Upholding a Charter challenge by unions representing New Brunswick's public sector employees, a Superior Court judge has struck down as unconstitutional a 40-year-old provincial law that says the government's casual and seasonal workers are not "employees" and therefore cannot unionize. The judge has given the New Brunswick government 12 months to remedy this denial of rights, which affects some 6,000 workers who earn less than the government's other employees and are not entitled to health benefits or paid vacation.

In a June 17 decision, New Brunswick Superior Court judge Paulette Garnett ruled that "this is one of those situations in which the Charter imposes a positive obligation on government 'to extend protective legislation to unprotected groups'." More specifically, Garnett found that "the exclusion of 'casuals' from the protection of [the New Brunswick Public Service Labour Relations Act (PSLRA)] has had the effect of infringing their rights under s.2(d) of the Charter [guaranteeing freedom of association]."

Justice Garnett's decision focused on s.1 of the province's PSLRA, which provides that "'employee' means a person employed in the Public Service, other than … (e) a person employed on a casual or temporary basis unless the person has been so employed for a continuous period of six months or more." As a result, the workers covered by exception (e) are denied the right to unionize and the protections against discrimination or reprisals based on union activity that are accorded by other sections of the Act.

In her decision, Garnett in effect chastised the New Brunswick government for playing games to extend the scope of this s.1 exclusion, holding that "[t]he most egregious practice is that of requiring long-term casuals to take two weeks unpaid holidays every six months so that they will not reach the six month target and become 'employees' under the Act. By using the definition in this way, the Province turns what is really full-time, long-term employment into 'casual or temporary employment'. As a result, the Province gets the benefit of experienced, skilled employees without having to provide the benefits they would receive as 'employees'."

Relying on the decisions of the Supreme Court of Canada in Dunmore v. Ontario (Attorney General), [2001] S.C.J. No. 87 (QL), and Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia, [2007] S.C.J. No. 27 (QL), and of the Ontario Court of Appeal in Fraser v. Ontario, [2008] O.J. No. 4543 (QL), Justice Garnett found that the casual and temporary workers were a vulnerable group who were denied access to a protective statutory regime, and that s.1 of the Act deprived them of their associational right to collective bargaining that is guaranteed by s.2(d) of the Canadian Charter of Rights and Freedoms.

Garnett found that "'[c]asuals' do form a vulnerable group. Although they do not share all of the characteristics of agricultural workers as described in [Dunmore and Fraser], they do have unique characteristics which render them vulnerable." She reasoned that "[t]he province says the 'casuals' are 'so employed in virtually every profession, trade or occupation'. In my view, this diversity is one of the negative factors which prevents them from forming a cohesive association designed to further their interests….Casuals are also vulnerable to reprisals because the employer has an unhampered ability to determine working conditions. Their working conditions are always less advantageous than those of 'employees' and, as described in some of the affidavits before the Court, these conditions can continue for years. Casuals have lower status simply because they are casuals and are often prevented from achieving advancement."

Determining that "[f]or many years the Province as employer has subjected 'casuals' to practices which can only be described as unfair," Justice Garnett ruled that "the exclusion in the PSLRA is contrary to s.2(d) of the Charter; however, I suspend the declaration of invalidity for 12 months to allow the legislature to provide a statutory framework that is consistent with the principles discussed above."

CUPE New Brunswick President Daniel Légère said that "we are very pleased with this victory. We have casual workers in this province who have been working as 'casual' in the public sector for years. Those workers have no rights, earn less and have no benefits."

The province's human resources minister, Rick Brewer, said that the government needs time to study the decision, and that it is too early to say whether it will appeal or how much it would cost to implement the ruling. "Right now, we have no idea what it might cost but we are reviewing the decision," Brewer said.

Canadian Union of Public Employees v. New Brunswick
New Brunswick Court of Queen's Bench
Justice Paulette Garnett
June 17, 2009

Read the full text of the New Brunswick Court of Queen's Bench's decision in Canadian Union of Public Employees v. New Brunswick.