No nursing home strike possible as court reserves decision

New Brunswick's Court of Appeal reserved its decision on a case that will have a crucial impact on the nursing home contract dispute and whether 4,000 unionized workers can walk off the job.

Three judges heard arguments Wednesday afternoon on whether a lower court decision in favour of the workers should be upheld.

Reserving means the court will issue its decision at a later point. Justice Kathleen Quigg said the judges want to provide a decision as quickly as possible but didn't provide a timeline.

In the the meantime, a court-ordered stay that prevents a strike continues.

"We're stalled again, waiting and waiting, adding to the months we've waited," Sharon Teare, president of the New Brunswick Council of Nursing Home Unions, said outside the Fredericton courthouse.

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"It's critically important" that the stay continues, said Jodi Hall, executive director of the New Brunswick Association of Nursing Homes. The association bargains with the council but is funded by the provincial government. 

On March 18, Court of Queen's Bench Justice Paulette Garnett lifted a temporary stay that barred the workers from striking.

But the union victory was short-lived. Immediately after the decision, the attorney general announced the province would seek leave to appeal Garnett's decision.

The leave to appeal was granted, leading to the hearing Wednesday.

Justices Raymond French, Kathleen Quigg and Charles LeBlond heard arguments from lawyers for the province, union and nursing homes.

Christian Michaud, a lawyer representing the province, argued Garnett didn't properly analyze the irreparable harm not granting a stay would cause the public. 

"It doesn't take rocket science to conclude that if there's a strike that takes place unfettered … obviously there are negative impacts on the residents of nursing homes," Michaud said.

He said Garnett also took sides in her decision by saying everyone is best served by having a contract dispute resolved quickly.

Justin Wies, a lawyer for the New Brunswick Association of Nursing Homes, said the province's law deeming nursing home workers an essential service — at the heart of the case — was to protect nursing home residents.

He said it ensures residents continue to get services they need each day such as catheters, wound care and meals. Some residents, he said, aren't able to feed themselves. 

"That's the irreparable harm that we're talking about," Wies said.

Joël Michaud, a lawyer for the Canadian Union of Public Employees, said the judge properly balanced the potential harm to residents against the harm to the union by continuing the stay.

How did the case get here?

There have been countless twists and turns in the union's legal battle over strike action, and the province's efforts to stop it.

To understand it, we have to go back to 2013. 

After the union and the employer couldn't agree on which workers should be considered essential in the event of a strike— a required part of the province's newly introduced essential services legislation, it was up to the labour board to make a call.

The board ruled 90 per cent of licensed practical nurses and resident attendants were essential to the safety of nursing home residents.

The union was already challenging the constitutionality of the labour legislation itself, and seeing such a "high" number of employees designated essential ended up playing in its favour. The union's lawyer believed the law breached freedom of association rights.

"You can't have an effective strike, and you're into collective begging if the end result is that even if you go on strike, 90 per cent of your members will be working," said Joël Michaud.

But it would take years for these arguments to be heard.

After a landmark Supreme Court case, New Brunswick's labour board too ended up siding with workers, ruling last December that the province's essential services law was unconstitutional.

But there was still confusion about what that meant in the context of the current dispute. In early March, the board wrote an order clarifying that nursing home employees were allowed to go on strike — all of them. It came just days before members voted overwhelmingly in favour of one.

Faced with the possibility all unionized workers walking off the job, leaving residents' care in the hands of managers and registered nurses alone, the province asked for a judicial review of the labour board decision.

The province also filed for a temporary stay on any strike action in the meantime, which is what led to Wednesday's hearing.

Concerned about meddling

Garnett 's main reason for lifting the stay against a strike was that she felt further court meddling would cause irreparable harm to workers, residents and the public, as talks had already gone on for years.

She also said the province went to court to get the stay order without informing union lawyers.

If the judges decide Garnett was right, it clears the way for workers to go on strike as long as they give 24-hour notice.

If the judges decide Garnett made a mistake in the law, the no-strike order would be extended until the judicial review of the 2018 labour board ruling is done.

Those arguments are scheduled for May 24 in Moncton, although it will likely be many more months before a decision.