N.S. Appeal Court refuses to weigh in on constitutionality of labour relations bill

The Nova Scotia Court of Appeal has released a decision that could send a controversial labour relations bill back to the province's Supreme Court, prompting union calls for Premier Tim Houston to honour a campaign pledge to kill the legislation.

Bill 148 was passed by the former Liberal government under Stephen McNeil in 2015. It was proclaimed in 2017, effectively imposing a wage package on civil servants, health-care workers and thousands of other public sector employees.

The bill also put an end to a long-service award, a lump-sum payment workers received upon retirement if they'd been working a decade or longer.

Court challenge, decision

Unions representing more than 70,000 public sector workers in the province have been fighting Bill 148 — also known as the Public Services Sustainability Act — for several years, arguing the legislation is unconstitutional.

"Workers in Nova Scotia and the unions that represent them, we have never been more united on an issue," Nan McFadgen, president of CUPE Nova Scotia, told CBC News.

The constitutionality question was referred to the Nova Scotia Court of Appeal to find out if the bill violates the Charter of Rights and Freedoms. Lawyers for the province and a group of unions made submissions in March.

In a decision released Wednesday, the Appeal Court said it would not answer the question of whether the legislation is unconstitutional, citing a lack of evidence.

"In my view, it would not be appropriate to attempt to answer the reference question in the limited manner proposed ... At best, this would result in a qualified opinion," wrote Chief Justice Michael Wood.

Union response

The Nova Scotia Federation of Labour issued a joint response Wednesday evening on behalf of eight unions with members affected by the bill.

The group said it's disappointed there was no conclusive decision after more than five years of legal proceedings. It said the court's indecision leaves an opportunity for Houston to "right this wrong" and repeal the legislation as promised during last summer's election campaign.

In an interview with CBC News, Jason MacLean, president of the Nova Scotia Government and General Employees Union,  said he's not surprised by the court's decision.

"We figured they would come with a non-answer answer, and that's exactly what they did," he said.

"But also, [we're] kind of delighted because Stephen McNeil was absolute that this was constitutional and that it would hold up in court with no problems. And the [Appeal Court] didn't say that. They said they can't answer because they need more evidence."

MacLean said his union and others are in a holding pattern while they wait for a response from the government, but if the province decides not to repeal the bill, they're ready to proceed in Nova Scotia Supreme Court.

"[Houston] says he respects workers, and this would be his opportunity to put his money where his mouth is," McFadgen said. 

On Thursday morning, the Nova Scotia government said it's taking the time to review the court's decision.

"We've been clear that we did not agree with the previous government's approach to labour relations. Bill 148 was significant legislation with far-reaching implications," Labour Relations Minister Allan MacMaster said in an email.

"This reference case was in the final stages when we took office and we wanted to make sure we fully understood all issues and options from legal, financial and labour relations perspectives."

MacMaster said the province is looking to move forward with "open and honest dialogue" with public sector unions as they negotiate new agreements.

"We believe in the collective bargaining process," he said.