Court of Queen=s Bench of Alberta

Citation: Alberta Union of Provincial Employees v Alberta, 2014 ABQB 97

Date: 20140214

Docket: 1303 17541

Registry: Edmonton

Between:

Alberta Union of Provincial Employees

Guy Smith and Mike Dempsey

Applicants

- and -

Her Majesty the Queen in Right of the Province of Alberta

Respondent

- and -

The Minister of Justice and Solicitor General of Alberta

Intervener

_______________________________________________________

Case Management Decision #1

of the

Honourable Mr. Justice D.R.G. Thomas

_______________________________________________________

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Table of Contents

I. Introduction ......................................................................................................................... 3

II. Background Facts................................................................................................................ 4

III. Evidence .............................................................................................................................. 4

A. Professor John Fryer ............................................................................................... 5

B. Dale Perry ............................................................................................................... 6

C. John DeCesare ........................................................................................................ 7

IV. The Law .............................................................................................................................. 7

A. Charter, s 2(d) ......................................................................................................... 7

B. The Legal Test for an Injunction ............................................................................ 8

V. Analysis............................................................................................................................... 9

A. Serious Issue ........................................................................................................... 9

1. Applicants ................................................................................................... 9

2. Alberta/Minister ........................................................................................ 10

3. Serious Issue – Analysis ........................................................................... 11

4. Conclusion – Serious Issue ....................................................................... 14

B. Irreparable Harm ................................................................................................... 14

1. Applicants ................................................................................................. 15

2. Alberta....................................................................................................... 15

3. Irreparable Harm – Analysis ..................................................................... 15

4. Conclusion – Irreparable Harm ................................................................. 17

C. Balance of Convenience ....................................................................................... 17

1. Applicants ................................................................................................. 17

2. Alberta....................................................................................................... 18

3. Analysis..................................................................................................... 19

4. Conclusion ................................................................................................ 21

VI. Summary of Relief Granted .............................................................................................. 21

Schedule A .................................................................................................................................... 23

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I. Introduction

[1] This is case management decision #1 on an injunction motion by the Applicants. The

Alberta Public Service Salary Restraint Act, SA 2013, c P-43 [“PSSRA”], attached as

Schedule A, came into effect on December 11, 2013. This short piece of legislation directly

affects the employment contract interaction and collective bargaining process between the

Government of Alberta [“Alberta”] and its largest group of direct employees, who are

represented by the Alberta Union of Provincial Employees [“AUPE”]. AUPE is authorized and

organized by the Public Service Employee Relations Act, RSA 2000, c P-43 [“PSERA”] and

altogether represents 85,000 +/- employees under approximately 100 collective agreements in the

Province of Alberta. AUPE is the exclusive bargaining agent for the 24,000 employees of the

Crown in right of Alberta to whom the PSERA applies [the “Crown bargaining unit”]. Guy Smith

is the President of AUPE and Mike Dempsey is employed by the Alberta Ministry of

Environment, a member of the Crown bargaining unit and therefore a member of AUPE.

[2] PSSRA provides that if no collective agreement is entered into by Alberta and AUPE by

January 31, 2014, since extended to March 31, 2014 by O.C. 24/2014 [the “O.C.”], then the

May 17, 2011 collective agreement between Alberta and AUPE [the “2011 Collective

Agreement”] will be “deemed in effect” for the period April 1, 2013 to March 31, 2017. The

PSSRA also dictates that from April 2013 to March 2015 pay for all employees in the Crown

bargaining unit will remain unchanged, with 1% increases in pay in each of April 2015 to March

2016, and April 2016 to March 2017.

[3] The PSSRA also:

1. provides employees a small lump sum payment on April 1, 2014 (s 3);

2. terminates any Compulsory Arbitration Board [“CAB”] arbitration between

AUPE and Alberta authorized by PSERA, Part 6, Division 2 (s 4(2));

3. trumps the operation of the PSERA (s 5); and

4. authorizes the making of regulations on a number of subjects (s 7).

[4] On January 10, 2014 the Applicants sought a stay of the operation of the PSSRA, s 4 on

the basis this legislation breaches the Canadian Charter of Rights and Freedoms, Part 1,

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11 [the

“Charter”], s 2(d). In effect, the Applicants seek that this Court delay operation of the PSSRA so

that the consideration of the AUPE/Alberta dispute by the CAB process will continue.

[5] Alberta opposes the stay application and The Minister of Justice and Solicitor General of

Alberta [the “Minister”] intervenes on the basis that a constitutional issue has been raised by the

Applicants.

[6] At the January 28, 2014 case management hearing, I proposed that an interim without

prejudice injunction be granted in light of the important subject matter under consideration, the

detailed arguments and analyses provided by the parties, and the very short time between that

hearing and the date on which the PSSRA would take effect (at that time January 31, 2014). This

interim period was to provide additional time to provide full and detailed reasons for my decision

to either grant or refuse the application for an injunction. Neither party challenged my proposal,

and accepted that the injunction sought by the Applicants would be in force until this decision

was issued on or before noon on February 14, 2014.

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II. Background Facts

[7] The factual background to this matter is not in dispute. As noted in the Introduction,

AUPE represents approximately 24,000 persons directly employed by Alberta in the Crown

bargaining unit. The 2011 Collective Agreement between Alberta and AUPE expired on March

31, 2013.

[8] AUPE initiated a collective bargaining process for the post-March 31, 2013 period in

January of that year. Actual bargaining commenced on March 12, 2013 and continued

intermittently into May, 2013. During this period AUPE and Alberta came to an agreement on a

number of non-monetary items but other issues including the core question of pay remained

unresolved.

[9] The parties moved to mediation, which occurred during July of 2013. AUPE narrowed

the outstanding questions to six key issues and presented them to Alberta. The Mediator reported

that Alberta refused to discuss AUPE proposals and mediation terminated on July 6, 2013.

[10] On July 15, 2013, AUPE initiated a CAB procedure. The three members of the CAB

were determined in September and October, 2013, and hearing dates were set for early February,

2014. Those dates have now been lost.

[11] On November 27, 2103 Alberta introduced the proposed PSSRA [“Bill 46”] in the Alberta

Legislative Assembly [the “Assembly”]. The previous day the Assembly had passed motions to

limit debate and accelerate the process by which Bill 46 would advance to passage. There had

been no public disclosure or discussion of the policies reflected in Bill 46 prior to November 27,

2013. The Applicants were completely unaware of Bill 46 or its contents prior to its introduction,

nor had Alberta consulted with AUPE or any of its members on its intention to legislate in this

fashion.

[12] Debate at the second and third reading of Bill 46 was abbreviated when closure was

invoked and Bill 46 was passed on December 4, 2013. The legislation received Royal Assent on

December 11, 2013 and the PSSRA came into effect that day.

[13] On December 12, 2013 AUPE filed a Statement of Claim [the “Action”] challenging the

constitutional validity of the PSSRA. The Applicants Guy Smith and Mike Dempsey were added

to the Action through an Amended Statement of Claim, filed January 8, 2014. Alberta had filed a

Statement of Defence on January 6, 2014 and the Applicants filed this Application on

January 10, 2014.

[14] Further collective bargaining occurred between AUPE and Alberta on January 14-16,

2014, but no new agreement has been reached. The new deadline for implementation of all

provisions of the PSSRA has been extended by the O.C. to March 31, 2014.

III. Evidence

[15] AUPE filed evidence in the form of two affidavits, one from Dale Martin Perry [“Perry”],

sworn January 10, 2014 [the “Perry Affidavit”] and the second from Professor John Fryer

[“Professor Fryer”] made January 13, 2014 [the “Fryer Affidavit”].

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A. Professor John Fryer

[16] Professor Fryer is an adjunct professor at the University of Victoria, and a consultant on

labour topics including collective bargaining. He had formerly acted in an official capacity both

in union and employer settings, and has been directly involved in a broad range of labour

negotiations over decades in Canada. AUPE presented Professor Fryer as an expert in labour

relations. Alberta and the Minister accepted that Professor Fryer was qualified as an expert in

that field and I indicated that I would accept him as an expert, subject to performing an analysis

pursuant to R v Mohan, [1994] 2 SCR 9, 114 DLR (4th) 419 [“Mohan”] to determine the

admissibility of his opinions.

[17] Mohan is a unanimous decision of the Supreme Court of Canada dealing with the

requirements which must be met for the admission of expert evidence. To briefly restate those

requirements as articulated by Sopinka J in Mohan, the evidence tendered must be:

(a) logically and legally relevant;

(b) reliable;

(c) not subject to an exclusionary rule;

(d) necessary to assist the decision maker in resolving issues; and

(e) qualified in the sense the proposed expert must have acquired special or peculiar

knowledge through study or experience, in respect to the matters on which the

witness proposes to testify.

[18] I have reviewed the Fryer Affidavit attached to the curriculum vitae of Professor Fryer.

As noted, Alberta and the Minister accept Professor Fryer is qualified to give opinion evidence

as an expert in the areas of public sector collective bargaining and labour relations. Having

reviewed his credentials, which include extensive experience in labour relations in Canada at

many levels, academic experience as both a teacher and a contributing author to the literature in

this field, and hands on experience in labour relations, I find that he is qualified as an expert in

the areas of public sector collective bargaining and labour relations, and capable of giving

opinion evidence on the subject of collective bargaining in the public sector, in particular, and

the effect of legislation such as the PSSRA on collective bargaining processes, on members of

bargaining units, including individual members of a union.

[19] The evidence found in the Fryer Affidavit and particularly the opinions at para 11 thereof

meet all of the other requirements in Mohan in terms of logical and legal relevance to the issues

before this Court. I regard his evidence as reliable and the evidence is necessary, because it deals

with subjects outside of my skill and knowledge. Finally, there is no exclusionary rule applicable

to this evidence. I conclude that all of the requirements of Mohan are met in respect to the

opinion evidence presented through the Fryer Affidavit.

[20] Professor Fryer was cross-examined by counsel for Alberta, presumably in an attempt to

diminish the weight which might be assigned by the Court to his opinion evidence. However, the

effect of the cross-examination was generally to reinforce the strength of the opinions offered by

Professor Fryer. I note the fair concessions made and candid answers given by Professor Fryer,

which indicate to me that he is an independent expert, notwithstanding that he was tendered by

the Applicants. Given the extensive experience of Professor Fryer in labour relations, I consider

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his evidence to be reliable. I give great weight to this body of evidence which was not

contradicted by any witness for Alberta or the Minister.

[21] The evidence in the Fryer Affidavit focuses on the effect of unilateral action by a level of

government which interferes with or negates collective bargaining processes. In his opinion this

kind of action has a range of negative effects, because as he states in para 11, the government

imposition of contract terms:

1. communicates that bargaining efforts are irrelevant;

2. discourages creative bargaining attempts as these are a waste of time and effort

when government intervention is a possibility;

3. undermines the role of unions and union representation to speak for union

members;

4. undermines the confidence union members have in their leadership during

contract negotiations but also in other processes where unions assist in

employee/employer interactions, such as grievance arbitrations; and

5. causes workers to feel powerless, and engage in alternative and potentially

inappropriate steps to push back against employer control.

[22] Professor Fryer stressed that government intervention has potentially long-lasting effects

on the union/employer relationship, and that while interest arbitration is an effective alternative

to conventional collective bargaining and labour actions such as strikes and lockouts, interest

arbitration through entities such as the CAB is most effective when conducted in a prompt and

timely manner.

[23] In cross-examination Professor Fryer confirmed to Alberta’s counsel that in the Canadian

labour context the PSSRA is a very unusual, if not unique, form of union/government

employment legislation. While intervention by legislation to set or restrict salaries is a known

approach, the unilateral imposition of an entire collective agreement is novel, particularly where

no attempt is made to negotiate and reach agreement on other non-financial aspects of the

relationship.

[24] In summary, I accept all of the opinions offered by Professor Fryer and give them great

weight in coming to my conclusions on whether the Applicants have met their burden to show all

elements of this injunction application have been met.

B. Dale Perry

[25] Perry is a negotiator for AUPE and his personal and documentary evidence has provided

the basis for the background facts recited above.

[26] Perry deposes in the Perry Affidavit that the PSSRA has undermined the confidence of the

membership of AUPE in the union’s utility and capacity to represent its members and engage in

meaningful negotiations with the employer. He believes that Alberta has little or no incentive to

engage in negotiation or compromise with AUPE on outstanding issues. Perry also indicates that

termination of the CAB process will make it “virtually impossible” for a future but delayed CAB

procedure to reach an appropriate settlement of outstanding points of disagreement.

[27] It is Perry’s view that this represents irreparable harm to the capacity of AUPE to bargain

and to the existing and ongoing relationship between AUPE and its members and Alberta. In the

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cross-examination on his affidavit Perry indicated that the PSSRA approach was unprecedented

and raised the prospect of further legislated collective agreements in the future.

C. John DeCesare

[28] John DeCesare (“DeCesare”) is an articling student at McLennan Ross, the law firm

representing Alberta. He visited a number of websites, including the AUPE website and attaches

copies of screen shots to his Affidavit. Otherwise, the Respondent offered no evidence to refute

the evidence of Professor Fryer and Perry.

IV. The Law

A. Charter, s 2(d)

[29] Section 2 of the Charter enumerates four protected “fundamental freedoms” and s 2(d)

protects the “freedom of association”.

[30] In a series of decisions the Supreme Court of Canada has considered the application of

the Charter, s 2(d) in relation to the rights of workers to engage in collective interaction with

government employers. The modern approach was set in Health Services and Support -

Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 391

[“Health Services”], and more recently confirmed in Ontario (Attorney General) v Fraser,

2011 SCC 20, [2011] 2 SCR 3 [“Fraser”]. In the latter the majority judgment of Chief

Justice McLachlin and Justice Lebel provide a very helpful review and restatement of the

collective rights of workers that flow from the Charter, s 2(d):

[37] ... s. 2(d) includes “a process of collective action to achieve workplace

goals” (para. 19). This process requires the parties to meet and bargain in

good faith on issues of fundamental importance in the workplace ...

[38] ... Section 2(d), interpreted purposively and in light of Canada’s values and

commitments, protects associational collective activity in furtherance of

workplace goals. The right is not merely a paper right, but a right to a

process that permits meaningful pursuit of those goals. The claimants had a

right to pursue workplace goals and collective bargaining activities related to

those goals. ...

[40] The majority of the Court in Health Services affirmed that bargaining

activities protected by s. 2(d) in the labour relations context include good

faith bargaining on important workplace issues (para. 94; see also paras. 93,

130 and 135). This is not limited to a mere right to make representations to

one’s employer, but requires the employer to engage in a process of

consideration and discussion to have them considered by the employer. In

this sense, collective bargaining is protected by s. 2(d). The majority stated:

Thus the employees’ right to collective bargaining imposes

corresponding duties on the employer. It requires both employer

and employees to meet and to bargain in good faith, in the

pursuit of a common goal of peaceful and productive

accommodation. [para. 90]

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...

[42] The Court in Health Services emphasized that s. 2(d) does not require a

particular model of bargaining, nor a particular outcome. What s. 2(d) guarantees

in the labour relations context is a meaningful process. A process which permits

an employer not even to consider employee representations is not a

meaningful process. ...

[43] ... It is difficult to imagine a meaningful collective process in pursuit of

workplace aims that does not involve the employer at least considering, in

good faith, employee representations. The protection for collective

bargaining in the sense affirmed in Health Services is quite simply a

necessary condition of meaningful association in the workplace context.

[Emphasis added.]

[31] The majority at para 41 explained a good faith negotiated process is one which permits

meaningful dialogue between the workers and the employer, but does not demand a particular

form of bargaining or labour relations, but rather a contextually appropriate process.

[32] As can be seen from the foregoing Charter, s 2(d) limits the authority of a government

actor to unilaterally impose a contractual structure on workers which it employs. That said, this

requirement to permit meaningful group dialogue and bargaining is subject to the Charter, s 1

limits on that right that may be demonstrably justified in a free and democratic society.

B. The Legal Test for an Injunction

[33] There is no substantial dispute on the three-part legal test for the granting of an interim

injunction, which is provided for in RJR - MacDonald Inc. v Canada (Attorney General),

[1994] 1 SCR 311, 111 DLR (4th) 385 [“RJR – MacDonald”] and more recently restated by the

Court of Appeal in Communications, Energy and Paperworkers Union, Local 707 v Suncor

Energy Inc., 2012 ABQB 627 at para 25, 548 AR 195, affirmed 2012 ABCA 373, 539 AR 206:

In order to succeed in an application for an interim injunction, the Union must

establish the following:

1. There is a serious issue to be tried;

2. Irreparable harm will result if an interim injunction is not granted

and the Union is ultimately successful ...;

3. The balance of convenience favours granting the injunction.

[34] Both parties cite the text Injunctions and Specific Performance (Aurora: Canada Law

Book, 2013) written by Ontario Court of Appeal Justice Robert J. Sharpe as an authoritative

source on this subject.

[35] In RJR – MacDonald, supra, the first step, the serious issue or question requirement, is

described as a limited and preliminary review of the merits of the matter.

Whether the test has been satisfied should be determined by a motions judge on

the basis of common sense and an extremely limited review of the case on the

merits. ... A motions court should only go beyond a preliminary investigation of

the merits when the result of the interlocutory motion will in effect amount to a

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final determination of the action, or when the constitutionality of a challenged

statute can be determined as a pure question of law. Instances of this sort will be

exceedingly rare. Unless the case on the merits is frivolous or vexatious, or the

constitutionality of the statute is a pure question of law, a judge on a motion for

relief must, as a general rule, consider the second and third stages ...

[36] Thus, there are two different potential thresholds in the serious issue analysis:

1. Where an injunction does not operationally provide a final result for the litigation

then an injunction may potentially be ordered unless the applicant’s case is

frivolous or vexatious, or

2. Where an injunction would effectively decide a matter in favour of a litigant then

a more substantial and exhaustive review of the strength of a case is required.

[37] The latter and higher threshold is described in Sharpe’s text as requiring the applicant to

demonstrate a strong prima facie case. In RJR - MacDonald this alternative procedure is

identified as an immediate decision of the case on its merits.

[38] Irreparable harm reflects the nature of the harm rather than its magnitude. A meaningful

risk is a basis for an injunction, provided “the threat is imminent and real”: Lubicon Lake Band

v Norcen Energy Resources Ltd., 1985 ABCA 12, 58 AR 161, leave denied [1985] SCCA No

190 [“Lubicon Lake”]. Irreparable harm may include quantifiable financial loss.

[39] The third criterion is a balancing exercise where the harm that flows to the applicant is

balanced against the consequences to the respondent. This exercise also considers the relative

strengths of the two positions. This “balance of inconveniences” (RJR - MacDonald) may

consider public interest, provided a party who relies on public interest demonstrates that the

legislation provides a public benefit. The preservation of the status quo is a potentially relevant

factor: Edmonton Northlands v Edmonton Oilers Hockey Corp., 1994 ABCA 40 at para 29,

149 AR 92 [“Northlands”].

V. Analysis

[40] The parties disagree on whether any of the criteria have been met.

A. Serious Issue

1. Applicants

[41] The Applicants argues that an injunction at this stage does not effectively conclude the

matter in their favour, but instead that court intervention would only allow an ongoing resolution

process to continue. The appropriate threshold to consider an injunction is therefore whether the

claim of the Applicants is frivolous or vexatious.

[42] The Applicants stress that the threshold for protected Charter, s 2(d) group worker rights

identified in Health Services, supra, and Fraser, supra, particularly in para 35 of the latter

decision:

... The government wanted to reduce costs by changing the structure of its

employees' working arrangements in ways that would have been impermissible

under the existing collective agreements. It chose to do so, not through collective

bargaining to the end of altering those collective agreements, but by the simple

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expedient of legislation. In short, the government used its legislative powers to

effectively nullify the collective agreements to its benefit, and to the detriment of

its employees. The legislation not only conflicted with existing collective

agreements, but also precluded collective bargaining in the future on a number of

issues and conditions of employment. ...

[43] The Applicants argue that the PSSRA is similar in the way it impedes the good faith

bargaining obligation between employer and employee. The operation of the PSSRA effectively

creates a monologue where Alberta unilaterally dictates the employment terms of the members

of AUPE. Salaries are set without negotiation. AUPE and Alberta had previously negotiated

changes to the previous collective agreement and those changes are erased by Alberta now

unilaterally continuing the 2011 Collective Agreement through PSSRA. The Applicants say that

no further good faith bargaining or dialogue is possible given Alberta’s unilateral action to

impose a collective agreement and terminate the PSERA Division 2, Part 6 mediation

mechanism.

2. Alberta/Minister

[44] Alberta in its written brief argues that an injunction would, in practice, resolve the

litigation in favour of the Applicants. Alberta therefore takes the position that the strength of the

Applicants’ alleged Charter, s 2(d) breach is an important factor, and that the strong prima facie

case threshold should apply. The consequences of an injunction are described in this manner:

... Once the CAB is allowed to proceed, the ramifications cannot be undone after

the legislation is successfully defended on the merits. ... even though the union

has agreed to stay any monetary increases that may be awarded by the CAB, the

CAB award would undoubtedly be used to influence the outcome of upcoming

bargaining and interest arbitrations affecting the broader public service (outside

the bargaining unit). These collateral impacts cannot be repaired once the

legislation is successfully defended. Indeed, the CAB award would continue to be

relied upon as a precedent even after the legislation has been defended. Moreover,

there are some significant non-monetary items in dispute that would take

immediate effect in respect to this bargaining unit. These items cannot be

retroactively undone after the legislation is defended. The union only agreed to

stay monetary terms of the CAB award.

[45] Alberta takes the position the approach and conclusion by the Supreme Court of Canada

in Fraser means that there is no prospect for the Applicants to ever succeed and thus there is “no

serious issue to be tried here.” When pressed in argument, Alberta’s counsel acknowledged that

the claim is not “frivolous or vexatious” but nevertheless continued to advocate that it is a very

“weak” Charter argument which could not withstand a summary dismissal motion. Alberta

stresses that the Charter, s 2(d) is only infringed when it is either:

a) impossible for workers to make collective representations to an employer,

or

b) that employer does not consider those collective representations in good faith.

[46] Alberta argues further in its written brief that there is nothing to prevent further

negotiations between AUPE and Alberta:

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... In these circumstances, how can it be alleged that the legislation has made it

impossible for employees in the public service to meaningfully exercise their right

to associate? They have enjoyed and continue to enjoy ample opportunity to make

collective representations and to have their collective representations considered

in good faith.

[47] Alberta argues three recent appellate judgments provide analogous scenarios in which the

courts correctly concluded that a restriction via legislation on government employee salaries did

not breach the employees’ Charter, s 2(d) rights: Assn. of Justice Counsel v Canada (Attorney

General), 2012 ONCA 530, 117 OR (3d) 532, leave denied [2012] SCCA No 430 [“Justice

Counsel”]; Federal Government Dockyard Trades and Labour Council v Canada (Attorney

General), 2013 BCCA 371, 343 BCAC 208, leave to the Supreme Court of Canada sought

Nov. 18, 2013 [“Dockyard Trades”]; Meredith v Canada (Attorney General), 2013 FCA 112,

360 DLR (4th) 352, leave to appeal granted Sept. 19, 2013, [2013] SCCA No 263 [“Meredith”].

3. Serious Issue – Analysis

[48] The following facts are particularly relevant to the analysis of whether the Action raises a

serious issue or question:

1. AUPE is a body created by Alberta legislation, the PSERA, and is the sole

representative for the employees of the Government of Alberta in the Crown

bargaining unit. The employees in that Crown bargaining unit have no other legal

vehicle by which to engage in collective processes with their employer, Alberta.

2. The legislation that authorizes AUPE includes a mandatory and binding

arbitration procedure in the event of an unresolved contract dispute between

AUPE and Alberta.

3. AUPE led by Perry and Alberta were engaged in negotiations in an attempt to

reach a collective agreement prior to passage of the PSSRA. Those negotiations

were partially successful and some non-monetary items were resolved.

4. AUPE and Alberta were engaged in a binding CAB process until the date the

PSSRA came into effect.

5. The PSSRA:

a) imposes a four year collective agreement, which has a 10 month

retroactive and over a three year prospective effect,

b) unilaterally sets all terms of the collective agreement between AUPE and

Alberta,

c) operationally and unilaterally negates any elements of an incomplete post-

April 2013 collective agreement already negotiated and agreed upon by

AUPE and Alberta, and

d) prohibits a binding arbitration mechanism created by the legislation that

authorizes AUPE.

[49] The first step in the analysis is to consider whether the application falls into the

exceptional category, where the stay remedy being sought effectively ends the dispute. I reject

that argument. An injunction enabling the CAB to continue its operation does not ‘end the

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matter’ in AUPE’s favour, as the evidence I have received is that tribunal has not reached a

decision. I have no evidence on the relative positions of AUPE and Alberta in that matter and, in

any case, that is irrelevant. It is enough to note that the process is ongoing.

[50] The injunction sought by AUPE would not negate the wage control component of the

PSSRA, nor does AUPE seek an order of that kind. In fact, no matter what the result of this

proceeding Alberta will retain legislative authority to engage in any control of the terms on

which AUPE’s members work for the province of Alberta, even those that breach the Charter,

s 2(d), provided, of course, that those terms comply with the requirements of the Charter, s 1.

[51] It is fair to observe that at the hearing of this matter counsel for Alberta did not press this

point but instead acknowledged the more common and lower threshold that AUPE is required to

prove its action is not frivolous or vexatious.

[52] With that preliminary step complete, I now move to decide whether the Charter

challenge of the Applicants raises a serious issue or question. This actually involves two sub-

issues, either of which is a potential basis for the Applicants to argue that Alberta has breached

the s 2(d) rights of the employees in the Crown bargaining unit:

1. Does the PSSRA and PSERA permit a meaningful collective interaction process

between AUPE employees and Alberta? and

2. Has Alberta engaged in good faith bargaining within that context?

Each of these potential issues are dealt with separately.

a. Meaningful collective process

[53] In Fraser, at para 42, the majority explains that in a labour context a monologue is not a

meaningful collective negotiation process:

... A process which permits an employer not even to consider employee

representations is not a meaningful process. ...

[Emphasis added.]

[54] The PSSRA appears to cause that very result. As of March 31, 2014 and in the absence of

a settlement, all collective bargaining will end and a new collective agreement will be in force

until April, 2017: PSSRA, s 2(a). The statutory mechanism to resolve employer/union disputes

has been terminated for the duration: PSSRA, s 4. It would seem therefore the PSSRA “permits”

Alberta to “not even consider” any representations by AUPE. This simple fact suggests a serious

issue or question exists as to whether Alberta has by legislation eliminated any meaningful

collective process to discuss and address issues affecting the Crown bargaining unit.

[55] It is helpful at this point to review the three appellate decisions cited by Alberta as

showing the actions of the Applicants should be categorized as “frivolous or vexatious”, or

“weak” and therefore that no breach of Charter, s 2(d) results from legislation such as the

PSSRA.

[56] In the Justice Counsel decision the Ontario Court of Appeal concluded that legislation

which unilaterally set wage levels for Federal government employees did not infringe Charter,

s 2(d) because the negotiations had reached an impasse, and there was no evidence to suggest the

collective bargaining process that led to that point was not a “good faith” negotiation. In effect,

the s 2(d) obligation had been discharged and Canada was free to act in a unilateral manner.

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[57] The situation between AUPE and Alberta does not parallel this scenario. Negotiations

between AUPE and Alberta were ongoing when Bill 46 was tabled and passed. I do not accept

Alberta has proven that an “impasse” had emerged and therefore a legislative response was

appropriate.

[58] Dockyard Trades emerges from the same economic circumstances as Justice Counsel,

and the British Columbia Court of Appeal concludes that the Charter, s 2(d) protected collective

negotiation process should be viewed broadly, including not merely collective bargaining but

other associated mechanisms such as mediation and arbitration. In this case a wage rollback and

freeze was not so intrusive that it nullified the potential for meaningful future collective

bargaining between the parties.

[59] Unlike Dockyard Trades, the PSSRA ends the potential for future collective bargaining

between AUPE and Alberta for over three years. While Alberta argues that there are other,

alternative forms of potential negotiation and exchange I find those interactions are, effectively,

meaningless. Returning to the Fraser decision, it appears that the PSSRA “permits” Alberta to

“not even consider” any representations by AUPE. Certainly, there is the possibility that Alberta

and AUPE may engage in meaningful collective bargaining while the PSSRA is in operation

however, viewed pragmatically, there is no reason for Alberta to do so. It has already ‘won’ the

‘negotiation’ and dictated the terms.

[60] The last case identified by Alberta, namely Meredith, again addresses the response to the

2008 economic crisis, and whether legislative restraint on RCMP salaries was Charter-

compliant. RCMP wages are not the product of a collective bargaining process but instead are

suggested by a body called the Pay Council which recommends compensation. No Charter,

s 2(d) infringement was found because the Pay Council mechanism was operationally unaffected

by the legislative restriction on RCMP pay (para 91), because even after legislative intervention

the Pay Council continued to engage in meaningful negotiation to balance employee needs and

priorities with the monetary restrictions placed on the RCMP (paras 92-95), the limited duration

of the period of unilateral pay control (para 97), and because the new legislative scheme did not

nullify an existing mandatory consultation process (para 98).

[61] Meredith makes an interesting comparator to the post-PSSRA relationship between

AUPE and Alberta. The only existing means for AUPE members to engage in collective

interaction with their employer is rendered silent. Unlike the RCMP Pay Council, which

continued to provide a functional mechanism for meaningful communication and negotiation of

non-monetary issues, the PSSRA closes both direct and arbitrated dialogue on those issues. The

duration of the wage controls is much longer than those experienced by the RCMP, and the

PSSRA explicitly extinguishes a consultation process mandated by legislation.

[62] At para 86 of Meredith, Dawson JA explained how the situation in Health Services was

different from the situation faced by the RCMP:

I begin by observing that legislation that significantly interferes with, or nullifies,

existing collectively bargained terms of employment will not necessarily violate

section 2(d): B.C. Health Services at paragraphs 92 and 96. As explained by the

majority in Fraser at paragraph 76, the majority of the Court in B.C. Health

Services did not find that a breach of a term of a collective agreement per se

violated section 2(d) of the Charter. Rather, it was the unilateral nullification of

Page: 14

significant contractual terms, coupled with the effective denial of future collective

bargaining, which violated the section 2(d) right to associate.

[63] If this is a correct restatement of the appropriate test then I conclude that the Applicants

have established an arguable case to conclude that its members, unlike the RCMP, have

experienced restriction in their rights to access a collective negotiation process which constitutes

a breach of their Charter, s 2(d) right. This represents one of the two bases on which I conclude

that the Applicants have established that there is a serious question to be tried in this Action.

b. Good faith bargaining

[64] The second basis to conclude that the Applicants have established there is a serious

question to be tried in this Action is that the conduct of Alberta arguably represents bad faith

negotiations with its employees in the Crown bargaining unit. At para 40 in Fraser the Supreme

Court of Canada reiterated its statement at para 90 in Health Services that discharge of the

Charter, s 2(d):

... requires both employer and employees to meet and to bargain in good faith, in

the pursuit of a common goal of peaceful and productive accommodation.

[65] My analysis of the evidence presented here raises the issue that Alberta did not meet its

obligation to negotiate in good faith. The timeline and events prior to consideration and passage

of Bill 46 are interpreted by me to conclude Alberta never intended that the 2013 negotiations

with AUPE were to be meaningful. What is particularly concerning is the uncontested fact that

Alberta and AUPE had come to meaningful agreements on certain issues during collective

bargaining, but rather than respecting those points of common ground Alberta has by legislation

‘wiped the slate clean’ when it unilaterally imposed all terms from the 2011 Collective

Agreement. This raises the question of whether those negotiations were ever conducted in good

faith, or were merely camouflage for a different agenda. The duration of this ‘backtracking’ is

also considerable; the Government of Alberta arguably reneged on four years of an agreed

mutual relationship.

[66] For these reasons I conclude that the Applicants have established that they have a claim

which is not ‘frivolous and vexatious’ and consists of Alberta’s conduct infringing, or likely to

infringe, the Charter, s 2(d) good faith dialogue and bargaining obligations.

4. Conclusion – Serious Issue

[67] The effective extinction of AUPE’s capacity to engage in collective bargaining and the

indicia of bad faith negotiation by Alberta each qualify as a basis to meet the serious issue

criterion of the RJR - MacDonald three-part test. I note the caution provided in that decision to

the effect that I should restrict myself to “an extremely limited review of the case on the merits”

and only engage in a “preliminary investigation”. Therefore at this stage I will not expand further

on my assessment of the strengths of the claims of the Applicants.

B. Irreparable Harm

[68] To pass the second step in the RJR - MacDonald three-part injunction test the Applicants

must demonstrate that they will experience irreparable harm if an injunction is not granted.

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1. Applicants

[69] The Applicants observe that Sharpe advocates a broad-based evaluation of deleterious

effects that may establish irreparable harm, and that irreparable harm includes “conceivable

harms in a wide variety of circumstances”. The Applicants rely chiefly on the evidence contained

in the Fryer Affidavit to establish that irreparable harm flows from the PSSRA termination of the

CAB arbitration process and the imposition of a four year collective agreement on the employees

in the Crown bargaining unit.

[70] In summary, the effect is two-fold in that unilateral imposition of the terms of

employment via legislation subverts future union-to-employer bargaining, and also marginalizes

the role of AUPE as a voice for employees in the Crown bargaining unit and as an interface for

problem solving and development of helpful policies. The Applicants note that the conclusion of

Professor Fryer is that the simple passage of the PSSRA, in itself, contributes to those negative

outcomes; however the deleterious results may be ameliorated if the PSSRA effect is found

unconstitutional, and particularly if the scheduled CAB hearings occur. Furthermore these

injuries do not merely appear the next time the AUPE and Alberta negotiate a post-2017

collective agreement, but may also continue from passage of the PSSRA onward.

[71] The Applicants observe that operationally a delay in resolution of labour disputes denies

the protected benefits of collective dialogue with employers – “labour relations delayed is labour

relations denied.”: Pac Fab Industries Corp. (Re), [1996] Alta LRBR 65 at para 12, see also

Toppin (Re), [2006] Alta LRBR 31, [2006] ALRBD No 27.

2. Alberta

[72] Alberta stresses that the alleged irreparable harm cannot be based on speculation, citing

Telecommunications Workers Union v Canada (Canadian Industrial Relations Board), 2005

FCA 83 at para 8, 138 ACWS (3d) 89 [“Telecommunications Workers Union #1”]. Alberta

notes that one of the potential injuries rejected in this judgment, that union members will “lose

faith” in their union’s capacity to conclude a collective agreement, is also argued by the

Applicants. Alberta also cites International Longshore and Warehouse Union, Canada v

Canada (Attorney General), 2008 FCA 3, 159 CLRBR (2d) 72 [“International Longshore”] for

the same proposition that “... the applicants must prove that actual harm will be suffered if the

stay is not granted. It is not sufficient for the applicants to allege hypothetical or speculative

harm.” (para 22), see also Teamsters Local Union 847 v Canadian Airport Workers Union,

2009 FCA 44, 387 NR 36 [“Teamsters Local 847”].

[73] Alberta also argues that Bodner v Alberta, 2002 ABCA 20, 299 AR 150 [“Bodner”]

indicates that the members of AUPE have not suffered irreparable injury as no increased

payment of wages will result if the CAB process were to continue to its conclusion.

3. Irreparable Harm – Analysis

[74] Alberta’s chief complaint is that the irreparable harm identified by Professor Fryer is

speculative and hypothetical. However, Fryer was quite explicit as to the kind of harm the

PSSRA had and continues to cause to the members of AUPE.

[75] Closer examination of the case law cited by Alberta indicates a situation different from

the current application. In Telecommunications Workers Union #1 the injuries that made

up the alleged irreparable harm were, quite literally, hypothetical, as those injuries required

other intervening steps by the employer which had not yet occurred, but which might occur.

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Rothstein JA (as he then was) specifically invites the parties to make another injunction

application if the problematic but hypothetical scenario actually does occur, and that is precisely

what later happened in Telus Communications Inc. v Telecommunications Workers Union,

2005 FCA 146, 139 ACWS (3d) 76. However, until that point no irreparable harm had been

proven because one “... cannot in advance say the negotiations are doomed and that an imminent

strike or lock-out is inevitable.” (para 19).

[76] The scenario in Telecommunications Workers Union #1 is therefore entirely different

than the irreparable harm alleged by the AUPE and opined on by Professor Fryer. The harm is

not a future, contingent event, but an ongoing injury.

[77] The decision in International Longshore is also of no relevance to the present litigation.

In that action an injunction was refused because there was literally no evidence of the alleged

harm: a breach of privacy if certain security procedures were implemented. Instead the evidence

before the court was that this allegedly problematic scheme had been successfully implemented

in many other locations without any such issue: paras 28-33. A similar lack of evidence is what

led to the result in Teamsters Local 847.

[78] Here I have received evidence of alleged harms supported by academic works forming

part of the literature, some of which was authored by Professor Fryer.

[79] Teamsters Local 847 is also interesting in that one reason why Richard CJFCA

concluded that the applicant had not proven irreparable harm was because it had a separate

forum in which to address the alleged injury, the Canada Industrial Relations Board. Obviously

that is different from the Applicants, which have had all mechanisms other than coming to this

Court extinguished by legislation.

[80] Bodner is not relevant to this application. That case concludes that irreparable harm may

result to an employer where the employer may be unable to recover salary payments made

during a stay. Here AUPE has indicated it will not seek any such increased wages found in the

CAB process. Further, Bodner is only relevant to potential irreparable injury to Alberta, not

AUPE or the members of the Crown bargaining unit. At the second stage of the RJR -

MacDonald analysis the obligation is on the applicant to demonstrate irreparable harm, not the

respondent.

[81] I have admitted and accepted the expert opinion evidence from Professor Fryer, which

indicates that the operation of the PSSRA causes ongoing injury to the relationship between the

AUPE and its membership, affects the morale and workplace conduct of AUPE members

affected by that legislation, and that the PSSRA will impede future collective bargaining between

AUPE and Alberta.

[82] In coming to that conclusion I am particularly struck by the unique and broad operation

of the PSSRA. This legislation dictates the terms of an entire workplace employment

arrangement without any input by the employees through their statutory bargaining agent AUPE.

The scope and duration of this impact amplifies the deleterious effects of unilateral legislative

control identified by Professor Fryer.

[83] The proposed injunction will enable the CAB to continue the arbitration process. I accept

the arguments that a delay in that process has two negative effects:

1. “labour relations delayed is labour relations denied”, and

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2. delay in the arbitration process provided for by legislation compromises the

relationship between the AUPE and its membership.

4. Conclusion – Irreparable Harm

[84] I conclude on a balance of probabilities that the Applicants have established that the

membership of AUPE, specifically in the Crown bargaining unit, will experience irreparable

harm if the proposed injunction is not granted. The next and last step in this analysis is to balance

the deleterious effects of an injunction on Alberta and the Applicants.

C. Balance of Convenience

1. Applicants

[85] The Applicants ground their balance of convenience arguments on para 34 of Lubicon

Lake, supra, where the Court of Appeal described this stage of the analysis as requiring a first

instance judge to weigh the harm done to the plaintiff from a refusal to grant the relief against the

harm done to the defendant by the granting of the relief (para 34) and further, that in considering

the balance of convenience, the likely success of the claim by a plaintiff must be weighed against

the harm done to a defendant if the claim is not successful. The preservation of the status quo as

being an appropriate factor to consider in assessing the balance of convenience was also

mentioned, and Northlands, supra referenced.

[86] The Applicants say that if the PSSRA is stayed that no obvious financial harm will befall

Alberta, because AUPE is prepared to forego the implementation of any monetary terms which

may be awarded in the CAB process, at least until this Action is brought to completion. They

point out that a meaningful undertaking as to damages has been provided by AUPE.

[87] The Applicants also argue that if a stay is granted, significant irreparable harm to the

Plaintiffs will be avoided and the members of the Crown bargaining unit represented by AUPE

will have an opportunity to see the CAB process play out. AUPE has already expended funds

and effort to prepare for the CAB hearing.

[88] As to the status quo argument, the Applicants submit that this concept should not be used

to defeat the enforcement of a Charter right.

[89] The Applicants accept that the public interest is an important consideration in the

assessment of the balance of convenience, especially given their request to suspend the operation

of the PSSRA. They point out that this legislation is aimed at saving money on the backs of the

members of the Crown bargaining unit, but no other group of employees employed by Alberta.

They argue that the public interest is an economic interest and that the Applicants are not seeking

extra money and therefore the Government of Alberta will not be compelled to pay any increase

in wages which the CAB process may conclude is appropriate. The Applicants submit that the

legislation is aimed at AUPE and its members who are part of the Crown bargaining unit.

[90] In respect to the argument by Alberta that a CAB award will help AUPE in its bargaining

on behalf of other members which are not in the Crown bargaining unit, the Applicants say that

there are many uncertainties, that this set of arguments is essentially speculative and should not

represent a factor considered by the Court during the convenience weighing exercise.

[91] The Applicants say that there will be no irreparable harm to Alberta from its participation

in the CAB process, any cost to participate will be negligible in the overall scheme of things and,

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in any event, the cost of such participation is quantifiable in damages in the event the Applicants

are unsuccessful in this Action.

[92] In closing, the Applicants remind the Court of the serious and long lasting effects on

labour relations which should be weighed against the rather negligible costs of harm to the

Government of Alberta for participation in the CAB process. The Applicants therefore ask that

the balance of convenience be resolved in their favor.

2. Alberta

[93] The primary argument of Alberta on weighing the balance of convenience relates to the

public interest and is founded in a statement from the Supreme Court of Canada in Harper v

Canada (Attorney General), 2000 SCC 57 at para 9, [2000] 2 SCR 764:

... It follows that in assessing the balance of convenience, the motions judge must

proceed on the assumption that the law -- in this case the spending limits imposed

by s. 350 of the Act -- is directed to the public good and serves a valid public

purpose. This applies to violations of the s. 2(b) right of freedom of expression;

indeed, the violation at issue in RJR--MacDonald was of s. 2(b). The assumption

of the public interest in enforcing the law weighs heavily in the balance.

Courts will not lightly order that laws that Parliament or a legislature has

duly enacted for the public good are inoperable in advance of complete

constitutional review, which is always a complex and difficult matter. It

follows that only in clear cases will interlocutory injunctions against the

enforcement of a law on grounds of alleged unconstitutionality succeed.

[Emphasis added]

[94] Alberta puts special emphasis on these assumptions namely, that the PSSRA, as the

challenged legislation, must be assumed to be directed to the public good and to serve valid

public purposes, with fiscal restraint and the creation of reasonable market alignment of

compensation with public sector employees in other Provinces.

[95] A second head of argument is that while AUPE has agreed to stay any monetary award

arising out of a CAB process, it will not agree to a stay of the resolution of any non-monetary

issues arising from such an award. Alberta says that absent a stay, a CAB award is binding on the

Government as an employer under the PSSRA. Alberta argues that if the Plaintiffs fail in their

litigation then non-monetary aspects of a CAB award may impose costs on the Government

which could not be unwound or the subject of compensation.

[96] Alberta complains that AUPE is seeking to score political points by obtaining an award

through the CAB process, which it could then use to show that the state employer has deprived

the members of the Crown bargaining unit of legitimate increases in wages. Counsel for Alberta

points to an article in a Union publication critical of the current Government which is said to

show bad motives on the part of AUPE.

[97] Alberta says further that AUPE will use a positive CAB award to lever better settlements

for other bargaining units which it represents in collective bargaining with Alberta and this

spillover effect will cause irreparable harm to Alberta and cannot be the subject of compensation.

It is said these effects could be irreversible.

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[98] Alberta notes that even if the Plaintiffs are successful in their Action, Alberta could still

legislate its way out of the problems and the government of the day could always impose greater

restrictions on a CAB process, or impose an entirely different dispute resolution process

altogether. In that regard, Alberta points to the legislation which applied to public sector

employees from 1983 to 1988, which imposed special parameters on the decision maker: the

Public Service Employees Relations Board. Alberta stresses that the Fraser decision makes clear

that there is no Charter right to a particular dispute resolution process.

[99] Finally, the Court is warned that it should not facilitate AUPE placing the union in a

position where it can cherry-pick the best results either from the PSSRA or a CAB award.

[100] In closing, Alberta argues that when all of these considerations are taken into account, a

proper balancing will favor the denial of an injunction and asks that the motion be dismissed.

[101] The Minister had no submissions to make on the balance of convenience question and

limited itself to commenting on the merits of the constitutional argument.

3. Analysis

[102] The Applicants seek to enjoin the operation of the PSSRA, which in the absence of a stay,

would result on March 31, 2014 in the imposition of the 2011 Collective Agreement on the

members of the Crown bargaining unit for a four year term. At the core of the relief sought by

the Applicants is a request that the Court use its inherent powers to stop the implementation of

what is otherwise a duly passed Provincial law.

[103] The Supreme Court of Canada has made it clear in Harper, supra, that as a motions

Judge assessing the balance of convenience, I must proceed on the assumption that the PSSRA is

directed to the public good and serves a valid public purpose. The assumption of a public interest

is met by this law’s unimpeded operation and that must weigh heavily in the balance. As noted,

this legal principle is accepted by the Applicants.

[104] Discerning the public purpose served by this legislation is found, in part, in the opening

preambles of the PSSRA, which speaks to the need on the part of Alberta for fiscal restraint and

reasonable market alignment of compensation for members of the Crown bargaining unit relative

to equivalent public sector workers in other provinces. I characterize this in broad terms as

representing economic interests.

[105] The legislation challenged here is aimed at a specific group of Albertans, namely the

22,000 +/- members of AUPE. The preamble of the PSSRA suggests, in part, that it is a salary

capping instrument, but the effect of the legislation goes much further than that. Absent a stay, as

of March 31, 2014 this legislation imposes the rather stale 2011 Collective Agreement on the

members of the Crown bargaining unit, with existing wage rates capped for the first two years at

zero and a very modest increase for the last two years of the contract. The effect is much more

than a salary cap, instead it freezes all of the other non-monetary features of the relationship as

well. In addition, it guts the bargaining process by removing any effective leverage on the part of

the workers who, as a result of other provincial laws, cannot withdraw their labour. The effect of

this legislation is to emasculate the AUPE, which in turn results in the harms identified by

Professor Fryer. This evidence has not been refuted by either Alberta or the Minister.

[106] Here the Applicants are not asking the Court to stay the legislation such that AUPE can

obtain more compensation for its members. AUPE has stated on the record that it does not want

any monetary benefits, which may form part of any award made by the CAB process. If

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increases in wages are found by that process, AUPE is on the record as asking that such benefits

not be implemented.

[107] Given this position by the Applicants, it is hard to see how a stay of the legislation will

defeat the primary stated purpose of fiscal restraint and reasonable market alignment. The cost of

conducting the CAB process will likely be minimal in the overall scheme of things and may even

confirm Alberta’s implicit assertion in the PSSRA that the Crown bargaining unit member wages

are out of alignment with public sector employees in other provinces. If that should happen, then

it is hard to see how the interests of Alberta would be injured.

[108] I divert to make an observation about the CAB process being allowed to go forward. It

may be that the public interest will be served as to both stated purposes by an open and

transparent process which allows the parties to debate their respective positions in a public

setting and on the basis of evidence, all to be observed by members of the media, and through the

media, the public. Surely, this would be in the public interest.

[109] There is another consideration which I must also address in this part of the analysis and

that is the strength of the Charter challenge brought by the Applicants. Both Alberta and the

Minister advocate that there is no serious issue to be tried and that the Charter challenge to the

PSSRA is “weak”. The Applicants accept that the strength of their case is an appropriate factor in

weighting the consequences of a stay on each party. While I do not want to go too far in making

statements on the strength of the Charter challenge, I must address this issue as part of the

weighing exercise. I do not see the Applicants arguments as “weak”, especially given the focus

of the legislation and its effects on the rights of one particular group of Albertans and public

servants, namely the employees who form the Crown bargaining unit. Rather, I see the claims as

representing a “clear” case of a Charter breach as per para. 9 of Harper.

[110] The legislation in question is admitted by the Respondent to be unique in Canada. While

wage capping legislation by all levels of Government in Canada has become almost routine, laws

such as PSSRA, with its very broad and very focused effect on one group, is not. This unique

legislation is a blanket that covers all aspects of the employment relationship between Alberta

and the employees in the Crown bargaining unit. It is the broad scope of this legislation which is

under challenge and which distinguishes the Applicants’ challenge to the PPSRA from any run-

of-the-mill Charter attacks on legislation that restricts employee compensation. That is what

convinces me that the public interest consideration cannot weigh so heavily as to tip the balance

in favor of the Respondent. Rather, it tips the other way in favor of staying the effect of this

broad-reaching legislation until its constitutional validity can be fully evaluated by a trial.

[111] There are still other matters to be addressed beyond the public interest consideration.

Alberta has argued that if the legislation is stayed and the CAB process continues to an award,

then AUPE will use that award in other dispute resolution processes to lever settlements which

are likely to damage the public purse. As argued by the Applicants, this position is highly

speculative and fails to take into account that those other decision-makers are independent and

will presumably decide these other disputes on completely different bodies of evidence and take

into account different considerations and circumstances.

[112] The complaint by Alberta that AUPE is being “political”, as evidenced by allegedly

scurrilous attacks contained in Union publications, is not an argument to which I give any weight

in this balancing exercise. The statements in the AUPE publication are what they are, namely

rhetorical flourishes which are often found in house publications. I am surprised that Alberta

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would advocate this sort of material as representing a relevant factor in this weighing exercise. I

give equally little weight to the Applicants’ claim that government rhetoric, for example that

found in Alberta’s “Reaching our Full Potential” initiative, is propaganda that warrants negative

court response in a labour context.

[113] Alberta has also argued that the CAB determination of non-monetary issues may have

adverse and economic impacts for the Government. The answer to this concern is a point raised

by Alberta itself: the government of the day could always legislate its way out of any

unacceptable aspects of a CAB award, subject always to attracting yet another Charter

challenge.

[114] Ultimately, what I give the greatest weight to in completing an assessment of the balance

of convenience is the potential damage caused by this legislation to labour relations generally in

the public and private sectors and, specifically, in respect to the employer relationship with the

members of the Crown bargaining unit. There is strong evidence from Professor Fryer that this

has already happened and will continue in the absence of some restraint being imposed by this

Court on Alberta. I have accepted the evidence of Professor Fryer on this subject and repeat

again that I give it great weight in coming to my conclusions.

[115] These adverse effects could be serious and long lasting and there is evidence put forward

by the Applicants that that is a very plausible result.

4. Conclusion

[116] For all of these reasons, but particularly the last one relating to the adverse effect on

labour relations, I conclude that the balance of convenience should be resolved in favor of the

Applicants. When all is said and done, the harm done to the Applicants, were I to refuse an

injunction, outweighs any harm that would result to Alberta from my grant of this relief.

VI. Summary of Relief Granted

[117] An injunction staying the operation of the PSSRA is ordered effective March 31, 2014.

[118] Costs are awarded against each of the Crown and the Minister.

Heard on the 28th

day of January, 2014.

Dated at the City of Edmonton, Alberta this 14th

day of February, 2014.

D.R.G. Thomas

J.C.Q.B.A.

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Appearances:

Mr. Patrick Nugent

(Nugent Law Office)

for the Applicants, The Alberta Union of Provincial Employees,

Guy Smith and Mike Dempsey

Mr. Hugh J.D. McPhail Q.C. and

Mr. D.R. Bokenfohr

(McLennan Ross LLP)

for the Respondent, Alberta

Mr. Roderick Wiltshire and

Mr. D.N. Kamal

(Dept. of Justice and Solicitor General)

for the Intervener Minister

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Schedule A

PUBLIC SERVICE SALARY RESTRAINT ACT

Chapter P-43.5

Preamble

WHEREAS the Government of Alberta is committed to living within its means, to

spending based on needs and priorities, to saving more and to reducing deficits;

WHEREAS the Government of Alberta is seeking a better market alignment of salaries

given that salaries for job classifications under the collective agreement between the

Government of Alberta and the Alberta Union of Provincial Employees generally exceed

those paid to employees in the public service of comparable provinces;

WHEREAS the need for fiscal restraint and reasonable market alignment must be

balanced with the need to have skilled employees to deliver the programs and services

Albertans require, within the context of Alberta’s competitive labour market; and

WHEREAS the collective agreement between the Government of Alberta and the Alberta

Union of Provincial Employees expired on March 31, 2013 and a new collective

agreement has not yet been concluded;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative

Assembly of Alberta, enacts as follows:

Interpretation

1(1) In this Act,

(a) “employee” means a full-time employee, part-time employee or wage employee;

(b) “former collective agreement” means the collective agreement between the parties

dated May 17, 2011, including any amendments made to the collective agreement

prior to the coming into force of this Act;

(c) “full-time employee” means a person who on April 1, 2014 is an employee as

defined in Article 1.01(h)(i) or (ii) of the Master Agreement who is in a full-time

position;

(d) “lump sum payment” means a lump sum payment referred to in section 3;

(e) “Master Agreement” means the Master Agreement of the former collective

agreement;

(f) “Minister” means the Minister determined under section 16 of the Government

Organization Act as the Minister responsible for this Act;

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(g) “new collective agreement” means a collective agreement entered into between

the parties on or after April 1, 2013, but before

(i) January 31, 2014, or

(ii) March 31, 2014 if the Lieutenant Governor in Council determines this

later date to be necessary or desirable in the public interest;

(h) “parties” means the Crown in right of Alberta and the Alberta Union of Provincial

Employees;

(i) “part-time employee” means a person who on April 1, 2014 is an employee as

defined in Article 1.01(h)(i) or (ii) of the Master Agreement who is in a part-time

position;

(j) “rates of pay” means the rates of pay referred to in Article 45 of the Master

Agreement and as specified in the subsidiary agreements to the former collective

agreement;

(k) “wage employee” means a person who on April 1, 2014 is an employee as defined

in Article 1.01(h)(iii) of the Master Agreement.

(2) For the purposes of this Act,

(a) a reference to year 1 means the period April 1, 2013 to March 31, 2014;

(b) a reference to year 2 means the period April 1, 2014 to March 31, 2015;

(c) a reference to year 3 means the period April 1, 2015 to March 31, 2016;

(d) a reference to year 4 means the period April 1, 2016 to March 31, 2017.

Extension of former collective agreement

2 If no new collective agreement is entered into between the parties on or before the applicable

date set out in section 1(1)(g),

(a) the former collective agreement is extended and deemed to be in effect for the

period April 1, 2013 to March 31, 2017,

(b) the rates of pay in the former collective agreement are increased by

(i) 0% in year 1,

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(ii) 0% in year 2,

(iii) 1% in year 3, and

(iv) 1% in year 4,

(c) Article 47 of the Master Agreement is amended by striking out “March 31, 2013”

and substituting “March 31, 2017”, and

(d) subject to section 3(3), each employee is eligible to receive a lump sum payment

in an amount determined under section 3, less lawful deductions, as soon after

April 1, 2014 as payment can practicably be made.

Lump sum payment

3(1) The amount of the lump sum payment that a full-time employee is eligible to receive under

section 2(d) is $875.

(2) The amount of the lump sum payment that a part-time employee or wage employee is

eligible to receive under section 2(d) is a prorated portion of the amount referred to in subsection

(1) as determined in accordance with a written direction of the Minister.

(3) An employee is not eligible to receive a lump sum payment under section 2(d) if, on April 1,

2014, the employee is

(a) on a leave of absence and receiving workers’ compensation benefits,

(b) on a leave of absence and receiving payments under the Government Long Term

Disability Plan referred to in Article 33A of the Master Agreement,

(c) on parental or adoption leave as described in Article 40 of the Master Agreement,

(d) on maternity leave as described in Article 40A of the Master Agreement, or

(e) on a leave of absence as described in Article 46 of the Master Agreement,

and that leave began before April 1, 2013.

(4) A lump sum payment is not subject to the deduction and remittance of union dues under

Article 8 of the Master Agreement.

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Non-application of PSERA and other enactments

4(1) The following do not apply to the parties with respect to entering into a new collective

agreement:

(a) Division 2 of Part 6 of the Public Service Employee Relations Act;

(b) any other enactment specified in the regulations.

(2) Without limiting the generality of subsection (1)(a), proceedings, if any, underway between

the parties under Division 2 of Part 6 of the Public Service Employee Relations Act are

terminated immediately.

(3) If as of the date of the coming into force of this Act a compulsory arbitration board has been

established under Division 2 of Part 6 of the Public Service Employee Relations Act in respect of

a dispute between the parties, the reasonable expenses and remuneration of any person appointed

to that board are payable by the Crown in right of Alberta.

Conflicts between enactments

5 If there is a conflict or inconsistency between this Act and the Public Service Employee

Relations Act or between this Act and any other enactment, this Act prevails to the extent of the

conflict or inconsistency.

Revised version of former collective agreement

6 If the former collective agreement is extended pursuant to section 2, the Public Service

Commissioner shall prepare and provide to the Alberta Union of Provincial Employees a revised

version of the former collective agreement that reflects the changes to the former collective

agreement described in section 2(a) to (c).

Ministerial regulations

7 The Minister may make regulations

(a) specifying enactments for the purposes of section 4(1)(b);

(b) defining any word or expression used but not defined in this Act;

(c) respecting any matter that the Minister considers necessary or advisable to carry

out the intent and purpose of this Act.

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Repeal

8 This Act is repealed on Proclamation.