An Order-in-Council ordering striking teachers back to work was held to be ultra vires and of no force or effect due to a failure by the Lieutenant Governor in Council to consider each dispute separately and to meet a condition precedent to issuing the back to work order; namely finding that there was an emergency which was causing or may cause unreasonable hardship

Administrative law – Legislation – Back to work orders – Questions of jurisdiction – Ultra vires – Judicial review – Standard of review

Alberta Teachers’ Assn. v. Alberta, [2002] A.J. No. 268, Alberta Court of Queen’s Bench, March 1, 2002, Wachowich C.J.Q.B.

The Alberta government ordered striking teachers back to work pursuant to a provision in the Labour Relations Code, R.S.A. 2000, c. L-1, which permitted the government to end a strike in certain emergent circumstances, including those when a strike is, or is likely, to cause unreasonable hardships to persons who are not party to the dispute.

The Government argued that even if an Order-in-Council was judicially reviewable, the standard of review of such orders was so high that the error alleged must be egregious [Thorne’s Hardware Ltd. v. Canada, [1983] 1 S.C.R. 106]. The Court rejected this argument, finding that the language of the provision limited the nature of the Lieutenant Governor in Council’s delegated authority to emergent circumstances causing or likely to cause unreasonable hardship and that this was a condition precedent to the exercise of the delegated authority. The statutory power was not in the nature of a policy decision or delegated legislative authority, but rather a decision based on specific statutory criteria which places it at the administrative rather than legislative end of the spectrum and was thus reviewable.

There was no evidence or foundation for the assumption that emergency in one school district automatically proved a prospective emergency in another. While it was true that given sufficient time each school district would likely face an emergency such as an inability in the students to complete the school year, the legislation could not be interpreted in a manner which, due to potential future hardship, could make the first day of a strike subject to an order back to work. Therefore, the LGIC failed to meet the condition precedent to issuing the back to work order.

When construing a statutory provision relating to hardships caused by a strike, it must be borne in mind that the very purpose of a strike is to cause some hardship to raise the profiles of the contested issues and pressure the other side into making concessions. That is why the hardship suffered must be unreasonable before the Government can order teachers back to work and there must be some imminence and inevitability before any hardship can be considered unreasonable. After only one or two days of a strike, it cannot be said, with any air of reality, that the likely hardship at that point is unreasonable.

To stay current with the new case law and emerging legal issues in this area, subscribe here.