Bill C-29: An Act to provide for the resumption and continuation of operations at the Port of Montreal

Tabled in the House of Commons, April 28, 2021

Explanatory Note

Section 4.2 of the Department of Justice Act requires the Minister of Justice to prepare a Charter Statement for every government bill to help inform public and Parliamentary debate on government bills. One of the Minister of Justice’s most important responsibilities is to examine legislation for inconsistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for inconsistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-29, An Act to provide for the resumption and continuation of operations at the Port of Montreal, for any inconsistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.

What follows is a non-exhaustive discussion of the ways in which Bill C-29 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Bill C-29 would provide for the resumption and continuation of operations at the Port of Montreal (the Port). It would provide for the extension of the collective agreement between the Maritime Employers Association (MEA) and the Syndicat des débardeurs – Canadian Union of Public Employees Local 375 (CUPE 375) until a new collective agreement comes into effect. It would provide for the appointment of a mediator-arbitrator to attempt to resolve outstanding issues through mediation and, if mediation is unsuccessful, to arbitrate them.

Bill C-29 potentially engages sections 2(b) and 2(d) of the Charter. Section 2(b) provides that everyone has freedom of thought, belief, opinion and expression and may encompass the act of withdrawing labour to express discontent over working conditions. Section 2(d) of the Charter provides that everyone has freedom of association and has been interpreted as preventing a “substantial interference” with the collective bargaining process. A meaningful collective bargaining process has been interpreted to include the ability of employees to strike in order to pursue a new collective agreement.

The following considerations support the consistency of Bill C-29 with the Charter. The resumption and continuation of Port operations are important to the Canadian economy as a whole. The Bill would prevent continuing and significant economic harms to Canadian businesses, their employees and those who depend on their services. These harms are exacerbated by the COVID-19 pandemic, which has disrupted global supply chains and made it difficult for Canadian businesses to receive and deliver their goods on time. Prominent companies have begun to divert cargo away from the Port as a result of the continued uncertainty and escalating work stoppages. The Port is the second largest container port in Canada, and it is a major link in the Canadian and U.S. supply chain of raw materials and various containerized products. It is also a key gateway for the import of containerized essential products (e.g., critical medical goods, pharma products, food, and critical inputs for the pharma and the food industries) for the Quebec and Ontario markets.

The Bill is introduced only following unsuccessful efforts to bring the collective bargaining process to a satisfactory conclusion. The parties have been collective bargaining since September 4, 2018. The Government has taken significant steps to promote the collective bargaining process by encouraging a negotiated resolution of the parties’ dispute. The Government has appointed many conciliators and mediators throughout a period of two and half years to assist the parties with their negotiation. During this period, neither party was permitted to initiate a work stoppage pending a decision from the Canada Industrial Relations Board (CIRB) to determine which activities needed to be maintained at the Port. Following the CIRB decision in June 2020, a number of work stoppages were initiated by the union, including a general 11-day unlimited strike that started on August 10, 2020. The parties entered into a truce period from August 21, 2020, to March 21, 2021. On April 13, 2021, the union initiated a partial strike, ceasing all overtime, weekend work and training. The partial strike had a significant impact, as it substantially reduced capacity at the Port. The union escalated the job action, commencing a full strike, on April 26, 2021. Since their dispute began, the parties have engaged in a significant number of mediated bargaining sessions, and the union has used its freedom to strike to pursue a new collective agreement, but the parties have so far been unable to conclude a new collective agreement.

The Bill would require the union to notify employees to resume or continue their duties at the Port. The Bill would also extend the terms of the expired collective agreement to include the period beginning on January 1, 2019, and ending when a new collective agreement between the parties comes into effect. Strikes and lockouts would be prohibited until the term of the extended collective agreement expires.

The Bill would continue to promote a negotiated resolution of the dispute. It would provide for a neutral process, including the appointment of a mediator-arbitrator based on a list provided by each party. If there are names in common between the two lists, the Minister must appoint one of those individuals. If there are no names in common, the Minister must appoint the mediator-arbitrator. The mediator-arbitrator would first assist the parties in negotiating a collective agreement through mediation. Failing agreement, the mediator-arbitrator would arbitrate the items remaining in dispute, using either interest arbitration or final offer selection, at the mediator-arbitrator’s discretion. Interest arbitration would allow the mediator-arbitrator to hear the parties and arbitrate the matter. Final offer selection would allow the mediator-arbitrator to select the final offer provided by one of the parties. The Bill would not preclude the parties from entering into a new collective agreement voluntarily at any point prior to the mediator-arbitrator reporting to the Minister.