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RULING ANOTHER SETBACK IN CROWNS' PAY FIGHT (Attorney General), the appeal court upheld the validity of Act, which limits wage increases for federal employees between the years 2006 and 2011. The court concluded the Association of Justice Counsel had failed to demonstrate that the act infringed its members' rights to engage in a meaningful process of collective bargaining. The court indicated it must assess the validity of the act based on whether, at the time of its enactment, the parties had the opportunity for a meaningful process of collective bargaining. The decision reflects recent develop- the Expenditure Restraint lenge against legislation setting maximum wage increases for their previous round of bargaining in a decision by the Ontario Court of Appeal that signals a judicial trend of upholding laws limiting government employees' ability to bargain col- lectively. In Association of Justice Counsel v. Canada J ust weeks after scoring a major victory in their current negotiations, in early August, federal Crowns lost their constitutional chal- and Support — Facilities Subsector Bargaining Association v. British Columbia, which struck down portions of legislation in B.C. In that case, the SCC found s. 2(d) protects the "capacity of members of labour unions to engage, in asso- ciation, in collective bargaining on fundamental workplace issues." Lynk said based on the new direction said the SCC opened the door much wider to the use of s. 2(d) to challenge legislation with the 2007 decision of Heal Michael Lynk, a professor at Western Law, th Services The court's taken a narrow view of collective bargaining, says Steven Barrett. expressed in Health Services, lower courts became more engaged and took more liberal views of what s. 2(d) might mean. He notes that trend in the lower courts came to a halt with the SCC's ruling in Ontario (Attorney General) v. Fr ments in the courts that reinforce the govern- ment's ability to take an aggressive bargaining stance in the face of employee demands for higher wages as long as it's acting in good faith in negotiations. The appeal court's deci- sion allowed the government to set legisla- tion imposing a maximum wage increase after negotiations with the union failed. "The court has taken a very narrow view of collective bargaining and one that I think is inconsistent with what the Supreme Court of Canada has said," Steven Barrett of Sack Goldblatt Mitchell LLP told Law Times. "I think the Supreme Court of Canada is going to have to decide if collec- tive bargaining means more than collective begging." Barrett said the decision essentially allows the legislature to come in and do the work for the government employer. He points out that as long as the government employer has been rational, responsive, and gave some indication it would listen during labour negotiations, the courts will uphold the legislation. "Here, the court is saying that the legislature can do for the government employer what the govern- ment may not be able to do on its own." unless the government made collective bar- gaining effectively impossible, its actions on that front are unlikely to violate s. 2(d). Since Fraser, Lynk said many decisions have dis- missed challenges of legislation by unions. This latest decision "continues a trend that we've seen in the courts, particularly since the Fr aser in 2011, which found that decision that takes a minimalist view of s. 2(d) and the freedom to association guarantee." In the Crowns' pay case, the association and Supreme Court held that s. 2(d) "guarantees a process, not a result." Fr there must be a "minimal sense of good-faith exchanges" in collective bargaining. However, Continued on page 12 aser and noted that the aser requires that and consultation between the AJC and the TBS by taking salaries off the negotiating table." The court struck the provisions related to imposing caps on salary increases for the 2006-07 year. Both parties appealed. In its decision, the Court of Appeal referred to Fr aser the Treasury Board Secretariat had been col- lective bargaining since May 2006. In November 2008, after negotiations and mediation failed, the board made an offer of a 2.5-per-cent salary increase for the 2006-07 fiscal year; 2.3 per cent for 2007-08; and 1.5 per cent for the next three fiscal years. The association reject- ed that offer. In March 2009, the Expenditure Restraint Act came into force prohibiting sal- ary increases above the amounts set out in the board's offer. After arbitration in June 2009, the arbitrator established the maximum salary increases permitted under the act. As a result, the association launched a constitutional chal- lenge claiming it infringed on the guarantee of freedom of association. The association was initially partly success- ful. The application judge found the act infringed s. 2(d) "because the act related to salaries, an issue important to collective bargaining, and because it prevented meaningful discussion News Feed Domenico Magisano Lerners is pleased to announce that Domenico Magisano has joined our Toronto of ce as a partner in our commercial litiga- tion group. Dom specializes in insolvency and bankruptcy law, as well as practicing commercial litigation. s www.lerners.ca/lawyers/dom-magisano/ Lisa Munro Commercial Litigation/Class Action lawyer at Lerners LLP, will be speaking at an Advocates' Society luncheon on the topic of Managing Dif cult Witnesses and Af ants on September 24, 2012. http://bit.ly/RdTXVO Mark Freiman Appellate/Commercial Litigation Lawyer at Lerners LLP, will be speaking at a Business and Legal Publishing Workshop on September 12th and 13th on the fundamentals of administrative law that applies to fair hearings. Topics such as procedural fairness, unrepresented litigants, cultural sensitivity and the conduct of a hearing will be covered. opics such http://bit.ly/RdU4k3 www.lerners.ca www.CANAD I AN Lawyermag.com SEPTEMBE R 2012 11 erners_CL_Sep_12.indd 1 12-08-14 1:22 PM

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