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Alberta government seeks leave to appeal injunction suspending Bill 9

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AUPE President Guy Smith addresses union members and supporters Wednesday in Edmonton (Photo: David J. Climenhaga).

Unsurprisingly, the United Conservative Party government has sought leave to appeal the temporary injunction granted by the Alberta Court of Queen's Bench that halted application of Bill 9, playing havoc with Premier Jason Kenney's strategy for putting off a crisis with the province's public sector unions until after the federal election.

I mean, seriously, it sure doesn't look like they've got a Plan B for the short term, not if they don't want to finish off Conservative Party of Canada Leader Andrew Scheer's chances of becoming prime minister on October 21. So what else could they do?

In half-hearted defence of the government, it does have an extensive legislative agenda -- temporarily on hold because of federal political considerations -- and the government's lawyers are reported to be burning the midnight oil getting all these sure-to-be-controversial laws drafted.

Meantime, they'd like their hearing in a big fat hurry -- although it's yet to be seen whether the Alberta Court of Appeal will cooperate just because Finance Minister Travis Toews has instructed its justices to jump.

Turns out it wasn't just me who thought the Public Sector Wage Deferral Act sounded like it was drafted on a bar napkin over drinks. Justice Eric Macklin, who is both better qualified and better positioned to make such judgments than your blogger, seems to have come to a somewhat similar conclusion.

Leastways, as Jonathan Teghtmeyer of the Alberta Teachers Association told the CBC Wednesday, the judge "gets pretty close to saying" that he didn't think the legislation could stand up to the constitutional challenges that have been launched by the Alberta Union of Provincial Employees, which got the injunction, and United Nurses of Alberta, and which are expected to be filed soon by the Health Sciences Association of Alberta, the Canadian Union of Public Employees, and the ATA.

Despite the injunction, public sector unions held information pickets Wednesday in Calgary, Fort Saskatchewan and Edmonton. The noisy Edmonton rally ended up on the street in front of the UCP's party offices, where AUPE President Guy Smith and other union leaders expressed their determination to carry on the fight against Bill 9 and the fraught approach to labour relations it evokes.

Justice Macklin noted in his written judgment that "an arbitration within specified timelines is a substantive term of the collective agreement. Bill 9, therefore, may have impact on the … charter right to freedom of association since it raises the issue of whether it makes collective bargaining between the government and employee representatives effectively impossible."

"Bill 9 is a unilateral action by one of the two parties to a collective agreement, freely negotiated, to amend the terms of the agreement," the decision continued. "AUPE compromised its position and its rights in order to reach the agreement. As stated above, the term now being amended by the legislation is substantive, therefore Bill 9 is a substantive interference with associative activity."

Furthermore, he wrote later in the ruling, "it is generally in the public interest that parties to otherwise valid agreements, freely negotiated, honour their obligations under those agreements. Members of the public often turn to the courts or other dispute resolution mechanisms to enforce contracts or seek remedies for their breach. …"

"Members of the public expect that parties to an agreement will honour commitments made in agreements, and they reasonably expect that parties with whom they contract, regardless of who they may be, will honour the terms of the agreement made. It is no different if one of the contracting parties is the government. A member of the public expects, and is entitled to expect, that an agreement reached with the government will be honoured. …"

Therefore, he concluded, "it is in the long-term public interest for the public to see that its government cannot unilaterally change its contractual obligations through legislation that may interfere with charter rights."

The 10-page decision, which can be found here, is clearly written and is worth reading in its entirety.

This kind of situation is unusual, although it's not unheard of in the troubled history of the relationship between Alberta Conservative governments and their public sector unions.

The most recent example, which similarly showed signs of either slapdash legislative drafting or too much attention paid to legal advice that put ideology ahead of the law, happened in 2013 when then premier Alison Redford's Progressive Conservatives passed obviously unconstitutional legislation that among other things included disproportionately heavy penalties for unions, their members and members of the public who dared to even advocate an illegal strike.

After Redford was effectively fired by her own caucus at the end of March 2014, the legislation lived a zombie existence before a legislature committee, and was finally put out of its misery by the more sensible Jim Prentice after he became premier that September.

Prentice introduced legislation repealing the law, and on March 25, 2015, it was unanimously passed by the legislature.

Alas for Prentice, by then he had already persuaded Opposition Leader Danielle Smith and most of her Wildrose Party caucus to cross the floor of the House to his PC benches, and decided to ignore convention and call an election a year earlier than almost everyone in the province wanted it. Neither of those moves pleased voters, and the result was election of the NDP led by Rachel Notley in May 2015.

Conservatives have now returned to power, but beyond a nastier tone to their rhetoric, it really doesn't appear as if very much has changed at all since the days of Redford.

Should the Appeal Court uphold the injunction, it will be interesting to see which is more important to Kenney and his party: preserving Scheer's and his federal Tories' election chances, or getting on with their own radical agenda.

David Climenhaga, author of the Alberta Diary blog, is a journalist, author, journalism teacher, poet and trade union communicator who has worked in senior writing and editing positions with The Globe and Mail and the Calgary Herald. This post also appears on David Climenhaga's blog, AlbertaPolitics.ca

Photo: David J. Climenhaga

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