The Supreme Court of Canada’s decision to sustain the BC Law Society’s refusal to accredit to the Trinity Western University law school because of its inequitable “Covenant” (which enforced heterosexual monogamy among faculty and students) has been widely hailed as a victory for inclusion and human rights. However, that is only the start. The Court’s reasoning has far broader implications than balancing religion and equality rights. It has a lot to say about how boards, tribunals and other administrative bodies - including the BC Labour Relations Board - must make their decisions wherever they affect Charter rights and values.

In reviewing the Law Society’s decision, the Supreme Court commented on the approach that administrative decision-makers must take when they are dealing with people’s fundamental rights and freedoms as set out in the Canadian Charter of Rights and Freedoms. The Court emphasized that these decision makers must uphold Charter rights as rigorously as courts do:

“Delegated authority must be exercised in light of constitutional guarantees and the values they reflect. The . . . framework is concerned with ensuring that Charter protections are upheld to the fullest extent possible given the statutory objectives within a particular administrative context. In this way, Charter rights are no less robustly protected under an administrative law framework.”

When making a decision where Charter rights are at stake, the decision-maker must choose the option that provides the most possible protection to Charter rights, while still upholding the decision-maker’s purposes as set out by their enabling statute.

“The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the objectives. This does not mean that the administrative decision-maker must choose the option that limits the Charter protection least. . . However, if there was an option or avenue reasonably open to the decision-maker that would reduce the impact on the protected right while still permitting him or her to sufficiently further the relevant statutory objectives, the decision would not fall within a range of reasonable outcomes.”

This means that whatever boards or tribunals consider the best method to satisfy a statutory mandate must give way to an adequate method, if that is what it takes to make proper room for Charter rights and values.

The BC LRB's present approach to essential services orders overly restricts the Charter-protected right to strike, and is no longer tenable in light of the Supreme Court’s ruling in TWU.

Our Labour Code applies a “controlled strike” essential services strategy. The parties are free to strike or lock out, but the Board orders the continuation of minimum levels of service. Its standard “global order” policy is to designate numbers of employees in various jobs and classifications who must continue working; they are required to report to work and perform whatever duties management directs, whether or not those individual tasks are essential. The onus is left on the union to return to the Board and try to get the designations reduced if members are being forced to perform a lot of non-essential work.

The Board has stoutly resisted efforts by unions to limit the scope of work that designated essential employees must perform, so that they are only required to perform essential tasks. The difference this makes in the scale of work gets done behind the picket line is obvious.

I thought the issue was settled by the Supreme Court in the Saskatchewan Federation of Labour case, where it declared that the right to strike is protected by the Charter. It specifically addressed forcing striking employees to perform non-essential tasks:

91. . . . . Requiring those affected employees to perform both essential and non-essential work during a strike action undercuts their ability to participate meaningfully in and influence the process of pursuing collective workplace goals [emphasis in original]

Every order limiting picketing, or requiring a union member to work behind a picket line, seriously restricts important Charter rights. Making way for those rights is not an inconvenience or afterthought, as the Board has often projected in the past. The Board's failure to prioritize Charter rights is also apparent in its approach to picketing cases.

For example, in a typical situation a union puts up a picket line. The employer files a complaint at the LRB, and the union responds that the picketing is Charter-protected. The Board’s practice is to go ahead with the employer’s case, often ordering the picketing to stop and filing the order in court for enforcement, putting off the Charter issues until later (when it’s usually too late anyway). Implicitly the Board gives greater priority to the economic interests of employers than the constitutional rights of workers. To labour practitioners this is so commonplace that people may hardly notice how wrong it is.

Giving effect to the Charter is at the heart of the Board’s mandate, right along with the Labour Relations Code. Whenever the BC LRB makes decision on picketing or on essential services, it must ensure that it restricts rights only to the extent that is truly necessary to satisfy the legal demands of the Code. The current “global order” which requires designated workers to perform any of their job duties, essential or not, as directed by management does not pass constitutional muster.

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