Amici Curiae: Essential Services Act, Broadcasting Act Reference, and the Vander Zalm Defamation Trial

Saskatchewan Essential Services Legislation Deemed Unconstitutional

A Saskatchewan Court of Queen’s Bench justice recently struck down a controversial piece of legislation that denied public sector workers the right to strike. The legislation was deemed unconstitutional for infringing on public sector workers’ rights to freedom of association, guaranteed by section 2(d) of the Charter of Rights and Freedoms.

Enacted in 2008, the Public Service Essential Services Act, SS 2008, c P-42.2, listed various government services and programs that could be declared essential and subjected to a “designated” or “controlled strike,” which utilizes an independent adjudication process to maintain essential services through a period of work strikes. While the Saskatchewan Federation of Labour submitted that the legislation infringed on workers’ rights under sections 2, 7 and 15 of the Charter, Justice Ball adopted the approach of the Supreme Court of Canada in Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016, which treated the rights of workers to organize, bargain collectively, and strike as part of freedom of association under section 2(d).

While Ball J found that the act “substantially interferes” with the workers’ section 2(d) rights, he also suggested that the right is not absolute as it can be limited for employees who are “engaged in the delivery of truly essential services to the community.” In light of this limitation, the main question on appeal considered “the extent to which the protected freedom to strike can be restricted.”

Under the test set out in R v Oakes, [1986] 1 SCR 103, for justifying an infringement of a right, Ball J found that by ensuring “the continued delivery of essential services to the community during a labour dispute,” the impugned legislation met the first requirement that the legislation must have a “pressing and substantial objective.” However, the act failed to meet the Oakes proportionality requirement because its deleterious effects on the employees clearly outweighed its benefits.

Amongst the many reasons provided in his decision, Ball J emphasized the fact that the Act “does not contain a dispute resolution process nor does it provide compensatory access to an impartial and effective dispute resolution process for those employees who are prevented from engaging in meaningful strike action.” He also found the Act’s provisions to be inconsistent with its purported objective to employ a “controlled strike model.” Interestingly, while Ball J concluded that the government did not have a duty to consult the unions before enacting the Act, he suggested this factor should be considered when determining whether the right had been impaired.

The decision, which is considered to be the first challenge to essential services legislation in Canada, is significant because it sends a clear message to governments that there are limits when it comes to legislating around workers’ rights to organize and protest. While the government has twelve months to revise a more constitutionally sound piece of legislation or appeal the decision, it is likely to do both. Further appeals would be helpful for confirming the SCC approach adopted by Ball J and for shedding further light on the definition of essential services, which recently came under scrutiny following the lock out of Canada post employees and the subsequent Air Canada dispute.

ISPs Off the Hook for Canadian Content Funding

The Supreme Court released its decision on the Reference re Broadcasting Act, [2012] 1 SCR 142. Thursday, ruling that Internet Service Providers (ISPs) are not subject to broadcast regulations. The reference, on appeal from the Federal Court of Appeal, addresses whether ISPs (such as Rogers, Bell, and Telus) conduct “broadcast undertakings” and as such are bound by the Broadcasting Act, SC 1991, c 11.

More to the point, at issue was whether the Act’s provisions that require those who conduct “broadcast undertakings” to financially support the production of Canadian media content should apply to ISPs.  The appellants in the case included the Alliance of Canadian Cinema, Television and Radio Artists, the Canadian Media Production Association, the Directors Guild of Canada and Writers Guild of Canada – groups who stood to gain millions of dollars in funding if the Court ruled that ISPs were in fact subject to the Act’s provisions.

Upholding the judgment of the Federal Court of Appeal, the SCC held that ISPs do not conduct “broadcast undertakings” since they “take no part in the selection, origination, or packaging of content” and instead “merely provide the mode for transmission.”

The goal of the Act’s impugned provisions is to ensure both the production and distribution of Canadian content that is often overshadowed, both domestically and on the world stage, by the media juggernauts south of the border.  The Court, however, was willing to draw a distinction that saved the ISPs from contributing to the production of Canadian content, at the potential expense of the proliferation of Canadian content online.

Jury Deliberates in Vander Zalm Defamation Suit

The values of freedom of expression and protection of reputation are at war again in British Columbia, where the jury is currently deliberating in the libel suit against former premier Bill Vander Zalm.

The plaintiff in the suit, Ted Hughes, alleges that statements published in Vander Zalm’s 2008 autobiography are defamatory because they portray Hughes as having personal motivations for his findings in a 1991 conflict of interests inquiry that forced Vander Zalm to resign as premier. Vander Zalm has defended his comments as a fair comment on a matter of public interest rather than a statement of facts.

Defamation law in Canadian is notoriously plaintiff-friendly compared to other jurisdictions, particularly the United States.  However, the law has evolved significantly in the past decade led by the Supreme Court ruling in Grant v Torstar Corp., [2009] 3 SCR 640, which created the defense of responsible communication.  This defense, however, only protects journalists, and many commentators and practitioners believe Canadian defamation law is outdated and in need of further reform. The propagation of SLAPP suits and political libel in Canada demonstrate that defamation law in Canada has not evolved far from its roots as a tool to protect the rich and powerful from criticism. This, however, does not accurately reflect the values most citizens hold in the modern Canadian democracy.

A by-product of the common law tort system is that the law can only evolve if it is presented with the right cases at the right time.  The high-profile of the Vander Zalm case gives it the appearance of a case that may represent the next stage in the evolution of Canadian defamation law to be more in line with the value that Canadians place in freedom of expression. Alternatively, the jury could do as Hughes’ lawyer urged them and make a substantial award that stalls the evolution of Canadian defamation law in its tracks.