T-2557-86
International Longshoremen's and Warehouse-
men's Union—Canada Area Locals 500, 502, 503,
504, 505, 506, 508, 515 and 519 and every person
ordinarily employed in longshoring or related
operations at a port on the West Coast of Canada
and who is subject to the provisions of the Main
tenance of Ports Operations Act, 1986 (Plaintiffs)
v.
The Queen (Defendant)
INDEXED AS: I.L.W.U. v. CANADA
Trial Division, Jerome A.C.J.—Vancouver, Janu-
ary 21; Ottawa, March 13, 1987.
Practice — Pleadings — Motion to strike — Action for
declaration Maintenance of Ports Operations Act, 1986 consti
tutionally invalid as prohibiting plaintiffs from bargaining
collectively and lawfully withholding services — Claim dis
closing cause of action — Crown's motion to strike based on
current state of law — Submission issues conclusively deter
mined by Public Service Alliance of Canada v. The Queen and
Smith, Kline & French Laboratories Limited v. Attorney Gen
eral of Canada — Res judicata inapplicable as earlier litiga
tion not between parties herein — Cases distinguished — Fact
plaintiffs including individuals as well as unions most signifi
cant factor of distinction — More at stake than economic
interests — Legislation allegedly compelling employees to
work under conditions and for wages that are unacceptable —
Application dismissed — Maintenance of Ports Operations
Act, 1986, S.C. 1986, c. 46 — Federal Court Rules, C.R.C., c.
663, RR. 419(1), 474.
Constitutional law — Charter of Rights — Fundamental
freedoms — Freedom of association — Action for declaration
Maintenance of Ports Operations Act, 1986 constitutionally
invalid as infringing freedom of association and right to liberty
under Charter — Application by Crown to strike statement of
claim on ground decisions in Public Service Alliance of
Canada v. The Queen and Smith, Kline & French Laboratories
Limited v. Attorney General of Canada conclusively determin
ing issues — P.S.A.C. case to effect freedom of association
excluding right to bargain collectively — Smith, Kline author
ity to effect s. 7 Charter addressing bodily well-being of
natural person, not economic interests — Decisions distin
guished — Individuals as well as unions impleaded as plain
tiffs — More than economic interests at issue — Employees
allegedly compelled by legislation, on pain of fines, to attend
at place of work and perform services — Application dis
missed — Maintenance of Ports Operations Act, 1986, S.C.
1986, c. 46 — Canadian Charter of Rights and Freedoms,
being Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.), ss. 2(d), 7.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Public Service Alliance of Canada v. The Queen, [1984]
2 F.C. 562 (T.D.), aff'd [1984] 2 F.C. 889 (C.A.); Smith,
Kline & French Laboratories Limited v. Attorney Gener
al of Canada, [1986] 1 F.C. 274 (T.D.), aff'd [1987] 2
F.C. 359 (C.A.).
CONSIDERED:
Sylvestre v. R., [1986] 3 F.C. 51; Novopharm Ltd. v.
Wyeth Ltd., [1986] 26 D.L.R. (4th) 80 (F.C.A.).
COUNSEL:
N. Glass for plaintiffs.
E. A. Bowie, Q.C. for defendant.
SOLICITORS:
Swinton & Company, Vancouver, for plain
tiffs.
Deputy Attorney General of Canada for
defendant.
The following are the reasons for order ren
dered in English by
JEROME A.C.J.: This application by the Crown
to strike the statement of claim came on for hear
ing at Vancouver, British Columbia, on January
21, 1987. At the outset of the hearing, I dealt with
a motion by the plaintiffs which was resolved on
consent. As a result of that motion, it was ordered:
(i) that this action be continued on behalf of the
second named plaintiffs and that they be joined
as parties;
(ii) that certain named union representatives
continue as representing their respective locals;
and
(iii) that the statement of claim be amended, by
the addition of a number of individual plaintiffs
and the corresponding plea that the challenged
legislation violates the right to liberty of all the
plaintiff employees, contrary to section 7 of the
Charter of Rights [Canadian Charter of Rights
and Freedoms, being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.)]. The plaintiffs withdrew a further
alternative request for a determination of a
question of law under Rule 474 [Federal Court
Rules, C.R.C., c. 663].
The action is for a declaration that the Mainte
nance of Ports Operations Act, 1986, S.C. 1986, c.
46, is inconsistent with the provisions of the Con
stitution and of no force or effect. The legislation
is said to prohibit and/or restrict the plaintiffs
from bargaining collectively and from lawfully
withholding their services. The plaintiffs claim
that such restrictions violate their freedom of asso
ciation and right to liberty under paragraph 2(d)
and section 7 of the Canadian Charter of Rights
and Freedoms.
The Crown brings this motion to strike under
Rule 419(1) of the Federal Court Rules on the
ground that no reasonable cause of action is dis
closed. Counsel for the applicant concedes that this
is an extreme application of the Rule. It is
acknowledged that the claim discloses a cause of
action. The basis of the submission is that the
present state of the law renders it impossible for
the plaintiffs to succeed.
Crown counsel argues that the issues in this case
have already been conclusively determined by
decisions which this Court is bound to follow. In
particular, he cites Public Service Alliance of
Canada v. The Queen, [1984] 2 F.C. 562, affirmed
[1984] 2 F.C. 889, in which my colleague Reed J.
held that the freedom of association does not
include the right to bargain collectively and that
"liberty" in section 7 does not encompass the
freedom of contract. Both opinions were upheld by
the Federal Court of Appeal. Similarly, the Court
of Appeal in Smith, Kline & French Laboratories
Limited v. Attorney General of Canada, [1986] 1
F.C. 274, (affirmed [1987] 2 F.C. 359) affirmed
Strayer J.'s decision that the rights protected by
section 7 have to do with the bodily well-being of a
natural person, not his economic interests.
The argument that these decisions preclude the
plaintiffs' constitutional challenge in this case
invokes many of the principles of the defence of
res judicata. That defence, according to Jowitt's
Dictionary of English Law, is based on the prem
ise that:
A final judgment already decided between the same parties ...
on the same question ... is conclusive between the parties, and
the issue cannot be raised again.
Res judicata itself, of course, is not applicable
here as the earlier litigation was not between these
parties. Nonetheless, the argument to strike based
on the current state of the law is not without
precedent. In Sylvestre v. R., [1986] 3 F.C. 51, the
Court of Appeal struck a claim for certiorari by a
member of the Armed Forces who had been dis
missed for being a homosexual. The decision was
based on pre-1982 case law which established that
the Crown was not contractually bound to a
member of the Armed Forces and that the rela
tionship between the two did not give rise to a
remedy in the civil courts. The Court found that
this state of the law had not been changed by the
Canadian Charter of Rights and Freedoms and
that the statement of claim, therefore, disclosed no
cause of action.
It is fundamental that any order depriving a
litigant of the right to be heard must be granted
only in the clearest of cases and with extreme
caution. That principle applies even more strongly
where it is acknowledged that on the face of the
pleadings, a cause of action exists.
In the final analysis, the most significant factor
is that the plaintiffs now include individuals as
well as unions. The claim, in turn, seeks a declara
tion that the legislation in issue offends the Chart
er by compelling these individuals to work under
conditions and for wages they do not accept. There
is therefore more at stake in this action than in the
cases referred to by the Crown. In the P.S.A.C.
case, Reed J. specifically noted at page 575 that
the Public Sector Compensation Restraint Act,
S.C. 1980-81-82-83, c. 122, the challenged legisla
tion, did "not cover employees not previously cov-
ered by a collective bargaining agreement". Both
the P.S.A.C. and, Smith, Kline cases dealt with
interest that could be considered purely economic.
There was no suggestion, as here, of employees
being compelled on pain of fines to attend at their
place of work and perform services. These distinc
tions save the cause of action.
During the course of argument, both counsel
had reason to refer to the suitability of Rule 474
for the resolution of this problem. Counsel for the
plaintiffs advanced (and later withdrew) a final
alternative argument that rather than accept the
Crown's premise and dismiss the action at this
stage, I should order that the question be resolved
under Rule 474. Counsel for the Crown, in fair
ness, acknowledges that pre-determination of a
question of law in that way might very well pro
vide a more precise and more comprehensive reso
lution of the issue. It is clear, however, that the
parties are not agreed on either the factual or legal
basis for such an application and in light of the
reasoning of the Federal Court of Appeal in
Novopharm Ltd. v. Wyeth Ltd., [1986] 26 D.L.R.
(4th) 80, recourse to Rule 474 appears impossible
at this time. In any event, no such formal applica
tion is before me, so nothing precludes it, should
the parties find it appropriate to do so at a later
stage.
The application is therefore dismissed with
costs. The defendant is to file a statement of
defence within thirty days of the date of these
reasons. Counsel may prepare a draft order for
signature.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.