CUPE waiting for ratification to decide whether to continue lawsuit against province

The Canadian Union of Public Employees is not abandoning its court challenge of the province's use of emergency legislation to force striking health-care staff back to work.

CUPE had asked for an emergency hearing Monday to put a pause on the emergency order while its legality was decided.

But because staff went back to work after negotiators reached a tentative agreement over the weekend, the emergency hearing was adjourned.

Union lawyer Joël Michaud said that while the emergency hearing is cancelled, the legal challenge is still on.

"It's certainly on, at least until ratification," he said. "If the hospital-sector's members don't ratify, then we're right back to square one."

On Sunday, CUPE and the province separately announced a temporary end to the two-week strike by 22,000 public-sector employees, including school bus drivers, educational support staff and workers in transportation, corrections and the community college system.

The employees will vote on a tentative agreement with the government this week and decide Friday if the strike is over or if they will go back on the picket lines.

Health-care workers out for a shorter time

Some support staff in the health-care sector were part of the strike for a week but were ordered back to work by the province on Nov. 7.

Attorney General Ted Flemming imposed an emergency order that said if any of them continued to strike, they could face thousands of dollars in fines. And the "employee organization" they're a member of would be fined a minimum of $100,000, with no maximum limit, for each day they don't comply.

In its challenge, CUPE alleged the order contravened the workers' right to freedom of association and to belong to a certain organization. They also alleged the fines exceeded what's allowed through the Emergency Measures Act, and constitutes "cruel and unusual punishment," which also contravenes the Charter or Rights. 

Michaud said that even if the agreement is accepted, the union may continue the challenge to get clarity on whether using the province's Emergency Measures Act to stop a strike is legal in general.

"There may be, you know, long-term utility in having a decision for all parties involved, frankly, for government as well," Michaud said. "There could be … a pretty clear statement of the court as to whether or not acting this way was legal.

Or the union could abandon the challenge, Michaud said. The union has yet to decide what to do.

Even if CUPE wants to go ahead, Michaud said, the court could decide that the issue is moot if the order is permanently lifted.