Executive Summary: Key Legal and Evidentiary Issues

• An illegal strike by approximately 2,200 AUPE-represented healthcare workers on October 26, 2020, led Alberta Health Services to seek a suspension of union dues under section 114 of the Labour Relations Code.

• The Alberta Labour Relations Board ordered a one-month suspension of dues for the bargaining units involved, impacting approximately $1,650,000 to $2,500,000 in union dues.

• AUPE sought judicial review, challenging the Board’s jurisdiction, the proportionality of the penalty, and the constitutionality of section 114 in relation to section 2(d) of the Charter.

• The Court declined to consider AUPE’s new jurisdictional arguments not raised before the Board, citing the principle of judicial restraint and deference to specialized tribunals.

• The Board’s interpretation of section 114, applying the suspension to the entire bargaining unit rather than only the striking members, was found reasonable and proportionate.

• The temporary suspension of dues was held not to infringe section 2(d) of the Charter, as it was limited in scope and duration and applied only in response to illegal conduct.

Background and strike events

On October 26, 2020, approximately 2,200 employees represented by the Alberta Union of Provincial Employees (AUPE) participated in an illegal strike across more than 70 healthcare facilities operated by Alberta Health Services (AHS). The employees were from two bargaining units: the Auxiliary Nursing Care Unit (ANC), with approximately 16,000 employees, and the General Support Service Unit (GSS), with approximately 25,000 employees. The ANC included licensed practical nurses, healthcare aides, and other auxiliary nursing personnel, while the GSS included roles such as housekeeping, food services, maintenance, clerical support, and other general support functions.

The strike occurred during a period of strained labour relations, with ongoing collective bargaining, concerns about job security, and the impact of the COVID-19 pandemic. On October 13, 2020, the Alberta Government announced job cuts as part of the AHS Review, increasing unrest among AUPE members. The strike began at the Foothills Medical Centre in Calgary and the Royal Alexandra Hospital in Edmonton and spread to other facilities. Some sites experienced significant disruptions, such as the Royal Alexandra Hospital’s Medical Device Reprocessing Centre, which had over 80 employees participate, affecting the hospital’s ability to sterilize surgical equipment and proceed with surgeries.

AHS took measures to mitigate the impact, including redeploying staff, having non-unionized employees perform bargaining unit work, and cancelling scheduled surgeries and procedures. The strike led to the postponement of 294 surgeries and procedures, the cancellation of hemodialysis treatments, and delays in patient care. The Board issued a cease-and-desist order on the evening of October 26, 2020, directing employees to return to work.

Union actions and Board findings

The Board found that AUPE engaged in several actions encouraging the illegal strike. AUPE held town hall meetings on October 7, 8, and 9, 2020, where mixed messages were provided about potential strike action. The AUPE President acknowledged the steps required for legal strike action but also conveyed that illegal strike action was a real prospect and assured members of union support if they chose to engage in such action. After the government’s job cut announcement on October 13, 2020, AUPE issued a press release stating that "strike action is on the table if negotiations break down." On October 26, 2020, AUPE’s Executive Secretary-Treasurer informed the Provincial Executive of the strike and requested that the information be passed to Local Executives. AUPE issued public communications supporting the strike and encouraging participation. The AUPE President attended the Royal Alexandra Hospital and made comments encouraging employees to continue the strike. The Board found there was no evidence AUPE took steps to discourage illegal strike activity or encouraged members to return to work or provide essential services. The Board concluded that AUPE fully supported and encouraged the illegal strike activity.

Impact of the strike

The Board found that, while brief, the illegal strike had a profound impact on Alberta’s healthcare system, resulting in the loss of over 14,000 hours of scheduled work. Despite mitigation efforts, the strike led to the postponement of 294 surgeries and procedures in the Edmonton Zone, cancellation of hemodialysis treatments for some outpatients, and delays in patient care in affected facilities. Remaining healthcare staff experienced significant strain, with delays in administering pain medications, feeding patients, providing insulin, and assisting with personal hygiene. Some post-operative patients did not have their dressings changed on time, and others had to wait longer for assistance with toileting, with some being left soiled in bed. Participation in the strike varied, with some missing entire shifts and others only part of their shift. Approximately 3.5 percent of the ANC Unit and 6.9 percent of the GSS Unit participated.

Board’s order and legal framework

Section 114 of the Labour Relations Code allows for the suspension of union dues where an illegal strike commences. The Board ordered a one-month suspension for the bargaining units involved, affecting approximately $1,650,000 to $2,500,000 in dues. The Board recognized that its interpretation meant the same kind of misconduct could have different consequences depending on the size of the bargaining unit but found this reasonable given the risks at stake and AUPE’s conduct. The Board noted that the length of the suspension could be adjusted for proportionality and that, in the right case, no suspension might be appropriate, but this was not such a case.

Judicial review and court analysis

AUPE sought judicial review, arguing that the Board lacked jurisdiction, that the penalty was disproportionate, and that section 114 violated section 2(d) of the Charter. The Court declined to consider AUPE’s jurisdictional argument, as it was not raised before the Board, citing Supreme Court of Canada authority that issues should first be considered by the specialized tribunal. The Court found that the Board’s interpretation of section 114, applying the suspension to the entire bargaining unit, was reasonable and proportionate. The Court also found that the Board’s decision on the process for engaging section 114 was reasonable and absent any indicia of concern.

On the Charter issue, the Court agreed with the Board that section 114 did not offend section 2(d) of the Charter. The suspension of dues was only available where there was a finding of illegal conduct, was temporary, and did not prevent union members from coming together to pursue common goals. The Court found that section 114 was anchored within constitutional policy choices available to the Legislature and did not create substantial interference with the right to freedom of association.

Outcome

The application for judicial review was dismissed. The Board’s decision to impose a one-month suspension of union dues was upheld as reasonable and constitutionally valid. The suspension affected approximately $1,650,000 to $2,500,000 in union dues. If the parties could not agree on costs, they were invited to raise the issue in writing. The successful parties were Alberta Health Services, the Crown in Right of Alberta, and the Alberta Labour Relations Board. No explicit damages or costs were granted or ordered as of the judgment.