AJC Files Application for Leave to Appeal to the Supreme Court of Canada :: Association of Justice Counsel News
HomeAbout UsNewsMembershipInformation CenterFAQsSite MapContact Us
October 11th, 2012
October 11th, 2012
en

AJC Files Application for Leave to Appeal to the Supreme Court of Canada

The Association of Justice Counsel has applied for leave to appeal to the Supreme Court of Canada from the Judgment of the Court of Appeal for Ontario on the ERA Charter Challenge, made on August 7, 2012, and for an order granting leave to appeal.

The AJC was extremely disappointed by the OCA decision. We feel it is our duty to pursue this case on behalf of our members.  As indicated in our Memorandum of Argument, this is the first of at least nine cases under the ERA to reach the Supreme Court.  It has direct application to the 400,000 federal employees across Canada covered by the ERA, and applies indirectly to hundreds of thousands of other provincial government employees who are already, or likely soon will be, subject to wage restraint legislation.

The pursuit by the AJC will help provide certainty on this issue once and for all.

The AJC application for leave is being made on the following grounds:

  1. The Court of Appeal for Ontario erred by finding that the Expenditure Restraint Act, S.C. 2009, c. 2 ("ERA"), had not substantially interfered with the collective bargaining rights of the Applicant and its members, as protected under s.2(d) of the Charter of Rights and Freedoms ("Charter");
  2. In finding that the ERA did not violate s.2(d) of the Charter, the Court of Appeal for Ontario unduly narrowed the scope of protection for collective bargaining (...);
  3. The instant case has far-reaching implications and raises issues of national importance;
  4. There are inconsistent decisions in the lower courts on the constitutionality of the ERA, and the lower courts and governments across Canada would benefit from the guidance of the Supreme Court on the issues that arise.

According to the AJC Memorandum of Argument:

  • Justice Grace of the Superior Court found that the ERA substantially interfered with the collective bargaining rights of federal Crown counsel as protected by s.2(d) of the Charter.  He found that the infringement was justified with respect to the period from 2007 to 2011, but that the ERA's retroactive reach back to May 2006 was essentially unexplained, and failed the minimal impairment and deleterious effects branches of s.1.  
  • The Court of Appeal reversed.  The Court did not consider the scope or effects of the impugned legislation, focusing instead on the very limited negotiations over salary that had occurred prior to the ERA.
  • The Court of Appeal's holding eviscerates s.2(d).  It is inconsistent with this Court's requirement in Health Services and Fraser that the impugned legislation preserve a meaningful process of consultations or negotiations.  It is inconsistent with two rulings in other jurisdictions on the constitutionality of the ERA.   Finally, it is inconsistent with the meaning given to freedom of association in international law.
  • This case raises questions of profound public importance.  This is the first of at least nine cases under the ERA to reach the Supreme Court of Canada.

The AJC will keep its members informed and will provide additional details when appropriate.


Share this:
RSS feed Feed Description
Subscribe to the complete Association of Justice Counsel News RSS news feedAll News RSS feed Complete RSS feed
Subscribe to the Association of Justice Counsel News RSS news feed for this category onlyAnnouncements RSS feed for: Announcements
A Rich Site Summary (RSS) feed is an xml data file that provides a summary of the information contained here. It is not designed to be viewed in your browser, but instead by rss reader software. If you do not know what this means - you can safely ignore it, as it is provided for advanced users with rss reader software only.
Association of Justice Counsel
300-2725 promenade Queensview
Ottawa, ON
Canada K2B 0A1

613-798-9900   1-866-218-3310
Copyright © 2000-2017 Association of Justice Counsel
web development: PawPrint.net