Food for Thought

Some thoughts on the position of public sector unions, from that great union-buster, Franklin Roosevelt:

All Government employees should realize that the process of collective bargaining, as usually understood, cannot be transplanted into the public service. It has its distinct and insurmountable limitations when applied to public personnel management. The very nature and purposes of Government make it impossible for administrative officials to represent fully or to bind the employer in mutual discussions with Government employee organizations. The employer is the whole people, who speak by means of laws … Accordingly, administrative officials and employees alike are governed and guided, and in many instances restricted, by laws which establish policies, procedures, or rules in personnel matters.

Particularly, I want to emphasize my conviction that militant tactics have no place in the functions of any organization of Government employees. Upon employees in the Federal service rests the obligation to serve the whole people, whose interests and welfare require orderliness and continuity in the conduct of Government activities. This obligation is paramount. Since their own services have to do with the functioning of the Government, a strike of public employees manifests nothing less than an intent on their part to prevent or obstruct the operations of Government until their demands are satisfied. Such action, looking toward the paralysis of Government by those who have sworn to support it, is unthinkable and intolerable.

Something, perhaps, for Canadian courts to ponder as they consider union challenges to the federal government’s attempts to limit their powers.

What’s Missing from this Picture?

The Supreme Court does not live by the Senate alone. This morning, it delivered a decision on the interaction of the rights to privacy and freedom of expression, Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, finding Alberta’s privacy-protection legislation unconstitutional as an overbroad restriction of legitimate expressive activity. Yet important though its subject is, the decision raises as many or indeed more questions than it answers.

The case arose out of the respondent union’s filming people who were crossing, or simply found themselves near, its picket line as it was engaged in a (lawful) strike. Several of those thus filmed, including a manager, whose image the union used in materials it distributed to its striking members and some members of the public who had nothing to do with the labour dispute and whose images were apparently never used,  complained to the Alberta Information and Privacy Commissioner. An adjudicator appointed by the commissioner found that the union violated Alberta’s Privacy and Information Protection Act‘s broad prohibition on collecting and using “personal information” about individuals without their consent. The adjudicator also found that, although the union’s purpose was expressive and related to its legitimate activities (the union sought, for example, to inform the public and its members about the labour dispute it was involved in, to dissuade people from crossing its picket line, and to collect evidence of both its peaceful activity and of any altercations that might arise), its activities did not fall with PIPA‘s narrow exceptions.

The adjudicator was precluded from considering the constitutionality of PIPA‘s interference with freedom of expression. On judicial review, both the Court of Queen’s Bench and the Alberta Court of Appeal found that the application of PIPA to the union’s activities in this case was a breach of the freedom of expression protected by s. 2(b) of the Charter, and that it was not justified by s. 1. The Supreme Court unanimously agrees.

Since PIPA operated to prohibit the union’s expressive activities, the Court “conclude[d] without difficulty that it restricts freedom of expression” (par. 17). PIPA, to be sure has an worthy purpose, the protection of privacy being of great importance and privacy legislation being, indeed, “quasi-constitutional” (a term whose meaning, I have argued here, is not quite clear), and is obviously related to that purpose.  But its “broad restrictions are not justified because they are disproportionate to the benefits the legislation seeks to promote” (par. 20). In the labour context, freedom of expression is very important to mitigate “the presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker” (par. 32), to sway public opinion, and thus to achieve the workers’ collective goals. Yet PIPA applies “without regard for the nature of the personal information, the purpose for which it is collected, used or disclosed, and the situational context for that information” (par. 25). In this case, the information at issue was not especially sensitive: people were filmed in a public place, and “[n]o intimate details of the lifestyle or personal choices of the individuals were revealed” (par. 26). However laudable its goals, PIPA is much too broad.

In the result, the Court strikes down the PIPA in its entirety, suspending the declaration of invalidity for a year to allow the legislature to achieve a better balance between privacy and freedom of expression. It does not say much about where that balance lies, merely noting that its “conclusion does not require that we condone all of the Union’s activities” and that “like privacy, freedom of expression is not an absolute value [so that] both the nature of the privacy interests implicated and the nature of the expression must be considered” (par. 38).

This cautious approach might be sensible in dealing with a broad and evolving subject like privacy, but the decision does leave one with many questions. One question is what to make of the Court’s failure to consider or so much as mention what is usually the crucial stage of s. 1 analysis: the “minimal impairment” question of whether a statute’s objectives can be achieved without compromising Charter rights as much as it does. Is this omission case-specific (due either to the ease of resolving the case on another stage of the s. 1 analysis or to the Court’s reluctance to discuss alternative regulatory schemes, so as not to narrow the legislature’s choices in advance), or a signal of a broader change in the Court’s approach to s. 1? Probably the former, but we have to wait and see.

Another concerns the importance of context. The Court makes much of the importance of freedom of expression generally and of picketing tactics specifically to labour unions, but there are other situations in which the conflict between freedom of expression and privacy might arise. For example, I discussed the issue of potential applicability of privacy laws to political parties here. PIPA’s paragraph 4(3)(m) specifically exempts political parties, but of course the Court’s decision is guidance for dealing with other privacy legislation as well. As I suggested then, “[d]epending on the outcome of th[is] case, political parties might be able to challenge any extension of the privacy legislation to cover their activities.” The outcome certainly suggests that this is so, but we cannot quite tell just what role the special context of labour disputes played in the Court’s decision, and whether it would approach the activities of political parties (which, I have suggested, can seem quite creepy) differently.

These, I think, are important issues. The Supreme Court has resolved one specific issue, but the big picture of the relationship between freedom of expression and privacy is far from complete.

Bad Timing

In an interesting story yesterday, the Globe and Mail reported that “British Columbia’s largest public-sector union is appealing a fine of more than $3-million levied by Elections BC over a television advertisement that aired during the spring by-elections.” The union started an ad campaign three days before the by-elections were called. As the article tells the story – mostly with the Union’s perspective – the ad had nothing to do with the specific by-elections; it was directed against the provincial government’s policy towards civil servants in general. But since it disfavoured the party in government, opposing its stance on issues with which it is associated, it counted as election advertising. The union eventually cancelled the ad in the ridings in which the by-elections were taking place, but it had run for four days, which, in the view of Elections BC, was enough to violate the very low spending limits for individual ridings.

The union now says that Elections BC misjudged the amount of its spending (and thus of the fine, which is a multiple of the amount by which it broke the spending limit), counting its province-wide expenses for the duration of the ad campaign as expenses on the specific by-elections. That sounds like a reasonable complaint, but the article does not explain the view Elections BC, and I have not been able to find its decision on its website, so I will not express a definitive opinion.

In any event, this story is an illustration of a trend about which I blogged before. It is that restrictions on spending by “third parties” – that is citizens, unions, NGOs and anyone else except political parties and candidates – are, in Canada, working mostly not to the detriment not of the rich, whose influence they were intended to check, but of the not-so-rich who are able to wield considerable resources by organizing. It is mostly unions, as I noted here, but also, in Québec, the student movement. Another important point is that, as I pointed out in this op-ed about the impact of third-party spending restrictions on the Québec student movement, beginning an election campaign – which in most Canadian jurisdictions the first minister can do practically at will – can effectively silence an ongoing social movement or debate. What this case shows is that a general election might not even be necessary. A well-timed and strategically placed by-election can do the trick.

I suppose I will have occasion to blog about this case again, and probably similar ones too. In the meantime, we would do well to think again about whether our election-spending framework is actually a good thing for our democracy.

A different ERA?

The ERA – the the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393 – is actually the same that was at issue in Association des Réalisateurs c. Canada (Procureur Général), 2012 QCCS 3223, which I blogged about a month ago. But the conclusion of the Ontario Court of Appeal in Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530, is different from the one Québec’s Superior Court reached in Réalisateurs. The two cases are alike, however, in being very much about the specific facts at issue.

As I explained in the post about Réalisateurs,

The Expenditure Restraint Act sets out upper limits on the extent of pay raises that the government and a number of crown corporations are entitled to grant their employees, as part of a package of measures responding to the global economic crisis and the ensuing budgetary difficulties. Provisions of collective bargaining agreements stipulating higher raises are invalid to the extent that they exceed the limits allowed by the statute …

In  Réalisateurs, the ERA operated retroactively to modify an agreement concluded between the union and CBC/Radio-Canada. The court found that an interference with the union members’ Charter right to engage into a meaningful collective negotiation over fundamental conditions of their employment (which, it went on to hold, which not justified by s. 1 of the Charter).

The situation in Justice Counsel is different. By the time the ERA came into force, the union and the government had not yet concluded a collective agreement. Despite lengthy negotiations, they had been unable to agree, and decided to resort to arbitration. In these circumstances, the Court holds,  “the ERA had the effect of taking wages off the table for the arbitration, [but] that does not, standing alone, amount to an infringement” of the right to negotiate collectively (par. 39). That right entails an ability to make representations, which must be listened to in good faith, but no particular outcome need follow, and binding arbitration is not constitutionally required. The union was able to make representations over the course of the negotiations, and the negotiations’ failure is no proof that they were not listened in good faith. On these facts, the ERA didn’t take away from the union anything it had a right to.

The decision is thus quite narrow, because the circumstances of the parties involved are unusual. It does not tell us very much about the ERA‘s constitutionality as applied to other unions. In my post about Réalisateurs, I criticized the courts for not showing sufficient restraint in extending constitutional protection to civil service union contracts. What I had in mind were the substantive rules applied in these cases. But here is another mode of judicial restraint: deciding a case on narrow – but relevant – facts, and avoiding broad issues altogether.

No Resraint

The Superior Court of Québec issued a potentially far-reaching decision last week, declaring a number of provisions of the Expenditure Restraint Act, S.C. 2009, c. 2, s. 393, constitutionally inapplicable to the CBC/Société Radio-Canada. In Association des Réalisateurs c. Canada (Procureur Général), 2012 QCCS 3223, justice Lise Matteau held that the application of provisions limiting salary raises that could be offered to civil servants to Radio-Canada’s employees was a violation of their right to freedom of association, protected by s. 2(d) of the Charter.

The Expenditure Restraint Act sets out upper limits on the extent of pay raises that the government and a number of crown corporations are entitled to grant their employees, as part of a package of measures responding to the global economic crisis and the ensuing budgetary difficulties. Provisions of collective bargaining agreements stipulating higher raises are invalid to the extent that they exceed the limits allowed by the statute, whether the agreement was entered into before or after its enactment. This means that the statute retroactively changes some collective agreements, including those of concluded by the plaintiffs in Association des Réalisateurs.

This, they said, deprived them of their right to engage in meaningful collective negotiations with their employer over the terms of their employments, in violation of s. 2(d) of the Charter as interpreted by the Supreme Court. Justice Matteau accepted this submission. Salary questions are key to the employees’ relationship with the employer and thus being able to negotiate on them is essential for the plaintiffs’ collective-bargaining rights to be meaningful. By setting aside the agreement reached between the plaintiffs and their employer, the Expenditure Restraint Act infringes on their right to collective bargaining.

The next question the court had to decide is whether the infringement was justified under s. 1 of the Charter. Although the plaintiffs challenged the government’s claim that the Expenditure Restraint Act addressed pressing and substantial concerns, Justice Matteau accepts it, given the context of economic crisis and budgetary pressure in which it was enacted. However, she holds that the application of the statute to CBC/Radio-Canada’s agreements with its employees is not rationally connected to the objective of reducing expenditures and controlling the salaries of the public sector employees. That is because the government financing of the CBC/Société Radio-Canada does not depend on the contracts it negotiates with its employees. The government gives the CBC a lump sum of money, and the corporation decides what to do with it. Cutting or limiting the growth of the CBC’s payroll does not change its lump sum subsidy and thus doesn’t help the government’s finances.

This seems like the correct result in light of the Supreme Court’s s. 2(d) jurisprudence, although I am far from being an expert in this area. But, assuming that the decision is indeed correct, it helps illustrate just how troubling that jurisprudence is. The problem is not so much the decision itself. If the court’s analysis of the CBC’s financial relationship with the government is right, there seems to be relatively little reason for imposing salary restraints on the CBC’s employees, except perhaps the rather speculative claim that, if allowed to raise its salaries as it pleases, the CBC will end up asking for – and obtaining – unaffordable financing increases from the government.

But the more troubling question is whether courts should be policing propriety of Parliament interference with collective agreements between the government and civil servants in the first place. I think that a consideration of the institutions involved and the rights at stake suggests a negative answer.

Consider, first, the institutions. Suppose a civil servants’ union challenges the Expenditure Restraint Act. As applied to actual civil servants, it presumably is rationally connected to its objectives. So the court hearing the case will need to proceed to further stages of the s. 1 analysis – asking itself whether the restrictions it puts in place are minimally impairing of the s. 2(d) right and whether its beneficial effect outweigh the deleterious ones. Can it do so? Are courts really in a position that the limits on negotiating salaries that Parliament imposed were as little as possible? Although some comments made in obiter by Justice Matteau suggest that it would have been enough for the government to consult the unions, I wonder whether this is so considering that, after the consultation, Parliament still went ahead and imposed binding legislation. Deciding whether this legislation really was minimally impairing requires, it seems to me, analyzing the government’s budgetary situation, which is not something the courts are equipped for doing. And quite apart from institutional competence, there is the question of who, as a matter of legitimacy or political morality, ought to control government spending. The Stuart kings asserted the power to do so – and Charles I had his head cut off for his troubles. Since then, nobody has seriously challenged Parliament’s power of the purse. Is the Canadian judiciary prepared to do so?

It might be said that, when rights are at stake, it should. And, to be sure, enforcement of Charter rights sometimes results in the courts, in effect, requiring the government to make expenditures – in the area of language rights for example. But what sort of rights are at issue here? Courts say it is about a meaningful freedom of association. But the effect of the judgments in Association des Réalisateurs is to prevent Parliament from interfering with a private contract (between the CBC and its employees). Now that might be a good thing if you believe in freedom of contract. But it is clear that the framers of the Charter made a fundamental, deliberate choice not to protect economic rights – property and freedom of contract. This decision – and the Supreme Court’s jurisprudence from which it is derived – seems to say that trade unions have a constitutional right that no other Canadian has. Whatever one thinks, substantively, of the merits and demerits of unions, their being more equal than the rest of us this ought to be troubling.

Although the expression is often overused, I think that this is an area in which judicial restraint is really called for. I suppose the government will want to appeal the decision in Association des Réalisateurs. Perhaps the Supreme Court will yet have an opportunity to show some.

The Moneyed Interests

Restrictions on pre-electoral spending by citizens and groups other than political parties and their candidates (known in the jargon as “third-party spending”) have gained a rather unlikely supporter: Tom Flanagan. Prof. Flanagan, arguably Canada’s most prominent conservative thinker, has come out in support of such restrictions in an op-ed in the Globe and Mail.

This might seem surprising because conservatives (and libertarians) have usually opposed restrictions on third-party spending, while the left supported them. (Indeed, prof. Flanagan says he opposed the enactment of third-party spending restrictions while Jean Chrétien was Prime Minister.) The support for restrictions was always based on the fear of the pernicious influence of moneyed interests in politics. John Rawls, for example, argued that without spending restrictions, the rich would take over the political process and prevent the enactment of the sort of re-distributive policies he thought were necessary for society to be just. But the reality, as it turns out, is more complicated, which explains prof. Flanagan’s change of heart.

Prof. Flanagan points out that during the last election campaign in Ontario, public-sector trade unions spent large amounts of money on electoral advertising: “[t]ogether, the three spent more on advertising in the writ period than either of the main parties.” Furthermore, this spending all pursued a single objective – to attack the Progressive Conservative Party. Prof. Flanagan argues that it thus effectively amounted to support for the Liberals. The unions would not have been able simply to give that much money to the Liberals, but the absence of limits on third-party spending allowed them to circumvent the limits on direct contributions to political parties.

Prof. Flanagan thinks this has terrible consequences, though if your politics differ from his, you are likely to disagree. What should not be controversial is that third-party spending limits – or their absence – do not necessarily have the effects Rawls and other supporters of these limits on the left expected them to have. It is not only the rich who have a lot of money. It is also the not-so-rich who are able to pool their resources together, through trade-unions for example, or student unions (which are bound to run into the strictures of Québec’s spending restrictions when an election is called, as I have been saying for months). They too are the moneyed interests whom third-party spending limits prevent from getting their message across as effectively as they would like. Both on the left and on the right, those whose opinion of spending limits is based on the conventional wisdom that they prevent the “rich” from gaining a stranglehold on the political process and thus help the “powerless” need to reconsider their views.