Higgs threatens Supreme Court appeal after nursing home union wins right to strike

Union leaders say they're pleased theNew Brunswick's Court of Appeal on Tuesdayupheld a lower court's ruling that could allow its members to strike next year.

"Finally, we win," Sharon Teare, president of the New Brunswick Council of Nursing Home Unions, said outside the Fredericton courthouse moments after the three justices gave a unanimous ruling.

But Premier Blaine Higgssaid the province may try to takethe case to theSupreme Court of Canada.

"We are disappointed by the decision and are prepared to appeal this to the Supreme Court, if necessary to do so," Higgs said in a short statement late in the afternoon. "We want to conclude this issue, but any agreement must be fair to taxpayers and nursing home workers.

"We remain committed to reaching a new collective agreement with nursing home employees represented by CUPE and the New Brunswick Council of Nursing Home Unions."

Nursing home union has right to strike, Appeal Court decides

5 years ago

Duration 0:56

New Brunswick's Court of Appeal upheld a lower court ruling that allows members of the Council of Nursing Home Unions to go on strike next year.

The case is about whethertheEssential Services in Nursing Homes Act violates union members' rights under the Charter of Rights and Freedoms.

A December 2018 labour board ruling found it does, which triggered a series of court challenges by the province leading to the hearing Tuesday in Fredericton.

JusticesErnest Drapeau, Kathleen Quigg, Bradley Green heardthe case.

After listening to legal arguments from lawyers for the union, province and an association of nursing homes for more than an hour on Tuesday morning, the justices left the courtroom for several minutes.

When they returned,Drapeau said said they were ready to provide an immediate decision withwritten reasons to be issued in the future.

Justin Wies, a lawyer for the New Brunswick Association of Nursing Homes, said after court the legal efforts had been about protecting the health and safety of nursing home residents.

A lawyer representing the province's attorney general declined to comment following the ruling.

Requests for an interview with Social Development Minister Dorothy Shephard were unsuccessful.

Teare said she hopes the province will now follow the court decisions and make the law comply with the charter.

The province had argued the labour board overstepped its authority by deciding the law violates the charter, and that Justice Tracey DeWare also made errors in law when she upheld the decision in July.

Position questioned by judges

Drapeauhad questioned the province's position,pointing out one of its experts agreed in a court filing that there were charter issues with the law. He asked if the province's position was thatthe labour board adjudicator, the lower court judge and one of its own legal experts were all wrong.

Drapeau asked if that was the best position the province could come up with. Itreminded him of a mother watching a military parade who says her son is the only one in step, while all others are out of step, he said.

Christian Michaud, a lawyer representing the New Brunswick attorney general, said there was nuance in the expert opinion position. But Quigg read a portion of the opinion that said the law violates the charter.

Jol Michaud, a lawyer for theCanadian Union of Public Employees, argued a Supreme Court of Canada decisionon aSaskatchewan essential services law means the New Brunswick law is unconstitutional.

The December 2018 labour board ruling by Robert Breen examined whether theprovince's Essential Services in Nursing Homes Act violates the right to strike forabout 4,100 workers in 46 non-profit care homes. The board ruled the law did violate the Charter of Rights and Freedoms.

The decision took on greater importance in March, when the unionized workers voted overwhelmingly in favour of striking and came within hours of being able to strike.The province went to court to prevent a strike, which it said would harm vulnerable nursing home residents.

That decision set off a tangled series of court proceedings between March and July. It culminated with a July 2 decision byCourt of Queen's Bench JusticeTracey DeWarethat upheld the labour board ruling.

However,DeWaregave the province until January 2020 to amend the law to make it comply with the charter.

The notice of appeal states DeWare made multiple errors in law, including failing to properly deal with the labour board's decision, considering a Supreme Court ruling,and that the labour board didn't have jurisdiction to deem legislation unconstitutional.

Contract talks have been going on between the New Brunswick Association of Nursing Homes and the union representing nursing home workers since the last agreement expired in 2016.The talks broke down and a strike vote was held in March.

No agreement has been reached since then, though the province announced it had made a "final offer" to the union. Union leaders indicated they aren't pleased with the offer.

Teare told reporters that votes on the offer happened at six nursing homes, but the results remain sealed because the council of nursing home unions had filed a complaint about the process with the labour board.

Michaud opened legal arguments Tuesday, sayingthe case would allow the court to rule onwhat an administrativetribunal like the labour board can and can't do when it comes to alleged constitutional breaches.

But shortly after Michaud started his argument, Drapeau cut in to question his position.

"Wow, I must've misread that," Drapeau said. He said he wasn't sure what Breen got wrong.

"He jumped the gun," Michaud said of Breen's ruling on constitutionality.

The province has already indicated it will introduce amendments to the law when the legislature resumesthis fall.