PRHA Committee Meeting

Meeting No. 60

Tuesday, April 13, 1999

The Standing Committee on Procedure and House Affairs met in camera at 11:09 a.m. this day, in Room 112-N, Centre Block, the Chair, Peter Adams, presiding.

Members of the Committee present: Peter Adams, Roy Bailey, Stéphane Bergeron, Yvon Charbonneau, Madeleine Dalphond-Guiral, Joe Fontana, André Harvey, Bob Kilger, Gar Knutson, Lynn Myers, John Richardson, John Solomon, Chuck Strahl and Randy White.

Acting Members present: Raymond Bonin for Marlene Catterall; Rey Pagtakhan for Joe Fontana; Hec Clouthier for George Baker; Grant McNally for Roy Bailey.

In attendance: From the Library of Parliament: James Robertson, Research Officer.

Orders of Reference from the House of Commons dated Wednesday, February 17, 1999 and Thursday, February 18, 1999 in relation to the matter of the molestation of Mr. Pankiw (Saskatoon - Humboldt), and in relation to picket lines established to impede access to the Precincts of Parliament.

Prior to commencing examination of its Order of the Day, the Committee suspended for one minute's silence in memory of Jacques Girard, the Chief Electoral Officer of Quebec and the former Legal Counsel for Elections Canada.

At 11:10 a.m. the Committee resumed consideration of its draft report.

At 11:54 a.m., the sitting was suspended.

At 11:56 a.m., the sitting resumed.

It was agreed, - That the draft report, as amended, be adopted as the Committee's Report to the House and that the Chair present the Report to the House.

It was agreed, - That the additional documentation provided by Diane Davidson, General Legal Counsel of the House of Commons, be appended to this day's Minutes of Proceedings as Appendix PRHA-02.

At 12:26 p.m., the Committee adjourned to the call of the Chair.

Carol Chafe

Clerk of the Committee

APPENDIX PRHA-02

Further to my presentation to the Standing Committee on Procedure and House Affairs on March 9, 1999, and to the presentation made by P.S.A.C., I wish to provide the committee with the following clarification.

On February 17, 1999, while on a legal strike against their employer the Treasury Board, members of the Public Service Alliance of Canada picketed the Wellington Building and allegedly impeded access to Parliament Hill. In doing so they purportedly prevented Members of the House of Commons, staff of the House and others from entering the buildings.

These actions of the members of the Alliance have given rise to a number of inter-related legal issues involving Parliamentary Privilege, administrative law, and labour law. In the course of committee meetings of Members to resolve issues of privilege, a number of labour law questions surrounding picketing have arisen. This memorandum attempts to address some of the labour law issues, within the larger context.

In reading this memorandum, the following facts should be remembered:

The employees of the House of Commons are not employees of the Treasury Board, rather they are employees of the House of Commons and their labour relations are covered by the Parliamentary Employment and Staff Relations Act;

The picketing employees are employed by the Treasury Board;

The picketing employees are covered by the Public Service Staff Relations Act;

The Alliance is in a legal strike position under that Act; and, because the physical plant of the Parliament Buildings is the responsibility of the federal Department of Public Works and Government Services, there are a number of employees of that department who work in the Parliamentary building the physical plant. These are employees of the Treasury Board and are "on strike".

Since the issues of picketing are rooted in the employee-employer relationship, it is important to understand who employs what employees.

Employees of the federal government are employed by Her Majesty through appointment to various positions primarily under the Public Service Employment Act. Their terms and conditions of employment are set by the Treasury Board¹ and their labour relations are governed by the Public Service Staff Relations Act. This last act allows Public Servants to strike, and regulates certain aspects of the strike. It is silent regarding picketing.

Employees of the House of Commons are not Public Servants. They are not employed by the government. They are employed directly by the House. The unique nature of these employees was recognized by the Federal Court in the mid-1980's when attempts were made to unionize employees of the House of Commons².

Following this Federal Court decision the Parliamentary Employment and Staff Relations Act was enacted which allows for a separate labour relations regime for employees of the House. This Act contains a number of significant provisions: the status of the House as employer is confirmed³; collective bargaining impasses are to be resolved by arbitration⁴; employees are prohibited from striking⁵; and, no employee organization shall authorize a strike the effect of which is or would be to involve employees of the House in a strike⁶.

In short, the employees on strike have a different employer from those of the House, their labour relations are governed by a different statute, and they have significantly different rights regarding the ability to strike.

Given this dichotomy, how should one view the actions, which occurred February 17, 1999 from a labour law perspective?

First a distinction must be made between striking and picketing. They are not synonymous. The right to strike does not necessarily include the right to unrestricted picketing. While intertwined, the law views each differently.

In both the Public Service Staff Relations Act and the Parliamentary Employment and Staff Relations Act the term strike is defined as:

Unlike some provincial labour statutes, there are no provisions in either of these statutes, which defines, allows, or limits picketing in the case of strikes. As a result, it is my opinion that the restrictions on picketing would be determined in accordance with the common law; and, because of the public nature of the employers involved, perhaps the Charter.

That there is a connection between striking and picketing, however, cannot be denied. The Supreme Court has stated⁷:

Notwithstanding the importance of picketing to a strike, unions may not engage in activity, which is illegal, either criminally or civilly. Generally, picketing has been regulated through the common law torts of trespass, nuisance (interference with the use of property), and protection of people from harm, such as assaults. In addition, where picketing has occurred that involves employees who are not on strike, such as another location of the same employer, or suppliers, with the expectation that others will join the strike, or refuse to work, the courts have also found picketers to have committed the tort of intentional interference with contractual relations. One cannot cause another to breach a contract, in this case either a collective agreement or an employment contract.

In addition, picketing cannot be used in the furtherance of a criminal act.

More recently, and particularly in cases involving governments, or governmental actors, the courts have dealt with the freedom of expression aspects of the Charter. Picketing is, in its nature, a form of expression which is constitutionally protected and which is, by virtue of section 1, subject only to reasonable limits. Therefore the application of the general restrictions outlined above will have to be placed in such a constitutional balance.

One situation which is often misunderstood occurs when employees who are not in a legal strike position refuse to cross picket lines. There is no "right" to not cross picket lines. Unless there is a provision in an employee's collective agreement, any action by employees in not crossing picket line, which is seen as acting in concert, combination, or with a common understanding, will constitute an illegal strike. Actions by the picketers which encourage such concerted action will be seen as inducing an illegal strike, and could also be seen as inducing the other employees to breach their contracts.

In the case of the House of Commons there are the added legislated restrictions found in sections 73 and 74 of the Parliamentary Employment and Staff Relations Act. These are the provisions which forbid House employees from striking and prohibit acts by employee organizations which have the effect of involving employees in a strike. Encouraging employees to not cross picket lines, or causing them to not be able to could be seen as violations of these sections⁸.

In the case of the Public Service, a similar issue can arise in the case of designated employees. Under the Public Service Staff Relations Act certain employees, who are members of the bargaining unit, and may be members of the union, occupy positions which are designated as having duties required to be performed for the safety and security of the public, and therefore prohibited from striking. The performance of these tasks cannot be interfered with by strikers. In an early case, the first chair of the PSSRB wrote:

The issue of secondary picketing has been the subject of considerable confusion in the debates before the Committee. The classic situation of secondary picketing occurs when striking employees picket the premises other than that of there employer in an a attempt to persuade customers not to do business with the third party because he does business with their employer. An attempt is essentially made to bring economic pressure on the third party so he will bring pressure on the employer. Secondary picketing is illegal and will be prevented by court injunction¹⁰.

In the present situation, the Alliance has taken the position that picketing the various Parliament Buildings is not secondary picketing since there are a small number of employees who work in the Parliament buildings; therefore the argument is that the buildings are a work site of their employer and subject to being struck and picketed.

If there were no employees represented by the Alliance capable of striking, this would be a case of secondary picketing since the House is not the employer, and the Parliament Buildings would not be a struck work site.

The existence of even a handful of government employees would take the situation out of being secondary picketing; however, the small number of individuals at the site may be factored in any action taken to restrict pickets. The courts will look at a number of factors in balancing interests. In such circumstances courts may look to the harm such an injunction will have on the ability of the strikers to otherwise strike their employer¹¹.

Given that any balancing of interests will look at the possible harm to the "business" struck, or the "business" being picketed, the nature of the activity, which is disrupted may become a determinative factor. In the case of the House of Commons, the unique nature of the institution will play a considerable role in any decisions taken regarding injunctions or restrictions.

In a number of cases, the Courts have held that picketing of courthouses by its own striking employees, and their unions should be enjoined¹². The basis for the decisions is that the business of the courts is a fundamental constitutional component of a democratic society. The courts are institutions, which allow for the administration of justice and have as one of their purposes the defining and enforcement of people's constitutional and legal rights. They are part of the constitutional process and denying individuals access to the courts denies them their Charter rights.

In the courthouse cases an absolute ban on picketing was granted. In doing so the courts indicated that even where there is no actual impediment, the mere presence of pickets can be viewed as an impediment, because of perceived intimidation¹³.

In 1996, the reasoning of the Supreme Court in the courthouse cases, was applied to enjoin the picketing of a provincial legislature with the court drawing an analogy between access to the courts and a Members' parliamentary privilege to be able to enter and leave the legislature without impediment. The court concludes, "[d]elay and obstruction of entry and egress of Members and essential staff of the Legislative Assembly strikes a blow at the very heart of our society and is unacceptable"¹⁴.

In addition to the entrance and exit of Members, which is a question of privilege, one could also make a good argument that the nature of Parliament and the House puts its business at a constitutional level at least as high as, if not higher than, that of the courts. Parliament is recognized by s. 17 of the Constitution Act, 1867. The constitutional nature of the House and its business, particularly as it relates to privileges, has been recognized by the Courts¹⁵. The Constitution speaks of the rule of law and the ability of Parliament to legislate and to limit rights (if necessary) in a manner which is reasonable and demonstrably justifiable in a free and democratic society. To allow Parliament to be impeded in this is to allow a fundamental aspect of Canadian democracy to be denied.

There are many democratic aspects to the business of the House of Commons which could be added to those of sittings of the House, including Committees, meeting with constituents and interested individuals, visits of foreign dignitaries, along with the support work for the functioning of the House in all of its manifestations.

That employees of the House are prohibited from striking, thus disrupting the business of the House, is directly related to the constitutional nature of the "business" of the House and the importance of the work that is performed there.

That a strike by one component of the Alliance can have the effect that the component representing House employees cannot accomplish directly is another important consideration.

Throughout the presentation by the Public Service Alliance much was made of picketing and the freedom of expression under the Charter of Rights and Freedoms. As indicated above, the law is now settled that picketing in the context of a strike is a form of expression, which is constitutionally protected. However, like all rights and freedoms, the freedom of expression is not absolute. It is governed by law and is subject to limitations.

These limits can take many forms. The limit, which is most often discussed, is that found in section 1 of the Charter, which subjects all Charter rights and freedoms to "such reasonable limits as may be prescribed by law." Given that there is no written "law", reasonableness would have to be measured by the common law. This approach has been used on a number of cases. ¹⁶

In addition to the section 1 type balancing, the courts have also indicated two other limits which should be considered in any inquiry into limits on Charter rights: the rights cannot be used to make something legal which is otherwise illegal; and, the Charter right cannot be used to abrogate other constitutional powers¹⁷.

In these particular circumstances the striking unions activities may run afoul of both of these considerations. It could be argued that the picketers have violated the provisions of the Parliamentary Employment and Staff Relations Act regarding the counselling of an illegal strike. Also they are impeding the House from exercising its constitutional powers, thus affecting Members privileges which have constitutional status.

The union has argued that the nature of the picket is only informational in nature. While there is a strong informational nature to the pickets, once it can be shown that the purpose or intent crosses the line into forms of intimidation, or restriction of access with the purpose of disrupting the business of the House, rather than the business of Public Works and Government Services, the protection of the Charter can be lost.

The question is whether employees of the House, and arguably the union members who are in a legal strike position, could engage in informational pickets where there is no intent or effect of impeding access. First, this is a difficult and fine distinction in the case of a strike where the purpose of pickets is recognized as multi-fold including the encouragement of people not to enter or do business. There is also the difficulty posed by the fact that demonstrations on Parliament Hill are an accepted and recognized means of allowing the exercise of the freedom of expression, and the voicing of political concerns to Parliament. The degree to which the Committee chooses to balance these interests is a matter of policy and political considerations.

As will be indicated, the most likely process which, will be used to deal with the issues raised is an application for an interim injunction. An injunction is used to determine rights of the parties, and in certain cases, prohibit one of the parties from acting in a particular fashion (i.e. contrary to law). Generally, in order to obtain an injunction the party seeking the injunction must be able to show that there is a substantial issue to be tried (legal or factual), the threatened harm, inadequacy of damages, balance of convenience; and the effect of the injunction on the parties. The test is often rendered into whether there is threatened irreparable harm for which damages is not an adequate remedy. In addition, the party seeking the injunction must undertake to pay any damages the other party would suffer if the action fails.

In usual cases, the courts will take a hard look at the possible harm and the question of whether money damages are available before it grants an injunction. However, in the cases involving the courts, and the Ontario legislature, the courts had little difficulty in finding that the test had been met. In the case of the Ontario legislature the court found:

In the context of labour disputes, in Ontario, there are specific procedures, which will have to be met.

In light of the above, I would submit the following for the consideration of the committee:

If rules are to be established that the rules respecting demonstrations, be applied to labour issues, in the same fashion as any other demonstration. While this may be seen as a limit on picketing, I would suggest that it would likely be seen as a reasonable limit. In making this recommendation I do so in light of the decisions in the various courthouse cases and the Ontario legislature case. In the courthouse cases, the courts have indicated that the enjoining of a work site which is relatively small in the over all scheme of the strike against the government, would have a negligible impact on the efficacy of the strike.

If the real issue is political in nature, that is to put pressure on Parliament to put pressure on the government of the day, then the "strike" should be subject to the same restrictions and treated as all other political demonstrations.

The Committee may also wish to consider certain legislative changes, which could prevent similar occurrences. While there is no guarantee that any legislated solutions will not be tested and therefore require a legal response, the following are submitted for your consideration:

• Amend section 74 of the Parliamentary Employment and Staff Relations Act, by broadening the individuals whose actions would violate the Act. I would suggest adding the phrase " Any person or organization, including any employee organization...". This would limit any possible argument that only employee organizations for employees of the House are covered by the prohibition;
• Amend section 2 of the Public Service Staff Relations Act to exclude from the definition of employee, employees occupying positions who work in any building, or portion of a building, under the authority of the Speaker of either House of Parliament. Such an amendment would exclude such employees from bargaining under the PSSRA and therefore the government would have no employees in the Parliamentary precinct, rendering picketing of the buildings secondary picketing, and illegal.

In conclusion, I am of the opinion that if an injunction were required to be sought to prohibit or limit picketing of the House of Commons, or any of the Parliament Buildings, by striking federal Public Servants, a court would issue such an injunction. I am further of the opinion that restriction of picketing on the Hill would meet both the tests for injunctions, based on irreparable harm for which no damages can compensate, as well as any constitutional test based on reasonable limits.

I am further of the opinion that attempts to limit picketing through legislative or regulatory means would also likely pass constitutional muster.

Lastly, absent specific legislation, there is a likelihood that these situations will arise again in the future and the House should be prepared to take the necessary steps.

I trust that this is of assistance.

Diane Davidson