Health-Care Unions File Application for Leave to Supreme Court of Canada on Employer Communication Rights

Authors: Leah Schatz, Q.C., Brent Matkowski

On February 10, 2017 Health-Care Provider Unions SEIU-West and SGEU filed an Application for Leave to the Supreme Court of Canada requesting that the Court hear the issue of whether the Saskatchewan Health Regions violated the employer communications provisions of The Trade Union Act during the 2008 round of collective bargaining with the Health Regions and the Saskatchewan Association of Health Organizations (“SAHO”).

During the course of negotiations between 2008 and 2010, the Health Regions and their bargaining agent SAHO conducted a very active communications campaign involving press releases, letters, a website and posters. All of the communications concerned bargaining proposals that were being presented to the Unions during the course of collective bargaining. Following the conclusion of collective agreements, both SEIU-West and SGEU, together with CUPE, filed unfair labour practice applications with the Saskatchewan Labour Relations Board. They alleged that, with the communications campaign, SAHO and the Health Regions violated section 11(1)(a) of the Act by interfering with, intimidating or coercing employees in the exercise of their rights. Section 11(1)(a) was amended by the Government in 2008 to provide that employers could communicate facts and opinions. The Unions also brought applications alleging violations of sections 11(1)(b) relating to interfering in union administration and 11(1)(c) related to failing or refusing to bargain in good faith.

After conducting a lengthy hearing to determine if there was merit to the applications, the Board found against the Unions with one exception.

The exception was that some of the information which was released in relation to the issue of retroactive pay had been inaccurate and offended section 11(1)(a) of the Act. The Board issued an order preventing SAHO and the Health Regions from further violations of this nature. The Board held that the amendment should be taken to have recognized a greater capacity on the part of employees to receive information without being interfered with, intimidated or coerced.

The Unions brought a judicial review application to the Court of Queen’s Bench. The Court found several aspects of the Board’s reasoning related to section 11(1)(a) to be unreasonable. It set aside the Board’s decision except for the Board’s finding that SAHO breached section 11(1)(a) by misrepresenting  retroactive pay. The Court ordered the Board to reconsider the decision in light of its comments with respect to what it perceived to be the unreasonableness of the Board’s approach.

The Health Regions and SAHO appealed the decision of the Court of Queen’s Bench to the Saskatchewan Court of Appeal. In a decision issued December 12, 2016, the Saskatchewan Court of Appeal allowed the appeal in part. With respect to section 11(1)(a), the Court of Appeal held that the Court of Queen’s Bench misinterpreted the Board’s decision and found the Board’s reasoning regarding the section totally reasonable and within keeping with recent case authorities interpreting permitted employer communications.

The Court of Appeal did find the Board’s treatment of 11(1)(c) problematic and its analysis of remedies.  The Court of Appeal remitted the section 11(1)(c) issue and the issue of available remedies back to the Board for further analysis.

Both SEIU-West and SGEU took issue with the Court of Appeal’s ruling with respect to section 11(1)(a) regarding permitted employer communications.

If the Leave Application is granted by the Supreme Court of Canada, the Board’s decision regarding the actions of the Health Regions and SAHO related to employer communications between 2008 and 2010, and the interpretation of the 2008 amendments, will be the subject of a hearing before the Supreme Court of Canada.

Read an update on this post.

Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.