the Board will decide to do in this new regime, and whether we may find situations now where supervisory employees are simply unable to unionize at all.

See Professor Eric Tucker's take in his 2014 article "Shall Wagnerism Have No Dominion?", page 7, in Just Labour:

"While the managerial exclusion is standard in Canadian Wagnerism, special treatment of an additional layer of supervisory employees, who presumably do not fall into the managerial exclusion, is not. The exclusion of these supervisory employees from all employee bargaining units will not only further fragment an already highly fragmented bargaining model, but in many cases will effectively prevent them participating in the collective bargaining regime at all. This is because in all but the largest workplaces, the number of supervisory workers is likely to be too small to support viable a viable bargaining unit. Moreover, thestatutory exclusion of supervisory employees from larger bargaining units overrides the preference of supervisory and non-supervisory workers to bargain together, where such a preference exists."
It's also worth pointing out that other jurisdictions, such as B.C., address the issue of supervisors on a case-by-case basis. It's not mandated by statute; the Board can tailor a bargaining unit to address the issue of conflicts of interest of supervisors within that particular unit. The Saskatchewan approach is, I think, unduly intrusive, mandating a particular result regardless of the realities within the proposed bargaining unit before the Board.

Personally, I think the mandatory supervisory exclusion is lousy labour relations policy. I'd much prefer an approach that allows the Board to use its expertise to determine what is appropriate in a given case - though that, too, has risks. Contrast the Saskatchewan Act with language from the B.C. Labour Relations Code:
  
29  If a trade union applies for certification as the bargaining agent for a unit consisting of

(a) employees who supervise other employees, and
(b) any of the other employees,

the board may certify the trade union for the unit, for a unit consisting only of employees who supervise or for a unit composed of some or all of the other employees.

In B.C. the Board will still examine a variety of factors to determine if supervisors should be within the same bargaining unit as the workers they supervise; whether a second bargaining unit consisting of supervisors should be granted; or whether supervisors should be denied access to collective bargaining entirely, in the interests of industrial stability. See, e.g., B.C. Ferry Corporation v. Canada Merchant Service Guild et al., which summarizes the s. 29 approach taken by the B.C. Board. In Canada Merchant Service Guild, for instance, the Board refused to create a separate, supervisory, bargaining unit for supervisors who were not within the broader bargaining unit - so those employees, whether or not they were "supervisors" or "managers", were not able unionize under the Code at all. (
(This is of course only one case, which turned on the fact that the work being done was part of an essential public service, and whether this analysis will change (or has changed) in light of the labour jurisprudence, especially Mounted Police Association, I can't say.) It seems possible that a similar analysis might be incorporated into Saskatchewan's case law and, in certain rare circumstances, being a "supervisor" will mean not just being unable to belong to a particular bargaining unit, but to any bargaining unit.
 
A few closing points:

1. These applications are not mandatory.

Nothing in the Act requires that an employer make such an application. Certainly an employer can do so; but nothing in the Act is forcing the City of Moose Jaw, nor the Saskatoon Public Library, to make these applications.

2. Irrevocable elections are still possible.

While CUPE, the union for the library employees, seemed to feel that an irrevocable election under s. 6-11(4) had to be made prior to April 29, 2016, I don't see any language in the Act that limits elections in this way. On the contrary, the language is open enough that employers and unions can still agree to include supervisors even within new bargaining units.


3. How does the SEA apply to existing vs. new bargaining units?

It's absolutely certain that for new bargaining units, supervisors must be excluded.The Act is, however, somewhat ambiguous on the application of the supervisory exclusion to existing bargaining units.

Arguably, the language of the Act could be read so that it does not require the Board to eject all supervisory employees from all existing certification orders. The bargaining unit, as it stands, is already defined; it's already been determined that supervisors are appropriately members of the unit. I don't think saying that the Board "shall not include" supervisors within a bargaining unit is necessarily the same thing as saying the Board "shall amend existing bargaining units to exclude" supervisors.

The Board has generally required demonstration of a "material change in circumstances" before considering any change to an existing bargaining unit. But the Board has also held that change in statutory language - as here, with the introduction of the "supervisory employee" category - is, at least potentially, a "material change" which allows the Board to consider ordering a change. (See e.g. SGEU v. Saskatchewan, [1984] Nov. Sask. Lab. Rep. 38, regarding changes to the definition of "employee".) If there has been a change in circumstances, it's then up to the Board to determine whether the change is "necessary" - whether there's a compelling reason to change the parameters of the bargaining unit. 

Again, arguably, even where there has been a statutory change, amending a certification order is not the same thing as certifying a bargaining unit in the first place. The Board is not required to find that a change - in this case ejecting supervisory employees from their bargaining units - is "necessary".


Which is all well and good, but likely a moot point. The Labour Relations Board has given indications that it will review such applications with a view to enforcing the new definition. Employers and unions, in both consultations prior to introduction of the SEA and in discussions afterwards, have accepted that changes are coming (and many have negotiated "irrevocable elections" under the Act already). Perhaps surprisingly, an (admittedly cursory) review of Hansard doesn't reveal much about legislative intent here; it was implied once or twice - mostly by the opposition NDP - that the changes in the SEA would fragment existing bargaining units, and the few government references seem to implicitly accept that that is the way things will be. But there's no strong statement of legislative intent to be found in Hansard or in government press releases, as far as I can tell; it's more the case that everyone involved has assumed, all the way along, that supervisors will be unceremoniously ejected from their bargaining units when push comes to shove.

And of course even if the Board accepts that it's not technically required to eject supervisors, it would still be open to the Board to do so under its interpretation and application of its governing statute.

4. Supervisors can (probably) still unionize.


The CEO of the Saskatoon Public Library stated that there's nothing preventing supervisory employees from forming a new, exclusively supervisory, bargaining unit. That is, at least theoretically, true - the Act provides for supervisory-employee-only bargaining units (s. 6-11(4)(b), above). However such units must still be certified under the usual process, and the Board must determine if the units are appropriate for collective bargaining.

The Saskatchewan jurisprudence may evolve to reflect this new reality, and it may evolve in ways that will surprise even the employers who are now pushing to exclude supervisory employees.  It's possible that the concept of "fragmentation" within an employer's industrial relations - i.e. proliferation of bargaining units making it unwieldy or impossible for an employer to collectively bargain - will take a higher priority in the Saskatchewan Board's approach, leading to supervisory employees of some employers being denied the ability to collectively bargain at all. On the other hand, the fact that supervisors are now always excluded from the broader bargaining unit, and that the Act specifically contemplates a supervisor-only bargaining unit, might encourage the Labour Relations Board to give greater priority to supervisors’ right to collective bargaining and less to concerns about fragmented bargaining units or industrial stability.


As MLT's Kevin Wilson points out in his post linked above: 
Some unions are advising employers that they should sign an irrevocable election to exclude supervisors because if they do not the supervisors will be placed in a separate supervisory bargaining unit, and then the employer will have to deal with two collective agreements, rather than one. However, employers should be aware that this is not the automatic outcome from excluding supervisors from a bargaining unit. 

I would tend to agree. I'd hope that any excluded employees who wish to remain unionized have the opportunity to re-unionize with a union of their choice. In any event, I'll be very interested to see what the Board does with the applications currently before it.

Friday, 27 May 2016

Missed Deadlines and the Future of Collective Bargaining in the RCMP

(This post will also be posted to the Usask Law Blog.)

Bill C-7, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures, is the federal government's response to last year's decision in Mounted Police Association of Ontario v. Canada, where the existing labour relations scheme for RCMP members (and the absolute exclusion of RCMP members from unionizing under the Public Service Labour Relations Act, of which they would otherwise be able to avail themselves) had been declared unconstitutional. Bill C-7 tries to bring RCMP members under the PSLRA, but with significant procedural and substantive differences in how that Act applies to RCMP members vs. other public servants.

(It also seems to change the name from the PSLRA to the Federal Public Sector Labour Relations Act for some reason, possibly because the government sees the RCMP as part of the federal public sector without truly being part of the public service?)

Bill C-7 is currently before the Senate but has not yet been proclaimed into law. This means that the federal government has now missed the (extended) deadline set by the Supreme Court, the upshot of which is that right now RCMP members lack a collective voice with which to deal with management., because the unconstitutional Staff Relations Program (which was a management-controlled venue which previuously allowed RCMP officers collectively to raise concerns, and didn't have sufficient independence to pass constitutional muster) has been disbanded, and Bill C-7 has not yet been proclaimed to replace the SRP with something else.

Quick! Bring a Certification Application!

It's a bit of an odd situation. RCMP members couldn't unionize under the Public Service Labour Relations Act because they were excluded from the statutory definition of "employee" under that Act (and only "employees" can certify a bargaining agent under the PSLRA, just like other labour relations statutes in Canada.)

The statutory exclusion was struck down in Mounted Police Association in 2015, and the deadline to introduce new legislation has passed. That means that in the interim,  RCMP members are technically now "employees" (without restriction) under the PSLRA, and able to exercise their rights to unionize thereunder with any union they please (subject to the usual requirements of delineating an appropriate bargaining unit, proving majority support within that unit, and so on).

As Michael Mac Neil of Carleton Univerity wryly tweeted:

Of course a union would probably be foolish to do so; bill C-7 will likely be proclaimed shortly. (And the Mounted Police Association of Ontario, at least, states it's "eagerly awaiting" the new legislative framework, which doesn't suggest an appetite to upset the applecart by filing for certification right now.)

Further, the amended Federal Public Sector Labour Relations Act sets out that there will be a single bargaining unit, covering all RCMP members and reservists in Canada, and that such a bargaining unit is the only possible bargaining unit under the Act.

238.‍13 (1) Subject to section 55, an employee organization within the meaning of paragraph (b) of the definition employee organization in subsection 2(1) that seeks to be certified as the bargaining agent for the group that consists exclusively of all the employees who are RCMP members and all the employees who are reservists may apply to the Board, in accordance with the regulations, for certification as bargaining agent for that group. The Board must notify the employer of the application without delay.

The Act further sets out that the bargaining agent - i.e. union - that represents the RCMP members can't represent any other bargaining unit (s. 238.15), and the bargaining unit can't include anyone other than RCMP members and reservists (s. 238.16).

In other words, while RCMP members can select their bargaining agent (in Mounted Police Association there were three associations seeking representation rights, one based in B.C., one in Ontario, and one in Quebec, so there may be some competition for that role), they all have to select the same one, and that bargaining agent can only represent the RCMP. So, we won't be seeing the United Steelworkers or United Food and Commercial Workers representing RCMP members any time soon.

Choice in bargaining agent notwithstanding, it's quite similar to "designated bargaining agent" labour relations models, such as those designating unions for teachers and nurses. But the practical effect is that any pre-existing union, even if successful, couldn’t maintain representation rights after the passage of the new Act.

So practically speaking, RCMP members are collectively without representation until Bill C-7 is passed; when it will be passed depends on the Senate's schedule. But should the government take too long in implementing the new regime, I wonder if one of the staff associations involved in the appeal in Mounted Police Association would take matters into its own hands and apply for certification for a group of RCMP members, if only to encourage the government to move things along?

(I'll answer my own question: No, they probably wouldn't, for the reasons already given.)

Bill C-7's Restrictions on Collective Bargaining

Bill C-7 hasn't been uncontroversial; there are still provisions, unsurprisingly unpopular with RCMP members, that strictly limit what any prospective RCMP union will be able to negotiate for its members.

Specifically, s. 238.19 of the new Act states:

238.‍19A collective agreement that applies to the bargaining unit determined under section 238.‍14 must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if
(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;
(b) the term or condition is one that has been or may be established under the Royal Canadian Mounted Police Superannuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act; or
(c) the term or condition relates to
(i) law enforcement techniques,
(ii) transfers from one position to another and appointments,
(iii) appraisals,
(iv) probation,
(v) discharges or demotions,
(vi) conduct, including harassment,
(vii) the basic requirements for carrying out the duties of an RCMP member or a reservist, or
(viii) the uniform, order of dress, equipment or medals of the Royal Canadian Mounted Police.
So: no negotiation over pensions (governed by the federal superannuation and pension acts), nor wages if the government (as it did in Meredith) sets, by statute or regulation, what wages will be. No negotation over probation periods, performance appraisals, or discharge or demotion procedure. (Would that mean that negotiating a grievance procedure under which discharge or demotion could be challenged is also off the table?) No negotiation regarding duties or conduct while on the job. Frankly, it's difficult to see what substantive areas are left for an RCMP union to negotiate.


The RCMP itself has portrayed these changes as ensuring that RCMP members can "exercise their Charter-protected freedoms, including freedom of association," but I think these restrictions raise the question of whether the new Act prevents "meaningful collective bargaining", in the sense used by the Supreme Court in B.C. Health Services in 2007 and in Mounted Police Association, Meredith v. Canada, and Saskatchewan Federation of Labour in 2015. In Meredith a rollback of negotiated wage increases was not unconstitutional, but this Act prevents both present and future negotiations on a whole host of issues. Job security, wages, pensions, the ability to challenge whether your dismissal was for just cause, having some say in the employer's ability to transfer employees from one workplace or job to another...these are important issues that many unions negotiate hard for. To have them taken off the table entirely seems to leave any RCMP union the ability to nibble around the edges of its members' terms and conditions of employment, but leaves it without much actual clout. In other words RCMP members may be able to exercise sufficient choice in selecting their union, and their union may have sufficient independence from the employer, to satisfy the (quite basic) requirements set out by the Supreme Court in Mounted Police Association.

But whether the union could actually engage in "meaningful collective bargaining" is another issue. One of the reasons the health sector legislation passed by the B.C. Liberals was struck down in B.C. Health Services was because the legislation not only made significant changes to negotiated terms and conditions of employment; it also prevented any negotiation between health care unions and health care employers regarding those, and other, contractual terms.

It's worth noting that the B.C. Liberal government is facing another Charter challenge which is heading to the Supreme Court of Canada, this time regarding a prohibition on negotiating class sizes in the public school system. It's a similar issue, though to a lesser degree - to what extent can a government limit the ambit of collective bargaining without running afoul of s. 2(d)'s guarantee of freedom of association? (Mind you, no Canadian government has gone as far as Scott Walker's Republican administration in Wisconsin, which limited collective bargaining in the public sector only to wages - and any wage increases were then capped to the Consumer Price Index, at that - but there is still significant uncertainty about just how far a government can go.)

I would not be surprised if the courts haven't seen the last of the RCMP unionization saga.



 

Thursday, 26 May 2016

Check out the Usask Law Blog!


The University of Saskatchewan College of Law now has an official blog, which I think is a great move. I'm hopeful that under the benevolent (?) leadership of Professor Michael Plaxton, graduate students and faculty will find it a useful outlet for the writing-but-not-quite-enough-for-an-article-writing urge.

Check it out at Usask Law Blog!

(I will be cross-posting whatever I post there here as well, for what it's worth.)

Thursday, 31 December 2015

2015 Roundup: What a Year it's Been


There are, needless to say, an enormous number of stories and cases that come out in a given year. I don't intend to even attempt to give a thorough or fulsome "year in review" here, but I would like to revisit some of the things I've posted about in 2015.

Essential Services Legislation

In labour law, the year started off with a bang when the Supreme Court released Mounted Police Association of Ontario v. Canada (Attorney General) (which declared that workers have a right to join an independent union), Meredith v. Canada (Attorney-General) (which upheld a government-imposed rollback on wage increases for RCMP officers), and Saskatchewan Federation of Labour v. Saskatchewan (which recognized that workers have a constitutional right to strike and struck down Saskatchewan's essential services law). It's still not clear what impact these cases will have in the long term, though Alberta, at least, engaged in consultation on a new essential services law in October, to bring its law in line with the standards set out in Saskatchewan Federation of Labour.

The Saskatchewan government also introduced amendments to The Public Service Essential Services Act (the Act which had been struck down in Saskatchewan Federation of Labour) which have since been passed by the Legislature (though the new legislation isn't yet in effect). The Saskatchewan Federation of Labour seems to approve of the new law. A summary by employer-side law firm Macpherson Leslie & Tyerman is here; union-side lawyer Greg Fingas discusses the new law here. Perhaps the best summary, though, is this tweet from Eric Adams at the University of Alberta:




That said, MPAO, Meredith, and Saskatchewan Federation of Labour were really just completing the legal journey that began in 2007 with the B.C. Health Services case, and B.C. Health Services, while undoubtedly significant, didn't send Canadian labour relations flying arse-over-teakettle. But unions are undoubtedly more assertive in challenging labour legislation in court; unions in Nova Scotia, for instance, will be launching a Charter challenge against the recently-passed Bill 148, The Public Services Sustainability (2015) Act, which restricts, among other things, wage increases in the public sector. We can expect further challenges to labour legislation, but I suspect (as I've said before) that the overall impact of the 2015 cases will be relatively modest.

Alberta: Bill 6

2015 ended with a bang, too, with much furor (including, apparently, death threats aimed at Premier Rachel Notley) over Alberta's Bill 6, The Enhanced Protection for Farm and Ranch Workers Act, which extends to paid farm workers similar protections as other workers under workplace legislation: occupational health & safety, workers' compensation, labour relations, and labour standards. Bill 6 recently received royal assent on December 11, 2015, but with the significant amendment that the new protections found in Bill 6 will no longer apply to family members or unpaid workers.

(As an aside, I posted a while back about Bill 6 and that post got some traffic from a forum where people were discussing the Bill. The question of OH&S and WCB coverage for farm workers in Saskatchewan came up. Someone kindly posted a link to this blog as a source of information, but with the comment that "...but it's not very clear." A  humbling reminder.)

You said it, inspiremybusiness.com.au.
 
As the Alberta Government's website states:

Who’s affected

Alberta farm and ranch producers with paid employees who are not the owner or related to the owner will be affected by Bill 6.

This means that family members can continue to contribute to farming operations as they always have, and neighbours can still volunteer to help each other out
Still, paid farm workers in Alberta will now probably have the most extensive protections of any jurisdiction in the country. (Though this will still be subject to regulations - which might limit the application of some provisions on farms.) As I mentioned back in November, in Saskatchewan we don't have mandatory WCB coverage for farms, nor are farm workers entitled to many labour standards. Ontario farm workers (including fruit pickers) can't unionize effectively under the misleadingly-titled Agricultural Employees' Protection Act. So it will be interesting to see how Bill 6 develops in 2016 as the Alberta government crafts its regulations.


Federally: Bill C-377 and Bill C-525

Federally, the new Liberal government has blocked, and has promised to repeal, the intrusive (and likely unconstitutional) Bill C-377, which would have required unions to disclose publically (not just to their members) employee salaries, donations to political and social causes, contracts with businesses or other organizations, amounts spent on legal fees and strike support...the list goes on. Bill C-377 was, like the Conservatives' pointless fight over niqabs at citizenship ceremonies, a mean-spirited jab at people and groups that the Conservatives seemed to feel were good political targets. And like the niqab ban, it had effectively no practical value beyond, I suppose, rallying the Conservative base. Professor Adams, again, suggested that the legislation ran afoul of the division of powers between the federal and provincial governments (it's ostensibly a tax measure - federal jurisdiction - but intrudes into the regulation of all unions regardless of jurisdiction); others have suggested that it will undermine solicitor-client privilege (since unions would have to disclose legal fees and, likely, legal representation), infringe upon the privacy of union employees and those dealing with unions, and violate the Charter protections of freedom of association and freedom of expression. Prof. David Doorey pointed out that it singled out unions for greater and more detailed financial disclosure (and, again, public disclosure) than other organizations such as charities. Bill C-377 is a bloody mess, legally, practically, and constitutionally, and should have died the usual ignominious death of a private member's bill. Thankfully, it's on the way out.

Bill C-525, which would have made it harder to unionize (and easier to decertify, i.e. de-unionize) for employees under federal jurisdiction, is also on the chopping block.

Locally: Saskatoon Transit

But in Saskatoon, the dramatic labour dispute between city transit workers and the City of Saskatoon (said dispute being the impetus to start this here blog) ended the year not with a bang, but with (kind of) a whimper: the City of Saskatoon and Amalgamated Transit Workers Union, Local 615, came to an agreement on the compensation owed to the workers who had been illegally locked out. But they still haven't agreed on a contract.

And on a non-labour-related note:

Trinity Western University

Meanwhile, Trinity Western University's quest for a law school continues. In January, the Nova Scotia Supreme Court declared that the Nova Scotia Barristers' Society could not deny accreditation to graduates of a TWU law school. That decision is currently under appeal. Then, in July, the Ontario Divisional Court upheld the Law Society of Upper Canada's decision not to approve accreditation for any law school at TWU unless and until TWU revokes its "Community Covenant" (at least as far as law students would be concerned). That's currently under appeal, too.

Then, a couple of weeks ago, the B.C. Supreme Court quashed the decision of the Law Society of B.C. to refuse accreditation to TWU law grads. No word yet from the Law Society on whether it will appeal.

Regardless, it seems likely that TWU's journey will be to the Supreme Court - again - especially if the various Courts of Appeal come to contradictory conclusions.

And that's it! A brief and limited, but hopefully interesting, year roundup. I didn't get a chance to use Anti-Union Ogre in this post, sadly, so I'll have to settle for this.

Thursday, 3 December 2015

Citizenship and Disavowal: the Canadian Citizenship Oath

In 1989, I took the citizenship oath and became a Canadian citizen. The oath hasn't changed much, if at all, since then. Here it is:

I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
I admit, it didn't feel like that big a deal to me. I'd lived in Canada for fifteen of my seventeen years or so at that point; my accent was long gone; and I didn't remember Scotland at all, since I was about two-and-a-half when my parents moved back to Canada. Taking the oath was affirming what I already knew: that I was, for all intents and purposes, Canadian (albeit with an odd predilection for the pipes-and-drums).

(I saw the Maybole Pipe Band at Culzean Castle a couple of years ago. They were great. (From maybolepipeband.com))

I certainly wasn't keen on the monarchy, archaic and outmoded institution that it is, and affirming my allegiance to Queen Elizabeth II - even in her role as Queen of Canada, rather than Queen of the United Kingdom - rankled. I did take the oath, however. It wasn't a political or ideological hill I was going to die on at seventeen and, frankly, as a Canadian-in-all-but-the-paperwork by that stage, I'd long since accepted the anachronistic figurehead of my country. So I gritted my teeth, pledged my allegiance to Good Queen Bess, and became an official Canadian, no foolin'.

No hard feelings, I hope, Your Majesty. (wikipedia.org)

The citizenship oath made the news during the recent federal election, of course, in the case of Zunera Ishaq, and owing to the Conservative government's bone-headed decision to pander to Islamophobes. That issue, thankfully, appears to have been resolved and Ms. Ishaq was able to become a citizen. She, notably, took no issue with the oath itself; merely the requirement that she uncover her face while taking it.

Recently, though, the Oath made news again when Dror Bar-Natan, an immigrant from Israel, publicly recanted the portion of his citizenship oath that related to the Queen.In fact he's gone so far as to start up a website for those who wish to disavow that portion of their oath that refers to the Queen.

We at disavowal.ca have no qualms regarding the second part of the oath, about the laws and the duties. The first and slightly longer part, about the monarchy, we find bitter to swallow, each for her or his own reasons. Hence each of us disavowed that part, in one way or another.

Dr. Bar-Natan specifically stated to the citizenship judge after completing the citizenship ceremony (according to disavowal.ca): 
I affirm my allegiance, my true allegiance, to Canada and to the people of Canada, yet I wish to disavow the royalty part, and only the royalty part, of the citizenship oath.

This, by the way, is perfectly legal. You can't gain citizenship without saying the oath. But you don't lose your citizenship if you, as Dr. Bar-Natan did, immediately recant that portion of your oath. (See e.g. McAteer v. Canada (Attorney-General), 2014 ONCA 578 (CanLII) at paras. 78-79. You can, in essence, take the oath with your fingers crossed. And then post on disavowal.ca.



Now, if I may quote Wikipedia here (the very thing I tell my students not to do), the Queen of Canada:

As the sovereign...is, legally and constitutionally, the personification of the Canadian state.
(Though see the comments of Professor Philippe Lagasse, below - it's not quite as simple as that, perhaps.)

And that's the line, more or less, that the courts have taken. You're not really swearing allegiance to a monarch, as such, you're swearing allegiance to our constitutional state. That the state is personified by the monarch is simply set out in our Constitution. If we wanted to become a republic and ditch the monarchy, we could do that. As the majority of the Federal Court of Appeal in Roach (1994) stated:

Against this constitutional background, the oath of allegiance has to be understood to be binding in the same way as the rest of the Constitution of Canada not forever, nor in some inherent way, but only so long as the Constitution is unamended in that respect...The fact that the oath "personalizes" one particular constitutional provision has no constitutional relevance, since that personalization is derived from the Constitution itself.

The Ontario Court of Appeal in McAteer has also taken the position that any oath to uphold the laws of Canada implicitly means allegiance to the Queen and, therefore, a more generic oath would still have the same effect:
Because the Queen remains the head of our government, any oath that commits the would-be citizen to the principles of Canada’s government is implicitly an oath to the Queen. 
The courts, generally speaking, seem to approach this as self-evident; that those who complain about the monarchist portion of the oath misunderstand the oath; that such objections are somehow unreasonable. McAteer, again:

The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Supreme Court of Canada, leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under The Constitution Act, 1867. In that oath, the reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning.
Except that, it seems to me, they keep dancing around the issue that the oath is, explicitly, an oath to "bear true allegiance to Her Majesty Queen Elizabeth II, Queen of Canada..." Yes, I'm basing this on a "literal plain meaning" interpretation. Perhaps we contract-lawyer types lack the poetic souls of constitutional scholars. We can dress it up in more legalistic or metaphorical terms, but I don't think it's unreasonable of people of strong religious (e.g. their allegiance is to God alone) or political (e.g. republican or anti-monarchist) beliefs to take umbrage at the oath's wording.

That doesn't, of course, render the oath unconstitutional. And legally speaking, such concerns may indeed by conscientious but also legally incorrect. Conscience can be visceral, and hasn't necessarily been to law school.

In 2002, Bryce Edwards (then still a law student, I think) argued in his article "Let Your Yea be Yea: the Citizenship Oath, the Charter, and the Conscientious Objector" (paras. 89-90):

It may be true that many of the objections a claimant raises can be met by careful definition of the meaning of the words "Queen Elizabeth" in the citizenship oath...However, it seems that adjusting the legal significance of the words is untenable...The words, in their plain meaning, indicate a person, Queen Elizabeth. The legal history of oaths of allegiance shows that they arose explicitly in order to bind the conscience of the individual to the sovereign, not to concepts...
It is far from obvious that the meaning of the oath has changed, given that the words have not. The oath taken today is nearly identical to one taken in 1689. Regardless of what judges say, the public and political nature of both citizenship and the citizenship ceremony means that the judiciary is hard-pressed to set the meaning of words in any authoritative way. Not only is it fairer to all involved that the words be given their clear, plain and popularly held meaning, it also is in keeping with the canons of statutory interpretation. The ceremony is more than just a legal one; it is a public ceremony, with personal, religious, social and political ramifications. In this light, the present wording of the oath falls afoul of the objections outlined above and is not saved by semantics.
The (perhaps less-than-careful) distinction between Queen-as-Queen and Queen-as-State drawn by the courts has also been addressed by Professor Philippe Lagassé, who has written extensively on the concept of the Crown, and in 2014 was generally in agreement with the Court's decision in McAteer - but with some caveats. (His blog makes for interesting reading, by the way.) As Professor Lagassé notes:

I am probably being unfair here, but I would have preferred to see a clearer statement that the Crown is the state and that the Queen is the legal personality of the state and the executive, not just symbols of the state and the executive. The distinction may appear trifling, but I’d argue that there’s an important distinction between the Crown and Queen as the state and the sovereign authority versus the Crown and Queen as symbols of the state and sovereign authority.
Nor, he adds, should monarchists be too quick to celebrate McAteer:

So why is this bad news for monarchist and royalists? Because the ruling could be read to mean that the Queen of Canada is a mere legal entity, one that happens to be linked to the British monarch but not necessarily so...
...The finding that the Queen of Canada and Queen Elizabeth II are not necessarily fused as part of the oath, moreover, fuels frustrations with Canada’s citizenship guide. The guide’s description of the oath and the role of the Queen in Canada arguably relies on the notion that the office of the Queen and the Queen as a natural person are synonymous. Weiler and Morgan, on the other hand, are saying that, for the purposes of taking the oath anyway, that’s not the case.

In any event, putting aside whether or not there is a necessary tie between the Canadian Monarchy and the British Monarch, it could well be that, as the Court stated in McAteer, any oath of citizenship is implicitly an oath to the Queen. But that said, if that's the case, then we don't actually need the Queen in our citizenship oath. A more generic oath, such as:

"I swear (or affirm) that I will be loyal to the Dominion of Canada, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen."
 ...is, accordingly, an implied oath to the Queen. Except that it seems that such an oath would be less distasteful to a number of people; nobody seems to be suggesting the rest of the oath is somehow offensive. (Though if you wanted to disavow the whole damn thing, you can do that, too.) So everybody's happy, right? Republicans and monarchists alike?

Australia, also still a Dominion, requires prospective citizens recite this non-monarchist pledge as part of becoming a citizen:

From this time forward, (under God),
I pledge my loyalty to Australia and its people,
whose democratic beliefs I share,
whose rights and liberties I respect, and
whose laws I will uphold and obey.

However, when all is said and done, our courts have reaffirmed that the citizenship oath, as it stands, is constitutional. It will be up to Parliament to change the oath. So for now, for those who wish to become Canadian citizens but just can't bear to have an oath to a monarch (even an apparently  metaphorical one) on their conscience, there are two options. One, they can choose not to become citizens. Or two, they can speak the oath and then disavow allegiance to the Queen, as Dr. Bar-Natan recently did.

As for me, I have no intention of disavowing my citizenship oath, in whole or in part.

Still not a big fan of the monarchy, though.