New Brunswick

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

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

New Brunswick Appeal Court ruling could allow 4,100 nursing home workers to strike in January 2020

Roland Cormier and Sharon Teare, leaders of the New Brunswick Council of Nursing Home Unions, say they're pleased with the decision by the Appeal Court judges that upheld previous rulings in their favour. (Michel Corriveau/Radio-Canada)

Union leaders say they're pleased the New Brunswick's Court of Appeal on Tuesday upheld 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 Higgs said the province may try to take the case to the Supreme 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."

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. 0:56

The case is about whether the Essential 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. 

Justices Ernest Drapeau, Kathleen Quigg, Bradley Green heard the 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 with written 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

Drapeau had 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 that the 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. It reminded 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. 

Christian Michaud, a lawyer representing the attorney general, declined to comment on the decision Tuesday as he left the courthouse. (Shane Magee/CBC)

Joël Michaud, a lawyer for the Canadian Union of Public Employees, argued a Supreme Court of Canada decision on a Saskatchewan essential services law means the New Brunswick law is unconstitutional. 

The December 2018 labour board ruling by Robert Breen examined whether the province's Essential Services in Nursing Homes Act violates the right to strike for about 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 by Court of Queen's Bench Justice Tracey DeWare that upheld the labour board ruling.

However, DeWare gave 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. 

A panel of three Court of Appeal justices heard legal arguments at the Fredericton courthouse for more than an hour Tuesday morning before issuing a unanimous ruling dismissing the province's appeal. (Hadeel Ibrahim/CBC)

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.

Nursing home workers at 46 non-profit homes across the province voted in March in favour of a strike, but the workers are still on the job the case continues through the court system. (Gabrielle Fahmy/CBC)

Michaud opened legal arguments Tuesday, saying the case would allow the court to rule on what an administrative tribunal 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 resumes this fall. 

About the Author

Shane Magee

Reporter

Shane Magee is a Moncton-based reporter for CBC.

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