Court upholds labour board ruling in nursing home case, but strike not allowed for now

A judge has upheld a New Brunswick labour board ruling that found a law deeming thousands of nursing home workers an essential service is unconstitutional. 

Court of Queen's Bench Chief Justice Tracey DeWare's ruling states she "cannot conclude there is an error that would warrant the intervention of this court."

But DeWare also agreed to the province's request to a stay of the impact of the ruling until Jan. 2, 2020. 

That will give the province time to "render the legislation Charter compliant," she says in the 40-page ruling dated July 2.  

The province asked the court to review the December 2018 labour board decision after members of the Canadian Union of Public Employees voted in March to strike.

The union represents about 4,100 licensed practical nurses, resident attendants and support service workers at 46 non-profit nursing homes around the province. 

A tangled series of court proceedings staved off that strike pending DeWare's decision. 

Sharon Teare, president of the New Brunswick Council of Nursing Home Unions, told CBC News she wasn't surprised by the ruling. 

She said the union wants to return to the bargaining table to negotiate a new contract. 

Teare said the union's lawyers will analyze the six-month stay portion of the ruling and determine if it will take further action.

A statement from the provincial government left the door open to appealing the decision. 

"As we have just received the decision, we will take the time to review it carefully, and decisions on next steps may be made at a later date," said Dorothy Shephard, the minister of social development.

Shephard stated the stay will give nursing home residents and their families "peace of mind while the government considers its options."

The New Brunswick Association of Nursing Homes is the employer but receives its funding from the province. 

 In a statement, it said the stay ensures residents' needs will be met "while the court decision is further understood and considered."

"We remain hopeful to finding a resolution to the current negotiations with CUPE," the association stated.

The judge's decision was highly anticipated by CUPE, which had been barred from striking by several court orders since March.

The workers' contract expired in 2016, and members rejected a tentative agreement in 2018 that included a one per cent annual wage increase. 

Union leaders and members staged rallies around the province, calling on the province to agree to binding arbitration to reach a new contract. 

In 2009, the province passed the Essential Services in Nursing Homes Act, which designated most nursing home workers as essential. That means they wouldn't be able to walk off the job in the event of a labour dispute. 

But the law required the employer and union to agree on how many would be required to stay on the job. If they couldn't agree, they could go to the labour board for a ruling. 

Board chair Robert Breen ruled about 90 per cent of workers at one Fredericton home, which would serve as the model for the other homes around the province, would be required to stay on the job in the event of a labour dispute. 

In 2013, the union also filed a challenge of the law's constitutionality. Breen's 135-page ruling on that issue found the law violates employees right to strike.

The decision became much more important in March as talks to reach a new collective agreement stalled. 

About 90 per cent of union members voted in favour of a strike. The union issued a strike notice that was followed by the province going to court for the judicial review and a stay of the labour board ruling, effectively preventing a strike. 

The province and nursing homes argued Breen erred in several ways, including by not delaying the impact of his decision to allow lawmakers time to amend the law to make it constitutional.