CONSTITUTIONAL LAW |
Public Service Alliance of Canada v. Canada
T-1383-99
Pelletier J.
18/5/00
22 pp.
Motion to strike out statement of claim for failing to disclose cause of action--Treasury Board, PSAC negotiating agreement with respect to certain members of CX group (correctional officers) confirming right to strike--Days later Parliament enacting legislation rendering ineffective negotiated settlement by ordering CX group back to work, compelling PSAC to advise members any direction or authorization to strike given prior to passage of legislation invalid by reason of coming into force of legislation--PSAC submitting legislation contrary to rule of law because arbitrary, passed in bad faith; also infringement of plaintiff's freedom of expression because requiring officers of plaintiff to communicate certain information to members--Plaintiff pointing to dicta of Noël J. in Huet v. Canada (1994), 85 F.T.R. 171 (F.C.T.D.) wherein stated if courts having power to keep in force laws otherwise inoperative by virtue of necessity to maintain rule of law, must also have power to invalidate laws when effect of application to suspend rule of law--Plaintiff also pointing to Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721--But resort to rule of law therein driven by need to avoid creating legal vacuum; thus principle of rule of law not used to invalidate legislation but to justify suspension of coming into effect of Court's own judgment--Plaintiff submitting Constitution including not only constitutional documents themselves, but also constitutional principles underlying documents, particularly when those principles expressly recognized in constitutional documents, as is rule of law in preamble to Charter; gap in constitutional documents can be supplied by reference to underlying principles as suggested in Re Resolution to amend the Constitution, [1981] 1 S.C.R. 753--While Wells v. Newfoundland, [1999] 3 S.C.R. 199 supporting plaintiff's position in sense of saying rule of law requiring Government to honour obligations, in fact strong statement in support of defendant's position as appears to recognize explicitly Legislature's right to pass legislation without restriction, even if passed in circumstances highly suggestive of bad faith--Defendant relying on Bacon v. Saskatchewan Crop Insurance Corp., [1999] 11 W.W.R. 51 wherein Sask. C.A. rejecting notion rule of law discrete ground under which legislation could be invalidated; finding arbitrary administrative action could be remedied by superior courts exercising supervisory function; arbitrary legislative action which could not otherwise be challenged pursuant to division of powers or Charter could be challenged at ballot box--Defendant also relying on Singh v. Canada (Attorney General), [1999] 4 F.C. 583 (T.D.) wherein McKeown J. holding unwritten constitutional norms cannot be used to invalidate legislation; concluding none of unwritten principles cited (federalism, separation of powers, judicial independence, rule of law) justified setting aside legislation enacted by Parliament acting within jurisdiction conferred on it by Constitution--On appeal ([2000] 3 F.C. 185 (C.A.)), Strayer J.A. concluding unwritten principle, including rule of law, could not be used to strike down legislation within Parliament's legislative competence and which did not offend Charter--F.C.A. decision in Singh sufficient to dispose of plaintiff's claim on application for summary judgment, but test on application to strike claim for failure to disclose cause of action whether grievance known to law, not whether existence of good defence--Case on boundary between claim to which good defence and claim unknown to law--On basis of conventional view Parliament's sovereignty limited only by division of powers in Constitution Act, 1867, enumerated rights in Charter, plaintiff not having cause of action arising from breach of rule of law--Portions of plaintiff's claim claiming declaration of invalidity based upon breach of rule of law struck--Plaintiff also alleging infringement of freedom of expression of members who were obliged to cease picketing, activity serving expressive function, and of plaintiff's officers who were required to make certain statements to membership about validity of communications with respect to strike--Relying upon U.F.C.W. v. KMart Canada Ltd., [1999] 2 S.C.R. 1083 for proposition picketing expressive behaviour protected by Charter--In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 Dickson J. holding freedom embracing both absence of coercion, constraint and right to manifest beliefs and practices--Legislation in question requiring officers, representatives of bargaining agent to give notice to every employee that any authorization or direction to go on strike given to them before coming into force of Act invalid and government services to be resumed forthwith--Not interfering with speech but imposing positive obligation to express certain views which plaintiff's representatives may find offensive--Statement of claim not expressly pleading legislation invalid for compelling speech offensive to PSAC, officers--Portions of claim dealing with freedom of expression struck unless within 30 days plaintiff amending claim to allege violation of right to freedom of expression guaranteed by Charter, s. 2(b)--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44), s. 2(b)--Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].