Rule of law must be part of any democracy

By Lethbridge Herald on December 9, 2025.

Christopher J. Nicol
For the Herald

Before May, 2015, many public sector collective bargaining units in Alberta included language in their agreements precluding strike and lockout. In 2015, however, the Supreme Court of Canada (SCC) ruled on an appeal by the Saskatchewan Federation of Labour (SFL) against the Government of Saskatchewan. It was held by the SCC that strike action by a trade union was an essential element of the freedom of association under the collective bargaining process, and that this was a protected right under the Canadian Charter of Rights and Freedoms (the Charter). This ruling has levelled the playing field between trade unions and employers in the collective bargaining process, across Canada. 

In the case of a number of provincial governments, for example, Alberta, British Columbia and Manitoba (and perhaps others), this levelled playing field has been met by efforts to undercut the SCC ruling through “collective bargaining by remote control” on behalf of these governments. In the case of Alberta, following the SCC ruling, the NDP government of the day created the Provincial Bargaining Coordination Office (PBCO1) through which that Government of Alberta (GoA) sought to control collective bargaining in the public sector by requiring employer bargaining teams to report to PBCO1 throughout the negotiation process. Any element of a negotiated collective agreement that did not align with government-of-the-time policy would call for sending the “employer negotiators” back to the bargaining table, until an agreement acceptable to the government was “negotiated”. 

With the change of government in 2019 to the United Conservative Party (UCP), the PBCO1 of the former NDP government became the Provincial Bargaining and Compensation Office (PBCO2) under the UCP. The purpose of this body was reinforced through the legislative process via the passage of the Public Sector Employers Act by which the Minister under this Act can issue confidential directives to public sector employers. These confidential directives must be followed by employers, and pertain to all aspects of the collective agreement that is to be negotiated. 

The end result of the above history has led to what we see in Alberta today, “remote control collective bargaining” by the government with public sector trade unions, where the real principal of the bargaining process is not even at the table. This has resulted in what can only be described as bargaining in bad faith by the GoA, leading inevitably to strikes and labour market unrest in the public-sector labour market. 

This bad-faith bargaining on behalf of the UCP has not only led to labour unrest and strikes, but has prompted the government to take out an even bigger tool in its effort to “unlevel the playing field” with respect to collective bargaining. The government now believes it has a winning strategy, since all it has to do if it cannot get public sector unions to accept its secret directives is to engineer a strike, then legislate workers back to the job, making the labour unions impotent, since the government of Alberta will now routinely employ the notwithstanding clause of the Charter to over-rule workers’ Charter rights. 

Recently, Premier Smith has opined that “democracy is when the elected officials make the decisions … not when unelected judges unilaterally make decisions.” No. Democracy is, among other things, where the rule of law means something. Premier Smith seems to be saying that invocation of the notwithstanding clause of the Charter is a matter that can be used repeatedly over the same matter, again and again, despite the fact that the Charter limits such interventions to a five-year period. Premier Smith is therefore saying that she and her political cohorts are above the law, and can write and re-write laws, including the Charter, to their own satisfaction. Much like what Mr. Trump to the south is trying to do in the United States, through his plethora of “Executive Orders”. 

The UCP government and Premier Smith make it clear that, to them, Charter rights are an inconvenient irrelevance, an obstacle to be worked around. This reflects a fundamental misunderstanding of the role of elected public servants in a democratic society. The sooner these UCP Members of the Legislative Assembly are brought to book, the better, and the Recall Act, SA, 2021, c. R-5.7, as amended by the Election Statutes Amendment Act, 2025, can be used to do precisely that. 

Cristopher Nicol is a professor of economics and former dean of the Faculty of Arts and Sciences at the university of Lethbridge.