In the Court of Appeal of Alberta
Citation: Alberta Union of Provincial Employees v Alberta, 2019 ABCA 320
Date: 20190906
Docket: 1903-0194-AC

Registry: Edmonton

Between:

Alberta Union of Provincial Employees,
Guy Smith,Susan Slade and Karen Weiers

Respondents
(Applicants)
- and -

Her Majesty the Queen In Right of Alberta
Appellant
(Respondent)

The Court:

The Honourable Madam Justice Marina Paperny
The Honourable Mr.Justice Jack Watson

The Honourable Mr,Justice Frans Slatter

Memorandum of Judgment of the Honourable Mr. Justice Watson
and the Honourable Mr.Justice Slatter

Dissenting Memorandum of Judgment of the Honourable Madam Justice Paperny

 Appeal from the Order by
The Honourable Mr. Justice E.F. Macklin

Dated the 30th day of July, 2019
Filed the 2nd day of August, 2019
(2019 ABQB 577, Docket: 1903 13095)

 Memorandum of Judgment

The Majority:

[1] This is an appeal of an interim injunction granted by the trial eourt: Alberta Union of
Provincial Employees v Alberta, 2019 ABQB 577. That injunction stayed the implementation
by the government of Bill 9, the Public Sector Wage Arbitration Deferral Act, SA 2019, c. P41.7.
Facts

[2]

The background is that the government and the respondent union entered into a number

of three year collective agreements. Those agreements implemented a two year wage freeze,
with an option in the third year to reopen negotiations about wages. The agreements provided
that ifthe "wage-reopener" negotiations were not successful, the issue would be sent to binding
arbitration, with any wage adjustment to be retroactive to April 1,2019. Some ofthe agreements
specifically provided that the arbitration would occur no later than June 30,2019.

[3] The wage-reopener negotiations were not successful, and the respondent union triggered
the arbitration process. However, a provincial election was held on April 16, 2019, resulting in
a change of government. In fulfilment of an election promise, the new government appointed a
Blue Ribbon Panel to report on Alberta's finances. The new government did not think it would
be adequately prepared to enter into the arbitration process until that report was received, which
would be outside the deadline in the collective agreements. Consultation and discussions about
an adjournment of the arbitration were unsuccessftil, and the arbitrator ruled that she had no

jurisdiction to delay the arbitration. The government therefore enacted Bill 9,the essential effect
of which is to suspend the arbitration process until October 31, 2019. Several unions
commenced actions for a declaration that Bill 9 is unconstitutional, and the respondent union
also applied for an interim injunction preventing its implementation.

[4]

The chambers judge applied the three part test for an interim injunction. He found that

there was a genuine issue to be tried, ■ namely whether Bill 9 was an unconstitutional

infringement ofthe rights ofthe union members. He concluded that there was irreparable harm
to the collective bargaining relationship, notwithstanding that any arbitration award could be
made retroactive. The balance ofconvenience favoured the union. Even though the effect of an

injunction would be to nullify the effects ofBill 9, it Was more important for the court to protect
valid agreements that were freely negotiated between the parties:
54. 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

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As a result, the chambersjudge stayed the operation ofBill 9 until the respondents' claim could
be determined at trial.
Standard of Review

[5]

The decision to grant an interlocutory injunction is a discretionary exercise, with which

an appellate court must not interfere solely because it would have exercised the discretion

differently. Appellate intervention is justified only for an error oflaw or principle, where there
are palpable and overriding errors of fact, or where the exercise of the discretion is

unreasonable: R. v Canadian Broadcasting Corp,2018 SCC 5 at para. 27,[2018] 1 SCR 196.
However,while deference is due,trialjudges are not immune from review, and appellate courts
must intervene when reviewable errors are disclosed: HX. v Canada (Attorney General),2005
SCC 25 at paras. 73, 75,[2005] 1 SCR 401; i?. v Regan, 2002 SCC 12 at para. 118,[2002] 1
SCR 297.

Interim Injunctions Sustpending Legislation
[6]

The test for an interim injunction is well established. It was set out in RJR-MacDonald

Inc V Canada (Attorney General),[1994] 1 SCR 311 at p. 334:
.. . First, a preliminary assessment must be made of the merits of the case to

ensure that there is a serious question to be tried. Secondly,it must be determined
whether the applicant would suffer irreparable harm if the application were

refused. Finally, an assessment must be made as to which of the parties would
suffer greater harm from the granting or refusal ofthe remedy pending a decision
on the merits. It may be helpful to consider each aspect ofthe test and then apply
it to the facts presented in these cases.

There can often be overlap in the factors to be considered under this tripartite test.

[7]

In a case like this, involving an injunction to prevent the implementation of legislation,

there are other collateral principles in play:

(a) There is a strong presumption that legislation is constitutional: Harper v Canada
(Attorney General), 2000 SCC 57 at para. 9,[2000] 2 SCR 764; Toronto (City) v
Ontario (Attorney General), 2018 ONCA 761 at para. 21, 142 OR(3d)481.
(b) There is a strong presumption that the legislation is in the public interest. At this
stage ". . . the motions judge must proceed on the assumption that the law .. . is
directed to the public good and serves a valid public purpose": Harper v Canada at
para. 9, and

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(c) When they effectively amount,to final relief, interim injunctions should be granted
cautiously: Harper v Canada at para. 7. An application for an interim injunction
should not, in effect, amount to summary judgment.

[8]
The serious issue to be tried was identified as the constitutionality of Bill 9. While the
interim injunction in this case is technically only temporary relief pending a trial of the action,
given the issues involved the interim injunction effectively resolved the claim. Bill 9 only
deferred the commencement ofthe arbitration until October 31. It was,at the time the injunction
was granted, highly unlikely that a trial could be held between then and October 31. In a

practical sense the specific issue respecting the constitutionality of Bill 9 would become moot
while the "interim" injunction was in place, and Bill 9 would have been nullified, at least for
the collective agreements covered by the injunction. As discussed below, the chambers judge's
conclusion at para. 25 that the injunction is not effectively a final determination is not
supportable on this record. It is true that a final finding of a Charter breach would be essential
to justify the other remedies sought by the statement of claim, but that is not the same thing as
sweeping Bill 9 aside for its effective duration on an interim motion.

[9]
These aspects of the interim injunction impact the first part ofthe tripartite test, because
in practical terms the operational viability of Bill 9 is going to be determined depending on
whether the interim injunction is maintained. As noted, interim injunctions should rarely be
granted when they amount to final relief.

[10] The chambers judge went far beyond considering whether there is a serious issue to be
tried. He observed at para. 43 that the public interest reflected in the legislation must be
balanced by "reasonable limits imposed, also in the public interest". At para. 46 he concluded:
"It is necessary for the Court to consider, however, whether the public interest may be better
served by an Interim Injunction staying the operation of Bill 9." He then concluded at para 54:
"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 mav interfere with Charter rights . .
."(emphasis added).

[11] That is not the test to be met at trial, nor was it the test to be met atfhe interim injunction
stage. The interim injunction essentially summarily determined the claim, using the wrong test.
The underlying issue is whether: a) Bill 9 involves a breach ofthe Charter, and ifso b)whether
it is demonstrablyjustified in a fi:ee and democratic society. The issue was not, as the trialjudge
reasoned, whether Bill 9 was in the "long-term public interest". As stated'm RJR-MacDonald
at pp. 348-9:

... When the nature and declared purpose oflegislation is to promote the public
interest, a motions court should not be concerned whether the legislation actually
has such an effect. It must be assumed to do so. In order to overcome the

assumed benefit to the public interest arising from the continued application of

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the legislation, the applicant who relies on the public interest must demonstrate
that the suspension of the legislation would itself provide a public benefit.

No part of the tripartite test gives the chambers judge a mandate to assess whether validly
enacted legislation is in the public interest.

[12] The statement of claim raises a number of arguable, serious issues respecting the
constitutionality of Bill 9, but the analysis of the chambers judge became focused, in the
abstract, on a balancing ofthe public interest. The chambersjudge essentially decided that Bill
9 was unconstitutional legislation that was not demonstrably justified in a free and democratic

society. The govemment, however, was not in a position in this injunction context to folly
defend the litigation, or to put forward a s. 1 justification, something that would obviously
require a trial. As discussed below, the analysis also failed to properly apply the presumption
that legislation is constitutionally valid, and that stays of legislation based on allegations of
unconstitutionality should be sparingly granted.

[13] The focus on balancing the public interest was inappropriate, but it was also flawed.
The chambers judge relied at para. 52 on the decision in Bhasiit v Hrynew, 2014 SCC 71,
[2014] 3 SCR 494 for the proposition that it is in the "public interest" that contracts be

honoured.Bhasiit^ however,is a case about the relationship between private contracting parties.
It is a private law case, not a case about the "public interest", and it does not establish any
constitutional rights. The present appeal is about the constitutional limits on a legislative body
exercising its rights to legislate. It is not about the govemment's rights and obligations as a
contracting party.

[14] Although collective agreements are rarely disturbed by legislation in Canada, the
govemment has the right to legislate with respect to labour relations, within constitutional

limits. At the initial stage, it is up to the Legislature(not the courts)to decide ifthe public policy
advantages of legislation like Bill 9 outweigh the disadvantages, and such legislation is entitled
to the presumption of constitutional validity. The test at trial will be whether there is a breach

of s. 2(d) ofthe Charter, and ifso whether it is demonstrably justified in a free and democratic

society. That there "may" be a Charter breach indicates that there is a genuine issue for trial,
but a summary conclusion about the overall public interest did notjustify an interim injunction,
nor would it be the ultimate test at trial. The courts are ". .. not to make value judgments on
what they regard as the proper policy choice": Vriend v Alberta,[1998] 1 SCR 493 at para
136.

[15] A principal point of disagreement tumed on the concept of "clearest of cases" in the
three aspects of the test for injunctions. Each party tended to link the "clearest of cases" to

different ideas. The respondents persuaded the chambers judge that the first aspect of the
injunction test required merely an arguable case that the legislation in question infnnged the
freedom ofassociation ofits members under s 2(d)ofthe Charter.In other words,the "arguable
case" element of the test accepted by the chambers judge was found to be met at the low

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threshold that has been found to exist in various private law contexts ~ namely an argument
that has an air of reality on the available evidence. The appellant for its part contended that,
inasmuch as this was a situation ofregularly enacted legislation, the arguable case had to clearly
show a significant adverse effect upon the Charter freedom in question, citing Harper v
Canada at para. 9.

[16] This is not an issue respecting burden of proof, but rather one involving the presumption
of legality, a presumption that does not exist in relation to a private law claim. Before an
injunction will issue to restrain the implementation of validly enacted legislation, there must be
some precision with respect to the Charter claim. This informs the "clearest of cases" analysis.
In other words, a court is not to stop legislation in its tracks merely because the court can discern

from eloquent arguments of counsel that there might be something constitutionally
objectionable about the law. That said, where the applicant can show a clearly identifiable basis

for proving a clearly identified Charter breach, and the effects of the breach, the question of
whether those negative effects involve irreparable harm is considered at the second step of the
injunction analysis.

[17] Not all legislation receives universal public support, and some legislation is
subsequently found to be unconstitutional, but in the short term the elected legislators must be
allowed to legislate except in the clearest of cases. In this situation, the government has not
purported to take away the right to binding arbitration, or a right to a wage increase in the third
year of the collective agreements, but has merely deferred the arbitration for a few months. It

is not sufficiently clear that Bill 9 is unconstitutional so as to justify an injunction on its
implementation.

[18] As the chambers judge found, the respondent union would not suffer any direct
irreparable harm. Bill 9 merely delayed the arbitration for four months; having to wait four
months is not irreparable harm. The collective agreements state that the ultimate arbitration

award will be retroactive until April 1, 2019. Any delays in payment could be dealt with by the
arbitrator, possibly through an award ofinterest. Pre-trial relief for what is essentially a money
claim is
Aetna Financial Services Ltd v Feigelmau,[\9%5] 1 SCR2atp. 10.
[19] The chambers judge suggested at para. 36 that the "only concession by HMQ and the
only benefit to AUPE" was the agreement to arbitrate within certain timelines, and that"AUPE

will have fully lost that agreed-upon concession". This finding is not supported by the record,
and reflects palpable and overriding error. The affidavit of Dale Perry confirms that the
respondent union achieved benefits from other portions of the negotiations, and agreed to the
entire package (including the wage reopener) in order to lock-in the advantages that had been

obtained. The respondent union deferred, but never gave up the chance to argue for a wage
increase in the third year of the collective agreements. In fact, the respondent union enhanced
its position by replacing an opportunity to bargain for a wage increase in the third year, with a
right to a binding interest arbitration on that subject.

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[20] The respondent union asserts that it gave up its right to strike in return for the timing of
the.arbitration of a wage increase in the third year. One could equally argue that the appellant
gave up the right to lock out the employees in order to maintain existing .wage levels, and
surrendered the final decision on third year wages to an independent arbitrator. The Master
Agreement between the parties is over 100 pages long, and includes numerous covenants. It is

unrealistic to think that "but for" the time limitation on the commencement of the third year
wage increase arbitration, an agreement would not have been reached, and a strike would have
resulted.

[21] Bill 9 does not disturb the right to arbitration, the prospect of a wage increase in the
third year, or its retroaetivity. As noted, the only "harm" arising from Bill 9 was a four month
delay in the commencement ofthe arbitration process. The chambersjudge's conclusion at para.
48 that the "specified timelines" for the commencement of the arbitration process were the only
benefit AUPE gained under the collective agreements is unreasonable on this record.
[22] Even though the chambersjudge had rejected the respondents' opinion evidence on the
subject(reasons at para. 33), he found that irreparable harm arose from damage to the collective
bargaining relationship, but that second-guesses the legislative policy choice behind Bill 9.
Collective bargaining always is, and always will be adversarial. It was unrealistic to conclude
that delaying the commencement ofthe arbitration for a few months is going to bring about any
fundamental change to the overall collective bargaining relationship. The government and the
public sector unions are going to disagree about some things all of the time, and different other
things from time to time. As noted above, the initial stage, it is up to the Legislature to decide
ifthe public policy advantages oflegislation like Bill 9 outweigh the disadvantages arising from
disruption of the collective bargaining regime, and the legislation is entitled to a presumption
of constitutional validity. The essential issue for trial is whether Bill 9 is within the
constitutional limits, either intrinsically or via s. 1.

[23] As noted, the-government always retains the right to legislate with respect to labour
relations, within constitutional limits: Ontario (Attorney General) v Eraser, 2011 SCO 20 at
para. 47, [2011] 2 SCR 3. The respondents argue that irreparable harm arises when "freely
negotiated terms [are] unilaterally nullified", and that Bill 9 would make their negotiators
reluctant to negotiate and compromise in future. The prospect of legislative variation of
collective agreements, however, is an inherent part of collective bargaining; any resulting
"damage"to the collective bargaining relationship is largely inherent in that prospect. The issue
is magnified with public sector collective bargaining, where the government is both employer
and legislator. The exercise on a particular occasion of the legislative mandate to override
collective agreements is unlikely to have a material impact on the overall, long-term nature of
public sector collective bargaining. The granting or denial ofthe present interim injunction(and
the existence or non-existence of Bill 9) will not have any effect on whether that prospect of
"unilateral nullification" exists in the background of collective bargaining. The finding of
irreparable harm based on the effect of Bill 9 on the collective bargaining relationship is

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essentially a finding that legislative interference with a collective agreement is: a) never
constitutional, or b) that it is bad public policy for the Legislature to ever exercise that
jurisdiction. The former is the issue for trial; the latter is not an issue for the courts.

[24]

There is obviously an important issue here. The law on the extent to which collective

bargaining, and collective agreements, are protected by the Charter is still being developed:
Canada (Attorney General) v Canadian Union ofPublic Employees,Local 675,2016 QCCA
163 at para. 31. The government likely takes the view that certain changes to collectively
bargained rights are allowed, or can be demonstrablyjustified in a free and democratic society.
The unions would likely want to establish a rule that no legislated variation of a collective
agreement is ever constitutional. Those are issues for a trial, at which both parties can present
evidence and argument. It is true that in this particular case the issue ofthe constitutionality of
Bill 9 may be moot by the time any trial is held, but this may well be one ofthose cases where
the courts should hear and decide a moot issue. The issue is important, but it should not, in
effect, have been summarily determined by the issuance of an interim injunction.
[25]

The final factor is the balance ofconvenience. At the time that the collective agreements

were negotiated, the parties would have known that a provincial election would occur when it

did. The nature of the democratic process is that governments change from time to time, and
new governments need some time to get up and running. New governments should be entitled,

within limits, to the presumption that legislation is constitutional. There is a presumption that
enjoining validly enacted legislation will affect the public interest: RJR-MacDonald at p. 346.
The respondents had the burden of showing that suspension of the legislation would serve an
overriding public interest. Apart from a four month delay in the commencement of the
arbitration, the alleged inconvenience to the respondents seems to amount to an inability to
obtain a summary determination that the inroads on their collective agreements made by Bill 9
could never be proven to be constitutional.

[26] Furthermore, a denial of an interim injunction would not mean the respondents could
not fully pursue the action which nourished the injunction motion in the first place. Ultimately
what the chambers judge concluded amounted to a replacement of the determination of balance
of convenience in light of the foregoing considerations, with a conclusion that the government
should be held to the terms of its collective agreements because otherwise the public's
confidence in government collective bargaining would be undermined. That was error.

[27] As noted, the recited purpose of Bill 9 was to give the new government more time to
prepare for the arbitration, specifically by receipt of the Blue Ribbon Panel report. The
chambers judge found at para. 51, in the context of the balance of convenience, that the
government actually had all the information it needed. It was in fact fully prepared to arbitrate.
Bill 9 was not needed after all. The conclusion that this line of reasoning justified suspending
validly passed legislation is an error in principle, and also reflects a reviewable error.

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Conclusion

[28] An interim injunction is discretionary equitable relief, and deference is owed to the
chambers judge. The decision under appeal, however, rests on errors of principle, and is
unreasonable. The factual and other findings with respect to irreparable harm and the balance
of convenience reflect palpable and overriding error. The appeal is allowed, and the injunction
set aside.

Appeal heard on August 29. 2019
Memorandum filed at Edmonton, Alberta

this

day of September, 2019

&

Watson J.A.

filed
SEP 06 2019
Stettef J.A.
o
'y

4pnea\

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Paperny J.A.(dissenting):

Introduction

[29] The government appeals an interlocutory order that enjoins the operation of a piece of

legislation. The respondent Alberta Union of Provincial Employees (AUPE), as bargaining
agent, is party to a number of collective agreements, with the government as employer, that
contain wage-reopener provisions. The government recently passed Bill 9, The Public Sector
Wage Arbitration Deferral Act, SA 2019 c P-41.7, that suspends an agreedmpon interest
arbitration process that had been scheduled under the terms of those provisions. AUPE has
challenged the constitutionality of Bill 9, which it says breaches s 2(d) ofthe Charter, and was
granted an interlocutory injunction pending trial of that challenge.
Background

[30] When AUPE began its most recent round of collective bargaining with the government,
it sought wage raises in each year. The government's position was that there would be no raises
whatsoever in the first two years, but in the third year there would be a possibility of a wage
reopener. The subsequent negotiations and mediations did not move the parties. Eventually,

AUPE acceded to the government's position and the parties agreed that arbitrations on wages
would occur by a specific date. In reaching that agreement, AUPE gave up its right to strike.

[31] On May 17, 2019, the newly elected government appointed an independent panel to
prepare a report on Alberta's economic situation, to be provided by August 15, 2019. The

government asked AUPE to delay the agree-upon arbitration until after delivery of the report.
AUPE refused. The government then applied to the Chair of the arbitration panel for an

adjoumment of the arbitration. The Chair concluded she had no jurisdiction to delay the
arbitration provided for in the collective agreement, and scheduled dates in June and August for
the arbitration to proceed.

[32] On June 13, 2019, the government introduced Bill 9 in order to suspend the bargainedfor arbitration process. Bill 9 came into force on June 28,2019.

[33] On June 24, 2019, AUPE commenced the within action seeking, among other things, a
declaration that Bill 9, or portions thereof, infringes s 2(d)ofthe Charter and is not saved by s.
[34]

AUPE then applied for an order staying the operation of Bill 9 as against AUPE. The

chambers judge granted the interim injunction on July 30,2019, with the result that the interest

arbitrations agreed upon in the collective agreements, and that were then in progress, could
continue.

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[35] The government appeals the granting of the interim injunction. This appeal raises the
question of the-correct test for granting an interim injunction of apparently validly enacted
legislation in the face of an alleged constitutional infringement, and the level of deference to be
given to the findings ofthe chambers judge when applying that test.
Decision to grant the interlocutory injunction

[36] In granting the interlocutory injunction, the chambersjudge applied the well known tri
partite test articulated in RJR MacDonaldInc v Canada (Attorney General),[1994] 1 SCR 311.
[37]

At the outset of his reasons, the chambers judge noted that a legislature, as a

democratically elected body, is generally entitled to enact laws as it sees fit in a manner it
believes to be in the public interest.

[38], He also concluded, based on the record before him, that there was a serious issue to be
tried, namely whether Bill 9 interferes with AUPE's section 2(d)right to freedom ofassociation.
In concluding that the challenge to the.constitutionality of Bill 9 raises a serious issue, the

chambers judge rejected the argument that the delay imposed by the legislation was temporary
or insignificant. He concluded that by effectively rendering aspects ofthe collective agreement
inoperative, Bill 9 called into question the value of associating for the purposes of collective
bargaining and entering into a collective agreement, as discussed in British Cohimbia Teachers'

Federation v British Cohimbia, 2015 BCCA 184 per Donald JA (in dissent, affirmed and

adopted by the Supreme Court of Canada on appeal, 2016 SCC 49, [2016] 2 SCR 407). He
specifically noted the following statement of Donald JA at para 285:
The act of associating for the purpose of collective bargaining can ... be
rendered futile by unilateral nullification of previous agreements, because it
discourages collective bargaining in the future by rendering all previous efforts
nugatory.

[39] On the issue of irreparable harm, the chambers judge concluded that, while the length
of the delay or any possible financial loss would not result in irreparable harm, the effect ofBill

9"goes deeper than mere delay or short-term monetary loss". He discussed the significance of
the wage reopener to the collective bargaining process and to the AUPE and noted that the
agreed upon third year wage reopener (with its fixed dates) was the only concession AUPE
received. In reaching that agreement, AUPE relinquished two years of wage increases and the

right to strike. The chambers judge concluded that, if Bill 9 is found to be unconstitutional,
AUPE will have fully lost that agreed upon concession by the government, and AUPE's right
to have the arbitration proceed within the specified times will not be recoverable. In addition,
he found a likelihood of irreparable harm arises from the damage to the relationship between
the parties. He concluded that irreparable harm to future negotiations could lead to a refusal to

negotiate and compromise, and upset the bargaining relationship between the parties,"only one
of whom can use its power to amend an 'agreement'".

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[40] On the issue of balance of convenience, the chambers judge noted at the outset the
comments of the Supreme Court of Canada in Harper v Canada (Attorney General), 2000 SCC

57, [2000] 2 SCR 764 that, when assessing balance of convenience, a rnotions judge must
assume that the impugned legislation is directed towards the public good and serves a public
purpose. He went on to state that the court must also consider whether denying the injunction
may deprive the applicants of their constitutional rights because ofthe time involved in getting

a matter to trial.'Having considered and cited the statements in Harper, the chambers judge
nevertheless concluded that there was a competing and more significant public interest at stake
here; namely that parties to otherwise valid, freely negotiated agreements honour their
obligations. He found it is in the long-term public interest for the public to see that its
government cannot unilaterally change its contractual obligations where such legislation has

the effect of interfering with Charter rights. He weighed the public's interest in the operation
of validly enacted legislation against the public interest in protecting collective bargaining from
potential breaches of the Charter. In his assessment, the balance of convenience in this case
favoured the latter, and he granted the injunction.

[41] The government appeals. It submits that the chambers judge's conclusion on irreparable
harm is unsustainable as it was made in an evidentiary vacuum. The government also says that
chambers judge's weighing of the balance of convenience is contrary to established legal
principles, including the presumption that legislation is enacted in the public interest. The
government argues that the chambers judge erred in doubting the legislation served a public

interest or was effective for such a purpose, in failing to give the presumption of public interest
sufficient weight, and in finding there is a counter vailing, and more weighty, public interest at
play.
Standard of review

[42] All parties recognize that an interim injunction is a discretionary order and that the
standard ofreview on appeal is deferential. An appellate court must not interfere solely because
it would have exercised the discretion differently. Appellate intervention is justified only where
the chambers judge has committed a legal error or a serious misapprehension of the evidence,
or where the "decision to grant or refuse the injunction is so aberrant that it must be set aside

on the ground that no reasonable judge ... could have reached it": R v Canadian Broadcasting
Corp, 2018 SCC 5,[2018] 1 SCR 196 at para 27.
Analysis

[43] Courts of first instance should be cautious in granting interlocutory injunctive relief
generally, but particularly so in the face of apparently validly enacted legislation. The challenge
for trial judges faced with an application to enjoin the operation oflegislation that may infringe
constitutional rights is well recognized and has been the subject of considerable judicial
discussion. Those challenges were ably identified and addressed by Beetz J in Manitoba v
Metropolitan Stores (MTS) Ltd, [1987] 1 SCR 110, and in the subsequent decision in RJR-

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MacDonald. The test is the same for all interlocutory injunctions, and it is the applicable test
here.

[44] It is well established that courts have jurisdiction to grant the relief requested by the
applicants, even ifthe result would be a suspension ofthe legislation (although, as AUPE points
out, the relief requested in this case amounts to an exemption from the legislation, not a
complete suspension of its operation): As was noted in RJR-MacDonald at p 331, the
suspension power must be exercised sparingly, but that is achieved by applying the
Metropolitan Stores criteria strictly and not by a restrictive interpretation of the courts'
jurisdiction.

[45]

Whether to grant an interlocutory injunction in circumstances such as those now before

the court involves a balancing process. On the one hand, the court must be cautious of rulings
that deprive legislation enacted by elected representatives of its effect. On the other hand, to
insist on legislation being enforced may to be to condone the continuing violation of Charter
rights by legislation that may prove to be unconstitutional: RJR-MacDonald at pp 333-4.
[46] The tri-partite test requires a chambersjudge to consider the following:
1

A preliminary assessment of the merits of the case to ensure there is a serious
question to be tried;

2 Whether the applicant would suffer irreparable harm if the injunction were not
granted;

3 Where the balance of convenience lies - which of the parties would suffer greater
harm from the granting or refusal ofthe injunction. The public interest is a relevant
consideration where the relief sought involves the operation of legislation.

[47] The first criterion requires the court to undertake a preliminary assessment ofthe merits
of the claim. The threshold, adopted fvovsi American Cyanamid, is a low one: whether there is
a serious question to be tried.

[48] The court in RJR-MacDonald specifically rejected the argument that a stricter standard

should apply where an injunction would have the effect of suspending legislation, noting the
importance of the interests which are alleged to have been adversely affected when a Charter
violation is alleged: RJR-MacDonald at p 337. The court agreed with the statement of Beetz J

in Metropolitan Stores at p 128 that "tlie American Cyanamid 'serious question' formulation is
sufficient in a constitutional case where ... the public interest is taken into consideration in the

balance of convenience". Beetz J went on to state that it would be too high a test to say that it
is only in exceptional and rare circumstances that the courts will grant interlocutory relief,
particularly in exemption cases: Metropolitan Stores at p 147.Indeed,a more stringent standard
would be incompatible with the court's role under the Charter.

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[49] The authorities recognize two exceptions to the limited inquiry into the merits. A more
rigorous inquiry into the merits may be appropriate where the granting of the injunction
amounts to a final determination of the action, or where the constitutional question "presents
itself as a simple question of law alone": RJR MacDonald at pp 338-339. The parties did not
argue that either of these exceptions applies here, and, in my view, neither is applicable. In
particular, the injunction granted does not amount to a final determination of the action. The
issue of the constitutionality of the government's action in passing Bill 9 remains unresolved.

[50] At one point in oral argument, it was argued a higher threshold might apply to the
assessment of the merits of this case, on the basis of a statement in Harper to the effect that,
"only in clear cases will interlocutory injunctions against the enforcement of a law on grounds
of alleged unconstitutionality succeed": Harper at para 9. I do not read this statement as
implying a need for a higher threshold test on the merits. Such a reading would be incompatible
with the statements of the Supreme Court in both RJR-MacDonald and Metropolitan Stores.
[51] The Supreme Court has been clear that the public interest in the enforceability ofvalidly
enacted legislation is to be factored into the weighing of the balance of convenience:
Metropolitan Stores at p 135; RJR-MacDonald at p 343. Harper reiterated that point at para 9.
The court in Harper also emphasized that only when the interests that would be protected by
the granting of the injunction will outweigh the public interest in the continued operation of the
legislation should the injunction should be granted. This is a balance of convenience
assessment, and does not imply a stricter standard at the first stage of the test. The "serious
question to be tried" threshold is applicable here.
[52] The second aspect ofthe RJR-MacDonald test consists in deciding whether the applicant
"would, unless the injunction is granted, suffer irreparable harm". "Irreparable" refers to the
nature ofthe harm rather than its magnitude. Only harm to the applicant is relevant; any alleged
harm to the respondent and to the public interest should be considered at the third part of the
analysis: RJR MacDonald at p 341.

[53] The third criterion is a weighing of the balance of convenience. This assessment has
been described as "a determination of which ofthe two parties will suffer the greater harm from
the granting or refusal of an interlocutory injunction, pending a decision on the merits":
Metropolitan Stores at p 129.
[54] The factors to be balanced will vary in each case. There are, however, well-established
principles that apply in constitutional cases where an applicant seeks to enjoin the operation of
legislation. First, as has been noted, all constitutional cases will include a consideration of the

public interest in the balance ofconvenience: Metropolitan Stores at p 149; RJR MacDonald at
p343.

[55] A second and related principle is that it is generally presumed that legislation will
produce a public good: Harper v Canada (Attorney General),[2000]2 SCR 764 at para 9; see

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also RJR-MacDonald at pp 348-9 where it was noted that "When the nature and declared
purpose oflegislation is to promote the public interest, a motions court should not be concerned
whether the legislation actually has such an effect. It must be assumed to do so". I do not agree
that Harper stands for the proposition that there is also a presumption of constitutional validity.
If what is meant by that term is that a legislative provision that has been challenged as
unconstitutional must be presumed to be consistent with the Charter, that proposition was
rejected by Beetz J in Metropolitan Stores as "not helpful" and "not compatible with the
innovative and evolutive character" ofthe Charter: Metropolitan Stores at pp 121-124. Harper
does not say otherwise; it posits only that when legislation is declared to promote the public
interest, there is a presumption that it is in the public interest and has that effect. In my view,
only one presumption is placed on the scales of balance of convenience, not two.
[56] The public interest in having legislation put into operation must be weighed in the
balance of convenience, but it can be outweighed by countervailing interests of the public. The
government does not have a monopoly on the public interest. As was noted in RJR MacDonald
at p 343:
While it is of utmost importance to consider the public interest in the balance of
convenience, the public interest in Charter litigation is not unequivocal or
asymmetrical in the way suggested in Metropolitan Stores. The Attorney
General is not the exclusive representative of a monolithic "public" in Charter
disputes, nor does the applicant always represent only an individualized claim.
Most often, the applicant can also claim to represent one vision of the 'public
interest'. Similarly, the public interest may not always gravitate in favour of
enforcement of existing legislation.
,

[57]

As will be seen, the chambers judge undertook just such a balancing exercise in this

case.

The application of the test by the chambers judge
(i)

Serious question to be tried

[58] Although its arguments can be variously characterized, the government essentially
submits that the outcome of collective bargaining is not constitutionally protected. While as a
general proposition this may be so, the case here is about the govemment refraining from
interfering in an already agreed upon collective agreement and the process and timing of a
resolution under that agreement.
[59] In order to establish a breach ofs 2(d), an applicant has to show a substantial interference
with the right to collectively bargain. The test for establishing a breach of association entails
asking two questions: the importance of the matter affected to the process of collective
bargaining, and the manner in which the measure impacts on the collective right to good faith

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negotiation and consultation: Health Services and Support-Facilities Subsector Bargaining
Association v British Columbia,2007,SCC 27,[2007] 2 SCR 391 {BC Health Services) at para
93.

[60] As to the first inquiry, the Supreme Court has recognized that "laws that unilaterally
nullify significant negotiated tenns in existing collective agreements" may amount to a
substantial interference with collective bargaining rights: BC Health Services at para 96. Here,
the chambers judge found that the wage reopener clause was not procedural, but a significant
right that had been freely bargained for by the parties in the context of setting wages in the
collective agreement. The only thing the AUPE had obtained was a timely consideration of the
wage-reopener. And that is the one thing that Bill 9 removed.

[61] The second inquiry considers the manner in which Bill 9 affects the right to good faith
bargaining. Again, this matter was addressed by the chambers judge; he found that AUPE
cannot"confidently negotiate detailed terms and conditions of a collective agreement" knowing
that it could be unilaterally nullified by legislation. BC Health Services has established that such

ex post facto legislative amendments to significant terms of already bargained collective
agreements can meet the test for a breach of s 2(d). That observation is also supported by the
more recent decision in BC Teachers'Federation, as cited by the chambers judge.
[62] As was noted by the Supreme Court in Mounted Police Association of Ontario v.
Canada (Attorney General), 2015 SCO 1,[2015] 1 S.C.R. 3 at para 71:
The right to a meaningful process of collective bargaining is therefore a
necessary element of the right to collectively pursue workplace goals in a
meaningful way {Health Services', Fraser). Yet a process of collective
bargaining will not be meaningful if it denies employees the power to pursue
their goals. As this Court stated in Health Services'. "One of the fundamental

achievements of collective bargaining is to palliate the historical inequality
between employers and employees ..."(para. 84). A process that substantially
interferes with a meaningful process of collective bargaining by reducing
employees' negotiating power is therefore inconsistent with the guarantee of
freedom of association enshrined in s. 2{d).
[63] It is unnecessary to expand further on the matter of a serious issue to be tried. Although
they characterize the issues somewhat differently, the parties agree that the threshold is met
here. Whether Bill 9 breaches s. 2(d) rights in a manner that cannot be constitutionally justified
is indeed serious.

(ii)

Irreparable harm

[64] The govemment raises only one argument under this heading, namely that the
conclusion arrived at by the chambers judge was without evidentiary foundation. It relies on

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the chambers judge's rejection of certain opinion evidence as to what constitutes irreparable
harm as being unnecessary or inadmissible because it is the role of the chambers judge to
determine whether on the facts before him or her, the harm alleged is irreparable. This is a
circular argument. In my view, there was an ample record to support the conclusions about the
significance of the arbitration proceedings to the AUPE, and the effect of the unilateral
suspension of those proceedings on AUPE's rights, on which to base a finding of irreparable
harm. While other conclusions may have been available, it is not for this court to usurp the role
of the chambers judge in the absence ofreviewable error. No such error has been demonstrated.

[65] Moreover, much of the rejected evidence did not go to the hann actually found by the
chambers judge. That evidence relates primarily to the potential damage to the relationship
between AUPE and its membership. The chambersjudge, on the other hand,found harm would
result from the fact that AUPE,having made significant concessions in the collective bargaining
process, would lose the only agreed-upon concession by the government; the agreement to
arbitrate the issue of wages within specified timelines.

[66]

The chambers judge further found that irreparable h^rm would arise from damage to

future collective bargaining and the parties' ongoing relationship if the government's attempt
to unilaterally change the terms of the collective agreement was found to be unconstitutional.
The chambers judge was entitled to draw those conclusions based on the record before him arid

his own view of the situation. I note that these observations are not peculiar to this case, but are
general observations about the effect of unconstitutional government action of the sort alleged
here, and accord with comments made by the Supreme Court in BC Health Services, Mounted
Police Association of Ontario v Canada (Attorney General), and in the reasons of Donald JA
(affirmed and adopted by the Supreme Court) in BC Teachers' Federation. "Laws or
government action that make it impossible to achieve collective goals have the effect oflimiting
freedom of association, by making it pointless": BC Teachers'Federation at para 286, citing
Ontario (Attorney General) v Fraser, 2011 SCC 20,[2011] 2 SCR 3 at 46.
[67]

The findings and conclusions ofthe chambers judge were available on the record before

him, and he was entitled to make them. I see no basis on which to interfere with those
conclusions.

(iii)

[68]

Balance of Convenience

This type of case generally falls to be decided on the balance of convenience, and this

case is no exception.

[69] The thrust of the government's argument is that the chambers judge did not give
sufficient, or any, weight to the caution articulated in Harper that it must be assumed that the
legislation was enacted with the public interest in mind. The government submits that, although
the chambersjudge adverts to this principle, he failed to give it any weight, or worse,cast doubt
on whether such a public interest actually exists in this case. In addition, the government

 Page: 17

submits that the chambers judge did not find this to be a clear case, as required by Harper,
because he failed to do the necessary analysis to detennine whether the alleged breach was clear
and unequivocal, sufficient to override presumptively valid legislation.
[70] First, as set out above, a careful reading of the jurisprudence leads me to conclude that
the "clear case" criterion is to be applied only at this third stage, namely balance ofconvenience.
Thus,"it cannot go to the merits of the case; that test is already established in the jurisprudence
and is clearly met here. I accept the submission of AUPE that it is intended to answer the
following question: Having regard to all the circumstances, is this a clear case for granting the
injunction? Put another way,the applicant must satisfy the court that the injunction ought to be
granted in order to immediately protect the rights of those adversely affected.
[71] The government submits that the chambers judge improperly examined Bill 9 and found
it wanting in terms of valid public purpose. I disagree and suggest this mischaracterizes the
exercise undertaken by the chambers judge. He accepted the public purpose articulated in the
Bill's preamble. His comments were directed to weighing those valid public interests against
what he considered to be a worthy and competing public and private interest: the nullification
of hard won concessions in a collective agreement and the impact on the prospect of future

collective bargaining and labour peace,and the public's interest in seeing its government uphold
its commitments in an already freely bargained collective agreement.
[72] In my view, it is part of the balance ofconvenience analysis to consider the effect of an
injunction on the impugned gpvemment action. It is appropriate for a chambers judge to
consider what will happen to those public interests (in this case, as expressed in the preamble)
should operation of the legislation be stayed. A failure to consider that, in my view, would be
reversible error.

[73] The chambers judge found there was a public interest in preventing the legislature from
unilaterally altering contracts by legislation that, on its face, appears to infringe the Charter.
While the law provides for the legislated amendment of collective agreements, that legislation
must be Charter compliant. There are constraints on legislation that.interferes with collective
bargaining. This is a legitimate public interest and finds its expression, for example, in BC
Teachers'Federation, BC Health Services, and Mounted Police.

[74] Concluding that something is in the public interest is not strictly a legal analysis, but is
also informed by societal norms and the specific context and circumstances of each case. It
involves the exercise ofjudicial discretion and is entitled to deference on appeal.
[75] The chambers judge considered the stated purposes of Bill 9 and the related public
interest ofthe legislation. But he was also alive to competing interests that arise by virtue ofthe
nature of the legislation and the nature ofthe alleged breach ofs 2(d)in this case. I see no basis
to interfere in the chambers judge's finding these to be legitimate public interests. Nor do I see

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a reversible error in the finding that, in these circumstances, the balance of convenience
favoured that interest.
Conclusion

[76]

I would dismiss the appeal.

Appeal heard on August 29, 2019
Memorandum filed at Edmonton, Alberta
this
day of September, 2019

iuffionzed to sign for:

Ct

4:

ILED
SEP 06 2019

o

59
Of

Apae»

Papemy J.A.

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Appearances:
P.G. Nugent/A.R. Cembrowski
for the Respondents
G.A. Meikle, Q.C./M.L. England
for the Appellant