Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3
Attorney General of Ontario Appellant
v.
Michael J. Fraser on his own behalf and on behalf of the
United Food and Commercial Workers Union Canada,
Xin Yuan Liu, Julia McGorman and
Billie‑Jo Church Respondents
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of New Brunswick,
Attorney General of British Columbia,
Attorney General of Alberta,
Ontario Federation of Agriculture,
Federally Regulated Employers — Transportation and Communications,
Conseil du patronat du Québec Inc.,
Mounted Police Members’ Legal Fund,
Canadian Employers Council,
Coalition of BC Businesses, British Columbia Agriculture Council,
Justicia for Migrant Workers, Industrial Accident Victims Group of
Ontario,
Canadian Labour Congress,
Canadian Police Association and
Canadian Civil Liberties Association Interveners
Indexed as: Ontario (Attorney General) v. Fraser
2011 SCC 20
File No.: 32968.
2009: December 17; 2011: April 29.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Constitutional
law — Charter of Rights — Freedom of association — Collective bargaining rights
— Separate labour relations legislation governing agricultural workers in
Ontario — Whether s. 2(d) requires legislature to provide a particular
form of collective bargaining rights to agricultural workers, in order to
secure effective exercise of associational rights — If so, whether legislation infringes
freedom of association by failing to safeguard the exercise of collective
bargaining rights — Whether infringement justifiable — Canadian Charter of
Rights and Freedoms, ss. 1 , 2 (d) — Agricultural Employees Protection Act, 2002,
S.O. 2002, c. 16 — Labour Relations Act, 1995, S.O. 1995, c. 1,
Sch. A, s. 3(b.1).
Constitutional law — Charter of Rights — Equality
rights — Separate labour relations legislation governing agricultural workers
in Ontario — Whether the Agricultural Employees Protection Act, 2002 violates workers’
right to equality under s. 15 of the Charter by excluding workers from the
protections accorded to workers in other sectors — If so, whether infringement
justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 15 — Agricultural
Employees Protection Act, 2002, S.O. 2002, c. 16 — Labour Relations Act,
1995, S.O. 1995, c. 1, Sch. A, s. 3(b.1).
In
2002, the Ontario legislature enacted the Agricultural Employees Protection
Act, 2002 (“AEPA”) which excluded farm workers from the Labour
Relations Act (“LRA”), but crafted a separate labour relations
regime for farm workers. The AEPA was
a response to Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001]
3 S.C.R. 1016, which found that the previous legislative scheme violated s. 2 (d)
of the Canadian Charter of Rights and Freedoms and declared it
constitutionally invalid. It grants farm workers the rights to form and join
an employees’ association, to participate in its activities, to assemble, to
make representations to their employers through their association on their
terms and conditions of employment, and the right to be protected against
interference, coercion and discrimination in the exercise of their rights. The
employer must give an association the opportunity to make representations
respecting terms and conditions of employment, and it must listen to those
representations or read them. The AEPA tasks a tribunal with hearing
and deciding disputes about the application of the Act.
After
limited efforts to use the new protections under the AEPA, a constitutional
challenge was mounted on the basis the Act infringed farm workers’ rights under
ss. 2 (d) and 15 of the Charter by failing to provide
effective protection for the right to organize
and bargain collectively and by excluding farm workers from the protections
accorded to workers in other sectors. In 2006, the Ontario Superior Court dismissed
the application. The Court of Appeal allowed the appeal and declared the AEPA
to be constitutionally invalid. It rendered its
decision after the release of Health Services and Support —
Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC
27, [2007] 2 S.C.R. 391.
Held
(Abella J. dissenting): The appeal
should be allowed and the action dismissed.
Per
McLachlin C.J. and LeBel, Binnie, Fish and Cromwell JJ.: Section 2 (d)
of the Charter protects the right to associate to achieve collective
goals. This requires a process of engagement
that permits employee associations to make representations to employers, which
employers must consider and discuss in good faith. Laws or state actions that
substantially interfere with the ability to achieve workplace goals through
collective actions have the effect of negating the right of free association
and therefore constitute a limit on the s. 2 (d) right of free
association, which renders the law or action unconstitutional unless justified
under s. 1 of the Charter .
Bargaining activities protected by s. 2(d) in the labour relations context include good
faith bargaining on important workplace issues. It requires both
employer and employees to meet and to bargain in good faith, in the pursuit of
a common goal of peaceful and productive accommodation. Good faith negotiation
under s. 2(d) requires the parties to meet and engage in meaningful
dialogue; it does not impose a particular process; it does not require the
parties to conclude an agreement or accept any particular terms; it does not
guarantee a legislated dispute resolution mechanism in the case of an impasse;
and it protects only the right to a general process of collective bargaining,
not to a particular model of labour relations, nor to a specific bargaining
method. What s. 2(d) guarantees in the labour relations context is
a meaningful process.
The decision in Health Services
follows directly from the principles enunciated in Dunmore.
Section 2(d), interpreted purposively and in light of Canada’s
values and commitments, protects associational collective activity in
furtherance of workplace
goals. The right is not merely a paper right, but a right to a process that
permits meaningful pursuit of those goals. The principles within Dunmore
and Health Services represent good law, should not be overturned and
provide resolution in this appeal.
The
seriousness of overturning recent precedents of this Court, representing the
considered views of firm majorities, cannot be overstated. The arguments advanced
in favour of overturning Health Services do not meet the high
threshold for reversing a precedent
of this Court as it is grounded in precedent, consistent with
Canadian values, consistent with Canada’s international commitments and
consistent with this Court’s purposive and generous interpretation of other Charter
guarantees. Health Services was consistent with previous cases
on the issue of individual and collective rights. It recognized, as did
previous jurisprudence, that s. 2 (d) is an individual right. It also
recognized, as did previous cases, that to meaningfully uphold this individual
right, s. 2 (d) may properly require
legislative protection of group or collective activities. The approach to deference to Parliament and legislatures advanced
in Health Services is also consistent with this Court’s general
jurisprudence. Deference should inform the determination of whether a
legislative scheme satisfies the requirements of the Charter , as
articulated by the courts. The unworkability of Health
Services has not been established. There is no
concrete evidence that the principles enunciated in Dunmore and Health
Services are unworkable or have led to intolerable results. It is
premature to argue that the holding in Health Services, rendered four years ago, is unworkable in practice.
The Ontario legislature is not required to provide a
particular form of collective bargaining rights to agricultural workers, in
order to secure the effective exercise of their associational rights. In this
case, the Court of Appeal has overstated the ambit of the s. 2(d)
right. The affirmation of the right to collective bargaining is not an affirmation of a particular type of collective
bargaining, such as the Wagner model which is dominant in Canada. What s. 2(d) protects is the right to associate
to achieve collective goals. Laws or government action that substantially interfere
with the ability to achieve collective goals have the effect of limiting
freedom of association, by making it pointless. It is in this derivative sense
that s. 2(d) protects a right to
collective bargaining. Legislatures are not constitutionally required,
in all cases and for all industries, to enact laws that set up a uniform model
of labour relations imposing a statutory duty to bargain in good faith,
statutory recognition of the principles of exclusive majority representation and
a statutory mechanism for resolving bargaining impasses and disputes regarding
the interpretation or administration of collective agreements. What is
protected is associational activity, not a particular process or result.
Farm
workers in Ontario are entitled to meaningful processes by which they can
pursue workplace goals. The right of an employees’ association to make
representations to the employer and have its views considered in good faith is
a derivative right under s. 2 (d) of the Charter , necessary
to meaningful exercise of the right to free association. The AEPA provides
a process that satisfies this constitutional requirement. Under the AEPA,
the right of employees’ associations to make representations to their employers
is set out in s. 5 and provides that the employer shall listen to oral
representations, and read written representations, and acknowledge having read
them.
The
AEPA does not expressly refer to a requirement that the employer
consider employee representations in good faith; however, by implication, it
includes such a requirement. Any ambiguity in
s. 5 should be resolved by interpreting it as imposing a duty on
agricultural employers to consider employee representations in good faith, as a
statute should be interpreted in a way that gives meaning and purpose to its
provisions and Parliament and legislatures are presumed to intend to comply
with the Charter . There can only be one purpose for requiring the
employer to listen to or read employee
representations — to assure that the employer
will in fact consider the employee representations. No labour relations purpose is served merely by pro forma listening
or reading. To fulfill the purpose of reading or listening, the employer must
consider the submission. Moreover, the employer must do so in good faith:
consideration with a closed mind would render listening or reading the
submission pointless. Comments made in the legislature during the debate on
this legislation that the AEPA was not intended to extend collective
bargaining to agricultural workers may be understood as an affirmation that the
Act did not institute the dominant Wagner model of collective bargaining, or
bring agricultural workers within the ambit of the
LRA, not that the AEPA intended to
deprive farm workers of the protections of collective bargaining that s. 2 (d)
grants. The AEPA does not breach s. 2 (d) of the Charter .
Section 5
of the AEPA, correctly interpreted, protects not only the right of
employees to make submissions to employers on workplace matters, but also the
right to have those submissions considered in
good faith by the employer. It follows that s. 5 of the AEPA does
not violate s. 2 (d) of the Charter . The AEPA
contemplates a meaningful exercise of the right of association, and provides a
tribunal for the resolution of disputes. Section 11 of
the AEPA specifically empowers the Agriculture, Food and Rural Affairs
Appeal Tribunal to make a determination that there has been a contravention of
the Act, and to grant an order or remedy with respect to that contravention.
The Tribunal may be expected to interpret its powers,
in accordance with its mandate, purposively, in an effective and meaningful way. Labour tribunals
enjoy substantial latitude when applying their constituent statutes to the
facts of a given case.
It is unnecessary to consider the s. 1 arguments. The s. 15
discrimination claim, like the s. 2 (d) claim, cannot succeed. It
is clear that the regime established by the AEPA does not provide all
the protections that the LRA extends to many other workers. However, a formal
legislative distinction does not establish discrimination under s. 15 .
What s. 15 contemplates is substantive discrimination that impacts on
individuals stereotypically or in ways that reinforce existing prejudice and
disadvantage. The AEPA provides a special labour regime for
agricultural workers. However, on the record, it has not been established that
the regime utilizes unfair stereotypes or perpetuates existing prejudice and
disadvantage. Until the regime established by the AEPA is tested, it
cannot be known whether it inappropriately disadvantages farm workers. The
claim is premature.
Per Charron and Rothstein JJ.: Section 2 (d) protects the liberty of individuals to associate and engage in associational activities.
It protects the freedom of workers to come together, to form a bargaining
position and to present a common and united front to their employers. It does not
protect a right to collective bargaining nor does it impose duties on others,
such as the duty to bargain in good faith on
employers. To the extent that Health Services constitutionalized
collective bargaining, it was not correctly decided. It should be overturned
thus disposing of the constitutional challenge in this case.
This
Court may overrule its own precedents, but it should only do so where there are
compelling reasons. The question in every case
involves a balancing: Do the reasons in favour of following a precedent
― such as certainty, consistency, predictability and institutional
legitimacy ― outweigh the need to overturn a precedent that is
sufficiently wrong? In this case, compelling reasons exist for
overturning Health Services: the error in Health
Services concerns a question of constitutional law and is not susceptible
to being corrected in a lasting way by the legislative branch; Health
Services strayed significantly from other sound precedents, including Dunmore,
with respect to the purpose of Charter protection for freedom of
association; the constitutionalization of collective bargaining, as envisaged
in Health Services, is not workable without other elements of modern
labour legislation in place; and there has been intense academic criticism of Health
Services.
Health
Services was an express break with prior decisions of this Court on s. 2 (d),
including Dunmore. This break came when the majority of the Court found
that s. 2 (d) required that government legislate to facilitate
collective goals which an association was formed to pursue, rather than
protecting the freedom of association itself. In Dunmore, the
requirement that government provide legislation to protect workers was anchored
in the proposition that certain workers could not associate without government
intervention. The majority in Health Services focussed on the goals of
an association and the enhancement of those goals, rather than the ability of
the claimants to associate (which they already had done). An application of
the actual holding in Dunmore would have asked only if the government
substantially interfered with the ability to associate.
Health
Services erred in concluding that s. 2 (d) protects collective
bargaining and obliges parties to bargain in good faith for five reasons. First,
Health Services departed from sound principles established in this
Court’s precedents on the nature and scope of s. 2 (d). The purpose
of s. 2 (d) is to protect individuals rather than groups per se.
Health Services reinterpreted an individual freedom as giving rise to
collective rights with no individual rights
foundation. This reinterpretation of the scope of s. 2 (d)
was a departure from previous jurisprudence that is not justified by the
purpose of the Charter guarantee.
Second,
s. 2(d) protects freedoms not rights. According to Health
Services, if s. 2(d) protected only the ability of workers to
make collective representations and did not impose a duty on the
employer to bargain in good faith, it would fail to protect the right to
collective bargaining. This proposition transformed s. 2(d) from a
freedom into a positive right by imposing an obligation to act on third parties
(i.e. the employer). A right to collective
bargaining is also not derivative of a freedom ― it is a standalone right
created by the Court, not by the Charter . A derivative right is
one that is necessary to allow individuals to exercise a fundamental freedom. No individual employee has a right to require an employer
to meet and make a reasonable effort to arrive at an acceptable employment
contract. To grant a right to collective bargaining under s. 2 (d)
purportedly as derivative of the freedom of association is not consistent with
the approach taken by this Court in its derivative rights jurisprudence in
relation to the Charter .
Third, s. 2(d)
does not empower the Court to privilege certain associations over others. The
Court’s earlier cases did exhibit a content‑neutral approach to freedom
of association in the sense that they did not claim to privilege particular
associations. Health Services erred in saying that these
approaches were not purposive. Health Services suggested that a
“generic” approach to defining freedom of association is inappropriate because
different groups must have different freedoms. However, the context that is
relevant to a purposive interpretation of Charter freedoms is not the context of the individuals who
happen to be exercising that freedom in a
given case. Rather, a purposive interpretation of s. 2 (d) requires
that one place freedom of association in its linguistic, philosophic and
historical contexts. The origins of the concept, the words used to describe
it, and the philosophical principles on which it relies will define the scope
of s. 2 (d) protection. The extent of that protection should not change
depending on who is exercising their s. 2 (d) rights. The protection
of fundamental freedoms should not involve the Court adjudicating the relative
values of the way in which individuals exercise those freedoms. Just as this
Court has not adjudicated the relative value of a religion or its tenets under s. 2 (a)
or assessed the relative value or content of a given exercise of freedom of
expression under s. 2 (b), so too should this Court not privilege
some associations over others under s. 2 (d).
Fourth,
s. 2(d) does not afford constitutional protection to contracts. Although
Health Services purported to constitutionalize the process of collective
bargaining rather than its fruits, it in fact granted constitutional protection
to the collective agreements on the basis that they were the fruits of that
process.
Fifth,
s. 2(d) should be interpreted in such a way as to afford deference
to the legislative branch in the field of labour relations. Health Services
erred in removing decision‑making power on this question from Parliament
and the provincial legislatures. While the courts are responsible for
safeguarding the ability of individuals to do collectively that which they have
the right to do as individuals, the judiciary is ill‑equipped to engage
in fine adjustments to the balance of power between labour and management in
the labour relations context.
Moreover,
the reasons advanced in Health Services for extending protection to collective
bargaining under s. 2(d) ― Canadian labour history, Canada’s
international obligations, and Charter values ― do not support
conferring a constitutional right to collective bargaining and imposing a duty
on employers to engage in collective bargaining.
The
argument that a right to collective bargaining which includes a duty on
employers to bargain in good faith is a pre‑statutory feature of Canadian
labour law, made in Health Services, contradicts established accounts of
the history of labour relations in Canada and has recently been the subject of
intense academic criticism. While the duty to bargain in good faith may be a
fundamental precept of the Wagner model of collective bargaining, it is not a
fundamental precept of collective bargaining as it was understood before the introduction
of the Wagner Act or as it is still understood today in many parts of
the world.
Nor
does international law support constitutionalizing collective bargaining
rights. In Health Services, the majority relied on the proposition that
collective bargaining is an integral component of the freedom of association
under international law. The majority relied in particular on ILO Convention No. 87.
In doing so, it committed two errors. While Canada has ratified ILO Convention
No. 87, that Convention deals only with freedom of association and does
not at any point specifically discuss collective bargaining. The majority also
conflated two distinct ILO Conventions by citing Convention No. 87 but
using words from Convention No. 98. Canada has not ratified Convention No. 98
and has no obligations under that Convention. Even if Convention No. 98
were applicable to Canada, Health Services would still have erred
in relying on that Convention to constitutionalize a version of collective bargaining
that includes a duty to bargain in good faith. While Convention No. 98
provides protection for a process of collective bargaining, it conceives of
collective bargaining as being a process of “voluntary negotiation” that is
fundamentally distinct from the model of collective bargaining incorporated in
the Wagner model. Convention No. 98 does not contemplate the imposition
of a duty on parties to bargain in good faith.
Nor
did invoking Charter values in Health Services support
constitutionalizing collective bargaining rights. Health Services maintained
that the recognition of a good faith collective bargaining right is consistent
with and promotes other Charter rights, freedoms and values: namely,
human dignity, equality, liberty, respect for the autonomy of the person and
the enhancement of democracy. A duty to bargain in good faith may achieve
those ends. However, either the Charter requires something or it does
not. The role of the Court is to determine what the Charter requires
and what it does not and then apply the requirements it finds to the case
before it. It is not to simply promote, as much as possible, values that some
subjectively think underpin the Charter in a general sense. As s. 2(d)
is silent on questions of economic and social policy, this Court may not
intervene on such matters in the absence of a legislative or constitutional
grant of authority.
Finally, the majority’s
approach to collective bargaining in particular and s. 2(d) in
general articulated in Health Services is unworkable. It extends
constitutional protection to the duty to bargain in good faith without
importing other aspects of the Wagner framework and by purporting to protect
the process of collective bargaining without also protecting its fruits,
neither of which is tenable. For a duty to bargain in good faith not to be an
illusory benefit, there must be both a way of dealing with bargaining impasses
as well as an effective remedy for persistent breaches of a duty to bargain in
good faith. The first requires that there be some default mechanism for
resolving the dispute in case an impasse is reached — such as striking or
binding arbitration — while the second may require, in extreme circumstances,
the imposition by an arbitrator of particular terms of a collective agreement. Each
of these goes well beyond protection of a mere process and results in the
protection of a particular substantive outcome. The majority’s
inability to separate substance and process, and the consequent
constitutionalization of collective bargaining terms demonstrates the
unworkability of the distinction between substance and process asserted in Health
Services.
The AEPA does not violate s. 2 (d) of the Charter .
By enacting the AEPA, the legislature precisely addressed this Court’s
ruling in Dunmore. The text, context and purpose of the AEPA
clearly demonstrate that the legislature intentionally opted not to include a
duty on employers to engage in collective bargaining with employee associations. Section 5 of the AEPA cannot be read as
imposing a duty to bargain in good faith. The words of s. 5 are
unambiguous: they provide employee associations the opportunity to make
representations to an employer. The only obligation on an employer is to
provide the employee association with the opportunity to make representations
and to listen if they are oral or read and acknowledge them if they are
written. To find otherwise, would be to ignore the
grammatical and ordinary meaning of the words, and the purpose of the AEPA,
and would create ambiguity where none exists. Moreover, nothing in the
explicit purpose in s. 1 of the AEPA or the clear words of the
Minister who introduced the AEPA support the view that agricultural
employees have a right to require agricultural employers to engage in
collective bargaining.
As
for the issues under s. 15, the category of agricultural worker does not
rise to the level of an immutable (or constructively immutable) personal
characteristic of the sort that would merit protection against discrimination
under s. 15.
Per Deschamps J.:
The holding in Health Services does not have the broad scope being
attributed to it by the majority in the case at bar. The
issue here is not, whether the AEPA provides
a process that satisfies the right of an employees’ association to make
representations to the employer and have its views considered in good faith.
The duty to act in good faith is part and parcel of a web of statutory
components. It should not be found to be a constitutional requirement in the
instant case. The expanded definition of freedom of association that
resulted from Health Services has no bearing on the protection the
Ontario legislature must provide to agricultural workers.
The
effect of Health Services is that freedom of association includes the
freedom to engage in associational activities and the ability of employees to
act in common to reach shared goals related to workplace issues and terms of
employment. This delineation of the scope of freedom of association does not
entail a more expansive protection than the
legislative framework mandated by Dunmore for the agricultural
workers. The AEPA complies with this Court’s conclusion in Dunmore
and it complies with the Charter .
Even though labour law provides tools that help reduce economic
inequality, not all aspects of labour law are protected by the Charter .
Economic equality is not an “equality right” for the
purposes of s. 15 of the Charter . Dunmore was based on the notion that the Charter does not ordinarily oblige
the government to take action
to facilitate the exercise of a fundamental freedom. Recognition was given to
the dichotomy between positive and negative rights. To get around the general
rule, a framework was established for cases in which the vulnerability of a
group justified resorting to government support.
To redress economic inequality, it would be more faithful to the
design of the Charter to open the door to the recognition of more analogous
grounds under s. 15 . Each Charter protection should not be interpreted in a formalistic
manner. Rather, if the law needs to move away from Dunmore’s
distinction between positive and negative rights, this should not be
accomplished by conflating freedom of association with the right to equality or
any other Charter right that may be asserted by a litigant. An analysis
based on principles grounding the protection of rights and freedoms offers a
better prospect of judicial consistency than one based on the more amorphous
notion of “Canadian values”.
Per Abella J. (dissenting): The
AEPA violates s. 2 (d) of the Charter because it does
not protect, and was never intended to protect, collective bargaining rights.
The AEPA, enacted in 2002, was the government’s good faith
implementation of this Court’s 2001 decision in Dunmore, which defined
the scope of s. 2 (d) as being the right to organize and make
representations. Health Services, decided in 2007, expanded that scope
to include protection for a process of collective bargaining, including the
duty to consult and negotiate in good faith. The applicable legal principles
are therefore those set out in Health Services and the AEPA must
be assessed against the revised constitutional standard.
The
AEPA has virtually no language that indicates protection for a process
of collective bargaining. It requires only that an employer “listen” if
representations are made orally, or, if made in writing, “acknowledge” that the
representations have been read. No response, discussions, or negotiations are
required. Moreover, when the legislation was introduced, the government’s
intention to exclude any protection for collective bargaining rights from the
legislation was unequivocally expressed by the Minister of Agriculture and
Food. This clarity of statutory language and legislative intent cannot be
converted by the interpretive process into a completely different scheme.
For
agricultural workers, the meaningful exercise of the right to collective
bargaining requires two additional components. The first is a statutory
enforcement mechanism with a mandate to resolve bargaining disputes. Since it
is not a contravention of the AEPA to refuse to engage in a good faith
process to make reasonable efforts to arrive at a collective agreement, the
Tribunal is without jurisdiction to grant a remedy for any violations of s. 2 (d)
rights. The second essential element is a requirement that the employer
bargain only with the representative selected by a majority of the employees in
the bargaining unit. This concept, known as majoritarian exclusivity, has been
a central and defining principle of labour relations in Canada since 1944.
Given the singular employment disadvantage of agricultural workers, the absence
of statutory protection for exclusivity effectively nullifies the ability of
agricultural workers to have a unified and therefore more cogent voice in
attempting to mitigate and ameliorate their working conditions.
The absence of these statutory protections cannot be justified under
s. 1 of the Charter . The objectives of the rights limitation — the
failure to provide agricultural workers with the necessary statutory
protections to exercise the right to bargain collectively — were to protect the
family farm and farm production/viability. The minimal impairment branch of
the Oakes test is determinative in this case. The complete absence of
any statutory protection for a process of collective bargaining in the AEPA cannot
be said to be minimally impairing of the s. 2 (d) right. The rights
limitation is not even remotely tailored to either government objective; it is,
in fact, not tailored at all. Preventing all agricultural workers from access
to a process of collective bargaining in order to protect family farms, no
matter their size or nature of the agricultural enterprise, harms the s. 2 (d)
right in its entirety, not minimally. It is worth noting too that all
provinces except Alberta give agricultural workers the same collective
bargaining rights as other employees. There is no evidence that this has
harmed the economic viability of farming in those provinces, or that the nature
of farming in Ontario uniquely justifies a severely restrictive rights approach.
Cases Cited
By
McLachlin C.J. and LeBel J.
Applied: Dunmore v. Ontario (Attorney
General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Health Services and Support
— Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,
[2007] 2 S.C.R. 391; referred to: Reference re Public
Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v.
Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R.
460; Professional Institute of the Public Service of Canada v. Northwest
Territories (Commissioner), [1990] 2 S.C.R. 367; Delisle v. Canada
(Deputy Attorney General), [1999] 2 S.C.R. 989; Irwin Toy Ltd. v. Quebec
(Attorney General), [1989] 1 S.C.R. 927; Ontario
(Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; R. v. Henry, 2005 SCC 76,
[2005] 3 S.C.R. 609; Haig v. Canada, [1993] 2 S.C.R. 995; R. v. Big M
Drug Mart Ltd., [1985] 1 S.C.R. 295; Charkaoui v. Canada
(Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Vriend
v. Alberta, [1998] 1 S.C.R. 493; U.F.C.W., Local 1518 v. KMart Canada
Ltd., [1999] 2 S.C.R. 1083; Nova Scotia (Workers’ Compensation Board) v.
Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; R. v. Advance Cutting &
Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; R. v. Mannion, [1986]
2 S.C.R. 272; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R.
1038; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Adams Mine,
Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1
C.L.R.B.R. (N.S.) 384; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Kapp, 2008 SCC 41, [2008] 2
S.C.R. 483.
By Rothstein J.
Applied:
Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3
S.C.R. 1016; not followed: Health Services and Support — Facilities
Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2
S.C.R. 391; referred to: R. v. Bernard, [1988] 2
S.C.R. 833; R. v. Chaulk, [1990] 3 S.C.R. 1303; R. v. B. (K.G.),
[1993] 1 S.C.R. 740; R. v. Robinson, [1996] 1 S.C.R. 683; R. v.
Salituro, [1991] 3 S.C.R. 654; Hamstra (Guardian ad litem of) v. British
Columbia Rugby Union, [1997] 1 S.C.R. 1092; R. v. Henry, 2005 SCC 76,
[2005] 3 S.C.R. 609; Queensland v. Commonwealth (1977), 139 C.L.R. 585; Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Reference re Public
Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v.
Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R.
460; Professional Institute of the Public Service of Canada v. Northwest
Territories (Commissioner), [1990] 2 S.C.R. 367; Canadian Egg Marketing
Agency v. Richardson, [1998] 3 S.C.R. 157; Delisle v. Canada (Deputy
Attorney General), [1999] 2 S.C.R. 989; Doucet‑Boudreau v. Nova
Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v.
Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; Ontario (Public Safety and
Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R.
815; Canadian Broadcasting Corp. v. New Brunswick (Attorney General),
[1996] 3 S.C.R. 480; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477;
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Hunter v.
Southam Inc., [1984] 2 S.C.R. 145; Law Society of Upper Canada v.
Skapinker, [1984] 1 S.C.R. 357; Syndicat Northcrest v. Amselem, 2004
SCC 47, [2004] 2 S.C.R. 551; R. v. Advance Cutting & Coring Ltd.,
2001 SCC 70, [2001] 3 S.C.R. 209; Reference re ss. 193 and 195.1(1)(c)
of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Lavigne v. Ontario
Public Service Employees Union, [1991] 2 S.C.R. 211; Bell ExpressVu Limited
Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Royal Oak Mines
Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; Rizzo
& Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.
By Deschamps J.
Applied:
Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R.
1016; discussed: Health Services and Support — Facilities
Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2
S.C.R. 391; referred to: R. v. Advance Cutting &
Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; Delisle v. Canada (Deputy
Attorney General), [1999] 2 S.C.R. 989; Vriend v. Alberta,
[1998] 1 S.C.R. 493; Greater Vancouver Transportation Authority
v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295.
By Abella J. (dissenting)
Health
Services and Support — Facilities Subsector Bargaining Assn. v. British
Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Reference
re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC
v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987]
1 S.C.R. 460; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Professional
Institute of the Public Service of Canada v. Northwest Territories
(Commissioner), [1990] 2 S.C.R. 367; Royal Oak Mines Inc. v. Canada
(Labour Relations Board), [1996] 1 S.C.R. 369; U.E.W. and DeVilbiss Ltd.,
[1976] 2 C.L.R.B.R. 101; Alberta v. Hutterian Brethren of Wilson Colony,
2009 SCC 37, [2009] 2 S.C.R. 567; Wellington Mushroom Farm,
[1980] O.L.R.B. Rep. 813.
Statutes and Regulations Cited
Act respecting labour relations, vocational training and workforce
management in the construction industry, R.S.Q., c. R‑20.
Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16, ss. 1, 2, 5, 7‑11.
Agricultural Labour Relations Act, 1994,
S.O. 1994, c. 6 [rep. 1995, c. 1, s. 80], Preamble, ss. 3,
10, 11.
Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (a), (b), (d), 7 ‑12, 15, 23, 32, 33.
Constitution Act, 1982, ss. 35(1) , 52 .
Industrial Relations Act, R.S.N.B. 1973,
c. I‑4, s. 1(5)(a).
Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54.
Labour Act, R.S.P.E.I. 1988, c. L‑1,
s. 7.
Labour Code, R.S.Q., c. C‑27,
s. 21.
Labour Relations Act, R.S.M. 1987, c. L10,
s. 1.
Labour Relations Act, R.S.N.L. 1990, c. L‑1,
s. 2(1).
Labour
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Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1.
Labour Relations Code, R.S.A. 2000, c. L‑1,
s. 4(2)(e).
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c. 244, s. 1.
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Convention (No. 87) concerning freedom of association and protection
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Convention (No. 98) concerning the application of the
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International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3.
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APPEAL
from a judgment of the Ontario Court of Appeal (Winkler
C.J.O. and Cronk and Watt JJ.A.), 2008 ONCA 760, 92 O.R. (3d) 481, 301 D.L.R.
(4th) 335, 182 C.R.R. (2d) 109, 242 O.A.C. 252, 2009 CLLC ¶220‑001,
[2008] O.J. No. 4543 (QL), 2008 CarswellOnt 6726, setting aside a decision
of Farley J. (2006), 79 O.R. (3d) 219, 263 D.L.R. (4th) 425, 137 C.R.R. (2d)
123, 2006 CLLC ¶220‑009, [2006] O.J. No. 45 (QL), 2006 CarswellOnt
55. Appeal allowed and action dismissed, Abella J. dissenting.
Robin K. Basu and Shannon M.
Chace, for the appellant.
Paul J. J.
Cavalluzzo and Fay C. Faraday, for the respondents.
Anne M.
Turley, for the intervener the Attorney General of Canada.
Michel
Déom and Geneviève Lessard, for the intervener the Attorney General
of Quebec.
Gaétan
Migneault and Michelle Brun‑Coughlan, for the intervener
the Attorney General of New Brunswick.
Neena
Sharma, for the intervener the Attorney General of British Columbia.
Roderick S.
Wiltshire, for the intervener the Attorney General of Alberta.
John D. R.
Craig and Jodi Gallagher, for the intervener the Ontario
Federation of Agriculture.
Roy L.
Heenan and Thomas Brady, for the intervener the Federally
Regulated Employers — Transportation and Communications.
Robert Dupont, Pascale
Gauthier and Jean H. Lafleur, for the intervener Conseil du
patronat du Québec Inc.
Brad Elberg and Kelly Henriques,
for the intervener the Mounted Police Members’ Legal Fund.
Augustus G.
Lilly, Q.C., and Stephen F. Penney, for the
intervener the Canadian Employers Council.
Peter A.
Gall, Q.C., Donald R. Munroe, Q.C., and Andrea L.
Zwack, for the interveners the Coalition of BC Businesses and the British
Columbia Agriculture Council.
Selwyn A.
Pieters and Adrian A. Smith, for the interveners Justicia
for Migrant Workers and the Industrial Accident Victims Group of Ontario.
Steven
Barrett and Ethan Poskanzer, for the intervener the Canadian
Labour Congress.
Ian J.
Roland and Michael Fenrick, for the intervener the Canadian
Police Association.
Joshua S.
Phillips and Antony Singleton, for the intervener the Canadian Civil
Liberties Association.
|
TABLE OF CONTENTS
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|
Paragraph
|
|
|
Reasons of McLachlin C.J. and LeBel J........................................ 1
|
|
I. Introduction............................................................................... 1
|
|
II. Background............................................................................... 5
|
|
A. The Exclusion of the Farming Sector From the LRA and the
Impact of Dunmore.................................................................... 5
|
|
B. The Constitutional Challenge to the
AEPA................................ 7
|
|
III. Judicial History........................................................................ 13
|
|
A. Ontario Superior Court of Justice
(2006), 79 O.R. (3d) 219 (the Applications Judge)................................................................. 13
|
|
B. Ontario Court of Appeal, 2008 ONCA
760, 92 O.R. (3d) 481 (Winkler C.J.O. and Cronk and Watt JJ.A.)............................ 15
|
|
IV. Analysis................................................................................... 17
|
|
A. Issues: Does the AEPA Violate
Sections 2(d) and 15 of the Charter?.................................................................................. 17
|
|
B. Freedom of Association (Section
2(d))..................................... 18
|
|
(1) Freedom of Association in the
Labour Context: The Jurisprudential Background............................................... 19
|
|
(a) The Early Cases........................................................... 19
|
|
(b) Dunmore...................................................................... 26
|
|
(c) Health Services: Its
Impact.......................................... 34
|
|
(d) The Issue on This Appeal............................................. 44
|
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(e) Response to Justice
Deschamps................................... 49
|
|
(f) Response to
Justice Rothstein...................................... 52
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(i) The Caution
Required in Overturning Precedent 56
|
|
(ii) The Arguments
on Jurisprudence....................... 61
|
|
(iii) Purpose of
Section 2(d): Individual Versus Collective Rights................................................ 63
|
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(iv) The Argument
That Section 2(d) Is a Freedom, Not a Right......................................................... 67
|
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(v) The Argument That
Health Services Privileges Particular Associations....................................... 74
|
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(vi) The Argument
That Health Services Gives Contracts Priority Over Statutes........................ 76
|
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(vii) The Argument
That Health Services Removes Judicial Deference to the Legislation................. 77
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(viii) The Argument
of Unworkability........................ 82
|
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(ix) The Argument
on Academic Criticism............... 86
|
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(x) The Argument
on Canadian Labour History...... 89
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(xi) The Argument
on International Law.................. 91
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(xii) The Argument
on Charter Values...................... 96
|
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(xiii) Conclusion.......................................................... 97
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(2) Application: Have the
Respondents Established a Breach of Section 2(d)?................................................................. 98
|
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C. Section 15
of the Charter.............................................................................. 114
|
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V. Conclusion.................................................................................................... 117
|
|
Reasons of Rothstein J........................................................................................ 119
|
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I. Introduction........................................................................... 119
|
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II. When Should Precedent be
Overturned?.............................. 129
|
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III. The Explicit Break With Precedent
in Health Services......... 152
|
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A. Introduction........................................................................... 152
|
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B. The Jurisprudential Background Prior
to Health Services.... 157
|
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C. An Express Break With Precedent in Health
Services........... 166
|
|
IV. Section 2 (d) of the Charter
Does Not Protect Collective Bargaining............................................................................. 172
|
|
A. The
Collective Bargaining Right Recognized in Health Services Is Inconsistent
With the Purpose of Section 2 (d).................... 177
|
|
(1) Section 2 (d) Protects
Individual Interests, Not Group Interests........................................................................... 178
|
|
(a) Individual Freedoms Versus Collective Rights.......... 178
|
|
(b) Qualitative Differences
Between Individuals and Associations Do Not Change the Individual Nature of
Freedom of Association............................................. 181
|
|
(2) Section 2 (d) Protects
Freedoms Rather Than Rights...... 188
|
|
(3) Section 2 (d) Does Not
Privilege Some Associations Over Others.............................................................................. 203
|
|
(4) Section 2 (d) Does Not
Give Constitutional Status to Contracts......................................................................... 216
|
|
(5) Courts
Have Afforded the Legislature Significant Deference in the Application of
Section 2 (d) to the Field of Labour Relations............................................................. 219
|
|
B. The Reasons Advanced in Health
Services Do Not Support Constitutionalizing Collective Bargaining Under
Section 2(d) of the Charter............................................................................. 231
|
|
(1) The
Continuing Validity of Past Precedents on the Scope of Section 2(d)................................................................. 233
|
|
(2) Canadian Labour History Does
Not Support Constitutionalizing Collective Bargaining Rights........... 234
|
|
(3) International Law Does Not
Support Constitutionalizing Collective Bargaining Rights........................................... 247
|
|
(4) Charter Values
Cannot Be Invoked to Support Constitutionalizing Collective Bargaining Rights........... 251
|
|
C. The Approach in Health Services Is
Unworkable.................. 256
|
|
(1) The Problem of
Constitutionalizing One Part of the Wagner Model.............................................................................. 257
|
|
(2) The Untenable Distinction
Between Substance and Process 263
|
|
V. The Charter Protects a
Voluntary Association of Workers Whose Objectives Are to Improve Wages and
Working Conditions............................................................................. 270
|
|
VI. Summary................................................................................ 275
|
|
VII. Application
to the Present Case............................................ 276
|
|
VIII. Conclusion............................................................................. 296
|
|
Reasons of Deschamps J.............................................................. 297
|
|
I. Interpreting Health
Services......................................................................... 298
|
|
II. Approach From Dunmore............................................................................ 313
|
|
Reasons of Abella J............................................................................................. 321
|
|
Background........................................................................................................... 323
|
|
Analysis................................................................................................................. 326
|
The judgment of McLachlin C.J. and
Binnie, LeBel, Fish and Cromwell JJ. was delivered by
The Chief
Justice and LeBel J. —
I. Introduction
[1]
This appeal raises anew the issue of the
constitutionality of the labour relations regime that applies to farm workers
in Ontario. Most Canadian provinces have brought the farming sector under
their general labour relations laws, with some exceptions and restrictions.
Except for a very short period of time, Ontario has always excluded farms and
farm workers from the application of its Labour Relations Act (currently Labour Relations Act, 1995, S.O. 1995, c.
1, Sch. A) (“LRA”). In the
present appeal, our Court must determine whether Ontario’s latest attempt to
frame a separate labour relations regime for the farming sector respects the
constitutional guarantee of freedom of association, or violates it by failing
to safeguard the exercise of collective bargaining rights. The Agricultural
Employees Protection Act, 2002, S.O. 2002, c. 16 (“AEPA” or “Act”), was
a response to this Court’s decision in Dunmore v. Ontario (Attorney General),
2001 SCC 94, [2001] 3 S.C.R. 1016, which found that the previous legislative
scheme violated s. 2 (d) of the Canadian Charter of Rights and
Freedoms .
[2]
We are of the view that the AEPA has not
been shown to be unconstitutional. Section 2 (d) of the Charter
protects the right to associate to achieve collective
goals. Laws or state actions that substantially interfere with the ability to
achieve workplace goals through collective actions have the effect of negating
the right of free association and therefore constitute a limit on the s.
2 (d) right of free association, which renders
the law or action unconstitutional unless it is justified under s. 1 of the Charter .
This requires a process of engagement that permits employee associations to
make representations to employers, which employers must consider and discuss in
good faith.
[3]
The law here at issue, the AEPA,
properly interpreted, meets these requirements, and is not unconstitutional.
We would therefore allow the appeal.
[4]
Before moving to the analysis of the issues
raised by the appeal, it will be useful to review the factual background and
the jurisprudential developments that gave rise to this case.
II. Background
A. The
Exclusion of the Farming Sector From the LRA and the Impact of Dunmore
[5]
Prior to 1994, indeed since 1943, farm workers
had been excluded from the general labour relations regime established by the LRA.
In 1994, the Ontario legislature enacted the Agricultural Labour Relations
Act, 1994, S.O. 1994, c. 6 (“ALRA”), which extended trade union and
collective bargaining rights to agricultural workers. A year later, the
legislature repealed the ALRA in its entirety and again excluded farm
workers from the labour relations regime set out in the ALRA (Labour
Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995,
c. 1 (“LRESLAA”)). The LRESLAA was challenged on the basis
that it infringed the guarantees of freedom of association under s. 2 (d)
and equality under s. 15 of the Charter . In Dunmore, a majority of this Court found
a breach of s. 2 (d). It held that the claimants were substantially
unable to organize without protective legislation, and declared the law to be
unconstitutional. This had the effect of nullifying the exclusion of farm
workers from the LRA, but this Court suspended the declaration of invalidity
for 18 months. The majority concluded it was not
necessary to deal with the s. 15 challenge.
[6]
In response, the Ontario legislature enacted the
AEPA in 2002, which came into force on June 17, 2003. In brief, the AEPA
excluded farm workers once again from the LRA, but crafted a labour
relations regime for farm workers in Ontario. It granted them the rights to
form and join an employees’ association, to participate in its activities, to
assemble, to make representations to their employers through their association
on their terms and conditions of employment, and the right to be protected
against interference, coercion and discrimination in the exercise of their
rights (s. 1(2)). The employer must give an association the opportunity to
make representations respecting terms and conditions of employment, and it must
listen to those representations or read them (s. 5). The AEPA tasks a
tribunal, the Agriculture, Food and Rural Affairs Appeal Tribunal, with hearing
and deciding disputes about the application of the Act (ss. 2 and 11). After
limited efforts to use the new protections of the AEPA, the
respondents mounted a constitutional challenge to its validity.
B. The
Constitutional Challenge to the AEPA
[7]
The respondents argue
that three more protections are required to meet the requirements of s. 2 (d)
of the Charter : (1) statutory protection for majoritarian exclusivity,
meaning that each bargaining unit is represented by a single bargaining agent;
(2) an LRA-type statutory mechanism to resolve bargaining impasses and
interpret collective agreements; and (3) a statutory duty to bargain in good
faith. The respondents argue that the Court’s recent decision in Health
Services and Support — Facilities Subsector Bargaining Assn. v. British
Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, entitles them to laws
offering these protections.
[8]
The four individual farm workers in this case
(three of them respondents and an affiant) worked at Rol-Land Farms Ltd., a
large industrial-type mushroom farm in Kingsville, Ontario. In 2002, after this
Court’s decision in Dunmore, Xin Yuan Liu and other workers at Rol-Land
approached the United Food and Commercial Workers Union Canada (“UFCW”) to
represent them and bargain on their behalf. By the spring of 2003, 70 percent
of the workers at Rol-Land had joined the union.
[9]
Rol-Land refused to recognize the UFCW as the
employees’ representative. The UFCW then filed an application for certification
with the Ontario Labour Relations Board, under the LRA. In the ensuing
vote, the workers voted 132 to 45 in favour of certification. The resolution of
the application has been kept on hold, pending the outcome of this appeal.
After the vote, the UFCW wrote to Rol-Land requesting a meeting to commence
negotiations toward a contract for the workers. Rol-Land did not respond to
the letter. The respondents assert that the owner of Rol‑Land told a
meeting of workers that the union would never be recognized (R.F., at para.
58).
[10]
The UFCW also attempted to bargain collectively
on behalf of employees at Platinum Produce, an industrial greenhouse operating
in Chatham, Ontario. While the employer expressed doubt that the UFCW could be
an employees’ association under the AEPA, it gave the union an
opportunity to make brief presentations. The meeting lasted approximately 15
minutes. The employer’s position was that the company was not required to bargain with the union and the meeting was not
to be considered collective bargaining towards a collective agreement.
[11]
The UFCW subsequently presented Platinum Produce’s
counsel with a draft collective agreement setting out proposed terms. That
meeting lasted approximately five minutes. The employer has not responded to
the proposals or to other proposed meeting dates. There have been no further
meetings or communications about terms and conditions of work.
[12]
The respondents did not attempt to pursue
remedies under the AEPA. Specifically, no recourse was made to the
Tribunal set up under the Act to deal with complaints. Rather, the respondents
sought a declaration that s. 3(b.1) of the LRA, which provides that the LRA
does not apply to farm workers, and that the AEPA as a whole were
unconstitutional. In brief, they submitted that these laws breached s. 2 (d)
of the Charter by failing to provide
effective protection for the right to organize and bargain collectively and violated s. 15 by excluding farm workers from the
protections accorded to workers in other sectors.
III.
Judicial History
A. Ontario
Superior Court of Justice (2006), 79 O.R. (3d) 219 (the Applications Judge)
[13]
The chambers judge, Farley J., heard the
application before the judgment of this Court in Health Services. He
proceeded on the assumption that s. 2 (d) did not protect collective
bargaining. He dismissed the application on the ground that the AEPA met
the minimum constitutional requirements necessary to protect the freedom to
organize. He began by adopting the comments made by
Sharpe J. at the trial level of Dunmore and finding that
agricultural workers “are ‘poorly paid, face difficult working conditions, have
low levels of skills and education, low status and limited employment
mobility’” (paras. 23
and 33). But he was of the view that the AEPA did not prevent
them from attempting to form employees’ associations. He stated:
There is nothing
in the AEPA which would prevent the UFCW or any other union from
attempting to organize agricultural workers into an employees’ association,
recognizing that such an employees’ association would not thereby automatically
have the right to strike nor the right to bargain collectively. See discussion
in Peter W. Hogg, Constitutional Law of Canada, looseleaf, vol. 2
(Toronto: Carswell, 1997) at p. 41-5/6 (2002). The AEPA provides that
the employees’ association may make representations to an employer concerning the
terms and conditions of employment (s. 5 AEPA). These representations
may be made by someone who is not a member of the association (s. 5(2)) so that
a “union staffer” could perform that function. The representation may be made
orally or in writing (s. 5(5)). One must read s. 5(6) and (7) in a purposive
way in context. Thus while the employer need only give the association a
written acknowledgment that the employer has read the written representations
(s. 5(7)), it is implicit in the making of an oral representation that the
recipient is hearing the oral representations as the employer has a duty to
listen and the association speaker will have the opportunity then and there to
enquire whether the recipient has heard the representations. As well the concept
of listening and reading respectively involves the aspect of comprehending and
considering the representations. Perhaps unfortunately there is no specific
requirement that the employer respond to the substance of the representations;
however, it should be noted that this would then involve the parties in a form
of collective bargaining. [para. 19]
[14]
With respect to the particular statutory
protections in the AEPA, Farley J. found that they met the minimum
required standards. He found that they confer the power to organize (s. 1);
protection against denial of access to property (s. 7); protection against
employer interference with trade union activity (s. 8); protection against
discrimination (s. 9); protection against intimidation and coercion (s. 10);
protection against alteration of working conditions during the certification
process (ss. 9-10); protection against coercion of witnesses (s. 10); and
removal of Board notices (s. 10). He allowed that it would have been
preferable to have mirrored the provisions of the LRA more precisely “to
eliminate possible fears” that employers might alter working conditions to
hinder associational activities (para. 18). However, he felt that the answer to
these concerns lay with the Tribunal, which had not been asked to deal with the
workers’ complaints. He stated:
If the Tribunal felt that it was for some
jurisdictional reason constrained from negatively sanctioning such activity,
then one would presume that the applicants or others of a like mind together
with the UFCW would have a strong case to bring back in this regard. One would
think it better to see how the Tribunal operates in fact before condemning it
as powerless to deal with such abuses. This wait and see pragmatic approach is
desirable with respect to possible concerns about lack of labour relations
expertise/experience on the part of the specified panel roster of the
Tribunal. There has been no use of the mechanics of the AEPA as to
bringing a case before the Tribunal; the applicants stated that it would be
fruitless to bring a useless application before a useless Tribunal. I am of
the view that this condemnation is premature. A successful application would
do one of several things: be effective positively as to action; or morally give
the wrongdoing employer a “bloody nose”; or if truly an empty process, it would
demonstrate the need for strengthening by legislative amendment. See also Danson
v. Ontario (Attorney General), [1990] 2 S.C.R. 1086, . . . at p.
1099 . . . where Sopinka J. for the court stated: “This Court has
been vigilant to ensure that a proper factual foundation exists before
measuring legislation against the provisions of the Charter ,
particularly where the effects of impugned legislation are the subject of the
attack.” [para. 18]
Farley J. also
dismissed the discrimination claim brought under s. 15 of the Charter .
B. Ontario
Court of Appeal, 2008 ONCA 760, 92 O.R. (3d) 481 (Winkler C.J.O. and Cronk and
Watt JJ.A.)
[15]
The Court of Appeal allowed the appeal and
declared the AEPA to be constitutionally invalid. It rendered its decision after the judgment of our Court in
Health Services. Winkler C.J.O., for the
court, held that the AEPA substantially
impaired the ability of agricultural workers to meaningfully exercise the right to bargain collectively,
which was protected by s. 2 (d) of the Charter .
The Act protected the right to organize, and it was premature to conclude that the
statutory protections against employer intimidation were inadequate. However,
it did not provide the “minimum” statutory
protections required to enable agricultural workers to exercise their right to
bargain collectively in a meaningful way, namely:
“(1) a statutory duty to bargain in good faith; (2) statutory recognition of
the principles of exclusivity and majoritarianism; and (3) a statutory
mechanism for resolving bargaining impasses and disputes regarding the
interpretation or administration of collective agreements” (para. 80). The court noted that the “primary
difficulty has been that the union has been unsuccessful in engaging employers,
who have no statutory duty to bargain in good faith” (para. 98). Having found
that the AEPA infringes s. 2 (d)
of the Charter , the Court of Appeal considered whether
the infringement could be saved as “reasonable and demonstrably justified”
under s. 1 of the Charter , and found it
could not. The legislation impaired the right more than
necessary, despite the challenges facing legislators
in the agricultural domain, which is a complex mix of family farms
and larger industrial operations. It concluded that
“the wholesale exclusion of agricultural
employees from a collective bargaining scheme is not adequately tailored to meet the objective of protecting the
family farm” (para. 129).
[16]
The Court of Appeal ordered the government “to
provide agricultural workers with sufficient protections
to enable them to exercise their right to bargain collectively, in
accordance with these reasons” (para. 138). It suspended this order for 12
months to give the legislature an opportunity to respond. The Court of Appeal
dismissed the claim under s. 15 of the Charter . Its judgment was appealed to
this Court.
IV. Analysis
A. Issues: Does the
AEPA Violate Sections 2(d) and 15 of the Charter ?
[17]
The issue is whether the failure of the Ontario
government to enact a positive statutory framework
for agricultural workers modelled after the Ontario LRA violates
s. 2 (d) of the Charter in a manner that cannot be justified by
s. 1. If so, the AEPA is invalid under
s. 52 of the Constitution Act, 1982 , and the Ontario
legislature is obliged to bring the Act into harmony with the Charter . The respondents have also raised the issue of whether the AEPA
violates their right to equality under s. 15 of the Charter . As
the main question in this appeal remains the interpretation and application of
s. 2 (d), we will first consider this issue and then turn to s. 15 .
B. Freedom of Association (Section 2(d))
[18]
In view of the conflicting
approaches to the guarantee of freedom of association in the labour context put before us, it may be
useful to canvas the jurisprudence and set out the principles that guide the
analysis of s. 2(d). The respondents’ claim largely turns on the
interpretation of our Court’s judgments in Dunmore and Health
Services. The ultimate question is whether s. 2(d), properly
understood and applied, requires the Ontario legislature to provide a
particular form of collective bargaining rights to agricultural workers, in
order to secure the effective exercise of their associational rights. To resolve
this question, we will first consider the development of this Court’s
jurisprudence in this area of the law.
(1) Freedom
of Association in the Labour Context: The
Jurisprudential Background
(a) The Early Cases
[19]
The first set of cases to consider s. 2 (d) of the Charter ,
known as the Trilogy, were Reference re Public Service Employee Relations
Act (Alta.), [1987] 1 S.C.R. 313 (the “Alberta Reference”); PSAC
v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987]
1 S.C.R. 460. The majority of the Court held that s. 2 (d) did not protect the right to strike, the issue
in the cases. In arriving at this conclusion, members expressed a number of
views on the guarantee of freedom of association.
[20]
McIntyre J. stated
that “like most other fundamental rights”, the right to freedom of association
has no single purpose or value. Rather, reflecting the social nature of human
beings, it protected the right to associate with others “both to satisfy
[their] desire for social intercourse and to realize common purposes” (Alberta
Reference, at p. 395). In the same case, Dickson C.J. (dissenting)
stated: “What freedom of association seeks to protect is not associational
activities qua particular activities, but the freedom of individuals to
interact with, support, and be supported by, their fellow humans in the varied
activities in which they choose to engage” (p. 366).
[21]
Three of the six Justices sitting on the Trilogy
opined in obiter that s. 2 (d) does not protect collective
bargaining (Alberta Reference, at p. 390, per Le Dain J.;
PSAC, at p. 453, per McIntyre J.).
The reasons given included that collective bargaining is a “modern right”, that
its recognition would go against the principle of judicial restraint, that s.
2 (d) protects only individual rights, and that s. 2 (d) was not
intended to protect the goals or objects of organizations (Alberta Reference,
at p. 391, per Le Dain J.; pp. 397 and 407, per McIntyre J.).
[22]
The Trilogy was endorsed in Professional Institute of the Public
Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R.
367 (“PIPSC”). Sopinka J., stated in
his reasons which appeared to be accepted by the other judges on this point:
(1) “s. 2 (d) protects the freedom to establish, belong to and maintain
an association”; (2) “s. 2 (d) does not protect an activity solely on the
ground that the activity is a foundational or essential purpose of an
association”; (3) “s. 2 (d) protects the exercise in association of the
constitutional rights and freedoms of individuals”; and (4) “s. 2 (d) protects the exercise in association of the
lawful rights of individuals” (p. 402).
[23]
Nine years later, in Delisle v. Canada
(Deputy Attorney General), [1999] 2 S.C.R. 989, the Court once again
revisited s. 2 (d). The issue was whether exclusion of RCMP members from
public bargaining associations, as opposed to their own association, violated
s. 2 (d). The majority of the Court, per
Bastarache J., held it did not, on the ground that s. 2 (d) does not give the right to belong to a
particular group. Bastarache J. added that there is no general obligation for
the government to provide a particular legislative framework for employees to
exercise their collective rights, i.e. a different framework than already
provided for RCMP members.
[24]
In dissent, Cory and Iacobucci JJ. pointed out that the appeal
was not concerned
with the right to strike or to bargain collectively (Delisle, at
para. 51). The only issue was whether the statutory framework interfered with
the right to associate with other public servants in pursuance of their mutual
interests. They were of the view that s. 2 (d)
was violated because the impugned laws in purpose and effect interfered with
the formation of employee associations. They noted that employees are a
vulnerable group in our society, and their ability to form and join an employee
association is crucially linked to their economic and social well-being (paras.
67-68).
[25]
In summary, the early cases affirmed that the core protection of s.
2 (d) focusses on the right of individuals to
act in association with others to pursue common objectives and goals. There
was some suggestion (Sopinka J.’s fourth point in PIPSC) that only
individual goals were protected. (This proposition, as we shall see, was
rejected in Dunmore.) While three judges in the Trilogy expressed the
view that s. 2 (d) did not protect collective bargaining, the only
question at issue in those cases was whether individuals had a right to strike,
and the question of collective bargaining was not conclusively resolved by a
majority of the Court.
(b) Dunmore
[26]
This Court’s decision in Dunmore
marked a new stage in the development of s. 2 (d) jurisprudence in the
field of labour relations. It raised the question of whether s. 2 (d) requires the government to
provide a legislative framework which enables employees to associate to obtain
workplace goals in a meaningful process.
[27]
The Ontario
legislature had repealed legislation which gave farm workers a measure of
protection, leaving them entirely outside the Province’s labour relations
scheme. The evidence established that attempts to organize were persistently
frustrated by employers. The farm workers came to court seeking protection of
their basic right to associate. They sought the right to organize into
employee associations. For this, they contended, they needed legislation that
endorsed their constitutional right to associate and protected them from
employer interference.
[28]
Bastarache J., for the majority of the Court,
began the analysis in Dunmore by emphasizing the need for a purposive approach
to s. 2 (d) — “one which aims to protect the full range of associational
activity contemplated by the Charter and to honour Canada’s obligations
under international human rights law” (para. 13). After a full review of the
jurisprudence, he stated:
. . . the activities for which the
appellants seek protection [association for the purposes of achieving workplace
goals in the labour relations context] fall squarely within the freedom to
organize, that is, the freedom to collectively embody the interests of
individual workers. [para. 30]
[29]
Bastarache J. went on to hold that in order to
realize the purposes of s. 2 (d), the right to organize must extend
to “the exercise of certain collective activities, such as making majority
representations to one’s employer”. He explained:
These activities are guaranteed by the
purpose of s. 2 (d), which is to promote the realization of individual
potential through relations with others, and by international labour
jurisprudence, which recognizes the inevitably collective nature of the freedom
to organize. [para. 30]
[30]
The affirmation that s. 2 (d) protection extends to
collective activities that only a group can carry out, required rejection of
Sopinka J.’s fourth proposition in PIPSC,
which suggested that s. 2 (d) only protected
the right to further individual goals. Bastarache J. pointed out that certain
activities are, when performed by a group, “qualitatively” different from those
activities performed solely by an individual. He recognized that “trade
unions develop needs and priorities that are distinct from those of their
members individually” (Dunmore, at para. 17).
As a result “certain collective activities must be
recognized if the freedom to form and maintain an association is to have any
meaning” (ibid.).
[31]
In the result, Bastarache J. concluded that the
absence of legislative protection for farm workers to organize in order to
achieve workplace goals made meaningful association to achieve workplace goals
impossible and therefore constituted a substantial interference with the right
to associate guaranteed by s. 2 (d) of the Charter . He found that the absence of legislative support
discredited the organizing efforts of agricultural workers and had a chilling
effect on their constitutional right to associate. He concluded that farm
workers in Ontario were substantially incapable of exercising their fundamental
freedom to associate without a protective regime (para. 35). Quoting L’Heureux-Dubé J. in Delisle,
Bastarache J. affirmed that
the right to freedom of
association must take into account the nature and importance of labour
associations as institutions that work for the betterment of working conditions
and the protection of the dignity and collective interests of workers in a
fundamental aspect of their lives: employment. [Emphasis deleted; para. 37.]
[32]
After Dunmore, there could be no doubt
that the right to associate to achieve workplace goals in a meaningful and
substantive sense is protected by the guarantee of
freedom of association, and that this right extends to realization of
collective, as distinct from individual, goals. Nor could there be any
doubt that legislation (or the absence of a legislative framework) that makes achievement of this collective goal
substantially impossible, constitutes a limit
on the exercise of freedom of association. Finally, there could be no doubt
that the guarantee must be interpreted generously and purposively, in
accordance with Canadian values and Canada’s international commitments.
[33]
It is worth pausing at this
juncture to summarize the propositions that led the majority of the Court in Dunmore
to these conclusions.
Section 2 (d), interpreted purposively,
guarantees freedom of associational activity in the pursuit of individual and
common goals.
The common goals protected extend to some
collective bargaining activities, including the right to organize and to
present submissions to the employer.
What is required is a process that permits the
meaningful pursuit of these goals. No particular outcome is guaranteed.
However, the legislative framework must permit a process that makes it possible
to pursue the goals in a meaningful way.
The effect of a process that renders
impossible the meaningful pursuit of collective goals is to substantially
interfere with the exercise of the right to free association, in that it
negates the very purpose of the association and renders it effectively
useless. This constitutes a limit under s. 2 (d) which is
unconstitutional unless justified by the state under s. 1 of the Charter .
(This is an application of the settled rule that a law or government act that
in purpose or effect constrains exercise of a right constitutes a
limitation for purposes of s. 1: see Irwin Toy Ltd. v. Quebec (Attorney
General), [1989] 1 S.C.R. 927.)
The remedy for the resultant breach of s. 2 (d)
is to order the state to rectify the legislative scheme to make possible
meaningful associational activity in pursuit of common workplace goals.
(c) Health Services: Its Impact
[34]
Dunmore established that claimants must demonstrate the substantial impossibility
of exercising their freedom of association in order to compel the government to
enact statutory protections. It did not, however, define the ambit of the
right of association protected by s. 2 (d) in the context of collective
bargaining. Relying on Dunmore, the majority of the Court in Health Services,
per McLachlin C.J. and LeBel J., held that legislation and government
actions that repealed existing collective agreements and substantially
interfered with the possibility of meaningful collective bargaining in the
future constituted a limit on the s. 2 (d) right of freedom of
association.
[35]
The claimants were various unions and their
members working in the health services industry of British Columbia. The
industry was highly unionized and had negotiated collective agreements
regarding salaries, benefits and working conditions. The government, directly
or indirectly, was the employer. The government wanted to reduce costs by
changing the structure of its employees’ working arrangements in ways that
would have been impermissible under the existing collective agreements. It
chose to do so, not through collective bargaining to the end of altering those
collective agreements, but by the simple expedient of legislation. In short,
the government used its legislative powers to
effectively nullify the collective agreements to its benefit, and to the
detriment of its employees. The legislation not only conflicted with existing
collective agreements, but also precluded collective bargaining in the future
on a number of issues and conditions of employment. (See R. K. Basu,
“Revolution and Aftermath: B.C. Health Services and Its Implications”
(2008), 42 S.C.L.R. (2d) 165, at p. 177; see also M. Coutu, L. L.
Fontaine and G. Marceau, Droit des rapports collectifs du travail au
Québec (2009), at p. 144.)
[36]
The unions responded by bringing an action claiming that the
government had breached s. 2 (d) by legislatively interfering with
freedom of association. They further claimed that the government had done so
in circumstances that could not be justified under s. 1 of the Charter .
Health Services thus put directly in issue the right to collective
bargaining. The claimants did not seek the enactment of associational
protections. Rather, they asserted that s. 2 (d) protected a right to
collective bargaining and that the government had violated the constitutional
guarantee of freedom of association by legislating to both overturn existing
contracts and preclude effective collective bargaining in the future. The
unions lost at trial and on appeal but succeeded in this Court.
[37]
While Health Services
concerned the actions of a
government employer nullifying collective bargaining arrangements with unions
representing its own employees, the Court rested its decision on a more general
discussion of s. 2 of the Charter . Applying the principles of
interpretation established in Dunmore, a majority of the Court held
that s. 2 (d) includes “a process of collective action to achieve
workplace goals” (para. 19). This process requires
the parties to meet and bargain in good faith on issues of fundamental
importance in the workplace (para. 90). By legislating to undo the
existing collective bargaining arrangements and by hampering future collective
bargaining on important workplace issues, the British Columbia government had
“substantially interfered” with the s. 2 (d)
right of free association, and had
failed to justify the resultant limitation on the exercise of the right under
s. 1 of the Charter (paras. 129-61).
[38]
The decision in Health
Services follows directly
from the principles enunciated in Dunmore. Section 2 (d),
interpreted purposively and in light of Canada’s values and commitments,
protects associational collective activity in furtherance of workplace goals.
The right is not merely a paper right, but a right to a process that permits
meaningful pursuit of those goals. The claimants had a right to pursue
workplace goals and collective bargaining activities related to those goals.
The government employer passed legislation and took actions that rendered the
meaningful pursuit of these goals impossible and effectively nullified the
right to associate of its employees. This constituted a limit on the exercise
of s. 2 (d), and was thus
unconstitutional unless justified under s. 1 of the Charter .
[39]
While the majority decision in Health Services sits
firmly within the principles the Court had earlier set out in Dunmore,
in its discussion of the s. 2 (d)
right the Court went on to explain in greater detail what the government must
permit in order to avoid the charge of substantial interference with the s.
2 (d) right in the context of collective action
in pursuit of workplace goals. In Dunmore, Bastarache J. stated
that “the effective exercise of these freedoms may require . . . the
exercise of certain collective activities, such as making majority
representations to one’s employer” (para. 30). It
remained uncertain what other collective activities might be protected.
[40]
The majority of the Court in Health Services affirmed
that bargaining activities protected by s. 2 (d) in the labour relations context include good
faith bargaining on important workplace issues (para. 94; see also paras. 93,
130 and 135). This is not limited to a mere right to make representations to
one’s employer, but requires the employer to engage in a process of
consideration and discussion to have them considered by the employer. In this
sense, collective bargaining is protected by s. 2 (d). The majority
stated:
Thus the employees’
right to collective bargaining imposes corresponding duties on the employer.
It requires both employer and employees to meet and to bargain in good faith,
in the pursuit of a common goal of peaceful and productive accommodation. [para. 90]
[41]
By way of elaboration on
what constitutes good faith negotiation, the majority of the Court stated:
Section 2 (d) requires the parties to meet
and engage in meaningful dialogue. They must avoid unnecessary delays and make
a reasonable effort to arrive at an acceptable contract (paras. 98, 100-101);
Section 2(d) does not impose a particular
process. Different situations may demand different processes and timelines
(para. 107);
Section 2 (d) does not require the parties
to conclude an agreement or accept any particular terms and does not guarantee
a legislated dispute resolution mechanism in the case of an impasse (paras.
102-3);
Section 2 (d) protects only “the right . .
. to a general process of collective bargaining, not to a particular model of
labour relations, nor to a specific bargaining method” (para. 91).
[42]
The Court in Health
Services emphasized that
s. 2(d) does not require a particular model of bargaining, nor a
particular outcome. What s. 2(d)
guarantees in the labour relations context is a meaningful process. A process
which permits an employer not even to consider employee representations is not
a meaningful process. To use the language of Dunmore, it is among those
“collective activities [that] must be recognized if the freedom to form
and maintain an association is to have any meaning” (para. 17). Without such a
process, the purpose of associating in pursuit of workplace goals would be
defeated, resulting in a significant impairment of the exercise of the right to
freedom of association. One
way to interfere with free association in pursuit of workplace goals is to ban
employee associations. Another way, just as effective, is to set up a system
that makes it impossible to have meaningful negotiations on workplace matters.
Both approaches in fact limit the exercise of the s. 2(d) associational right, and both must be justified
under s. 1 of the Charter to avoid unconstitutionality.
[43]
In summary, Health
Services applied the
principles developed in Dunmore and explained
more fully what is required to avoid interfering with associational activity in
pursuit of workplace goals and undermining the
associational right protected by s. 2(d). Its suggestion that this
requires a good faith process of consideration by the employer of employee representations
and of discussion with their representatives is hardly radical. It is
difficult to imagine a meaningful collective process in pursuit of workplace
aims that does not involve the employer at least considering, in good faith,
employee representations. The protection for collective bargaining in the
sense affirmed in Health Services is quite simply a necessary condition
of meaningful association in the workplace context.
(d) The Issue on This Appeal
[44]
Against this background, we
return to the issue in this
case. The Court of Appeal held that Health Services constitutionalizes
a full-blown Wagner system of collective bargaining, and concluded that since
the AEPA did not provide such a model, absent s. 1 justification, it is
unconstitutional. The court appears to have understood the affirmation of the
right to collective bargaining in Health Services as an affirmation of a
particular type of collective bargaining, the Wagner model which is dominant in
Canada.
[45]
With respect, this
overstates the ambit of the s. 2(d)
right as described in Health Services. First, as discussed, the
majority in Health Services unequivocally stated that s. 2(d) does not guarantee a particular model of
collective bargaining or a particular outcome (para. 91).
[46]
Second, and more fundamentally, the logic of Dunmore and Health Services is at
odds with the view that s. 2(d)
protects a particular kind of collective bargaining. As discussed earlier,
what s. 2(d) protects is the right
to associate to achieve collective goals. Laws or government action that
make it impossible to achieve collective goals have the effect of
limiting freedom of association, by making it pointless. It is in this
derivative sense that s. 2(d) protects
a right to collective bargaining: see Ontario (Public Safety and Security)
v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 (“CLA”),
where the right to access government information was held to be “a derivative
right which may arise where it is a necessary precondition of meaningful expression
on the functioning of government” (para. 30). However, no particular type of
bargaining is protected. In every case, the question is whether the impugned
law or state action has the effect of making it impossible to act collectively
to achieve workplace goals.
[47]
It follows that Health Services does not
support the view of the Ontario Court of Appeal in this case that legislatures
are constitutionally required, in all cases
and for all industries, to enact laws that set up a
uniform model of labour relations imposing a statutory duty to bargain
in good faith, statutory recognition of the principles of exclusive majority
representation and a statutory mechanism for resolving bargaining impasses and
disputes regarding the interpretation or administration of collective
agreements (C.A. reasons, at para. 80). What
is protected is associational activity, not a particular process or result. If it is
shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d)
right is established, and the onus shifts to the state to justify the limit
under s. 1 of the Charter .
[48]
The resolution of this appeal does not rest on
stark reliance on a particular conception of collective bargaining. Rather, it
requires us to return to the principles that underlie the majority rulings in Dunmore
and Health Services. The question here, as it was in those
cases, is whether the legislative scheme (the AEPA) renders association
in pursuit of workplace goals impossible, thereby substantially impairing the
exercise of the s. 2 (d) associational right.
(e) Response to Justice Deschamps
[49]
Justice Deschamps adopts a narrow interpretation
of the majority reasons in Health Services, stating that they merely
recognized “that freedom of association includes the freedom to engage in
associational activities and the ability of employees to act in common to reach
shared goals related to workplace issues and terms of employment” (para. 308).
In her view, it was unnecessary for the majority in that case to consider the
duty to negotiate in good faith, and consequently argues that the passages of
the majority judgment that discussed this duty were in obiter.
[50]
However, such a narrow interpretation of the
majority reasons in Health Services would not support the holding in
that case. If s. 2(d) merely protected the right to act collectively
and to make collective representations, the legislation at issue in that case
would have been constitutional. The legislation in that case violated s.
2(d) since it undermined the ability of workers to engage in meaningful
collective bargaining, which the majority defined as good faith negotiations
(para. 90). The majority underlined that
the right to bargain collectively protects
not just the act of making representations, but also the right of employees to
have their views heard in the context of a meaningful process of consultation
and discussion. This rebuts arguments made by the respondent that the
Act does not interfere with collective bargaining because it does not
explicitly prohibit health care employees from making collective
representations. While the language of the Act does not technically
prohibit collective representations to an employer, the right to collective
bargaining cannot be reduced to a mere right to make representations.
[Emphasis added; para. 114.]
[51]
In our view, the majority decision in Health
Services should be interpreted as holding what it repeatedly states: that
workers have a constitutional right to make collective representations and to
have their collective representations considered in good faith.
(f) Response to Justice
Rothstein
[52]
Justice Rothstein argues
that Health Services represents a radical departure from previous jurisprudence and was wrongly decided.
[53]
The central argument of our colleague is that s. 2 (d) of
the Charter does not protect collective bargaining. He understands the
majority decision in Health Services to have constitutionalized
collective bargaining. That, he says, is wrong in principle, inconsistent with
the Court’s prior jurisprudence, and unworkable in practice.
[54]
Our colleague appears to interpret Health Services
as establishing directly or indirectly a Wagner model of labour relations. The
actual holding of Health Services, as discussed above, was more modest. Health
Services affirms a derivative right to collective bargaining, understood in
the sense of a process that allows employees
to make representations and have them considered in good faith by employers,
who in turn must engage in a process of meaningful discussion. The logic that
compels this conclusion, following settled Charter jurisprudence, is that
the effect of denying these rights is to render the associational process
effectively useless and hence to substantially impair the exercise of the
associational rights guaranteed by s. 2 (d).
No particular bargaining model is required.
[55]
Rothstein J. calls for
Health Services to be overturned. But his views also imply overturning Dunmore,
on which Health Services rests. Rothstein J. states that “the
essence of freedom of association is that it enables individuals to do in
association what they could do as individuals” (para. 197). This echoes the
model of s. 2 (d) adopted by the plurality in PIPSC, and
rejected by Bastarache J. in Dunmore. For the
reasons that follow, we remain of the view that Dunmore and Health
Services represent good law and should not be overruled.
(i) The Caution Required in Overturning
Precedent
[56]
Our colleague correctly recognizes at the outset of his
reasons that overturning a precedent of this Court is a step not to be lightly
undertaken. We would note that as we understand the law (see above), rejection
of Health Services implies rejection of Dunmore as well, since
the two cases rest on the same fundamental logic.
[57]
The seriousness of
overturning two recent precedents of this Court, representing the considered
views of firm majorities, cannot be overstated. This is particularly so given
their recent vintage. Health Services was issued only four years ago,
and, when this appeal was argued, only two years had passed.
[58]
Rothstein J. suggests that since Health Services deals with
constitutional law, the Court should be more willing to overturn it (paras.
141-43). In our respectful view, this argument is not persuasive. The
constitutional nature of a decision is not a primary consideration when
deciding whether or not to overrule, but at best a final consideration in
difficult cases. Indeed, the fact that Health Services relates to a
constitutional Charter right may militate in favour of upholding this
past decision. As Binnie J. stated on behalf of a unanimous Court in R. v. Henry,
2005 SCC 76, [2005] 3 S.C.R. 609, “[t]he Court should be particularly careful
before reversing a precedent where the effect is to diminish Charter
protection” (para. 44). Justice Rothstein’s proposed interpretation of s. 2 (d)
of the Charter would diminish the scope of the s. 2 (d) right.
[59]
We note as well that, while the Court in this case was asked to
clarify the ambit of Health Services, it was not asked to overrule it.
British Columbia, the respondent in Health Services, stated explicitly
that it was “not here contesting this Court’s conclusion that s. 2 (d) protects
a process of collective bargaining” (Factum of the
Attorney General of British Columbia, at para. 18). Absent notice to
the profession and interested persons, overruling Health Services seems
to us procedurally inappropriate.
[60]
In our view, the arguments advanced by our colleague against Health Services do
not meet the high threshold for reversing a precedent of this Court.
(ii) The Arguments on
Jurisprudence
[61]
Justice Rothstein argues that Health Services
represents a marked departure from prior jurisprudence. We do not agree.
[62]
We have already discussed this jurisprudence in
detail and need not repeat the discussion here. In brief, the early cases did
not consider the issue. Nothing said in them, however, negates the current
state of the law, except for the fourth proposition in PIPSC, which was
corrected in Dunmore to recognize that s. 2 (d) extends to collective, as distinct from individual goals. Dunmore,
as discussed above, established the proposition that legislative regimes that
make meaningful pursuit of workplace goals impossible significantly impair the
exercise of the s. 2 (d) right to free
association and constitute a limit on the right
which is unconstitutional unless justified by the state under s. 1 . Health Services, far from being an
“express break” with prior jurisprudence, is grounded in the principles earlier
enunciated in Dunmore.
(iii) Purpose of Section 2 (d):
Individual Versus Collective Rights
[63]
Our colleague argues that the recognition of a
constitutional right to collective bargaining in Health Services is not
supported by the purpose of s. 2 (d),
because it improperly assigns a collective dimension to individual rights. The
collective dimension of individual rights was recognized by Dickson C.J.,
dissenting in Alberta Reference, stating that s. 2 (d)
protects group activity for which activity there is “no analogy involving
individuals” such as the right to bargain collectively (pp. 367-70). The Court in Dunmore modified the fourth
proposition in the earlier case of PIPSC. As Bastarache J. there
stated, “certain collective activities must be recognized if the freedom to
form and maintain an association is to have any meaning”.
[64]
Consistent with this framework, the
majority decision in Health Services framed s. 2 (d) as an individual
right (“the right of employees”, para. 87
(emphasis added)) that may require the protection of group activity (see
also paras. 19 and 89). The fundamental
inquiry is whether the state action would substantially
impair the ability of “union
members to pursue shared goals in concert” (para. 96 (emphasis added)). As
in Dunmore, the majority concluded that the realization of the
individual right required a capacity to act in common, which may give rise to a
need to protect group activities and, as a consequence, to recognize group
rights.
[65]
In summary, Health Services was
consistent with the previous cases on the issue of individual and collective
rights. It recognized, as did previous jurisprudence, that s. 2 (d) is
an individual right. But it also recognized, as did previous cases, that to
meaningfully uphold this individual right, s. 2 (d) may properly require legislative protection of group or
collective activities.
[66]
Rothstein J. also emphasizes that “[i]ndividuals who are not members of
an association . . . have no constitutional right to oblige their employers to
bargain” (paras. 179 and 187). In our view, this outcome is not anomalous. It follows logically from the fact that collective bargaining is a
derivative right, a “necessary precondition” to the
meaningful exercise of the constitutional guarantee of freedom of association:
see CLA, at para. 30. Where there is no reliance on freedom of
association, there is no derivative right to require employers to bargain.
(iv) The
Argument That Section 2(d) Is a Freedom, Not a Right
[67]
Our colleague argues that by requiring a process that allows for
meaningful dialogue on workplace matters, Health Services
wrongly converts a negative freedom into a positive right. This bright line
between freedoms and rights seems to us impossible to maintain. Just as
freedom of expression implies correlative rights, so may freedom of
association. The freedom to do a thing, when guaranteed by the Constitution
interpreted purposively, implies a right to do it. The Charter cannot be
subdivided into two kinds of guarantees — freedoms and rights.
[68]
The majority in
both Dunmore
and Health Services held that freedom to associate may require
the state to take positive steps. Bastarache J. in Dunmore underlined
that “it may be asked whether the distinction between positive and negative
state obligations ought to be nuanced in the context of labour relations”
(para. 20). He further noted that
history has shown, and Canada’s legislatures have
uniformly recognized, that a posture of government restraint in the area of
labour relations will expose most workers not only to a range of unfair labour
practices, but potentially to legal liability under common law inhibitions on
combinations and restraints of trade. . . . In this context, it must be asked
whether, in order to make the freedom to organize meaningful, s. 2 (d) of
the Charter imposes a positive obligation on the state to extend
protective legislation to unprotected groups. [para. 20]
[69]
This Court has consistently rejected a rigid distinction between
“positive” freedoms and “negative” rights in the Charter . For example,
it recently held that s. 2 (b) may require the government to
disclose documents to the public in order to enable meaningful discourse: CLA,
at para. 37. As stated by L’Heureux-Dubé J. in Haig v. Canada, [1993] 2
S.C.R. 995:
The distinctions between “freedoms” and “rights”, and
between positive and negative entitlements, are not always clearly made, nor
are they always helpful. One must not depart from the context of the purposive
approach articulated by this Court in R. v. Big M Drug Mart Ltd., [1985]
1 S.C.R. 295. Under this approach, a situation might arise in which, in order
to make a fundamental freedom meaningful, a posture of restraint would not be
enough, and positive governmental action might be required. This might, for
example, take the form of legislative intervention aimed at preventing certain
conditions which muzzle expression, or ensuring public access to certain kinds
of information. [p. 1039]
[70]
A purposive protection of freedom of association may require the
state to act positively to protect the ability of individuals to engage in
fundamentally important collective activities, just as a purposive
interpretation of freedom of expression may require the state to disclose
documents to permit meaningful discussion.
[71]
With respect, we also do not agree that the structure of the Charter reflects
a rigid distinction between freedoms and rights. Rothstein J.’s reasons state
that “[w]hen the Charter uses the term ‘right’, as it does in ss. 7 to
12 , either a positive entitlement is introduced, or a right to be free of some
restriction or prohibition (i.e. a freedom) is introduced” (para. 192).
[72]
In fact, many of the rights in ss. 7 to 12 do not entitle
individuals to any form of state action. Rather these provisions
guarantee a mixture of negative and positive rights.
For instance, s. 9 protects “the right not to be arbitrarily detained or
imprisoned” and s. 12 protects “the right not to be subjected to any cruel and
unusual treatment or punishment”. But s. 10 also
protects a right to counsel and imposes a corresponding duty on police officers
to facilitate the exercise of this right. See
also Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC
9, [2007] 1 S.C.R. 350,
at para. 107, referring to “the s. 12 guarantee of freedom from cruel and unusual treatment”
(emphasis added).
[73]
It may also be observed that Health Services does not
impose constitutional duties on private employers,
but on governments as employers and parliaments and legislatures as law makers,
in accordance with s. 32 of the Charter . Rather, the majority
held that individuals have a right against the state to a process of collective
bargaining in good faith, and that this right requires the state to impose
statutory obligations on employers. As held by Cory and
Iacobucci JJ. in Vriend v. Alberta, [1998] 1 S.C.R. 493, one must
“distinguish between ‘private activity’ and ‘laws that regulate private
activity’. The former is not subject to the Charter , while the latter
obviously is” (para. 66). If workers are incapable of exercising their right
to collective bargaining, they may only bring a Charter claim against
the government and not their employer, and they must show a state action.
(v)
The Argument That Health Services Privileges Particular Associations
[74]
Our colleague argues that the effect of Health Services is
to privilege some associations over others, by interpreting s. 2 (d) in a
way that is not content-neutral. Broadly put, the argument appears to be that,
by considering the goals of a particular association, one moves beyond pure
associational activity into a court-based selection of what goals are
acceptable and what goals are not.
[75]
Yet consideration of goals cannot be avoided. One of the basic
principles of Charter interpretation is that rights must be interpreted
in a purposive way — having regard for the purposes, or goals, they serve.
Thus, in the Alberta Reference, McIntyre J. described the core of
s. 2 (d) protection as being association “both to satisfy [a] desire for
social intercourse and to realize common purposes” (p. 395 (emphasis
added)). Dunmore resolved the issue, not by saying that the s. 2 (d)
right must be content-neutral, but by asserting that it must be interpreted in
conjunction with Canada’s values and international human rights and labour law
commitments. In our view, this is the preferable approach. A content-neutral
right is too often a meaningless right.
(vi) The Argument That Health Services Gives
Contracts Priority Over Statutes
[76]
Our colleague argues that Health Services gives
constitutional status to contracts, privileging them over statutes. The
argument is based on the view that Health Services holds that breach of
collective agreements violates s. 2 (d). In fact, as discussed above,
this was not the finding in Health Services. The majority in Health
Services held that the unilateral nullification of significant contractual
terms, by the government that had entered into them
or that had overseen their conclusion, coupled with effective denial of
future collective bargaining, undermines the s. 2 (d) right to associate,
not that labour contracts could never be interfered with by legislation.
(vii) The
Argument That Health Services Removes Judicial Deference to the
Legislation
[77]
Our colleague argues that Health Services undercuts
the judicial deference courts have paid in the past to the legislature in
labour relations. We observe at the outset that this argument rests on the
premise — repeatedly rejected in Health Services — that the Court was
constitutionally enshrining the Wagner model of labour relations. In fact this
is not what Health Services held.
[78]
As stated in Health Services, “[i]t may well be appropriate for
judges to defer to legislatures on policy matters expressed in particular laws”
(para. 26). What Health Services rejected was a judicial “no go” zone for an entire
right on the ground that it may involve the courts in policy matters: creating
such a Charter -free zone would “push deference too far” (ibid.).
This Court reached a similar conclusion in U.F.C.W., Local 1518 v. KMart
Canada Ltd., [1999] 2 S.C.R. 1083, at paras. 62-63.
[79]
The approach to deference advanced in Health Services is
consistent with this Court’s general jurisprudence. Deference should inform
the determination of whether Parliament’s scheme satisfies the requirements of
the Charter , as articulated by the courts. See P. Macklem,
“Developments in Employment Law: The 1990-91 Term” (1992), 3 S.C.L.R. (2d)
227, at pp. 239-41. Conversely, the courts should not rely on deference to
narrow the meaning of Charter rights in the first place. Doing so would
abdicate the courts’ duty as the “final arbiters of constitutionality in
Canada” (Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC
54, [2003] 2 S.C.R. 504, at para. 31).
[80]
In R. v. Advance Cutting & Coring Ltd., 2001
SCC 70, [2001] 3 S.C.R. 209, the reasons of both LeBel
J. and Bastarache J. (dissenting)
rejected the view that deference to Parliament on labour relations created a Charter -free
zone of legislative action, although there was disagreement on the scope of s.
2 (d) and the application of the Charter . The reasons of LeBel
J., written on behalf of a minority of the Court in finding no violation of s.
2 (d), acknowledged the existence of a jurisprudential policy of
non-intervention in labour relations. However, LeBel J. also stated that “the
jurisprudence of this Court has never held that labour laws are immune to Charter
review” (para. 162).
[81]
Rothstein J. argues that courts should consider deference to
Parliament in determining the scope of s. 2 (d). This approach is inconsistent with this Court’s decision in Dunmore.
While Rothstein J. adopts the approach of McIntyre
J. in the Alberta Reference, this Court has since distanced itself from
this view. In Dunmore, Bastarache J. referred to McIntyre J.’s
discussion of deference under s. 1 , rather than in outlining the scope of s. 2 (d):
para. 57; see also Delisle, per Cory and Iacobucci JJ.,
dissenting; KMart Canada Ltd., at paras. 62-63, in which Cory J.
referred to this passage from McIntyre J.’s reasons under s. 1 in a freedom of
expression case. Deference to legislatures properly plays a part, not in
defining the nature and scope of a constitutional right, but within the margin
of appreciation that the Oakes analytical process acknowledges,
particularly at the minimal impairment stage.
(viii) The Argument of Unworkability
[82]
Rothstein J. argues that Health Services
is unworkable and therefore must be overturned (para. 256).
[83]
The short answer to this
argument is that unworkability has not been established. Winkler C.J.O. speculates that more will be required to
make Health Services work, and academics have weighed in with great
passion, some in favour of the decision, some against it. But
there is no concrete evidence that the principles enunciated in Dunmore
and Health Services are unworkable or have led to intolerable results.
It is premature to argue that the holding in Health Services,
rendered four years ago, is unworkable in
practice. In Henry, in holding this Court’s decision in R. v. Mannion,
[1986] 2 S.C.R. 272, to be unworkable 19 years after it was delivered,
Binnie J. noted that the unworkability of that decision “only emerged over time
as the courts have struggled to work with the distinction between impeachment
of credibility and incrimination” (para. 45).
[84]
Rothstein J. argues that the distinction drawn
in Health Services between substantive and procedural rights is
unworkable. Again, we must disagree. In our
colleague’s view, the procedural right to collective activity under s. 2 (d)
would impinge on the substantive right to a concluded collective agreement
rejected in Health Services. However, substantive impact does not
invalidate a procedural right. All procedures affect outcomes, but that does
not mean that all procedural rights are unworkable. The
Charter may protect collective bargaining and not the fruits of that
process.
[85]
Rothstein J. also suggests that more is required
to transform the principles in Health Services into a full-blown labour
relations scheme. This, however, does not establish unworkability. It is not
the role of this Court to specify in advance precisely which model of labour
relations the legislature should adopt. Instead, its role is to outline the
boundaries within which the legislature must operate, and to assess if the
scheme developed by legislators satisfies this test.
(ix) The Argument on Academic Criticism
[86]
Justice Rothstein argues that academic criticism
supports the view that Health Services should be overturned. While he
agrees that criticism of a judgment is not sufficient to justify overruling it,
he asserts that it is reason for the Court to “take notice”.
[87]
The first point to note
is that the decisions that Rothstein J. relies on, the Trilogy
and PIPSC, were themselves the subject of intense academic
criticism (see, e.g., Macklem, at p. 240: “the combined effect of the
Labour Trilogy and P.I.P.S. is a national embarrassment”; see also D.
Beatty and S. Kennett, “Striking Back: Fighting Words, Social Protest and
Political Participation in Free and Democratic Societies” (1988), 67 Can.
Bar Rev. 573; A. C. Hutchinson and A. Petter, “Private Rights/Public
Wrongs: The Liberal Lie of the Charter ” (1988), 38 U.T.L.J. 278; R.
Elliot, “Developments in Constitutional Law: The 1989-90 Term” (1991), 2 S.C.L.R.
(2d) 83). The real question is whether the academic criticism raises concerns not identified in Health Services that would justify
overruling it.
[88]
Moreover, as our
colleague acknowledges, there was a range of opinions expressed about the decision in Health Services. As is
often the case, some commentators agree, while
others disagree in whole or in part. A number of comments
approved of the shift away from the Trilogy in favour of a broader and
more contextual understanding of freedom of association: see, e.g., C.
Brunelle, “La liberté d’association se porte mieux: un commentaire de l’arrêt Health
Services”, in Conférence des juristes de l’État 2009: XVIIIe
Conférence (2009), 237; P. Verge, “L’affirmation constitutionnelle de la
liberté d’association: une nouvelle vie pour l’autonomie collective?” (2010),
51 C. de D. 353. Indeed, some commentators fault this Court’s decision
for not going far enough in protecting collective bargaining and related
issues: see, e.g., P. Verge, “La Cour suprême, le ‘droit’ à la négociation
collective et le ‘droit’ de grève” (2006), 66 R. du B. 391; P. Verge,
“Inclusion du droit de grève dans la liberté générale et constitutionnelle
d’association: justification et effets” (2009), 50 C. de D. 267; J.
Cameron, “The Labour Trilogy’s Last Rites: B.C. Health and a
Constitutional Right to Strike” (2009-2010), 15 C.L.E.L.J. 297;
J. Cameron, “Due Process, Collective Bargaining, and s. 2 (d) of the Charter :
A Comment on B.C. Health Services” (2006-2007), 13 C.L.E.L.J. 233.
(x) The Argument on Canadian Labour History
[89]
Rothstein J. takes issue with the discussion of
Canadian labour history in Health Services, pointing out that hostility
to collective bargaining is part of Canadian labour law history. We agree with
this obvious fact, which was largely true until the
Second World War, which is indeed referred to in the majority reasons in
Health Services.
[90]
The relevant question
from the perspective of interpreting s. 2 (d) of the Charter is
not whether courts in the past have undermined collective
bargaining, but rather whether Canadian society’s understanding of
freedom of association, viewed broadly, includes the right to collective
bargaining in the minimal sense of good faith exchanges affirmed in Health
Services. Whether that right has been consistently guaranteed by the legal
system does not resolve the issue before us, the content of the s. 2 (d)
guarantee. Charter guarantees must be given a generous and purposive
interpretation. While the practice of courts pre-Charter may assist in
interpreting Charter guarantees, it does not freeze them forever in a
pre-Charter vice.
(xi) The Argument on International Law
[91]
Rothstein J. takes issue with the majority’s
conclusion in Health Services that international law supports a finding
that s. 2 (d) includes a right to collective bargaining.
[92]
The majority in Health
Services discussed both “Canada’s current international law
commitments and the current state of international thought on human rights”
(para. 78 (underlining added)). Charter rights must be
interpreted in light of Canadian values and Canada’s international and human
rights commitments. In Dunmore, Bastarache J. emphasized the relevance
of these in interpreting s. 2 (d) in the context.
[93]
The fundamental question
from the perspective of s. 2 (d) is whether Canada’s international
obligations support the view that collective bargaining is constitutionally protected in the minimal sense discussed in Health
Services. The majority in Health Services relied on three documents
that Canada has endorsed: the International Covenant on Economic, Social and
Cultural Rights, 993 U.N.T.S. 3, the International Covenant on Civil and
Political Rights, 999 U.N.T.S. 171, and the International Labour
Organization’s (“ILO’s”) Convention (No. 87) concerning freedom of
association and protection of the right to organise, 68 U.N.T.S. 17
(“Convention No. 87”).
[94]
The decision rendered by the ILO Committee on
Freedom of Association (“CFA”), in the
conflict between the employees of the B.C. health services and the government
of British Columbia, concerned the very
conflict that formed the factual background of the decision in Health
Services. After applying Convention No. 87 and
noting that Canada had not ratified Convention (No. 98) concerning the
application of the principles of the right to organise and to bargain
collectively, 96 U.N.T.S. 257 (“Convention No. 98”), the CFA concluded that
the action of the government of British Columbia violated the employees’ right
to freedom of association. It stated that the unilateral cancellation of
collective agreements “may have a detrimental effect on workers’ interests in
unionization, since members and potential members could consider it useless to
join an organization the main objective of which is to represent its members in
collective bargaining, if the results of bargaining are constantly cancelled by
law” (Report No. 330 (2003), vol. LXXXVI, Series B, No. 1, at para. 304).
[95]
Rothstein J. argues that Convention No. 98
(which is not binding on Canada) does not support “a version of collective
bargaining that includes a duty to bargain in good faith” (para. 249). While
voluntariness is a component of the international model of collective
bargaining — as noted by the majority in Health Services (para. 77,
citing B. Gernigon, A. Odero and H. Guido, “ILO principles concerning
collective bargaining” (2000), 139 Intern’l Lab. Rev. 33, at pp. 51-52)
— the ILO Committee of Experts has not found compulsory collective bargaining
to be contrary to international norms. The
1994 Report of the Committee of Experts discussed the domestic schemes that
compelled employers to bargain with unions, listing Canada, and approvingly
stated that such schemes illustrated “the principle that employers and trade
unions should negotiate in good faith and endeavour to reach an agreement” (Committee
of Experts on the Application of Conventions and Recommendations, Freedom of
Association and Collective Bargaining (1994), at para. 243). This is
precisely the general principle that Health Services endorses.
(xii) The Argument on Charter Values
[96]
Rothstein J. argues that the majority in Health
Services erred in relying on the underlying
values of the Charter when interpreting the scope of s. 2 (d)
rather than on the text of the Charter itself (paras. 252-54). We can only respond that a value‑oriented
approach to the broadly worded guarantees of the Charter has been
repeatedly endorsed by Charter jurisprudence over the last quarter
century.
(xiii) Conclusion
[97]
Notwithstanding the comprehensive reasons of our
colleague, we conclude that Health Services is grounded in precedent,
consistent with Canadian values, consistent with Canada’s international
commitments and consistent with this Court’s purposive and generous
interpretation of other Charter guarantees. In our view, it should not
be overturned.
(2) Application: Have the Respondents
Established a Breach of Section 2 (d)?
[98]
The essential question is whether the AEPA makes
meaningful association to achieve workplace goals effectively impossible, as
was the case in Dunmore. If the AEPA process, viewed in
terms of its effect, makes good faith resolution of workplace issues between
employees and their employer effectively impossible, then the exercise of the
right to meaningful association guaranteed by s. 2 (d)
of the Charter will have been limited, and the law found to be
unconstitutional in the absence of justification under s. 1 of the Charter .
The onus is on the farm workers to establish that the AEPA
interferes with their s. 2 (d) right to associate in this way.
[99]
As discussed above, the
right of an employees’ association to make representations to the employer and
have its views considered in good faith is a derivative right under s. 2 (d)
of the Charter , necessary to meaningful exercise of the right to free
association. The question is whether the AEPA provides a process that
satisfies this constitutional requirement.
[100]
Under the AEPA,
the right of employees’ associations to make representations to their employers
is set out in s. 5. The relevant sections are ss. 5(1), (5), (6) and (7):
5. (1) The employer shall
give an employees’ association a reasonable opportunity to make representations
respecting the terms and conditions of employment of one or more of its members
who are employed by that employer.
. . .
(5) The employees’ association may make the
representations orally or in writing.
(6) The employer shall listen to the representations if
made orally, or read them if made in writing.
(7) If
the representations are made in writing, the employer shall give the
association a written acknowledgment that the employer has read them.
[101]
Sections 5(6) and (7) are critical. They
provide that the employer shall listen to oral representations, and read
written representations, and acknowledge having read them. They do not
expressly refer to a requirement that the employer consider employee
representations in good faith. Nor do they rule it out. By implication, they include such a requirement.
[102]
Three considerations lead us to conclude that any ambiguity in ss. 5(6) and (7) should be resolved
by interpreting them as imposing a duty on agricultural employers to consider
employee representations in good faith.
[103]
The first consideration is the principle that a
statute should be interpreted in a way that gives meaning and purpose to its
provisions. This requires us to ask what the purpose of the requirements in
ss. 5(6) and (7) is. There can only be one purpose for requiring the employer
to listen to or read employee representations —
to assure that the employer will in fact consider the
employee representations. No labour relations
purpose is served merely by pro forma listening or reading. To fulfill the purpose of
reading or listening, the employer must consider the submission. Moreover, the
employer must do so in good faith: consideration with a closed mind would
render listening or reading the submission pointless.
[104]
The second consideration
is that Parliament and legislatures are presumed to
intend to comply with the Charter : Slaight Communications Inc.
v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078, per Lamer J. (as he
then was), dissenting in part; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R.
45, at para. 33. At the time the AEPA was adopted Dunmore had
pronounced that the Charter requires meaningful exercise of the right to
associate in pursuit of workplace goals. Since Health Services, it has been clear that this requires employers to
consider employee representations in good faith. Any ambiguity in the AEPA
should be resolved accordingly.
[105]
The third consideration is the expressed
intention of the Minister in debates on the legislation. When introducing the
legislation, she stated:
The
government is advised that the Supreme Court of Canada decision regarding
Dunmore versus Ontario obligates the government to extend legislative
protections to agricultural workers. It obligates us to do this to ensure that
employees have the right to form and join associations, as well as have the
protection necessary to ensure that the freedom of association is meaningful.
The government of Ontario will meet these obligations.
(Legislative
Assembly of Ontario, Official Report of Debates
(Hansard), No. 46A, 3rd
Sess., 37th Parl., October 22, 2002, at p. 2340 (emphasis added))
[106]
The government must, on the
words of its Minister, have intended the legislation to achieve whatever is
required to ensure meaningful exercise of freedom of association. As discussed above, meaningful exercise of the
right to free association in the workplace context requires good faith
consideration of employee representations. As pointed out by the respondents,
the Minister also stated that the AEPA was not intended to “extend
collective bargaining to agricultural workers”. However, this may be understood
as an affirmation that the AEPA did not institute the dominant Wagner
model of collective bargaining, or bring agricultural workers within the ambit
of the LRA,
not that the Minister intended to deprive farm workers of the protections of
collective bargaining that s. 2 (d) grants.
[107]
These considerations
lead us to conclude that s. 5 of the AEPA, correctly interpreted,
protects not only the right of employees to make submissions to employers on
workplace matters, but also the right to have those submissions considered in
good faith by the employer. It follows that s. 5 of the AEPA does not
violate s. 2 (d) of the Charter .
[108]
It is argued that the
record thus far under the AEPA gives little reason to think that the AEPA
process will in fact lead to good faith consideration by employers. The
evidence shows that the respondents attempted to engage employers in collective
bargaining activities on a few occasions. On each occasion the employer
ignored or rebuffed further engagement. The employers have refused to
recognize their association and have either refused to meet and bargain with it
or have not responded to the demands of the respondents.
[109]
This history, scant as it is, does not establish that the AEPA
violates s. 2 (d). Indeed, the union has
not made a significant attempt to make it work. As just discussed,
properly interpreted, it does not violate s. 2 (d).
Moreover, the process has not been fully explored and tested. The AEPA,
as Farley J. noted, contemplates a meaningful exercise of the right of
association, and provides a tribunal for the resolution of disputes.
[110]
Farley J. expressed cautious hope that the Tribunal created by
the Act would prove efficacious and that the relief claimed might be granted:
One would think it better to see how the
Tribunal operates in fact before condemning it as powerless to deal with such
abuses. . . . I am of the view that this condemnation is premature. A
successful application would do one of several things: be effective positively
as to action; or morally give the wrongdoing employer a “bloody nose”; or if
truly an empty process, it would demonstrate the need for strengthening by
legislative amendment. [para. 18]
[111]
Farley J. accordingly
found that the complaint was premature:
. . . it would
seem to me to be a premature and unfair complaint that the Tribunal charged
under the AEPA with dealing with complaints — namely the Agriculture,
Food and Rural Affairs Appeal Tribunal — is bereft of expertise in labour
relations given its bipartite composition of labour and agricultural
experienced personnel. That Tribunal should be given a fair opportunity to
demonstrate its ability to appropriately handle the function given to it by the
AEPA. [para. 28]
[112]
Section 11 of the AEPA specifically
empowers the Tribunal to make a determination that there has been a
contravention of the Act, and to grant an order or remedy with respect to that
contravention. The Tribunal may be expected to interpret its powers, in accordance with its mandate, purposively, in an
effective and meaningful way. Labour
tribunals enjoy substantial latitude when applying their constituent statutes
to the facts of a given case. As stated by the Ontario Labour Relations Board
in Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of
America (1982), 1 C.L.R.B.R. (N.S.) 384:
The Act does not spell out each and every
right and obligation of labour and management. This Board is left with the task
of applying the Act’s general language in the light of an infinite variety of
circumstances which may arise. A rigid scheme of regulation is avoided and
flexibility is provided although all within the limitations necessary to
effectuate the dominant purpose of the Act. [pp. 399-400]
[113]
We conclude the AEPA
does not breach s. 2 (d) of the Charter . It is therefore
unnecessary to consider the s. 1 arguments that the respondents’
demands for full LRA protections would be inappropriate because of the
diverse nature of the agricultural sector, ranging from small family operations
to larger commercial establishments.
C. Section 15 of the Charter
[114]
As an alternative to
their claim under s. 2 (d), the respondents contend that Ontario has
violated their equality rights under s. 15 of the Charter by excluding
them from the statutory protections accorded to workers in other sectors. They
argue that status as an agricultural worker is analogous to the enumerated
grounds of discrimination in s. 15(1) because their occupation is a fundamental
aspect of their identity.
[115]
Farley J., writing in
2006, found that the situation of farm workers had not changed appreciably
since Dunmore, in 2001, where this
Court wrote with sympathy of the vulnerable position of these workers and the
need for greater labour protections. The Ontario legislature attempted to
respond to the concerns expressed in Dunmore by enacting the AEPA.
[116]
The s. 15 discrimination
claim, like the s. 2 (d) claim, cannot succeed on the record before us.
It is clear that the regime established by the AEPA does not provide all
the protections that the LRA extends to many other workers. However, a
formal legislative distinction does not establish discrimination under s. 15 .
What s. 15 contemplates is substantive discrimination that impacts on
individuals stereotypically or in ways that reinforce existing prejudice and
disadvantage: Andrews v. Law Society of British Columbia, [1989] 1
S.C.R. 143; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, at para. 17.
The AEPA provides a special labour regime for agricultural workers.
However, on the record before us, it has not been established that the regime
utilizes unfair stereotypes or perpetuates existing prejudice and
disadvantage. Until the regime established by the AEPA is tested, it
cannot be known whether it inappropriately disadvantages farm workers. The
claim is premature.
V. Conclusion
[117]
The decision that we
render today is another step in the resolution of the issues surrounding the
organizational challenges faced by farm workers in Ontario. We hope that all
concerned proceed on the basis that s. 2 (d) of the Charter confirms
a right to collective bargaining, defined as “a process of collective action to
achieve workplace goals”, requiring engagement by both parties. Like all Charter
rights, this right must be interpreted generously and purposively. The
bottom line may be simply stated: Farm workers in Ontario are entitled to
meaningful processes by which they can pursue workplace goals.
[118]
We would allow the
appeal and dismiss the action. We would answer the constitutional questions as follows:
1. Does
the Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16,
infringe s. 2 (d) of the Canadian Charter of Rights and Freedoms ?
No.
2. If
so, is the infringement a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary to answer this question.
3. Does
s. 3(b.1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A,
infringe s. 2 (d) of the Canadian Charter of Rights and Freedoms ?
No.
4. If
so, is the infringement a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary
to answer this question.
5. Does
the Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16,
infringe s. 15 of the Canadian Charter of Rights and Freedoms ?
No.
6. If
so, is the infringement a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary
to answer this question.
7. Does
s. 3(b.1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A,
infringe s. 15 of the Canadian Charter of Rights and Freedoms ?
No.
8. If
so, is the infringement a reasonable limit prescribed by law as can be
demonstrably justified in a free and democratic society under s. 1 of the Canadian
Charter of Rights and Freedoms ?
It is not necessary
to answer this question.
In the circumstances, we order no costs on this appeal or in the courts below.
The reasons of
Charron and Rothstein JJ. were delivered by
Rothstein
J. —
I. Introduction
[119]
I have had the opportunity to read the reasons
of the Chief Justice and LeBel J. in this appeal. I agree with them that the
appeal should be allowed and the action dismissed. However, I disagree with
their interpretation of s. 2 (d) of the Canadian Charter of Rights and
Freedoms with respect to collective bargaining.
[120]
The Chief Justice and
LeBel J. have accurately set out the background, the constitutional challenge
and the judicial history in this case. While I agree with what they have
written in these respects, I respectfully disagree with the reasons for their
decision.
[121]
The reasons of the
Chief Justice and LeBel J. are based upon the majority decision in Health
Services and Support — Facilities Subsector Bargaining Assn. v. British
Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391 (“Health Services”). The
majority in Health Services found that s. 2 (d) of the Charter
confers constitutional status on collective bargaining. It concluded that
collective bargaining as protected by s. 2 (d) “requires both employer
and employees to meet and to bargain in good faith, in the pursuit of a common
goal of peaceful and productive accommodation” (para. 90). It further found
that the requirement to bargain in good faith imposes a duty on employers to
meet with employees and make a “reasonable effort to arrive at an acceptable
contract” (para. 101).
[122]
Following the reasons in Health Services, the
Chief Justice and LeBel J. in this case say that s. 2 (d) protects a right to collective bargaining, which includes
“a process of engagement that permits employee associations to make
representations to employers, which employers must consider and discuss in good
faith” (para. 2). According to them, there is
no doubt that because of s. 2 (d) employers “must engage in a process of
meaningful discussion” because “the effect of denying these rights is to render
the associational process effectively useless” (para. 54).
[123]
The term collective
bargaining may have different meanings in other contexts, which I discuss in
further detail below. For the sake of clarity, throughout these reasons, I
will use the term to refer to the entitlements and obligations that the Chief
Justice and LeBel J. view as being encompassed by s. 2 (d), as quoted in
paras. 121 and 122 above.
[124]
I respectfully
disagree with the Chief Justice and LeBel J. that collective bargaining enjoys
constitutional status under the s. 2 (d) freedom of association. I do not
agree that s. 2 (d) requires the state to
impose a complex set of statutorily defined reciprocal rights and duties
on employers and workers associations,
including a duty to bargain in good faith.
[125]
In my view, s. 2(d)
protects the liberty of individuals to associate and engage in associational
activities. Therefore, s. 2(d) protects the freedom of workers to form
self-directed employee associations in an attempt to improve wages and working
conditions. What s. 2(d) does not do, however, is impose duties on
others, such as the duty to bargain in good faith on employers.
[126]
A constitutionally imposed duty to bargain in good faith strengthens the position of
organized labour vis-à-vis employers. I express no opinion on the
desirability of such an outcome for agricultural employees in Ontario. My
point is only that courts are ill-suited to determine what is a matter of
labour relations policy. Such policy decisions require a balancing of differing
interests rather than an application of legal principles. Courts do not have
the necessary expertise, or institutional capacity, to undertake a process
which should involve consulting with and receiving representations from the
various interested stakeholders and coming to an informed decision after
balancing the necessary policy considerations. The decision to impose a duty
of collective bargaining should be made by the legislature, and not by the court.
[127]
Since the majority reasons are an application of the findings in Health
Services to the circumstances of this appeal, the initial question that is
raised is whether Health Services was correctly decided. As I have
already suggested, and as I will explain below, I would find that Health
Services was not correctly decided, to the extent that it
constitutionalizes collective bargaining.
[128]
In my opinion,
overruling Health Services would dispose of the constitutional challenge in this
case. The respondents’ (Fraser’s) argument that the Agricultural Employees
Protection Act, 2002, S.O. 2002, c. 16 (“AEPA”), violates the Charter
because it does not protect a right to collective bargaining would have no
basis. I therefore turn first to the question of whether it would be
appropriate that Health Services be overruled.
II. When Should Precedent Be
Overturned?
[129]
The authorities are
abundant that this Court may overrule its own decisions, and indeed it has done
so on numerous occasions: see R. v. Bernard, [1988] 2 S.C.R. 833, at p. 849, per
Dickson C.J. in dissent; R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1353,
per Lamer C.J. for the majority; R. v. B. (K.G.), [1993] 1 S.C.R.
740; R. v. Robinson, [1996] 1 S.C.R. 683.
[130]
However, in order to
overrule its own precedent, the Court must be satisfied, based upon substantial
reasons, that the precedent was wrongly decided. It is not appropriate simply
because of a change in the composition of the Court that precedent should be
overturned, because of the views of newly appointed judges. There must be
compelling reasons to justify overruling: R. v. Salituro, [1991] 3
S.C.R. 654, at p. 665; Hamstra (Guardian ad litem of) v. British Columbia
Rugby Union, [1997] 1 S.C.R. 1092, at paras. 18-19; R. v. Henry,
2005 SCC 76, [2005] 3 S.C.R. 609, at para. 44.
[131]
This Court’s most
recent pronouncement on the question of overruling was in Henry.
Writing for the Court, Justice Binnie first noted at para. 44 that the Court’s
practice is against departing from precedent unless there are compelling
reasons to do so. However, he also recognized that “while rare, departures
[from precedent] do occur”. He further noted that constitutional decisions,
including Charter decisions, are not immutable and may be overruled,
though he held that “[t]he Court should be particularly careful before
reversing a precedent where the effect is to diminish Charter
protection.”
[132]
The values of certainty
and consistency, which are served by adherence to precedent, are important to
the orderly administration of justice in a system based upon the rule of law.
Therefore, judges must proceed with caution when deciding to overrule a prior
decision. The caution and care with which a judge must approach the question
of overruling was articulated well by Gibbs J. of the High Court of Australia
in Queensland v. Commonwealth (1977), 139 C.L.R. 585, at p. 599:
No Justice is entitled to ignore the
decisions and reasoning of his predecessors, and to arrive at his own judgment
as though the pages of the law reports were blank, or as though the authority
of a decision did not survive beyond the rising of the Court. A Justice,
unlike a legislator, cannot introduce a programme of reform which sets at
nought decisions formerly made and principles formerly established. It is only
after the most careful and respectful consideration of the earlier decision,
and after giving due weight to all the circumstances, that a Justice may give
effect to his own opinions in preference to an earlier decision of the Court.
[133]
What the courts are doing when deciding whether
to overrule a precedent is a balancing exercise
between two important values: correctness and certainty. A court must ask
whether it is preferable to adhere to an incorrect precedent to maintain certainty or to correct the error.
Indeed, because judicial discretion is being exercised, the courts have set
down, and academics have suggested, a plethora of criteria for courts to
consider in deciding between upholding precedent and correcting error.
[134]
In Bernard, Dickson C.J. in
dissent, identified four reasons for overruling an earlier precedent, at pp.
850-61:
1. Decisions that predate
the Charter and fail to reflect Charter values;
2. Subsequent developments
in the law that undermine the validity of the precedent;
3. A prior decision that
creates uncertainty contrary to the underlying values of clarity and certainty
that lie behind stare decisis;
4. A prior decision that
operates against the accused by expanding the scope of criminal liability
beyond its normal limits.
These
factors were subsequently adopted by the majority in Chaulk as a
non-exhaustive list of considerations relevant to deciding whether to overrule
an earlier precedent (p. 1353).
[135]
More recently, in Henry,
Binnie J. identified the following reasons for overturning an earlier precedent,
at paras. 45-46:
1. The prior decision
departed from the purpose of a Charter provision as articulated in an
earlier precedent;
2. Experience shows that the
prior decision is unworkable as its application is unnecessarily complex and
technical;
3. The prior decision is
contrary to sound principle;
4. The prior decision
results in unfairness.
[136]
The Supreme Court of
the United States has also grappled with identifying the appropriate principles
governing when courts should overrule precedent. In Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992), O’Connor, Kennedy and Souter JJ.,
writing for a majority of the court on this point, held that when the court
considers whether to overrule an earlier case, “its judgment is customarily
informed by a series of prudential and pragmatic considerations designed to
test the consistency of overruling a prior decision with the ideal of the rule
of law, and to gauge the respective costs of reaffirming and overruling a prior
case” (p. 854). To this end, they articulated four factors to be considered in
deciding whether to overrule precedent, at pp. 854-55:
1. Has the rule proved to be
intolerable because it defies workability?
2. Is the rule subject to a
reliance that would lend a special hardship to the consequences of overruling
and add inequity to the cost of repudiation?
3. Have related principles
of law developed as to have left the old rule no more than a remnant of
abandoned doctrine?
4. Have facts so changed, or
come to be seen so differently, as to have robbed the old rule of significant
application or justification?
[137]
Professor Debra Parkes has
summarized eight criteria suggested by Professor B. V. Harris as follows:
1. Can the precedent be
distinguished?
2. Was it decided per
incuriam?
3. Is the precedent
unworkable?
4. Are new reasons advanced
not considered in the earlier case?
5. Does the law now view the
precedent to be wrong?
6. Do the values underlying
error correction or doing justice outweigh the values of adherence to stare
decisis?
7. Would error be swiftly
corrected by the legislature in non-constitutional cases?
8. Are foundational
principles of human and civil rights involved?
See D. Parkes, “Precedent
Unbound? Contemporary Approaches to Precedent in Canada” (2006), 32 Man.
L.J. 135, at p. 149, citing B. V. Harris, “Final Appellate Courts
Overruling Their Own ‘Wrong’ Precedents: The Ongoing Search for Principle”
(2002), 118 L.Q.R. 408.
[138]
If a precedent has
overruled prior cases, two sets of precedents exist, an
original precedent and a new precedent, although one has been
overruled. In such cases it will be more important
to carefully scrutinize the new precedent to
determine if it has strayed from sound prior decisions and whether it would be
preferable to return to the original, and more sound, decisions. In Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995), O’Connor J. confronted
this type of situation. She stated, at p. 231:
Remaining true to an “intrinsically
sounder” doctrine established in prior cases better serves the values of stare
decisis than would following a more recently decided case inconsistent with
the decisions that came before it; the latter course would simply compound the
recent error and would likely make the unjustified break from previously
established doctrine complete.
Thus,
where there exist earlier precedents from which the precedent at issue itself
departed, it may be justifiable, based on the values underlying stare
decisis, for the Court to return to the earlier precedents.
[139]
The criteria discussed in the
above cases and articles may, depending on the circumstances of each case, be
relevant in deciding whether overruling is appropriate. However, these
criteria do not represent an exhaustive list of considerations or requirements.
Rather, such criteria function as “guidelines to assist th[e] Court in
exercising its discretion”: Chaulk, at p. 1353, per Lamer C.J.
Fundamentally, the question in every case involves a
balancing: Do the reasons in favour of following a precedent — such as
certainty, consistency, predictability and institutional legitimacy — outweigh the
need to overturn a precedent that is sufficiently wrong that it should not be
upheld and perpetuated?
[140]
In the case of Health
Services, I am of the opinion that the following considerations are
relevant and justify overruling.
[141]
First, the error in Health
Services concerns a question of constitutional law. Thus, not only does it
go to one of the foundational principles of our legal system, but it is not
susceptible to being corrected in a lasting way by the legislative branch. While s. 33 of the Charter may allow
Parliament or the legislatures to suspend, temporarily, the force of this
Court’s ruling, history over the last two decades
demonstrates that resort to s. 33 by legislatures has been exceedingly rare. Health
Services will, if left to stand, set out abiding principles of
constitutional law. Only the Court may correct this error in fundamental principle. As noted in Planned
Parenthood, it is “common wisdom that the rule of stare decisis is
not an ‘inexorable command,’ and certainly it is not such in every
constitutional case” (p. 854). The jurisprudence of this Court contains
similar observations. Because the Charter involves the most fundamental
principles underlying our law, it is particularly important that its provisions
be correctly interpreted.
[142]
The Chief Justice and LeBel J. say that
the constitutional nature of Health Services should only be a final
consideration with respect to overruling difficult cases (para. 58). In my
respectful view, and as my reasons will endeavour to demonstrate, there are no
shortage of reasons to believe that Health Services is problematic on
other grounds.
[143]
Relying on Henry, my colleagues also warn that
this Court should be wary of overruling Health Services because doing so
might have the potential to diminish Charter protection (para. 58,
citing Henry, at para. 44). They say that this consideration “militate[s] in favour of upholding” Health
Services (para. 58). However, the Court cannot be oblivious to errors in
prior decisions. When considering overruling, the Court must balance
correctness and certainty. If there is a potential diminishment arising from
correcting prior error, that is a reason to be cautious, not a reason to forego
correcting prior error altogether. Arguably, as Health Services itself
strayed from prior precedent, returning to those prior precedents would promote
certainty. However, even if certainty would favour retaining Health
Services, in this case the need for a constitutionally correct answer is
paramount.
[144]
Second, as I have indicated, Health Services strayed
significantly from earlier sound precedents with respect to the purpose of Charter
protection for freedom of association. The
constitutional guarantee of freedom of association is premised on the
recognition that individuals may be better able to secure their interests and
achieve their goals if they may join with others in their attempt to do
so. From this, two propositions necessarily follow: (a) that s. 2 (d)
was intended to secure the individual’s freedom
to coordinate his or her actions with others and enjoy the benefits that
flow naturally from that coordination; and (b) that s. 2 (d) was not
intended to promote or guarantee the outcomes for which the association
was formed. The ruling in Health Services contradicts both of these
central tenets. By constitutionalizing collective bargaining, Health
Services created a group right that vests in the employee association
rather than individual workers, and confers substantive outcomes for which the
association was formed. It has therefore moved away from the sound principles
established by earlier precedents of this Court.
[145]
Third, the
constitutionalization of collective bargaining, as envisaged in Health
Services and by the Chief Justice and LeBel J. in this case, is
unworkable. On a practical level, the right
to collective bargaining asserted by my colleagues is
not workable without other elements of modern labour legislation in
place. As Winkler C.J.O. recognized at the Court of Appeal, if it is to be
effective, the right to collective bargaining will be hard pressed to perform
its function without reinforcement from the other aspects of labour legislation
that he identified (2008 ONCA 760, 92 O.R. (3d) 481). As a matter of principle,
the distinction between substance and process on which the ruling in Health
Services (and of the Chief Justice and LeBel J. in this case) is premised
cannot be sustained. The process is itself a desirable outcome for the
association of workers, and will result in substantive concessions by the
employer. Thus, both principle and practicality militate against sustaining the
ruling in Health Services.
[146]
Fourth, there has been
intense academic criticism of Health Services, including by Professor
Eric Tucker, who was himself cited by the majority in support of its decision.
See B. Etherington, “The B.C. Health Services and Support Decision — The
Constitutionalization of a Right to Bargain Collectively in Canada: Where Did
It Come From and Where Will It Lead?” (2009), 30 Comp. Lab. L. & Pol’y J.
715, at pp. 734-39. I recognize that there is also
academic commentary agreeing with the results of Health Services, as
pointed out by the Chief Justice and LeBel J. (at para. 88). The existence of
such commentary is not unexpected given the highly contentious and polarizing
nature of labour relations. However, as I will explain, while some agree with
the result, the academic criticism of concern here targets the reasoning of the
majority in Health Services.
[147]
Even some of
the authors who support the results of Health Services and who are cited
by my colleagues are critical of aspects of the reasoning employed by the majority
of the Court to achieve those results. For example, Professor Jamie Cameron,
in “Due Process, Collective Bargaining, and s. 2 (d) of the Charter :
A Comment on B.C. Health Services” (2006-2007), 13 C.L.E.L.J. 233,
while supportive of the results of Health Services, criticized the
decision because “B.C. Health Services relied on a concept of
entitlement that was so heavily and exclusively contextualized to collective
bargaining that the decision lost contact with the underlying values which have
anchored s. 2 (d) since the Labour Trilogy”
(p. 262; see also pp. 240 and 259).
[148]
I reiterate
that in light of such academic criticism, it is appropriate for this Court to take
notice and acknowledge the errors that have been identified.
[149]
My colleagues say that it is “procedurally
inappropriate” to overrule Health Services because none of the
parties have expressly asked this Court to do so (para. 59). However, the
substance of the arguments of the appellants and interveners supporting them are
in effect a claim that Health Services should be overruled.
The appellants and interveners supporting them all say that in this case there
should be no obligation on agricultural employers to engage in compulsory
collective bargaining. In my opinion, it is not possible to agree that there
is no such obligation without overruling Health Services.
[150]
Further, as Deschamps J. observes, “an
employer’s duty to bargain in good faith was not even raised” in Health Services (at para. 297), and while the parties
in Health
Services “recognized that under most Canadian
labour law statutes, employers had an obligation to bargain in good faith, the
claimants were not seeking a declaration characterizing this obligation as a
constitutional one” (para. 304). Despite this issue not having been raised in Health Services, the majority in that case did not find it “procedurally
inappropriate” to find that “collective bargaining imposes corresponding duties
on the employer” and “requires both employer and employees to meet and to bargain
in good faith ” (para. 90).
[151]
Lastly,
while the foregoing factors all support overruling Health Services, as
the Chief Justice and LeBel J. point out, it is fundamental that it be
demonstrated that Health Services was decided in error. The balance of
these reasons endeavours to explain why Health Services was erroneously
decided.
III. The
Explicit Break With Precedent in Health Services
A. Introduction
[152]
Prior to explaining why
Health Services erred in finding that
s. 2 (d) of the Charter protects collective bargaining, I will briefly refer to Dunmore v. Ontario
(Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, which was consistent
with this Court’s jurisprudence prior to Health
Services on the contours of s. 2 (d) in the labour law
context. I do this to underline the explicit break from that jurisprudence in Health Services. This break came when a
majority of this Court found that s. 2 (d) required that government
legislate to facilitate collective goals which an association was formed to
pursue, rather than protecting the freedom of association itself. This finding
went beyond the rule in Dunmore which mandated legislative protection
only where such protection was necessary to the freedom to associate.
[153]
The Chief Justice and LeBel J. present an alternative interpretation which
suggests that Health
Services “follows directly from the principles
enunciated in Dunmore” (para. 38). With respect, I do not agree with
this interpretation because it does not follow from the words and findings in Dunmore.
In Dunmore, the requirement that government provide legislation to
protect workers was anchored in the proposition that certain workers could not
associate without government intervention. This concept was embodied by the
idea that the lack of legislation was a “substantial interference” to the
ability to form an association (para. 25 (emphasis deleted)). Deschamps J.
describes Dunmore as holding that agricultural workers “were
substantially unable to exercise their constitutional right [to associate]
without the support of a legislative framework” (para. 307). This
characterization is in line with the words of Bastarache J. who himself noted
the distinction between forming an association and enhancing and facilitating
the goals of that association:
. . . a group that proves capable of
associating despite its exclusion from a protective regime will be unable to
meet the evidentiary burden required of a Charter claim. In such a
case, inclusion in a statutory regime cannot be said to safeguard, but rather
to enhance, the exercise of a fundamental freedom. [para. 39]
[154]
Health
Services, in contrast, was not focussed on ensuring
that government did not interfere with the right of individuals to form an
association. Indeed the action was brought by existing associations. Instead, the
decision in Health
Services centred on the purported need to
constitutionalize collective bargaining in order for the association to be
“meaningful”. The majority concluded that without a legislated right to
collective bargaining, and without constitutional protection of terms of the
collective agreement in that case, the formation of an association was
meaningless.
[155]
This sentiment was an express break from Dunmore because
the majority in Health
Services focussed on the goals of an association
and the enhancement of those goals, rather than the ability of the
claimants to associate (which they already had done). Constitutionalizing
collective bargaining therefore cannot be said to safeguard the ability to
associate, but instead is concerned with “enhanc[ing] the exercise of a
fundamental freedom”, which cannot form the basis of a Charter claim (Dunmore,
at para. 39). This express break from Dunmore is found in the reasons
of the Chief Justice and LeBel J., where they suggest that providing
associational protections in the AEPA without also enshrining good faith
bargaining would “render the associational process effectively useless” (para.
54). This break from Dunmore is also recognized in the reasons of my
colleague Abella J., where she observes that Health Services resulted in “creating a completely different jurisprudential
universe” from that found in the previous “Dunmore ‘right to organize’
template” (paras. 324-25).
[156]
It is this shift from protecting what is
necessary to exercise the freedom to associate, to constitutionalizing the
goals of an association — that is, negotiating a collective agreement — which results
in Health
Services being inconsistent with the ruling in Dunmore.
The majority in Health
Services found that the freedom of association is
meaningless unless the government also imposes a duty on employers to bargain
in good faith, and protects the fruits of that bargaining process. The focus
shifted in Health
Services from protecting the right to associate to
enhancing the goals of the association. This was an express break from Dunmore.
B. The
Jurisprudential Background Prior to Health Services
[157]
This Court first
examined the scope of the Charter ’s guarantee of freedom of association
in a series of three cases that came to be known as the “labour law trilogy”
(“Trilogy”): Reference re Public Service Employee Relations Act (Alta.),
[1987] 1 S.C.R. 313 (the “Alberta Reference”); PSAC v. Canada,
[1987] 1 S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460.
The specific issue in those cases was whether s. 2 (d) protected the
right to strike. However, the members of the Court took the opportunity to
consider, at length, the purpose and scope of the protections afforded by s. 2 (d).
The bulk of the substantive analysis is found in the Alberta Reference.
[158]
While the Court was
divided on the result in those cases, there was nonetheless agreement on a number
of core principles concerning the purpose and scope of s. 2 (d). With
respect to the purpose of granting constitutional protection to freedom of
association, the following comment by McIntyre J. reflects a general consensus
amongst the members of the Court:
While freedom of association like most
other fundamental rights has no single purpose or value, at its core rests a
rather simple proposition: the attainment of individual goals, through the
exercise of individual rights, is generally impossible without the aid and
cooperation of others. “Man, as Aristotle observed, is a ‘social animal, formed
by nature for living with others’, associating with his fellows both to satisfy
his desire for social intercourse and to realize common purposes.” [p. 395]
[159]
In addition, the Court
was agreed that s. 2 (d) protects an individual right to enter into an
association and does not create group rights that vest in the association
itself. In the words of Dickson C.J. (dissenting):
What freedom of association seeks
to protect is not associational activities qua particular activities,
but the freedom of individuals to interact with, support, and be supported by,
their fellow humans in the varied activities in which they choose to engage.
But this is not an unlimited constitutional license for all group activity. The
mere fact that an activity is capable of being carried out by several people
together, as well as individually, does not mean that the activity acquires
constitutional protection from legislative prohibition or regulation. [p. 366]
McIntyre
J. struck a similar note:
In considering the constitutional
position of freedom of association, it must be recognized that while it
advances many group interests and, of course, cannot be exercised alone, it is
nonetheless a freedom belonging to the individual and not to the group formed
through its exercise. [p. 397]
[160]
In Professional
Institute of the Public Service of Canada v. Northwest Territories
(Commissioner), [1990] 2 S.C.R. 367 (“PIPSC”), the core areas of agreement
in the Alberta Reference were later summarized by Sopinka J. in a
passage that has since been frequently cited:
Upon considering the various
judgments in the Alberta Reference, I have come to the view that four
separate propositions concerning the coverage of the s. 2 (d) guarantee
of freedom of association emerge from the case: first, that s. 2 (d)
protects the freedom to establish, belong to and maintain an association;
second, that s. 2 (d) does not protect an activity solely on the ground
that the activity is a foundational or essential purpose of an association;
third, that s. 2 (d) protects the exercise in association of the
constitutional rights and freedoms of individuals; and fourth, that s. 2 (d)
protects the exercise in association of the lawful rights of individuals. [pp.
401-2]
[161]
These four propositions
were later endorsed by majorities of the Court in Canadian Egg Marketing
Agency v. Richardson, [1998] 3 S.C.R. 157, and Delisle v. Canada
(Deputy Attorney General), [1999] 2 S.C.R. 989. In the latter case, a
majority of the Court ruled that s. 2 (d) does not entitle workers to any
particular set of statutory protections for their associative activities, such
as those providing for a right to collective bargaining.
[162]
The proposition that s.
2 (d) does not confer a right to collective bargaining was once again
endorsed by a majority of the Court in Dunmore. However, in that case
the Court recognized that Sopinka J.’s four propositions, while valid, might
not exhaust the entire scope of protection afforded by s. 2 (d) (para.
16).
[163]
Bastarache J. explained
that the core of s. 2 (d) protection is to prohibit the state from
interfering with an activity because of its associational nature. Relying on
comments made by Dickson C.J. in the Alberta Reference, he noted that
Sopinka J.’s fourth proposition, which protects “the exercise in association of
the lawful rights of individuals”, suffers from a potential weakness. That
proposition will, in general, serve as a useful test in determining whether the
state has targeted the associational aspect of an activity rather than the
activity itself. If the state has outlawed an activity at both the individual
and the group level, it is likely that this is because the activity itself is
deemed to be harmful or problematic. By contrast, if the state permits an
individual to engage in an activity but has outlawed the performance of that
activity in concert with others, this will generally indicate that the state
has targeted the activity solely because of its associational nature. Thus,
Sopinka J.’s fourth proposition assists in isolating the true intent or effect
of a measure when determining whether it infringes a person’s freedom of
association (paras. 16-18).
[164]
However, there may be
cases in which the state has directly targeted the associational aspects of an activity which are not captured by Sopinka
J.’s fourth proposition. An activity performed on a group level may be
“qualitatively” different from what an individual can undertake in isolation,
such that no direct comparison or analogy is possible. If one were to
interpret the fourth proposition as requiring a strict analogy between the
collective activity and its individual counterpart, a state restriction on such
“qualitatively” different activities would not be considered to inhibit freedom
of association and would therefore pass muster under s. 2 (d).
Recognizing this, Dunmore attenuated the requirement of an individual
analogue. If it can be demonstrated that a restriction on a group activity is
an attack on the associational nature of the activity, a s. 2 (d) claim
may yet succeed even if no direct analogy can be made between the group
activity and a lawful individual counterpart.
[165]
This observation about how “qualitatively”
different activities exist was aimed at explaining why certain activities which
did not have an individual analogue must be protected in order to protect the
freedom to form an association. The disposition in Dunmore turned on
whether the lack of protection for agricultural employees was a “substantial interference” to the
ability of workers to form an association (paras. 22-23). To suggest,
in hindsight, that “[a]fter Dunmore, there could be no doubt that [s. 2 (d)]
extends to realization of collective, as distinct from individual, goals”
as the Chief Justice and LeBel J. say at para. 32 (emphasis added), is to substantially
overstate the holding in Dunmore.
C. An Express Break With Precedent
in Health Services
[166]
While the basic
framework set down in the Trilogy had stood for some 20 years, the Court
decided to break with this line of precedent in Health
Services. In that case, the majority held that s. 2 (d) protects a right
to collective bargaining and imposes a duty on employers to bargain in good
faith. Such a right could not be accommodated
within the framework set down by the Trilogy and followed in subsequent cases,
and so the majority opted to overturn that line of precedents altogether.
[167]
The overarching reason
advanced for rejecting the Trilogy’s interpretation of s. 2 (d) was that
it reflected a “decontextualized” rather than “purposive” approach to Charter
interpretation: Health Services, at
para. 30. The majority in Health Services
found that insufficient attention had been paid to the close connection between
freedom of association and labour relations (specifically trade unionism), and
that the intimate ties between the two implied that s. 2 (d) should be
held to protect a broader set of entitlements than the Trilogy’s approach could
support. Under this view, the main problem with the Trilogy’s approach was that
it did not extend a right to “collective bargaining”, the protection of which
was, in the majority’s view, a central purpose of freedom of association
(para. 86).
[168]
In extending
constitutional protection to collective bargaining, the majority in Health Services viewed this constitutional right
as including an obligation on parties to bargain in good faith. The majority in
Health Services described the
protection afforded under s. 2 (d) as follows, at para. 90:
. . . the state must not substantially
interfere with the ability of a union to exert meaningful influence over
working conditions through a process of collective bargaining conducted in
accordance with the duty to bargain in good faith. Thus the employees’ right to
collective bargaining imposes corresponding duties on the employer. It requires
both employer and employees to meet and to bargain in good faith, in the
pursuit of a common goal of peaceful and productive accommodation.
In
fact, the majority went so far as to say that “the duty to consult and
negotiate in good faith” is “the fundamental precept of collective bargaining”
(para. 97).
[169]
The decision in Health Services purported to impose two
limitations on this right. First, the right was said not to cover all aspects
of “collective bargaining”, as that term is understood in the statutory labour
relations regimes based upon the Wagner model that are in place across the
country. The Wagner model refers to Canadian variants of the National Labor
Relations Act, 49 Stat. 449 (1935) (the “Wagner Act”), which was
enacted into law in the United States during the Depression. By the end of the
1930s, most Canadian provinces had passed legislation incorporating the main
objectives of the Wagner Act. The Wagner model has four legislative
hallmarks: explicit recognition of the right of employees to belong to a trade
union of their choice; protections against employer coercion or interference
with organizing activities, known as unfair labour practices provisions; a duty
upon employers to bargain in good faith with their employees’ unions; and a
dispute resolution mechanism for resolving impasses: see G. W. Adams, Canadian
Labour Law (2nd ed. (loose-leaf)), vol. 1, at p. 1-11.
[170]
Second, it was said not
to be aimed at securing a particular outcome in a labour dispute, or
guaranteeing access to any particular statutory scheme: see Health Services, at para. 19. Nonetheless, the majority held that
the process of good faith collective bargaining demands that unions and
employers engage with each other and “make a
reasonable effort to arrive at an acceptable contract”: Health Services, at para. 101.
[171]
The Chief Justice and LeBel J. say that Health Services “follows directly” from the finding in Dunmore, because the
government action in that case “rendered the meaningful pursuit of [workplace
goals and collective bargaining activities] impossible and effectively nullified
the right to associate of its employees” (para. 38). However, as I have
discussed above, this conflates two arguments. The first is that restrictions
on the ability to associate, either directly or because the government
interfered with an activity because of its “associational nature”, are
unconstitutional, which was the finding in Dunmore. The second
is that governments are required to provide legislation which enhances the
ability of an existing association to pursue its goal of negotiating a
collective agreement, which was the finding in Health Services, but was contrary to Dunmore. As noted above, an
application of the actual holding in Dunmore would have asked only if
the government substantially interfered with the ability to associate.
IV. Section
2 (d) of the Charter Does Not Protect Collective Bargaining
[172]
I now turn to the
fundamental question in this case: namely, whether Health
Services was wrong to constitutionalize collective bargaining. In
my respectful view, Health Services was
indeed wrong. The problems relating to this aspect of Health Services can be grouped into three
categories.
[173]
First, the collective
bargaining right recognized in Health Services
is inconsistent with the purpose of s. 2 (d). As I will explain, the
interpretation of s. 2 (d) adopted by the majority in Health
Services is unsound in principle for a number of reasons, and the
correct conceptual framework for s. 2 (d) is that established by the
Trilogy and applied in subsequent cases. Section 2 (d) does not protect
a right to collective bargaining.
[174]
Second, the reasons
advanced in Health Services for
protecting collective bargaining under s. 2 (d) do not support that
conclusion. The majority in Health Services
found that the history of Canadian labour law, international law, and Charter
values all pointed in favour of extending the guarantee of freedom of
association to include collective bargaining. While all of those factors
support constitutional recognition of the freedom of workers to associate, they
do not support the right to collective bargaining.
[175]
Third, the approach to
collective bargaining in particular, and s. 2 (d) in general, articulated
in Health Services raises significant
problems relating to workability. In my view, the framework established in Health Services is both inherently unstable and
is a vehicle for the imposition of judicial policy preferences.
[176]
I now address each of
these problems in turn.
A. The
Collective Bargaining Right Recognized in Health Services Is Inconsistent
With the Purpose of Section 2 (d)
[177]
There are five reasons
why the collective bargaining right recognized by Health
Services is inconsistent with the purpose of s. 2 (d). First,
the analysis in Health Services improperly
assigned collective dimensions to an individual right. Second, Health Services assigned positive obligations to
the essentially negative freedom of association. Third, the reasons in Health Services replaced a content-neutral
approach to s. 2 (d) freedom and adopted an approach to s. 2 (d)
which privileges certain associations over others. Fourth, Health Services elevated contracts — collective
bargaining agreements — above statutes and disrupted the ordinary hierarchy of
laws. Fifth, the analysis in Health Services
departs from a long-standing principle of judicial deference in the field
of labour relations.
(1) Section 2 (d) Protects Individual Interests, Not
Group Interests
(a) Individual
Freedoms Versus Collective Rights
[178]
First, Health Services reinterpreted an individual
freedom as giving rise to collective rights with no
individual rights foundation. This reinterpretation of the scope of s.
2 (d) was a departure from previous jurisprudence that is not justified
by the purpose of the Charter guarantee. The series of cases beginning
with the Alberta Reference established that the freedom of association
is an individual freedom which is intended to prevent the government
from interfering with associations by treating groups differently than it
treats individuals.
[179]
Health
Services expanded s. 2 (d) to
protect collective rights which meant that individuals who are members of
specific groups now enjoy greater constitutional rights than those who are not. In
particular, following Health Services,
workers’ associations enjoy a robust right to bargain because employers are
constitutionally obligated to bargain with their association. Individuals who
are not members of an association, on the other hand, have no constitutional right to oblige
their employers to bargain.
[180]
While the Charter may
protect certain collective rights, freedom of association does not fall into
that category. Where a particular Charter guarantee extends greater
rights to a group than to an individual, that effect is made clear in the text
of the particular guarantee. For example, the right to minority language
education in ss. 23(1) and 23(2) is subject to there being a sufficient number
of eligible children to warrant public expenditures on minority language
education (s. 23(3) ). In this way, the guarantee in s. 23 is predicated on the
existence of a group. Minority language educational rights thus have a “unique
collective aspect even though the rights are granted to individuals” (Doucet-Boudreau
v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at
para. 28, per Iacobucci and Arbour JJ.) Similarly, s. 35(1) of the Constitution
Act, 1982 recognizes the “existing aboriginal and treaty rights of the
aboriginal peoples”. Treaty rights, being rights established in a treaty
between a group of aboriginals and the Crown, undoubtedly have a collective
dimension to them insofar as they vest rights in a particular group. See, e.g.,
R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207, at paras. 10-11. By
contrast, s. 2 (d) provides that “[e]veryone has . . . freedom of
association”. This language supports an interpretation of s. 2 (d) as an
individual freedom. See P. W. Hogg, Constitutional Law of Canada (5th
ed. Supp.), vol. 2, at pp. 37-1 and 37-2.
(b) Qualitative
Differences Between Individuals and Associations Do Not Change the Individual
Nature of Freedom of Association
[181]
The Chief Justice and
LeBel J. say that Health Services was
“consistent with the previous cases on the issue of individual and collective
rights” (para. 65). I must respectfully disagree. McIntyre J. in the Alberta
Reference made the point, which is the point that I make in my reasons,
that freedom of association protects the right of groups to engage in
activities that are lawful or constitutionally protected for individuals. The
reliance on a purposive approach to interpretation advanced by the majority in Health Services opens the door to s. 2 (d)
being interpreted as a generalized group right as opposed to an individual
right, which is an interpretation that is not consistent with this Court’s
prior jurisprudence. My colleagues’ reference to the interpretation of s. 2 (d)
advanced by Dickson C.J. in the Alberta Reference, was not a position
accepted by the majority and, as my reasons point out, by constitutionalizing
the right to bargain collectively Health Services
departed from the position of the majority in that case.
[182]
As I will now explain,
although in Dunmore, s. 2(d) was found to protect group activity
that was “qualitatively” different from individual activity, s. 2(d)
cannot be used to give groups greater constitutional protection than
individuals.
[183]
The majority in Health
Services, in rejecting the view that s. 2(d) only protects
those activities that may be lawfully pursued on the individual level, said
that Dunmore had overtaken the notion that freedom of association
applies only to activities capable of performance by individuals. Dunmore
cannot be interpreted in such a manner. In Dunmore, Bastarache J.
explained that to limit s. 2(d) to activities that are performable by
individuals might render futile certain fundamental initiatives, since some
collective activities may, by their very nature, be incapable of being performed
by an individual. As I explained above, in the view of Bastarache J.,
certain activities are, when performed by a group, “qualitatively” different
from those activities performed solely by an individual, and this qualitative
difference may merit constitutional protection for the collective activity (Dunmore,
at para. 17). With respect, Dunmore does not stand for the proposition
that such qualitative differences open the door to the notion of group rights
entirely unconnected to individual rights.
[184]
I accept that there may
be qualitative differences between individuals acting alone and individuals
acting in concert. Professor Langille refers to the example of choir singing.
See B. Langille, “The Freedom of Association Mess: How We Got into It and How We
Can Get out of It” (2009), 54 McGill L.J. 177 (“Freedom of
Association”), at p. 185. While he ultimately believes that the choir metaphor
should not apply to determine the scope of s. 2(d) rights, in my opinion
the metaphor is apt in explaining the limited type of qualitatively different
group activities that may be protected by s. 2(d). A group of
individuals singing together in a choir can produce musical effects, such as
harmonies and counterpoint, that an individual singing alone cannot. Such effects
are not just an accumulation of individual voices singing in exactly the same
way. Rather, they produce a musical effect that is fundamentally different from
what a lone individual can produce. In other words, the whole is not merely
the sum of its parts. The ability to create such effects through the
coordination of individual action is one reason why freedom of association is
protected. I believe that Dunmore found that s. 2(d) may protect
voluntary collective activity which is “qualitatively” different from
individual activity in this limited way.
[185]
In my view, the
question is not whether the activity is susceptible of being performed, in
exactly the same manner, by an individual acting alone. A choir singing
harmony may produce sound that is qualitatively distinct from an individual
voice, but it is nonetheless produced by a group of individuals
voluntarily singing together. One individual is free to sing in one octave,
another is free to sing in another octave. A harmony may result if they choose
to perform these individual activities in concert with one another. And if the
state were to outlaw harmony, it would be attacking the individuals’ ability to
do side by side at the same time what each may do apart. Thus, while harmony
arising out of choir singing may have no direct individual analogue, a
legislative attack on harmony would be an attack on the association itself, and
should not be permitted under s. 2(d). Section 2(d) may
recognize qualitative differences between individual and group activity,
without altering the individual nature of freedom of association.
[186]
While s. 2(d)
protects “qualitatively” different activities which are an emergent result of
free individual organization, it does not impose a constitutional obligation on
government to create out of whole cloth a set of qualitative differences
that make the group more powerful than it otherwise would be, even if such
differences would enhance its ability to achieve its goals.
[187]
Health
Services did
not purport to give constitutional force to a right to individuals to
compel employers to bargain in good faith with them. Individuals who are not
members of an association have no such right. Thus,
the constitutional right to compel employers to bargain in good faith with
associations must be a unique group right, not an activity emergent from an
individual right.
(2) Section 2(d) Protects Freedoms Rather Than Rights
[188]
Second, the majority concluded
in Health Services that s. 2(d)
imposes a duty to bargain in good faith. It explained this conclusion at para.
90 finding that “the employees’ right to collective bargaining imposes
corresponding duties on the employer” requiring “both employer and employees to
meet and to bargain in good faith, in the pursuit of a common goal of peaceful
and productive accommodation”.
[189]
Thus, Health Services stands for the proposition that
the right to collective bargaining includes an entitlement to have “meaningful”
influence over working conditions. In other words, the right includes an
assurance that a real dialogue will take place between an employee association
and the employer. Such assurance can only be provided if the employer is under
a duty to engage with representations made by the association and make a good
faith attempt to bargain to pursue the goal of accommodation. In the absence
of such a duty, the employer would be free to refuse to negotiate with the
employee association. Thus, according to Health
Services, if s. 2(d) protected only the ability of workers to
make collective representations and did not impose a duty on the
employer to bargain in good faith, it would fail to protect the right to
collective bargaining.
[190]
In my view, this
proposition suffers from an important defect: it transforms s. 2(d) from
a freedom into a “positive” right by imposing an obligation to act on third
parties (i.e. the employer). There is a difference between saying that an
individual has the freedom or liberty to do something, on the one
hand, and saying that he or she has the right to do it, on the other. A
person is free or at liberty when there is an absence of obstacles or
impediments. Nothing further is required beyond this absence. However, to say
that a person has a “right” is to imply something further. It suggests that a
claim can be made on someone else in order to be provided with the
object of the right.
[191]
It is possible to
describe a freedom in terms of rights, but this may only
serve to blur the distinction between what is being protected in either case.
A freedom exists to protect a sphere of autonomy, an area within which the
individual will encounter no obstacles. A right, on the other hand, exists to
provide an individual with a claim to some specific thing. Generally, a freedom can be described as a right
only if it is recognized that the right is “negative” in character, that is,
only if it is described as an entitlement to be free of restriction or
prohibition.
[192]
An example of how a
freedom can sometimes be described using the word “right” can be found by
examining ss. 7 to 12 of the Charter . When the Charter uses the
term “right”, as it does in ss. 7 to 12 , either a positive entitlement is
introduced, or a right to be free of some restriction or prohibition (i.e. a
freedom) is introduced. For the positive rights, an individual is given a right
to some form of state action, e.g. to be advised of a right to counsel upon
arrest. For the negative rights, the individual is given a right to be free
from some form of restriction or prohibition, e.g. a right not to be
arbitrarily detained or imprisoned. As discussed above, the right to be free
of a restriction or a prohibition is a description that encompasses the
“negative” character of the right, and is simply another way to describe a
freedom.
[193]
The Chief Justice and LeBel J. suggest that my reasons seek to
maintain the “consistently rejected . . . rigid distinction” between freedoms
and positive rights (para. 69). Referring to Ontario
(Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23,
[2010] 1 S.C.R. 815 (“CLA”), by way of analogy, they say that in some
circumstances a Charter freedom, such as freedom of expression under s.
2 (b), “may require the government to disclose documents to the public in
order to enable meaningful discourse” (para. 69). Therefore, they say s. 2 (d)
of the Charter “may require the state to act positively to protect the
ability of individuals to engage in fundamentally important collective
activities” (para. 70). While I would agree that in “exceptional
circumstances” (Dunmore, at para. 21; Delisle, at para. 33) a Charter
freedom may require positive state action, I do not agree that CLA is an
apt analogy.
[194]
Creating
positive rights in exceptional circumstances does not dilute the coherence of the
distinction between freedoms and rights. This is because those positive rights
will only be granted when they are genuinely derivative of a freedom. A
derivative right is one that is necessary to allow individuals to
exercise a fundamental freedom. In CLA, the right to access government
information was considered to be “a derivative right which may arise where it
is a necessary precondition of meaningful expression on the functioning
of government” (para. 30 (emphasis added)). This Court has found that a derivative
right must be “inextricably tied to” (Canadian Broadcasting Corp. v. New
Brunswick (Attorney General), [1996] 3 S.C.R. 480 (“CBC”), at para. 23)
a “necessary precondition” (Dunmore, at para. 42) and “clearly within
the ambit of the freedom” (CBC, at para. 23). However, the core of any
derivative right is that without that right individuals will not be able to
exercise their Charter freedom.
[195]
By its very
nature, a derivative right must be necessary to the exercise of a freedom, not
constitute a stand-alone right itself.
Therefore the ability to exercise the freedom itself must be looked to in order to determine
whether any proposed right is genuinely derivative. For example, in R. v.
National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, news organizations
were arguing that they should have s. 2 (b) protection for confidential
sources. In rejecting this argument, this Court said that this position was
“built on the premise that protection of confidential sources should be treated
as if it were an enumerated Charter right or freedom” but that “is not
so” (National Post, at para. 38). In CBC a positive right of
access to courts was sought in order to allow journalists to report on court
proceedings. La Forest J., writing for the Court, stated that “courts . . . must
be open to public scrutiny and to public criticism of their operations” (CBC,
at para. 20). Without the derivative right of access to the courts, it would be
impossible for the public (and journalists) to offer criticism in the exercise
of their s. 2 (b) freedom of the press.
[196]
In Dunmore, a right was derived from s. 2 (d)
which required positive governmental action that was “necessary for [employees]
to exercise their constitutional freedom to form and maintain associations”
(para. 67 (emphasis added)).
[197]
A right to
collective bargaining is not a derivative right in the sense in which it has
been recognized in CLA, CBC and Dunmore. As discussed
above, the essence of freedom of association is that it enables individuals to
do in association what they could do as individuals. Dunmore is
consistent with this principle, in the manner that I have just described. By
contrast, collective bargaining is not emergent from an activity that an
individual alone could do. Rather, as described in Health Services, it
imposes a duty on employers to meet with employees and make a “reasonable
effort to arrive at an acceptable contract” (para. 101). No individual
employee has a right to require an employer to meet and make a reasonable
effort to arrive at an acceptable employment contract, which is the right for
an employee association created by Health Services.
[198]
The Chief Justice and LeBel
J. say that collective bargaining is a derivative
right because it is a “necessary precondition” to make their choice to
associate meaningful. Understood this way, compulsory collective bargaining
does not enable association. Rather, it is entirely concerned with enhancing
the ability of employee associations, once formed, to pursue their goals and
provide them with a more favourable bargaining position.
[199]
There is no reason to think that individual employees
would not have the exact same desire for a more favourable bargaining
position. Every day in Canada there are individuals who enter into employment
contracts with their employers. Those individuals might also benefit if their
employers were compelled to negotiate their employment contracts with them.
However, individuals do not have a constitutionally mandated right to compel
their employers to negotiate over an employment contract with them simply
because no such right exists in the Charter . Because no individual has
the right to compel an employer to negotiate in good faith over an employment
contract, collective bargaining is not emergent from an activity that an
individual alone could do.
[200]
Accordingly, a right to collective bargaining is not derivative of a
freedom as described in CLA, CBC and Dunmore. It is a
stand-alone right created by the Court, not by the Charter .
[201]
Thus, to grant a right to
collective bargaining under s. 2 (d) purportedly as derivative of the
freedom of association would not be consistent with the approach taken by this
Court in its derivative rights jurisprudence in relation to the Charter .
Such a derivative right will arise only where it is a “necessary precondition”
to the exercise of the freedom (CLA, at para. 30). This careful
approach is necessary to adhere to the distinction between Charter
rights and freedoms and prevents transforming freedoms into rights.
[202]
Viewed in this light,
it is clear that s. 2 (d) is intended to protect a sphere of individual
autonomy or liberty, and not to enhance by state action the capacity of
individuals to do a particular activity more effectively or to guarantee that
any particular endeavour for which association might take place will succeed.
(3) Section
2 (d) Does Not Privilege Some Associations Over Others
[203]
A third error in the
approach to s. 2 (d) in Health Services
is that it conceives of s. 2 (d) as privileging some associations over
others. I cannot agree with an approach to s. 2 (d) which requires this
Court to decide which associations and associational objectives are worthy of
constitutional protection and which are not.
[204]
Health
Services rejected the
grounds advanced in earlier decisions for excluding collective bargaining from
the Charter ’s guarantee of freedom of association on the basis that they
did not “withstand principled scrutiny” (para. 22). The majority in Health Services held that the “overarching”
problem with these earlier decisions, particularly the Alberta Reference
and PIPSC, was that they had pursued a “decontextualized”, as opposed to
a “purposive”, approach to freedom of association that had ignored the
differences between organizations and treated all organizations in the same
way: “Whatever the organization — be it trade union or book club — its freedoms
were treated as identical” (para. 30). Having decided that the objects of
trade unions were meritorious of protection, the majority decided that the protection of trade
unions’ objects required the recognition of the duty to bargain in good faith.
[205]
These earlier cases did
indeed exhibit a content-neutral approach to freedom of association in the
sense that they did not claim to privilege particular associations. Health Services erred
in saying that these approaches were
not purposive.
[206]
The purposive approach
to Charter interpretation was explained by Dickson J. (as he then was)
in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 (“Big M”), at
p. 344:
The
meaning of a right or freedom guaranteed by the Charter [is] to be
ascertained by an analysis of the purpose of such a guarantee; it [is]
to be understood, in other words, in the light of the interests it [is] meant
to protect.
In my view this analysis
is to be undertaken, and the purpose of the right or freedom in question is to
be sought by reference to the character and the larger objects of the Charter
itself, to the language chosen to articulate the specific right or freedom, to
the historical origins of the concepts enshrined, and where applicable, to the
meaning and purpose of the other specific rights and freedoms with which it is
associated within the text of the Charter . The interpretation should be,
as the judgment in [Hunter v. Southam Inc., [1984] 2 S.C.R. 145]
emphasizes, a generous rather than a legalistic one, aimed at fulfilling the
purpose of the guarantee and securing for individuals the full benefit of the Charter ’s
protection. At the same time it is important not to overshoot the actual
purpose of the right or freedom in question, but to recall that the Charter
was not enacted in a vacuum, and must therefore, as this Court's decision in Law
Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be
placed in its proper linguistic, philosophic and historical contexts. [Emphasis
in original.]
[207]
The kind of “context”
to which the reasons in Health Services
refer is very different from that being discussed here. Health Services suggested that a “generic”
approach to defining freedom of association is inappropriate because different
groups must have different freedoms: the needs of a book club are not the same
as those of a trade union, and assuming them to be entitled to precisely the
same thing under s. 2 (d) would be a mistake (para. 30). However, the
“context” that is relevant to a purposive interpretation of Charter freedoms is not the context of the individuals who
happen to be exercising that freedom in a
given case. Rather, a purposive interpretation of s. 2 (d) requires that
one place freedom of association in its linguistic, philosophic and
historical contexts. The origins of the concept, the words used to describe
it, and the philosophical principles on which it relies will define the scope
of s. 2 (d) protection. The extent of that protection should not change
depending on the particular factual context or circumstances in which s.
2 (d) is being applied.
[208]
In the Alberta
Reference, both Dickson C.J. and McIntyre J. did in fact adopt a purposive
approach to interpreting the Charter ’s guarantee of freedom of
association (pp. 363 and 393-94). It was not their failure to apply such an
approach that led to the conclusion that all associations must receive
identical freedoms under s. 2 (d). Rather, it was the application of that
approach that correctly led them to recognize that a guarantee protecting a
fundamental freedom to associate must be interpreted in a content-neutral
fashion as between different associations.
[209]
The protection of
fundamental freedoms should not involve the Court in adjudicating the relative
values of the way in which individuals exercise those freedoms. Just as this
Court has not adjudicated on the relative value of a religion or its tenets
under s. 2 (a) or assessed the relative value or content of a given
exercise of freedom of expression under s. 2 (b), so too should this
Court not privilege some associations over others under s. 2 (d): Syndicat
Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, at para. 50.
[210]
Another example of a
content-neutral approach can be found in Big M where this Court found:
In my view, however, as I read the Charter ,
it mandates that the legislative preservation of a Sunday day of rest should be
secular, the diversity of belief and non-belief, the diverse socio-cultural
backgrounds of Canadians make it constitutionally incompetent for the
federal Parliament to provide legislative preference for any one
religion at the expense of those of another religious persuasion. [Emphasis
added; p. 351.]
Big
M considered the purpose
of the Charter , recognized the Christian underpinning of the
impugned law, and concluded that by imposing “a sectarian Christian ideal, the Lord’s
Day Act works a form of coercion inimical to the spirit of the Charter
and the dignity of all non-Christians” (p. 337). Dickson J.’s words in Big
M expressly say that there is no constitutional basis to prefer one
religion over others.
[211]
In an article critical
of the Health Services decision,
Professor Langille describes as “chilling” the suggestion that the Court should
“weig[h] the harm of banning book clubs as compared to banning collective
bargaining and relegat[e] the former to a lower level of concern”: “Freedom of
Association”, at p. 185. He goes on to state:
We should begin with a reminder
that this is, after all, a constitution that is being interpreted. It is an
entrenched bill of rights and freedoms. The Charter value of freedom of
association is a basic one. It applies to all Canadians, and the role of the
Court is to interpret it in a principled way. There is, in my view, not one
freedom of association for Nova Scotia and another for Ontario, nor one for
students and one for tenants, nor one for the service sector and another for
the manufacturing sector. If there were, this freedom would not be a matter of fundamental
justice. It would be, to use the Court’s word, “contextual”. [p. 202]
[212]
Like Professor
Langille, I question whether the approach advocated in Health Services accords with a purposive
interpretation of Charter rights. In Health
Services, the majority appeared to be inquiring into the purpose
of an activity to see if it merits constitutional protection. This approach
requires judges to select among a range of objects and activities on the basis
of their general “importance” to society rather than their connection to the
freedom to associate. It is inappropriate for the Court to engage in this sort
of inquiry in defining the scope of a constitutional right. It would be
assessing whether, as a matter of policy, a given activity merits
constitutional protection. In my view, the purpose of s. 2 (d) is to
protect associational activity against precisely such value judgments. A
“contextual” approach of the sort proposed in Health
Services would in fact be contrary to the purpose of s. 2 (d)
as it requires the judiciary to engage in these value judgments itself: see R.
K. Basu, “Revolution and Aftermath: B.C. Health Services and Its
Implications” (2008), 42 S.C.L.R. (2d) 165, at pp. 186-87. In R. v.
Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209, LeBel
J. recognized that such a role would be inappropriate for the Court and would
take the Court beyond the scope of s. 2 (d):
If this constitutional guarantee were
to apply to the widest range of associations with the most diverse objects and
activities, extending constitutional protection to a legislative creation like
collective bargaining might have unforeseeable consequences and widen the
sphere of constitutional protection to undefined and unknowable activities,
well beyond the proper domain of s. 2 (d). [para. 180]
[213]
My colleagues say that the
“consideration of goals [of a particular association] cannot be avoided” as Charter
rights “must be interpreted in a purposive way — having regard for the
purposes, or goals, they serve” (para. 75). They say that a “content-neutral
right is too often a meaningless right” (ibid.). Based on my
colleagues’ approach, meaningful freedom of association requires the state to
coerce employers into negotiating in good faith with employee associations.
[214]
However, as I have just
discussed, their approach would require the courts to focus on the purposes of
a particular association rather than the purpose of freedom of association
found in the Charter itself. Their approach diverges from the purposive
approach to Charter interpretation explained in Big M. Rather
than focussing on the linguistic, philosophic and historical contexts of the
right itself, their approach focusses on the particular aims and goals of the association in question. The inquiry shifts from a
consideration of the purpose and context of the Charter , to a
consideration of what activities the courts believe are normatively and
subjectively more important. The result of the approach in Health Services was that the goal of employee associations — imposing
the obligation of collective bargaining on employers — is constitutionally
entrenched, while the goals of other associations were not. It is difficult to see how this
result can be anything other than a judicial endorsement of the importance of
collective bargaining over other unconstitutionalized associational activities.
[215]
A content-neutral
approach does not allow for constitutional protection of collective bargaining
and no constitutional protection of the aims and objects of other
associations. Short of protecting all aims and objects of associations, s. 2 (d)
cannot be interpreted in a fashion which is neutral as between different
associations while imposing a duty of collective bargaining on employers and
groups of employees.
(4) Section 2 (d) Does Not Give Constitutional Status
to Contracts
[216]
A fourth difficulty
with the collective bargaining right in Health
Services is that it places contracts above statutes in the
traditional hierarchy of laws. Although Health
Services purported to constitutionalize the process of collective
bargaining rather than its fruits, it in fact granted constitutional protection
to the collective agreements on the basis that they were the fruits of that
process. In Health Services, the
challenged legislation had the effect of invalidating portions of existing
collective agreements and consequently “undermining the past bargaining
processes that formed the basis for these agreements” (para. 113). This was
found to violate s. 2 (d) (para. 136).
[217]
In response to this
argument, the Chief Justice and LeBel J. write that Health Services did
not hold that “labour contracts could never be interfered with by legislation”
(para. 76). However, if as Health Services holds, it is
unconstitutional for a statute to legislatively nullify “significant contractual
terms”, then it must logically follow that those “significant contractual
terms” have been elevated above statutes. The actual effect of Health
Services is quite the opposite from what my colleagues assert it to be.
[218]
My view is
consistent with that of Professor Hogg who
observed that “[t]his ruling elevated collective agreements above
statutes in the hierarchy of laws, and granted them virtually the same status
as the provisions of the Charter itself” (p. 44-9). Indeed, in the Reference
re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1
S.C.R. 1123 (the “Prostitution Reference”), at p. 1171, Justice Lamer
(as he then was) explicitly rejected the idea that a constitutional guarantee
safeguarding freedom of contract was included under the Canadian Charter .
(5) Courts
Have Afforded the Legislature Significant Deference in the Application of Section
2 (d) to the Field of Labour Relations
[219]
A final difficulty with
the approach to s. 2 (d) taken in Health
Services is that it explicitly rejected judicial deference by judges
towards the legislature in labour relations. Indeed, the majority indicated
that Courts had previously taken an “overbroad view” of judicial deference (para.
26). While judicial deference has its limits, the general approach of judicial
deference in the field of labour relations is well supported by precedent and
is sound in principle. I am of the view that the reasons for judicial
deference strongly militate against constitutionalizing the right to collective
bargaining. In my respectful opinion, the majority erred in Health
Services by removing decision-making power on this question from
Parliament and the provincial legislatures.
[220]
For nearly twenty years
between the Trilogy and Health Services,
a majority of this Court was consistently of the view that judges should defer
to legislators on labour relations matters. As discussed by LeBel J. at paras.
156-62 of Advance Cutting & Coring, this position stemmed from a
recognition that the management of labour relations requires a delicate
exercise in reconciling conflicting values and interests and that the
political, social and economic considerations that this exercise raises lie
largely beyond the expertise of the courts. This position was also in line with
history. The law of collective bargaining, as it has developed in Canada since
the Depression and the Second World War, as well as union and employer
conflicts like strikes and lockouts, have been subject to legislative control
based on government policy rather than judicial intervention.
[221]
Beginning with the
decisions in the labour Trilogy and continuing through PIPSC, Lavigne
v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, Delisle,
and Advance Cutting & Coring, this Court has consistently deferred
to elected legislatures on issues of labour relations. In Advance Cutting
& Coring, Justice LeBel, writing for himself and Gonthier and Arbour
JJ., described the Court’s deferential approach as a “non-intervention policy”
(para. 160). LeBel J. upheld the legislative regime at issue in the appeal:
The question at stake in this
appeal should thus be left to the political process. Such a solution would be
consistent with the jurisprudential attitude of the Court that was summarized
above. It retains a balance in the application of the Charter . It leaves
the legal management of labour relations to Parliament and legislatures as well
as to the parties to labour agreements, as the majority of the Court has held
consistently since the labour law trilogy of 1987. . . . This limited and
prudent approach to court interventions in the field of labour relations
reflects a proper understanding of the functions of courts and legislatures.
[Emphasis added; para. 239.]
The
principle of deference provides a reason for choosing a more restrained version
of s. 2 (d) when the Court is faced with competing visions of what s. 2 (d)
protects.
[222]
My colleagues imply that my view on deference
creates a “judicial ‘no go’ zone” or creates a “Charter -free zone” for
labour relations (paras. 78-80). That is not a correct understanding of my
position. Clearly if legislatures, for example, chose to enact legislation
that permitted discrimination in labour relations or precluded the ability to
form an employee association, that legislation would be subject to judicial
review for being non-compliant with the Charter . In matters of labour
relations, the Charter still applies. If my colleagues believe that my
view on deference creates a “Charter -free zone”, they have misunderstood
my reasons.
[223]
In my opinion, the
principle of judicial deference in the field of labour relations is rooted in
two underlying concerns. The first of these is that the Court is ill-equipped
to carry out the requisite balancing of interests in the labour relations
context. Since McIntyre J.’s comments in the Alberta Reference, this
Court has recognized that labour relations are an “extremely sensitive subject”
premised on “a political and economic compromise between organized labour — a very
powerful socio-economic force — on the one hand, and the employers of labour — an
equally powerful socio-economic force — on the other” (p. 414). While the
courts are responsible for safeguarding the ability of individuals to do
collectively that which they have the right to do as individuals, the judiciary
is ill-equipped to engage in fine adjustments to the balance of power between
labour and management.
[224]
The Chief Justice and LeBel J. write that this Court has
“distanced itself” from the approach of McIntyre J. in the Alberta Reference,
and now deals with deference under s. 1 , rather than in outlining the scope of
s. 2 (d) (para. 81). With respect, I think this point is debatable.
While that may have been the approach adopted by the majority in Dunmore,
there are a number of examples of this Court dealing with deference at the s.
2 (d) stage of the analysis. For example, LeBel J. dealt with deference
at the s. 2 (d) stage of the analysis in
Advance Cutting & Coring. Another example is Delisle, where Bastarache
J. for the majority (writing on behalf of Gonthier, McLachlin (as she then
was), and Major JJ.), dealt with the concept of deference under the s. 2 (d)
stage of the analysis. Bastarache J. wrote that he shared the opinion of
McIntyre J. in the Alberta Reference, writing that “[f]reedom of
association does not include the right to establish a particular type of
association defined in a particular statute; this kind of recognition would
unduly limit the ability of Parliament or a provincial legislature to regulate
labour relations” (Delisle, at para. 33).
[225]
The second underlying
concern justifying judicial deference in the area of labour relations is that
courts should avoid extending constitutional protection to a particular
statutory model of labour relations. Different statutory models of labour
relations may be appropriate in different socio-economic contexts, and the
courts should avoid defining as a matter of constitutional law the particular
framework according to which all Canadian labour relations must be structured
for the indefinite future. Parliament and the provincial legislatures should
not be precluded from fashioning appropriate labour relations regimes that are
responsive to the relevant socio-economic contexts.
[226]
In Health Services, this Court departed from a
long-standing course of judicial deference in the field of labour relations.
The majority intervened to adjust aspects of the balance of power between unions,
employers and individual employees, and, as a consequence, constitutionalized
prominent features of the Wagner model under s. 2 (d) of the Charter ,
namely collective bargaining.
[227]
Although the majority insisted
that it was not enshrining a particular model of labour relations, and the
Chief Justice and LeBel J. say that such a conclusion was “repeatedly rejected”
(para. 77), I believe that such a conclusion is inescapable. As my colleague
Deschamps J. observes, the duty to negotiate in good faith enshrined by Health Services “is one of the hallmarks of the
Wagner model and that inevitably entails a number of statutory components”
(para. 304). Professor Hogg writes:
The majority . . . claimed that it was
not constitutionalizing “a particular model of labour relations”. But that is
exactly what it was doing: North American labour relations regimes are based on
the American Wagner Act of 1935. The Wagner model of compulsory collective
bargaining with a single union compulsorily representing all members of a
bargaining unit has not been adopted outside the United States and Canada, and,
even in the United States, compulsory arbitration or other wage-setting
mechanisms often replace collective bargaining in the public sector.
Presumably, only compulsory collective bargaining on the Wagner model will now
pass muster in Canada. The majority even claimed that the Court had been wrong
in the past to exercise “judicial restraint in interfering with government
regulation of labour relations”. But, without any clear prescription in the
Charter , there is much to be said for leaving the regulation of labour
relations to elected legislative bodies (and the sanction of the ballot box). [p.
44-8]
[228]
As Professor Langille
points out, examination of the different labour relations regimes of the
roughly 180 that compose the International Labour Organization (“ILO”), reveals
a range of ways a government might choose to structure labour relations: see B.
Langille, “Why Are Canadian Judges Drafting Labour Codes — And
Constitutionalizing the Wagner Act Model?” (2009-2010), 15 C.L.E.L.J.
101, at p. 107. By way of illustration, bargaining between employers’
associations and trade unions is entirely voluntary in Germany; specifically,
there is no obligation on employers’ association to bargain in good faith, as
there is in North American labour relations regimes: see generally K. G.
Dau-Schmidt, “Labor Law and Industrial Peace: A Comparative Analysis of the
United States, the United Kingdom, Germany, and Japan Under the Bargaining
Model” (2000), 8 Tul. J. Int’l & Comp. L. 117.
[229]
More fundamentally, the
fact that the Wagner model of collective bargaining is currently the dominant
mode of resolving labour relations issues today does not mean that this will
always be the case. Peter A. Gall sounded this note of caution in the early
years of the Charter :
Collective
bargaining is extremely important in our society and has been for some time
now. But will it always be so? Can we confidently predict that 50 or even 20
years from now collective bargaining will still be the primary activity of
trade unions? Or will we have adopted some other technique for setting terms
and conditions of employment, such as full-scale interest arbitration or
greater reliance on legislated standards. If we cannot reject this out of hand,
and I do not think we can, then we must seriously question whether collective
bargaining is the kind of activity that warrants constitutional status. The
Charter enshrines the fundamental principles of individual liberty. The
activities of man may change over time, but these principles remain constant.
Collective bargaining does not have this same timeless quality, and,
accordingly, we should be leery of giving it constitutional protection under
the concept of freedom of association.
(“Freedom of Association and
Trade Unions: A Double-Edged Constitutional Sword”, in J. M. Weiler and R. M. Elliot,
eds., Litigating the Values of a Nation: The Canadian Charter of Rights and
Freedoms (1986), 245, at p. 248)
[230]
For these reasons, I am
of the view that recognizing a constitutional right
to collective bargaining, as did Health Services,
represents an imprudent departure from the course of judicial deference.
B. The
Reasons Advanced in Health
Services Do Not Support Constitutionalizing Collective
Bargaining Under Section 2(d) of the Charter
[231]
In the previous
section, I pointed to five reasons why the approach to s. 2(d) adopted
in Health Services is inconsistent with
both precedent and principle relating to the purpose of s. 2(d). In
this section, I address the reasons advanced by the majority in Health
Services for providing s. 2(d) protection to collective
bargaining. As I understand Health Services,
these reasons were advanced to demonstrate that collective bargaining is a
fundamental right that justifies it being constitutionalized. With respect, I
do not think these reasons withstand scrutiny.
[232]
Health
Services rests its conclusion that s. 2 (d) of
the Charter contains a right of collective bargaining on four
propositions, which the majority outlines at para. 20:
First, a
review of the s. 2 (d) jurisprudence of this Court reveals that the
reasons evoked in the past for holding that the guarantee of freedom of
association does not extend to collective bargaining can no longer stand. Second,
an interpretation of s. 2 (d) that precludes collective bargaining from
its ambit is inconsistent with Canada’s historic recognition of the importance
of collective bargaining to freedom of association. Third, collective
bargaining is an integral component of freedom of association in international
law, which may inform the interpretation of Charter guarantees. Finally,
interpreting s. 2 (d) as including a right to collective bargaining is
consistent with, and indeed, promotes, other Charter rights, freedoms
and values. [Emphasis added.]
In
this section each of these contentions is addressed.
(1) The
Continuing Validity of Past Precedents on the Scope of Section 2 (d)
[233]
I have already dealt
with the substance of the first proposition in the course of explaining why Health Services was wrong to overrule the
approach to s. 2 (d) of the Charter embodied in the prior
jurisprudence, and I need not discuss it further here.
(2) Canadian
Labour History Does Not Support Constitutionalizing Collective Bargaining Rights
[234]
The second reason
advanced by the majority in Health Services
is that collective bargaining has historically been recognized in Canada as an
integral component of freedom of association (para. 25). The view that a right
to collective bargaining which includes a duty on employers to bargain in good
faith is a pre-statutory feature of Canadian labour law contradicts established
accounts of the history of labour relations in Canada.
[235]
The labour history
offered in Health Services in support
of this argument is inconsistent with a number of historical accounts of the
development of labour law in Canada and has recently been the subject of
intense academic criticism. See E. Tucker, “The Constitutional Right to Bargain
Collectively: The Ironies of Labour History in the Supreme Court of Canada”
(2008), 61 Labour 151; Langille, “Freedom of Association”, at pp. 191-92;
and Etherington, at pp. 726-27. For a historical account, see, e.g., J. Fudge and
E. Tucker, Labour Before the Law: The Regulation of Workers’ Collective
Action in Canada, 1900-1948 (2001); J. Fudge, “‘Labour is Not a Commodity’:
The Supreme Court of Canada and the Freedom of Association” (2004), 67 Sask.
L. Rev. 425.
[236]
Professor Tucker, whose
account of the development of labour relations was invoked in support of the
judicial history in Health Services,
characterizes the majority’s historical claims as “flawed” and describes the use
of his and other historians’ work as “ironic”, in the sense that it was used
“to support a narrative that is inconsistent with the interpretation of that
work (without acknowledging that difference of view)” (p. 168). He writes that
the majority’s historical analysis fails to support the historical proposition that
it seeks to defend, “namely that ‘Association for purposes of collective
bargaining has long been recognized as a fundamental Canadian right which
predated the Charter ’” (p. 166).
[237]
One of the problems in Health Services is that the term “collective
bargaining” is used throughout Health Services
without it being acknowledged that, from a historical perspective, there are
two meanings that can be ascribed to the term. On the one hand, the term “collective
bargaining” refers to self-directed activities engaged in by workers without
the benefit of statutory enhancements or protection, i.e. workers organizing in
order to attempt collective engagement with their employer in the hopes of
obtaining better pay and working conditions. See Tucker, at p. 166.
[238]
On the other hand, the
term is used as shorthand for a particular kind of statutorily enabled
activity. “Collective bargaining”, in the age of the Wagner model, refers to a
complex package of reciprocal rights and duties imposed on employers and
workers alike.
[239]
The dominance of the
Wagner model of labour relations in Canada has caused the term “collective
bargaining” to become virtually synonymous with a specific set of legislatively
imposed obligations, including the requirement of a duty to bargain in good
faith. However, collective bargaining, in its original and most basic form,
did not involve or require the existence of statutory obligations.
[240]
In its decision in Health Services, the majority did not distinguish between the Wagner
form of collective bargaining and the non-statutory form when stating that the
“right” to collective bargaining had a long history in Canada. This is
manifested in the majority’s statement, for example, that “the duty to consult
and negotiate in good faith” is “the fundamental precept of collective
bargaining” (para. 97). While the duty to bargain in good faith may be
a fundamental precept of the Wagner model of collective bargaining, it is not a
fundamental precept of the concept of collective bargaining as it was
understood before the introduction of the Wagner Act or as it is still
understood today in many parts of the world.
[241]
It is true that there
is a long-standing practice of Canadian workers associating for the purpose of
bargaining collectively with their employers. Likewise, it is true that at
least since the Trade Unions Act of 1872 workers enjoyed a legal freedom
to associate for the purpose of bargaining collectively with their
employers without being prosecuted or sued for simply doing so.
[242]
However, the legal
rights of organization, which imposed duties of non-interference on
employers, and collective bargaining, which imposed good faith duties of
negotiation on employers, did not exist prior to their enactment in
statutes:
The
establishment of a legal right for workers to associate for the purposes of
forming a trade union, in the sense that employers are subject to a concomitant
duty not to interfere with their organizing, however, can only be traced to the
freedom of trade union association legislation passed in the 1930s, while the
legal right for workers to bargain collectively, in the sense that employers
have a positive duty to participate in a process of good faith negotiation with
their workers’ chosen representatives, first appeared in British Columbia and Nova
Scotia statutes enacted in 1937, but only became generalized for private sector
workers in the 1940s and for public sector workers in the 1960s and 70s.
Thus
while the court is on firm historical ground when it states in paragraph 66
that collective bargaining (understood here as a social practice) has long been
recognized in Canada (in the sense that it could neither be repressed nor
ignored) and that “historically it emerges as the most significant collective
activity through which freedom of association is expressed in the labour
context,” its further claim that a procedural right to collective
bargaining has long been recognized as fundamental in Canada
prior to 1982 is deeply problematic as a statement of historical fact.
(Tucker, at p. 166 (emphasis in original))
[243]
Professor Langille also
takes the position that Canada’s labour history does not reveal an acceptance
by our common law courts or our legislatures of a concept of freedom of
association that included an obligation on the part of employers to engage in
collective bargaining: “Beyond
any doubt, there was no duty imposed on an employer to bargain with a union — even
if, contrary to all legal indications, there was an effectively protected right
to belong to a union and to participate in a strike” (“Freedom of Association”,
at p. 191).
[244]
Not only did courts not
recognize such a bargaining right in the period before the adoption of the
Wagner model in Canada, but they often issued injunctions against labour’s
attempts to bargain collectively. Professor Etherington writes:
. . . prior to the adoption of statutes
in Canada modeled on the Wagner Act, the best our unions could hope for was a
laissez-faire attitude that would allow them to use strikes to force employers
to bargain. More often than not during that period they were even disappointed
in that hope by courts that were too willing to use their injunctive powers at
common law to prevent unions from taking collective economic action against
employers to compel them to bargain collectively. In that context, it may be a
hollow claim to even assert that our law or society recognized access to
collective bargaining in any sense as a fundamental right or freedom, but it
is clearly not accurate to assert that it recognized a legal right to engage in
collective bargaining that included an obligation on the part of employers also
to engage in bargaining when approached by unions. [Emphasis added; p. 727.]
[245]
The Chief Justice and LeBel
J. take issue with my focus on whether, historically, the right to collective
bargaining was consistently guaranteed by the legal system, noting that the
question should instead be “whether Canadian society’s understanding of
freedom of association, viewed broadly, includes the right to collective
bargaining in the minimal sense of good faith exchanges affirmed in Health
Services” (para. 90 (emphasis in original)). With respect, this bare assertion, without any evidence or explanation
as to what Canadian society’s understanding of freedom of association actually
is, does not rehabilitate the flawed historical analysis in Health Services.
[246]
In light of the
consistent academic criticisms, I cannot
accept the majority’s assertion in Health Services that the Wagner model statutes
did not create a modern right to bargain collectively but only “afforded it
protection” (para. 25). While the legal freedom to enter into voluntary
collective negotiations may have been a fundamental freedom prior to legislation
based on the Wagner Act, these statutes did in fact constitute a
substantial innovation over the status quo ante with respect to various
labour rights, including the duty of employers to bargain in good faith.
(3) International Law Does Not Support Constitutionalizing Collective
Bargaining Rights
[247]
The third proposition
the majority relied on in Health Services was
that collective bargaining is an integral component of the freedom of
association under international law. The majority relied in particular on ILO Convention
(No. 87) concerning freedom of association and protection of the right
to organise, 68 U.N.T.S. 17 (“Convention No. 87”), in support of the
position that collective bargaining is protected under international law. In
doing so, it committed two errors.
[248]
First, in discussing
protection for collective bargaining under international law, the majority conflated
two distinct ILO Conventions. While Canada has ratified ILO Convention No. 87,
that Convention deals with freedom of association and does not at any point
specifically discuss collective bargaining. The majority in Health
Services cites an extended passage from an article by B. Gernigon, A.
Odero and H. Guido, “ILO principles concerning collective bargaining” (2000),
139 Intern’l Lab. Rev. 33, to elaborate on the scope of protection for
collective bargaining under international law. However, in that article the
authors are actually discussing the scope of ILO Convention (No. 98) concerning
the application of the principles of the right to organise and bargain
collectively, 96 U.N.T.S. 257 (“Convention No. 98”), which deals more
specifically with collective bargaining. As my
colleagues acknowledge, Canada has not
ratified Convention No. 98. This means that
Canada has no obligations under that Convention as outlined in the ILO
Constitution: see Constitution of the International Labour Organisation,
15 U.N.T.S. 40, Art. 19(5)(e); B. A. Langille, “Can We Rely on the ILO?”
(2006-2007), 13 C.L.E.L.J. 273. It is therefore inappropriate to
interpret the scope of Canada’s obligations on the basis of that Convention.
[249]
Second, even if
Convention No. 98 were applicable to Canada, the majority in Health
Services would still have erred in relying on that Convention
to constitutionalize a version of collective bargaining that includes a duty to
bargain in good faith. While Convention No. 98 provides protection for a
process of collective bargaining, it conceives of collective bargaining as
being a process of “voluntary negotiation” that is fundamentally distinct from
the model of collective bargaining incorporated in the Wagner model: see ILO
Convention No. 98, Art. 4. More specifically, Convention No. 98 does not
contemplate the imposition of a duty on parties to bargain in good faith: Langille,
“Can We Rely on the ILO?”, at pp. 291-92. Indeed, Gernigon et al. express this
point in the article relied on by the majority in Health Services:
The
voluntary nature of collective bargaining is explicitly laid down in Article 4
of Convention No. 98 and, according to the Committee on Freedom of Association,
is “a fundamental aspect of the principles of freedom of association” (ILO,
1996a, para. 844). Thus, the obligation to promote collective bargaining
excludes recourse to measures of compulsion. During the preparatory work
for Convention No. 154, the Committee on Collective Bargaining agreed upon an
interpretation of the term “promotion” (of collective bargaining) in the sense
that it “should not be capable of being interpreted in a manner suggesting an
obligation for the State to intervene to impose collective bargaining”,
thereby allaying the fear expressed by the Employer members that the text of
the Convention could imply the obligation for the State to take compulsory
measures (ILO, 1981, p. 22/6).
The
Committee on Freedom of Association, following this line of reasoning, has
stated that nothing in Article 4 of Convention No. 98 places a duty on a
government to enforce collective bargaining with a given organization by
compulsory means, and that such an intervention by a government would
clearly alter the nature of bargaining (ILO, 1996a, para. 846).
It cannot therefore be
deduced from the ILO’s Conventions on collective bargaining that there is a
formal obligation to negotiate or to achieve a result (an agreement). [Emphasis
added; pp. 40-41.]
[250]
The majority in Health
Services was in error when it concluded that international law pointed to
compulsory collective bargaining (paras. 69-79). My colleagues say that
international norms are not inconsistent with compulsory collective
bargaining (para. 95). While this is true, it does not assist with the
interpretation of s. 2 (d). Many positions — including a freedom of
association which includes voluntary collective bargaining — are equally, if
not more, consistent with international norms. However, the majority in Health
Services said more than this. It said that Canada’s obligations and those
international norms imply compulsory collective bargaining more than they imply
voluntary associations (para. 72). With respect, international law does not
support that conclusion.
(4) Charter Values Cannot Be Invoked to
Support Constitutionalizing Collective Bargaining Rights
[251]
In its fourth
proposition, the majority maintained that the recognition of a good faith collective bargaining right is consistent with
and promotes other Charter rights, freedoms and values: namely, human
dignity, equality, liberty, respect for the autonomy of the person and the
enhancement of democracy: see Health Services,
at para. 81. The majority said that the right promotes human dignity, liberty
and autonomy of workers by giving them the opportunity to influence the establishment
of workplace rules and thereby to gain a measure of control over a major aspect
of their lives, that it enhances equality because it palliates the historical
inequality between employers and employees, and that it achieves a form of
workplace democracy and ensures the rule of law in the workplace by giving
workers a voice to influence the establishment of rules that control major
aspects of their lives (paras. 82-85).
[252]
A duty to bargain in good faith may achieve those ends.
However, either the Charter requires something or it does not. The Chief Justice and LeBel J. say that a “value-oriented approach .
. . has been repeatedly endorsed by Charter jurisprudence over the last
quarter century” (para. 96). That may be so, however this value-oriented
approach is a means by which courts interpret the Charter — a process,
as I will now explain, that must begin with the words of the Charter
itself and must be bound by the normal constraints of legal reasoning and
analysis. As Mr. Justice Robert J. Sharpe and Professor Kent Roach say, “[t]he
task of Charter interpretation has structure and discipline. The first
source is obvious — the language of the Charter itself” (The Charter
of Rights and Freedoms (4th ed. 2009), at p. 59). The role of the Court is to determine what the Charter
requires and what it does not and then apply the requirements it finds to the
case before it. It is not to simply promote, as much as possible, values that
some subjectively think underpin the Charter in a general sense.
[253]
I agree
with the words of Iacobucci J. in Bell ExpressVu Limited Partnership v. Rex,
2002 SCC 42, [2002] 2 S.C.R. 559, at para. 62, where he wrote “to the extent
this Court has recognized a ‘Charter values’ interpretive principle, such
principle can only receive application in circumstances of genuine ambiguity,
i.e., where a statutory provision is subject to differing, but equally
plausible, interpretations” (emphasis deleted). The Court cannot employ a Charter
values argument to interpret the Charter itself so broadly that the
interpretation is no longer plausible. As Dickson J. observed, “it is
important not to overshoot the actual purpose of the right or freedom in
question” (Big M, at p. 344). This means, as Professor Hogg says, that
even though this Court has adopted a progressive, purposive approach to
interpreting the Constitution, courts are not liberated from the “normal
constraints of interpretation” (p. 15-50).
[254]
Section 2 (d)
protects the freedom to associate. It does not purport to guarantee the
“collective goals” (reasons of the Chief Justice and LeBel J., at para. 46) of
the association once formed. The majority’s interpretation in Health
Services is not plausible because it created a free-standing right to the
objectives of employee associations; it created a right which “requires both
employer and employees to meet and to bargain in good faith, in the pursuit of
a common goal of peaceful and productive accommodation” and make a “reasonable
effort to arrive at an acceptable contract” (paras. 90 and 101). To suggest
that s. 2 (d) protects
the right to equal bargaining power with one’s employer or “a form of workplace
democracy” takes it far outside its linguistic,
philosophical and historical context (para. 85).
[255]
I agree that one’s work
is fundamental to one’s identity and well-being and that exerting control over
one’s working conditions is a desirable goal. However, even assuming that such
considerations militate in favour of legislative intervention to empower workers
and employee associations, the fact remains that our Constitution leaves the
determination as to whether, and to what extent, such intervention is
appropriate to Parliament and the provincial legislatures. Section 2 (d)
is silent on such matters and this Court may not intervene into questions of
economic and social policy in the absence of a legislative or constitutional
grant of authority.
C. The
Approach in Health Services Is Unworkable
[256]
Beyond Health Services’
errors as to the nature of s. 2 (d) and
its reasons for constitutionalizing a duty to bargain in good faith, the
collective bargaining right itself is unworkable for
two reasons. First, as found by the Ontario Court of Appeal, the right to
collective bargaining imposed by Health Services is unworkable unless it
is supported by at least two additional elements of Wagner model collective
bargaining. Second, the attempt to draw a distinction between the process of
good faith bargaining and the fruits of such bargaining is unworkable, as Health
Services itself demonstrates.
(1) The Problem of Constitutionalizing One Part of the
Wagner Model
[257]
In the court below in this appeal, an experienced and
eminent labour lawyer and now Chief Justice of Ontario, Winkler C.J.O., took
the view that a constitutional right to meaningful collective bargaining must extend to two additional aspects: the principle
of majoritarian exclusivity and a mechanism for resolving bargaining impasses
and disputes regarding the interpretation and administration of collective agreements.
Accordingly, he ordered legislation that would extend the missing protections
to agricultural workers:
If legislation is to provide
for meaningful collective bargaining, it must go further than simply stating
the principle and must include provisions that ensure that the right can be
realized. At a minimum, the following statutory protections are required to
enable agricultural workers to exercise their right to bargain collectively in
a meaningful way: (1) a statutory duty to bargain in good faith; (2) statutory
recognition of the principles of exclusivity and majoritarianism; and (3) a
statutory mechanism for resolving bargaining impasses and disputes regarding
the interpretation or administration of collective agreements. [Emphasis added;
para. 80.]
Abella
J. in her reasons finds that a right to collective bargaining for agricultural
workers must include an enforcement and compliance mechanism to resolve
bargaining disputes (para. 339) and the statutory recognition of majoritarian
exclusivity (para. 343).
[258]
Winkler C.J.O. explained that these elements were
necessary to a workable system of good faith collective bargaining. He
justified adding the mechanism for resolving bargaining impasses by explaining
that the bargaining process would be “jeopardized” if the parties had no
recourse to a dispute resolution mechanism when faced with fruitless bargaining
(para. 82).
[259]
Indeed, when a duty is
imposed on a party by law, it must be accompanied by sanctions or means of
enforcement if there is non-compliance with
the duty. Without sanctions or means of enforcement, compliance with the duty
would be, to all intents and purposes, voluntary. This would hardly meet the
requirement, according to the Chief Justice and LeBel J., that collective
bargaining be mandatory.
[260]
Winkler C.J.O. also explained that a collective
bargaining process that lacks the feature of majoritarian exclusivity would be
“impractical” and lead to “chaos”:
It is impractical to expect employers
to engage in good faith bargaining discussions when confronted with a process
that does not eradicate the possibility of irreconcilable demands from multiple
employee representatives, purporting to simultaneously represent employees in
the same workplace with similar job functions. It is not overstating the point
to say that to avoid chaos in the workplace to the detriment of the employer
and employees alike, it is essential that a representative organization be
selected on a majoritarian basis and imbued with exclusive bargaining rights. [para.
92]
[261]
Winkler C.J.O.’s concerns present a significant
problem that the Chief Justice and LeBel J. do not address in their reasons.
They limit constitutionalization to collective bargaining imposing a duty on
employers to bargain in good faith. The reasons of the Chief Justice and LeBel
J. provide no explanation for why Winkler C.J.O. is wrong. As the majority in Doucet-Boudreau said in
discussing minority language educational rights: “A purposive approach to
remedies in a Charter context gives modern vitality to the ancient maxim
ubi jus, ibi remedium: where there is a right, there must be a remedy”
(para. 25). I cannot agree that a right can be workable without the imposition
of an appropriate remedy.
[262]
The Chief Justice and LeBel J. say that “[i]t is
premature to argue that the holding in Health Services, rendered four years ago, is unworkable in practice” (para. 83).
They say that it takes time before the unworkability of a decision emerges. I
disagree. Winkler C.J.O.’s conclusion that a constitutional right to
meaningful collective bargaining must include constitutionalizing elements of
the Wagner model provides strong support for the proposition that, without
these protections, compulsory collective bargaining is unworkable.
(2) The
Untenable Distinction Between Substance and Process
[263]
Unworkability also arises from the majority’s
instruction in Health Services to protect the process of
collective bargaining without also protecting its substantive fruits. In Health Services, the majority posited that this distinction was entirely
possible (para. 29). In my view, this distinction is
unworkable because it is impossible to divorce the process of collective
bargaining from its substantive outcomes.
There are three reasons.
[264]
First, as I have
already discussed, Health Services itself
did not respect this distinction since the majority granted constitutional protection to
“significant” terms of the collective agreements at issue in that very case. The
majority found that the challenged B.C. legislation breached s. 2 (d) not
just by limiting future bargaining but also by invalidating existing collective
agreements and consequently undermining the past bargaining process that formed
the basis for these agreements. Therefore, the application of the collective
bargaining right in Health Services had
the result of protecting the substance of those agreements.
[265]
Second, the duty to
bargain in good faith cannot be described as only a “procedural” guarantee, as
the Chief Justice and LeBel J. do in this case and as the majority did in Health
Services. Recognizing an employee
association and requiring the employer to engage in collective bargaining are
themselves substantive outcomes for which workers organize. In a labour
context, as in other contexts, certain “procedures” are favoured because they
are more likely to produce a certain outcome.
[266]
The very requirement that the parties
engage in collective bargaining tips the economic balance between parties in favour of the workers and, as such, constitutes a
particular outcome. Consequently, the act of engaging in the process
itself constitutes a concession on the part of the employer. Were it not so,
organized labour would have little reason to demand constitutional protection
for the “right” to engage in a process of collective bargaining.
[267]
In addition to
providing the substantive benefit of requiring employers to meet with workers,
the duty to bargain in good faith brings
other, more specific substantive benefits. As
the term is understood in Canadian labour law, the duty to bargain in good
faith prohibits an employer from flat out refusing to bargain with the union or
from only going to a few cursory meetings: Adams, vol. 2, at p. 10-122.
However, it also goes much beyond that. Depending on the circumstances, the
duty to bargain in good faith can prohibit an employer from refusing to include
or discuss the inclusion of standard industry terms in a collective agreement
or, conversely, insisting on the inclusion of a term to the point of impasse:
see Adams, vol. 2, at pp. 10-111 to 10-112; Royal Oak Mines Inc. v. Canada
(Labour Relations Board), [1996] 1 S.C.R. 369, at para. 45, per Cory
J. It also obligates employers to disclose material information to unions in advance
of negotiations: Adams, vol. 2, at pp. 10-124 to 10-128. All of these aspects
of the duty to bargain in good faith change these measures and constrain the
range of negotiating positions available to the employer and thus have a
substantive impact on the terms of employment.
[268]
Finally, for a duty to
bargain in good faith not to be an illusory benefit, there must be both a way
of dealing with bargaining impasses as well as an effective remedy for
persistent breaches of a duty to bargain in good faith. The first requires
that there be some default mechanism for resolving the dispute in case an
impasse is reached — such as striking or binding arbitration — while the second
may require, in extreme circumstances, the imposition by an arbitrator of
particular terms of a collective agreement: W. B. Rayner, Canadian
Collective Bargaining Law (2nd ed. 2007), at pp. 349-55. Each of these
goes well beyond a mere process and results in the protection of a particular
substantive outcome.
[269]
The majority’s inability to separate
substance and process, and the consequent constitutionalization of collective
bargaining terms demonstrates the unworkability of the distinction between
substance and process asserted in Health Services. This unworkability
is further underlined by the fact that the collective bargaining itself is an
outcome for which parties organize and does affect substantive outcomes. For
these reasons, as well as the unenforceability of the bare right to good faith
bargaining, the ruling in Health Services is unworkable.
V. The
Charter Protects a Voluntary Association of Workers Whose Objectives Are
to Improve Wages and Working Conditions
[270]
As I have explained
through these reasons, I do not accept that s. 2 (d) protects a right to
collective bargaining. I am, however, of the view that s. 2 (d) does
protect a voluntary association of workers who wish to use their associational
freedoms to come together and attempt to improve their wages and working
conditions.
[271]
Under Canadian law, an
individual is generally free to bargain with an employer over terms of
employment. Because such individual bargaining is generally lawful, it
necessarily follows that the decision of individuals to band together to
approach their employer must necessarily be protected. The free decisions of
individuals to do in association what they can lawfully do alone lies at the
very heart of s. 2 (d) protection, and it therefore follows that s. 2 (d)
must protect the decision of individuals to come together, to form a bargaining
position and to present a common and united front to an employer.
[272]
However, s. 2(d)
does not provide greater legal protection to individuals acting in concert than
is afforded to individuals acting alone. While greater economic clout or
political power may flow from the very act of association in a way that makes
the associational activity “qualitatively” different from the individual
activity, the legal rights and freedoms granted to individuals acting in
association under s. 2(d) are nonetheless limited to the same rights and
freedoms afforded to individuals acting alone.
[273]
While s. 2(d)
protects the ability of workers to come together and to organize with a view to
engaging in collective bargaining with an employer, s. 2(d) does not
impose any obligation on an employer to actually negotiate with a group of
employees. In the individual case, there is generally no legal obligation on
an employer to negotiate with the employee. It is entirely permissible for an
employer, in the course of negotiating a new contract with an employee, to make
a “take it or leave it” offer to an employee, which the employee may then
accept or reject. Such individual agreements are generally left to voluntary
negotiation in accordance with the law of contract, subject only to
requirements set out in employment standards legislation and other statutes.
Thus, just as an employer can decline to meet or negotiate with an individual,
so can an employer decline to meet or negotiate with a group of employees.
[274]
In my view, a proper
application of s. 2(d) provides protection for voluntary associations of
workers, but such protection does not involve the constitutionalization of a
duty on employers to engage in collective bargaining. Such an approach is, in
my view, consistent with the purpose and scope of s. 2(d), the principle
of judicial deference in labour relations, and Canada’s labour history and
international obligations.
VI. Summary
[275]
Given the length of
these reasons thus far, I now provide a summary of the principles discussed
above before proceeding to apply these principles in the present case:
1. This Court may overrule
its own precedents, but it should only do so where there are compelling reasons
for doing so. In this case, such compelling reasons exist. Health Services involves Charter rights
that are not susceptible to legislative correction, overruled a line of prior
sound decisions, is unworkable and has been the subject of intense academic
criticism.
2. Health Services
erred for three reasons in concluding that s. 2(d) protects collective
bargaining and obliges parties to bargain in good faith:
a. First, Health
Services departed from sound principles established in this Court’s
precedents on the nature and scope of s. 2(d); specifically, it departed
from the following five characteristics of s. 2(d):
i. The purpose of s. 2(d)
is to protect individuals rather than groups per se.
ii. Section 2(d) protects
freedoms not rights.
iii. Section 2(d) does not
empower the Court to privilege certain associations over others.
iv. Section 2(d) does not
afford constitutional protection to contracts.
v. Section 2(d) is to be
interpreted in such a way as to afford deference to the legislative branch in
the field of labour relations.
b. Second, the reasons advanced in Health Services for protecting collective
bargaining under s. 2(d) — Canadian labour history, Canada’s
international obligations, and Charter values — do not support
conferring a constitutional right to collective bargaining and imposing a duty
on employers to engage in collective bargaining.
c. Third, the majority’s approach to
collective bargaining in particular and s. 2(d) in general articulated
in Health Services is unworkable. It
extends constitutional protection to the duty to bargain in good faith without
importing other aspects of the Wagner framework, and by purporting to protect
the process of collective bargaining without also protecting its fruits,
neither of which is tenable.
3. Section 2(d) protects the ability of
individuals to form associations and to do in association what they can
lawfully do alone. Because individuals are generally free to bargain with their
employer individually, it follows that s. 2(d) must protect the decision
of individuals to come together, to form a bargaining position and to present a
common and united front to their employers. However, just as an employer is not
obliged to bargain with an individual employee, s. 2(d) does not oblige
an employer to bargain with a group of employees.
VII. Application
to the Present Case
[276]
I agree with the
conclusions of the Chief Justice and LeBel J. that the AEPA does not
violate s. 2 (d) of the Charter , but for the reasons I have
given. Section 2 (d) does not confer a right of collective bargaining;
nor does it impose a duty on employers to meet with employees and “consider
employee representations in good faith” (para. 104). I agree with Farley J. ((2006),
79 O.R. (3d) 219) that the AEPA satisfies all of the concerns raised in Dunmore.
[277]
On a plain
reading of the provisions of the AEPA it provides all of the protections
which were imposed by this Court in Dunmore, but goes no further. It
does not provide any right to collective bargaining, or other incidents of Wagner
Act collective bargaining. Indeed up to this point, the parties and the courts
have all proceeded on the basis that the AEPA did not include a duty of
collective bargaining. The claimants chose to bring this case because in their
view, the AEPA did not include provisions to enforce a duty of
collective bargaining on agricultural employers. Based on this Court’s ruling
in Dunmore that s. 2 (d) did not create a right of collective
bargaining, Farley J. ruled that the AEPA did not violate the Charter .
Health Services subsequently expanded the scope of s. 2 (d) to
constitutionalize the right to collective bargaining. Thus the Court of Appeal
was obliged to and did find that the AEPA was no longer Charter
compliant. Both of these conclusions were entirely consistent with the text of
the AEPA and the parties’ understanding that the AEPA did not
include a duty of collective bargaining on agricultural employers.
[278]
By enacting
the AEPA, the legislature precisely addressed this Court’s ruling in Dunmore.
The text, context and purpose of the AEPA clearly demonstrate that the
legislature intentionally opted not to include a duty on employers to engage in
collective bargaining with employee associations.
[279]
Nonetheless, the Chief Justice and LeBel J. say that s. 5
of the AEPA can be read as imposing a duty to bargain in good faith
(para. 107), which would render the statute constitutional. They argue that
the words of s. 5 are ambiguous and that the interpretive tools of purposive
interpretation, the presumption of consistency with the Charter , and reference
to legislative debates lead to this conclusion. Like my colleagues Deschamps
J. and Abella J., I cannot agree.
[280]
The words of s. 5 are
unambiguous. The
relevant portions of s. 5 are subsections (1), (5), (6) and (7).
5. (1) The employer shall give an employees’
association a reasonable opportunity to make representations respecting the
terms and conditions of employment of one or more of its members who are
employed by that employer.
. . .
(5) The
employees’ association may make the representations orally or in writing.
(6) The employer
shall listen to the representations if made orally, or read them if made in
writing.
(7) If the
representations are made in writing, the employer shall give the association a
written acknowledgment that the employer has read them.
These words could not be
clearer: they provide employee associations the opportunity to make
representations to an employer. The only obligation on an employer is to
provide the employee association with the opportunity to make representations
and to listen if they are oral or read and acknowledge them if they are
written.
[281]
The words “listen to” or
“read” and “give the association a written acknowledgment” are not ambiguous.
This Court’s approach to statutory interpretation has long held that “the words
of an Act are to be read in their entire context and in their grammatical and
ordinary sense harmoniously with the scheme of the Act, the object of the Act,
and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27, at para. 21, citing Elmer Driedger in Construction of
Statutes (2nd ed. 1983)). To say that the words “listen to” or “read” and
“give the association a written acknowledgment” are ambiguous would be to
ignore the grammatical and ordinary sense of the words, and the purpose of the AEPA,
and would manufacture ambiguity where none exists.
[282]
Professor Sullivan observes
that “[i]t is presumed that the ordinary meaning of legislation is the most
appropriate or ‘intended’ meaning” unless there is a reason to reject that
meaning (Sullivan and Driedger on the Construction of Statutes (4th ed. 2002),
at p. 34). As Professor Hogg, A. A. Bushell Thornton and W. K. Wright, write
in “Charter Dialogue Revisited — Or ‘Much Ado About Metaphors’” (2007),
45 Osgoode Hall L.J. 1, at p. 12:
A broader general rule, requiring the
courts to stretch the plausible interpretation of a statute in order to bring
it into conformity with the Charter , “would wrongly upset the dialogic
balance.” When a statute is unambiguous, courts should give effect to the
clearly expressed legislative intent, even if it leads to the conclusion that
the statute was unconstitutional and should be struck down for breach of the Charter .
In this case, there is nothing
in the AEPA that suggests that there is a reason to depart from the
ordinary and grammatical sense of the words.
[283]
It is true, as my colleagues
say, that the words “listen to” and “read” and “give the association a written acknowledgment”
neither impose nor preclude a duty to bargain in good faith. However, this does
not lead to ambiguity. A duty to bargain in good faith, as discussed above, is
a term of art in labour law that carries with it a complex series of reciprocal
rights and obligations (see Adams, vol. 2, at pp. 10-111 to 10-112, 10-122, and
10-124 to 10-128). Where good faith bargaining is protected by statute it is
explicitly included: see, e.g., s. 17 of the Ontario Labour Relations Act,
1995, S.O. 1995, c. 1, Sch. A, which requires that parties “shall
bargain in good faith and make every reasonable effort to make a collective
agreement”. To simply imply the existence of a set of statutory rights by the
absence of a well-known term of art stretches the interpretive exercise beyond
its breaking point.
[284]
The Chief Justice and LeBel J. say that “[t]here
can only be one purpose for requiring the employer to listen to or read employee
representations — to assure that the employer will in fact consider the
employee representations” (para. 103). They argue that this leads to the
conclusion that s. 5 includes a duty on employers to engage in collective
bargaining with employee associations.
[285]
The purpose of the AEPA is set out
expressly in s. 1 :
1. (1) The purpose of this Act is to protect
the rights of agricultural employees while having regard to the unique
characteristics of agriculture, including, but not limited to, its seasonal nature, its sensitivity to time and climate, the perishability of
agricultural products and the need to protect animal and plant life.
(2) The following are
the rights of agricultural employees referred to in subsection (1):
1. The
right to form or join an employees’ association.
2. The
right to participate in the lawful activities of an employees’ association.
3. The
right to assemble.
4. The
right to make representations to their employers, through an employees’
association, respecting the terms and conditions of their employment.
5. The right to protection against
interference, coercion and discrimination in the exercise of their rights.
[286]
Nothing in the explicit s. 1 purpose
supports the view that agricultural employees have a right to require
agricultural employers to engage in collective bargaining.
[287]
My colleagues ask what purpose there could be to
requiring employers to listen to or read employee representations if not to
respond to them. The answer is that the purpose is what the words say it is —
to give employees the opportunity to more effectively put forward their
representations by allowing them to do so collectively, rather than acting
individually. Given the unique nature of the agricultural industry as
recognized in s. 1 , an employer is at liberty to respond or not. With respect,
my colleagues interpretation of the words, “listen to” or “read” or “give the association
a written acknowledgment” as including a duty on employers to engage in
collective bargaining does not accord with the purpose as expressed by the
plain language of the AEPA.
[288]
Finally, the Chief Justice and LeBel J. say that when the government of
Ontario introduced the AEPA it intended the legislation to provide
protection for collective bargaining. They base their view on a statement made
by the Minister (at the time) that the Act was meant to meet the obligations
set by this Court in Dunmore. They say because the Minister used the
word “meaningful” she intended that the AEPA would protect collective
bargaining, as the majority of this Court deemed necessary in Health Services. They say this despite the fact that Health Services had not yet been written or even argued before this Court. They say
this despite an explicit statement made by the Minister, which they quote at
para. 106, that stated that the AEPA was not intended to “extend
collective bargaining to agricultural workers”. They suggest that the Minister
was only disclaiming Wagner Act collective bargaining, rather than
collective bargaining as they frame the term (ibid.).
[289]
As with the words of the AEPA, I read the
words of the Minister plainly as presented. The comments quoted by the Chief
Justice and LeBel J. indicate that the AEPA was intended to meet the
obligations in Dunmore, which did not
include an obligation on employers to engage in collective bargaining. Given
the absence of any requirement for collective bargaining in either Dunmore
or the AEPA the Minister’s comments support a plain reading of s. 5 as
imposing only a duty to “listen to” or “read” the representations and “give the
association a written acknowledgment” if the representations are made in
writing.
[290]
As the
Chief Justice and LeBel J. are of the view that agricultural employers in
Ontario have a duty of collective bargaining, the appropriate remedy would have
to be a declaration that the AEPA is unconstitutional in its present
form and expressly reading in words empowering the Agriculture, Food and Rural
Affairs Appeal Tribunal to order employers to engage in collective bargaining.
With respect, my colleagues’ approach goes
beyond the normal constraints of statutory interpretation; it amounts to an
implied reading into the AEPA the duty of collective bargaining without
declaring the Act unconstitutional. The remedial approach of the Chief Justice
and LeBel J. is, in my respectful view, entirely novel and unprecedented.
[291]
As I have explained earlier, the proper judicial approach in matters of labour relations
law is deference to the legislature. The imposition of a duty to bargain in
good faith, like many other aspects of labour relations law, has the potential
to reshape the economic landscape of entire industries by strengthening the
position of organized labour. Such an outcome may be desirable, but the courts
are not well suited to determining whether or not it is. Decisions of this
kind require a balancing of interests rather than the application of legal
principles, and they are best made after having consulted with and receiving
representations from the various stakeholders whose livelihoods and economic
interests are likely to be affected. Courts do not have the expertise or the
institutional capacity to undertake such a process and thus are not well equipped
to make an informed decision. If a duty to bargain in good faith is to be
imposed, it should be by the legislature and not the court.
[292]
The Chief Justice and LeBel J. say that the freedom to engage
in a coordinated attempt to negotiate with one’s employer is “meaningless” if
it is not backed up by a reciprocal duty on the part of the employer. I cannot
agree. The right to make representations in association is not meaningless.
It is meaningful because of the increased persuasive weight carried by
collective representations rather than individual representations. Indeed
political parties are formed on this precise premise. As Le Dain J. noted in
the Alberta Reference, at p. 391:
. . . the freedom to work for the
establishment of an association, to belong to an association, to maintain it,
and to participate in its lawful activity without penalty or reprisal is not to
be taken for granted. . . . It is a freedom that has been suppressed in varying
degrees from time to time by totalitarian regimes.
[293]
Canadians
are accustomed to sound government and the respect for our personal liberties.
For this reason, basic freedoms that are essential to the
preservation of an open and democratic society may come to be taken for granted
and their constitutional protection thought of as meaningless. However,
freedom, unconstrained by oppressive government, is, indeed, more than
meaningful. It is invaluable.
[294]
Accordingly, on the matter of s. 2 (d) of the Charter ,
I find that I cannot agree with the Chief Justice and LeBel J.
[295]
I am in agreement with
the Chief Justice and LeBel J. as to their disposition of the issues under s.
15 . On the record before this Court, the category of “agricultural worker”
does not rise to the level of an immutable (or constructively immutable)
personal characteristic of the sort that would merit protection against
discrimination under s. 15 .
VIII. Conclusion
[296]
For these reasons, I would dispose of the constitutional questions in the same way
as the Chief Justice and LeBel J., allow the appeal and restore the judgment of
Farley J.
The following are the reasons
delivered by
[297]
Deschamps J. — Canadian
labour law is not static. Over the years, some of the changes in this field
have been reflected in judicial decisions, such as those on freedom of
association under s. 2 (d) of the Canadian Charter of Rights and
Freedoms . Health Services and Support — Facilities
Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2
S.C.R. 391, fed expectations, but it also caused some bewilderment. More
importantly, it generated an unnecessary debate about whether a duty to bargain
in good faith has been imposed on employers. I
will begin by demonstrating why, in my view,
the case at bar can and should be resolved on the basis of the answers this
Court actually gave to the questions raised in Health Services, in which the issue of an employer’s duty to bargain in
good faith was not even raised. I will then briefly explain why I am of
the view that the analytical framework articulated by the Court in Dunmore
v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, should be
limited to the context of that case.
I. Interpreting Health Services
[298]
When the case at bar was heard by the Ontario Superior
Court of Justice ((2006), 79 O.R. (3d) 219), this Court’s judgment in Health
Services had not yet been released. The issue put to Farley J. at that
time was whether the Agricultural Employees Protection Act, 2002, S.O.
2002, c. 16 (“AEPA”), was consistent with this Court’s decision in Dunmore.
Health Services was released after Farley J.’s judgment, but
before the Court of Appeal heard the appeal in the case at bar (2008 ONCA 760,
92 O.R. (3d) 481). As a result of comments made by the majority in Health
Services, the case proceeded down a completely different path in the
Court of Appeal, where the issue was whether union exclusivity, majoritarianism
and mechanisms for resolving bargaining impasses and disputes — all parts of
the “Wagner model” on which Canadian labour law statutes
are based — were required by the Charter .
[299]
At first glance, the Ontario Court of Appeal’s
affirmative response to this question is so
far removed from any conclusion reached in Health Services that it seems
surprising. After all, the majority in Health Services made it crystal
clear that no specific model of labour relations is protected by s. 2 (d)
of the Charter , as they said: “. . . the right is to a general
process of collective bargaining, not to a particular model of labour
relations, nor to a specific bargaining method” (para. 91). By so stating, the
majority of this Court were indicating that the Wagner model is not enshrined
in the Charter . However, considering the predominance of the Wagner
model in Canadian labour law, it is easy to see how Winkler C.J.O. reached the
conclusion that the majority in Health Services must have been
contemplating exclusivity, majoritarianism and mechanisms for resolving
bargaining impasses and disputes at the same time as
they discussed the duty to bargain in good faith. In my view, the
holding in Health Services does not have the broad scope being
attributed to it by the majority in the case at bar and, in particular, does
not extend to imposing a duty on employers to bargain in good faith. I find
that the AEPA is consistent with this Court’s conclusion in Dunmore and
would therefore allow the appeal, but for different reasons than the majority.
[300]
My reading of Health Services is that it
represents a step forward in the recognition of collective activities: joining
individual voices through collective bargaining to achieve common goals is
protected by the Charter . In that case, I endorsed the view, which I
still hold, that:
(1) the
constitutional right to collective bargaining concerns the protection of the
ability of workers to engage in associational activities, and their capacity to
act in common to reach shared goals related to workplace issues and terms of
employment;
(2) the
right is to a process of collective bargaining — it does not guarantee a
certain substantive or economic outcome or access to any particular statutory
regime; and
(3) the
right places constraints on the exercise of legislative powers in respect of
the collective bargaining process. [para. 174]
[301]
This incremental interpretation of s. 2 (d) of the Charter
was sufficient to dispose of the questions raised in Health Services and
is also sufficient to dispose of those raised in this appeal. It leaves it up
to the legislatures to make the difficult policy choices that must be made in
order to achieve economic balance in labour law. This interpretation is also
consistent with the restraint courts show in resolving the issues raised by the
parties before them. The approach should not differ in cases involving constitutional
interpretation.
[302]
As the majority in the
instant case note (at para. 80), in R. v. Advance Cutting &
Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209, LeBel J. acknowledged the existence of a judicial
policy of non-intervention in labour relations. He made the following comment
in that case:
Looking back over nearly 20 years
of the application of the Charter , it is clear that this Court has been
reluctant to accept that the whole field of labour relations should fall under
the constitutional guarantee of s. 2 (d). The law of collective
bargaining, as it has developed in Canada since the Depression beginning in
1929 and the Second World War, as well as union and employer conflicts like
strikes and lockouts, have been left largely to legislative control based on
government policy. Laws restricting the choice of a bargaining agent or
forbidding strikes and lockouts were deemed not to engage the guarantee of
freedom of association as such. The social and economic balance between
employers and their collective unionized employees was viewed as a question of
policy making and management of sharply conflicting interests. Thus, it
was thought more appropriate to leave the resolution of such conflicts and the
policy choices they required to the political process. [para. 156]
Where the economic
balance is concerned, I share the view expressed by LeBel J. in Advance
Cutting:
Legislatures are entitled to a
substantial, though not absolute, degree of latitude and deference, to settle
social and economic policy issues (RJR-MacDonald, at para. 134, per
McLachlin J.). Courts should be mindful to avoid second-guessing
legislatures on controversial and complex political choices (M. v. H.,
[1999] 2 S.C.R. 3, at para. 79, per Cory and Iacobucci JJ.). As
discussed above, the jurisprudence acknowledges that legislative policy-making
in the domain of labour relations is better left to the political process, as a
general rule. [para. 257]
[303]
An approach to constitutional interpretation
similar to the one I set out above would have ensured a softer landing for Health
Services. I readily acknowledge that the commentary on that decision was
not unanimous. The Chief Justice and LeBel J. refer to the authors whose
comments were mostly favourable, while Rothstein J. refers to those who were
mostly unfavourable. I disagree with the expansive approach taken by the
majority in the case
at bar and with the use they make of Health Services. A
more prudent approach, one that would be consistent with this Court’s
jurisprudence on s. 2 (d) and with the issues the Court actually
considered in that case, would be to restrict the ratio of Health
Services to the questions actually raised and the answers actually given in
that case.
[304]
In Health Services,
the claimants asked this Court to declare that the
government had interfered with their right to
unite to achieve common goals. While they recognized that under most Canadian
labour law statutes, employers had an obligation to bargain in good faith, the
claimants were not seeking a declaration characterizing this obligation as a
constitutional one. Neither the British Columbia Supreme Court nor the Court of
Appeal dealt with a duty on employers to bargain in good faith, because this
subject was quite simply not raised. Indeed,
it was in its legislative capacity — not as an employer — that the
government had interfered with the employee’s rights. Therefore, the majority in Health
Services did not need to comment on or make findings in respect of
whether the government, as an employer, had a duty to negotiate in good faith.
There was thus no need to impose a Charter -based duty to
bargain on employers. A fortiori, there was no need
to import, together with this duty, the
good faith element that is one
of the hallmarks of the
Wagner model and that inevitably entails a number of statutory components. I
cannot therefore agree with the majority in the case at bar that Health Services imposes
constitutional duties “on governments as employers” (para. 73).
[305]
All that was required by the questions raised in
Health Services was a finding that since the employees had a
constitutional right to engage in associational
activities and act in common to reach common goals, the legislature
could not interfere with their right (i) by prohibiting them from addressing
certain issues in the collective bargaining process; and (ii) by cancelling
negotiated provisions in the agreements and thereby rendering the process
meaningless. By enacting legislation that had
prohibited the negotiation of certain issues in the course of Charter -protected
associational activities and rendering useless the efforts expended to achieve
a negotiated agreement on certain subjects, the legislature had interfered with
their right. This conclusion did not depend on the employer’s being under a
duty to bargain in good faith.
[306]
In the case at bar, the issue is similar to the one in Health Services in
that it concerns legislative action, but it is not, as the Chief Justice and
LeBel J. put it, whether the “AEPA provides a process that satisfies”
“the right of an employees’ association to make representations to the employer
and have its views considered in good faith” (para. 99). Although the right of
employees to have their views considered in good faith may well flow from certain comments made in Health Services,
they do not flow from the issues raised in that case. The duty to act in good
faith is part and parcel of a web of statutory components. It should not be
found to be a constitutional requirement in the instant case.
[307]
To frame the issue in this case, the AEPA
must be situated in its context. The AEPA
is the response of the Ontario legislature to this Court’s decision in Dunmore.
In that case, agricultural workers had been excluded
from the general statutory regime and had suffered from the statute’s
underinclusiveness. The expanded definition of “freedom of association”
that resulted from Health Services has no bearing on the protection the
Ontario legislature must provide to agricultural workers. The reason is that Dunmore
purported to impose on the Ontario legislature an obligation to provide agricultural workers with more than what had until
then been considered to be included in the scope of the constitutionally protected right to associate. Indeed, the decision in Dunmore, which was
consistent with Delisle v. Canada
(Deputy Attorney General), [1999] 2 S.C.R.
989, at para. 10, was based on the premise that s. 2 (d) “exists
independently of any legislative framework”. However,
it was held that agricultural workers should be afforded greater protection
because they were vulnerable and were substantially unable to exercise their constitutional right without the support of a legislative framework.
[308]
As I explained above, in my view, the effect of Health
Services is that freedom of association includes the freedom to engage in
associational activities and the ability of employees to act in common to reach
shared goals related to workplace issues and terms of employment. This
delineation of the scope of freedom of association does not entail a more
expansive protection than the legislative framework mandated
by Dunmore for the agricultural workers. Therefore, if the AEPA
complies with Dunmore, it will necessarily comply with the Charter .
To answer the question in the case at bar, there is no need to import
a duty to bargain in good faith. I cannot
therefore agree with the statement of the majority in the case at bar that,
“[s]ince Health Services, it has been clear that [a meaningful exercise
of the right to associate] requires employers to consider employee
representations in good faith” (para. 104).
[309]
I would be remiss were I not to mention the observation of the majority in Health Services (at
para. 88) that, owing to s. 32 of the Charter ,
“a private employer is not bound” by s. 2 (d)
seems to have been lost in the case at bar. The requirement created by the majority in the instant case (at para. 73) that the
legislature “impose
statutory obligations on employers” to conduct good faith negotiations cannot be found in Health
Services. As a result of this new requirement, Parliament
and the legislatures will now, subject to justification under s. 1 of the Charter ,
have a constitutional obligation to ensure that their Wagner-based labour
legislation includes all employees. The irony
of this result is that no such obligation was sought by the claimants either in
Dunmore or in Health Services, the very cases on which the
majority now rely to support their statement in this appeal.
[310]
If Parliament and the legislatures are required to impose, in
their statutory schemes, a duty on employers to bargain in good faith, this duty
will apply to all public and private sector employees. Dunmore, which concerned the exclusion of a group of
employees who required assistance to exercise their constitutional right to
associate, will now apply to all Canadian employees
regardless of whether they need such support to
exercise their s. 2 (d) right (see Delisle). This being so,
the Court will be making a policy decision in the place of Parliament
and the legislatures. I would prefer to exercise restraint in such a case.
[311]
Because my interpretation of Health Services
is based on the questions that were actually raised in that case and the
answers the Court actually gave to those questions, I am of the view that in
the instant case, the AEPA has not been proven to violate the employees’
right to associate. Section 1 of the AEPA lists the rights of
agricultural employees as follows: (1) the right to form or join an
employees’ association; (2) the right to participate in the lawful activities
of an employees’ association; (3) the right to assemble; (4) the right
to make representations to their employers, through an employees’ association,
respecting the terms and conditions of their employment; and (5) the right to
protection against interference, coercion and discrimination in the exercise of
their rights. Farley J. pointed out that Dunmore did not require the
“legislation . . . to incorporate a complete panoply of collective bargaining
rights” (para. 22) and found that the impugned legislation met the standards
established in Dunmore. I agree with Farley J., and I respectfully
disagree with the Court of Appeal’s interpretation.
[312]
Since Dunmore remains central to this
appeal, I must comment briefly on the approach taken in that case.
II. Approach From Dunmore
[313]
In Health Services (at para. 176), I
voiced concerns about the majority’s adoption of a
criterion used in Dunmore to determine
whether the government had infringed a Charter right. Even though both
cases are based on compelling facts, principles should not be imported from one
context into another that is not analogous to it. As
I explained above, a similar unwarranted importation of principles can be
observed in the case at bar. But there is more.
[314]
It is helpful to recall that, as noted by Judy
Fudge, “[a]t issue in Dunmore was the total exclusion of agricultural
workers in Ontario from any form of labour legislation that protected them
against employer retaliation from joining and participating in a trade union.
The union did not ask for collective bargaining rights” (“The Supreme Court of
Canada and the Right to Bargain Collectively: The Implications of the Health
Services and Support case in Canada and Beyond”
(2008), 37 Indus. L.J. 25, at p. 30).
[315]
Dunmore was
obviously a difficult case. At its heart was the economic inequality being
suffered by agricultural workers. While labour law is to some extent always
about economic inequality, this issue does not occupy the forefront of every
battle. Health Services was not primarily about economic inequality — it concerned legislative
interference with both existing and future
collective agreements. Although economic inequality has the potential to
undermine the peaceful foundations of democratic societies, economic equality
is not an “equality right” for the purposes of s. 15 of the Charter . In
addition, even though labour law provides tools that help reduce economic
inequality, not all aspects of labour law are protected by the Charter
(see Health Services, at para. 19). Finally, employment status is not,
at least not at this time, regarded as an analogous ground for the purposes of
s. 15 of the Charter .
[316]
Dunmore was based on the
distinction between positive and negative rights. In my view, using this
distinction as a basis for finding that s. 2 (d) has been infringed
involves some difficulty. Both the commentary and the case law provide
sufficient justification for exercising caution before adopting an approach
that relies on the positive-negative distinction, particularly when the claim
concerns state action or inaction. Stephen Holmes and Cass R. Sunstein express
this eloquently in The Cost of Rights: Why Liberty Depends on Taxes (1999),
at pp. 43-44:
Individuals
enjoy rights, in a legal as opposed to a moral sense, only if the wrongs they
suffer are fairly and predictably redressed by their government. This simple
point goes a long way toward disclosing the inadequacy of the negative
rights/positive rights distinction. What it shows is that all legally enforced
rights are necessarily positive rights.
.
. . That is to say, personal liberty cannot be secured merely
by limiting government interference with freedom of action and association. No
right is simply a right to be left alone by public officials.
This brings to mind Cory and Iacobucci JJ.’s
response in Vriend v.
Alberta, [1998] 1 S.C.R. 493, at para. 56, to an argument that was analogous to the
positive-negative rights dichotomy:
It is said, however, that this case is
different because the challenge centres on the legislature’s failure to extend
the protection of a law to a particular group of people. This position
assumes that it is only a positive act rather than an omission which may be
scrutinized under the Charter . In my view, for
the reasons that will follow, there is no legal basis for drawing such a
distinction.
[317]
Distinguishing between the freedom to exercise a right
without state interference and the right to exercise a freedom unhampered by state action or inaction diverts the
discussion from the substance of the actual protection afforded by the Charter .
In our society, government activity is pervasive and unavoidable: see S.
Bandes, “The Negative Constitution: A Critique” (1990), 88 Mich. L. Rev. 2271,
at p. 2285, and Greater Vancouver Transportation Authority
v. Canadian Federation of Students — British Columbia Component, 2009 SCC
31, [2009] 2 S.C.R. 295, at para. 34.
[318]
Dunmore was concerned
with economic inequality. It was based on the notion
that the Charter does not ordinarily oblige the government to take
action to facilitate the exercise of a fundamental freedom. Recognition was
given to the dichotomy between positive and negative rights. To get around the
general rule, a somewhat convoluted framework was established for cases in
which the vulnerability of a group justified resorting to government support. I agree with B. Langille, “The Freedom of Association Mess: How We
Got into It and How We Can Get out of It” (2009), 54 McGill L.J. 177,
that this detour appears to have been an artifice designed to sidestep the
limits placed on the recognition of analogous grounds for the purposes of s.
15 .
[319]
To redress economic inequality, it would be more
faithful to the design of the Charter to open the door to the
recognition of more analogous grounds under s. 15 , as L’Heureux-Dubé J.
proposed in Dunmore. Such an approach is preferable to relying on a distinction that does not rest on a
solid foundation. This, of course, would entail a sea change in the
interpretation of s. 15 of the Charter . The majority in the instant case resist such a change, referring to
“Canadian values” and to the need to take a “generous and purposive” approach
when interpreting Charter rights (at paras. 32, 90, 92 and 97),
but to ensure consistency with the approach of the majority in Health
Services (at paras. 81-96), they refer to equality in the s. 2 (d)
context without mentioning s. 15 . My point here is
not that each Charter protection should be interpreted in a formalistic
manner. Rather, it is that if the law needs to move away from Dunmore’s
distinction between positive and negative rights, this should not be
accomplished by conflating freedom of association with the right to equality or
any other Charter right that may be asserted by a litigant. An analysis
based on principles grounding the protection of rights and freedoms offers a
better prospect of judicial consistency than one based on the more amorphous
notion of “Canadian values”.
[320]
For these reasons, I would allow the appeal and
restore Farley J.’s judgment.
The following are the reasons
delivered by
[321]
Abella J. (dissenting) — I fully endorse the Chief Justice and LeBel J.’s discussion of Health
Services and Support — Facilities Subsector Bargaining Assn. v. British
Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391.
I agree with them that by including protection for the process of collective
bargaining, Health Services enhanced the scope of s. 2 (d) of the Canadian
Charter of Rights and Freedoms beyond the formalism assigned to it by this
Court’s 1987 labour Trilogy (Reference re Public Service Employee
Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1
S.C.R. 424; and RWDSU v. Saskatchewan, [1987] 1 S.C.R.
460). I am also in agreement with their criticisms of Rothstein J.’s decision
to reconsider the correctness of Health Services on his own motion, in
the absence of a request from any of the parties that he do so, and without an
opportunity for them to address the issue.
[322]
With the greatest respect, however, I do not
agree that the Agricultural Employees Protection Act, 2002, S.O.
2002, c. 16 (“AEPA”), meets the new Health Services standard. I
have great difficulty with stretching the interpretive process in a way that
converts clear statutory language and express legislative intention into a
completely different scheme. The AEPA does not protect, and was never
intended to protect, collective bargaining rights.
Background
[323]
The AEPA was enacted in 2002 to respond
to this Court’s 2001 decision in Dunmore
v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, which held that s. 2 (d) protected the
right to organize. Dunmore was decided in accordance with the labour
Trilogy, the then operative s. 2 (d) paradigm. The Trilogy was widely
taken as standing for the proposition that s. 2 (d) did not include
protection for collective bargaining (Professional Institute
of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367). The Trilogy was not challenged in Dunmore, and Bastarache
J., writing for the majority, was explicit that he was not addressing
whether collective bargaining was protected under s. 2 (d). What was
protected, in his view, was the following:
. . . I conclude that at minimum the
statutory freedom to organize in . . . the [Labour Relations Act, 1995,
S.O. 1995, c. 1, Sch. A] ought to be extended to agricultural workers, along
with protections judged essential to its meaningful exercise, such as freedom
to assemble, to participate in the lawful activities of the association and
to make representations, and the right to be free from interference,
coercion and discrimination in the exercise of these freedoms. [Emphasis added;
para. 67.]
[324]
It is not surprising, therefore, that the 2002 AEPA
contains no reference to a protection which made no appearance on the
constitutional stage until 2007. Or that the trial judge’s decision in 2006 in
the case before us, applied the Dunmore “right to organize” template and
found the legislation compliant with s. 2 (d) ((2006), 79 O.R. (3d)
219).
[325]
But by the time the Court of Appeal heard this
case in 2008, Health Services had been decided, creating a completely
different jurisprudential universe. That was the new s. 2 (d) universe
Winkler C.J.O. applied to the AEPA (2008 ONCA 760, 92 O.R. (3d) 481).
He found the legislation wanting. I agree with him.
Analysis
[326]
In granting constitutional protection to the
process of collective bargaining under s. 2 (d), Health Services
found the duty to consult and negotiate in good faith to be a “fundamental
precept” (para. 97). This does not guarantee that a collective agreement will
be achieved, but good faith bargaining does require that the parties meet,
engage in a meaningful dialogue, and make reasonable efforts to arrive at a
collective agreement (paras. 90 and 101). Health Services confirmed
that this involves not only the employees’ collective right, as confirmed in Dunmore,
to organize and make representations, but also a corollary duty on the part of
employers to meaningfully discuss, consult, and consider these representations:
. . . the right to bargain collectively
protects not just the act of making representations, but also the right of employees
to have their views heard in the context of a meaningful process of
consultation and discussion. . . . [T]he right to collective bargaining
cannot be reduced to a mere right to make representations. [Emphasis added;
para. 114.]
(See
also para. 101.)
[327]
This requirement of meaningful dialogic
consultation has long been recognized in collective bargaining regimes: Royal
Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, at
para. 41; U.E.W. and DeVilbiss Ltd., [1976] 2 C.L.R.B.R. 101 (Ont.);
George W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), vol.
2, at paras. 10.1710 and 10.1870-10.1920; Donald D. Carter et al., Labour
Law in Canada (5th ed. 2002), at paras. 621-22; Wesley B. Rayner, Canadian
Collective Bargaining Law (2nd ed. 2007), at pp. 333-34; Elisheva (Elika)
Barak-Ussoskin, “Collaboration in the Tripartite System: The Right to be
Consulted and the Duty to Consult”, in A. Höland et al., eds., Employee
Involvement in a Globalising World: Liber Amicorum Manfred Weiss (2005),
439, at p. 445.
[328]
If we then turn to the relevant language of the AEPA
and its description of what is required of an employer, we find the following:
5. (1) The employer shall give an employees’ association a
reasonable opportunity to make representations respecting the terms and
conditions of employment of one or more of its members who are employed by that
employer.
. . .
(5) The
employees’ association may make the representations orally or in writing.
(6) The
employer shall listen to the representations if made orally, or read them if
made in writing.
(7) If
the representations are made in writing, the employer shall give the
association a written acknowledgment that the employer has read them.
[329]
The process created by these provisions is the
following: an employees’ association is entitled to make representations,
either orally or in writing, about the terms and conditions of employment. If
the representations are made orally, the employer is required to “listen” to
them. If they are made in writing, the employer must “read” them and give the
“employees’ association” a written acknowledgment that the representations have
been read. That is the full extent of the employer’s duties — to listen, to read,
and to acknowledge receipt. No response is required.
[330]
If we compare these duties under the AEPA
to the linguistic markers set out in Health Services, we find that the
following language is missing in action: “negotiate”, “meet”, “good faith”,
“engage”, “exchange”, “dialogue”, “consultation”, “discussions”,
“consideration”, “accommodation” and “union”. Nor does the key word
“bargaining” appear.
[331]
Noting the absence in the AEPA of Health
Services’ collective bargaining vocabulary is not a criticism of the
government’s motives. The AEPA was the government’s good faith — and,
as the trial judge found, successful — implementation of how Dunmore had
defined the scope of s. 2 (d) in 2001. This does not, however, assist in
determining whether it complies with the revised scope described in
Health Services. The Ontario government obviously cannot be held
responsible for the redefinition of s. 2 (d) that intervened between the
enactment and appellate review of the AEPA, but neither can courts
disregard the applicable law because of its infelicitous timing. Since the
applicable law for s. 2 (d) is now found in Health Services, the
AEPA must be scrutinized for compliance with its principles. And since, on
its face, no bargaining or consultation is required by the AEPA,
let alone the good faith bargaining Health Services set out as a minimal
constitutional protection, the AEPA violates s. 2 (d) of the
Charter .
[332]
Not only is there clarity of language, there is
also clarity of purpose. The government’s intentions to exclude collective
bargaining were forthright. The then Minister of Agriculture and Food, the
Honourable Helen Johns, was unequivocal when she introduced the legislation in
confirming that the legislation included no right to collective
bargaining:
However,
I need to make one thing very clear here. While an agricultural employee may
join an association that is a union, the proposed legislation does not
extend collective bargaining to agricultural workers.
(Legislative Assembly of
Ontario, Official Report of Debates (Hansard), No. 46A, October 22,
2002, at p. 2339 (emphasis added))
This was based on the
legislative goal of complying only with the rights required by Dunmore,
rights which, as the Minister correctly noted, addressed only the “right to
associate”, not the “right to collectively bargain”:
I’d like
to say that the Supreme Court was very clear. They said that agricultural
workers across the province had the right to associate. They did not say
that they had the right to collectively bargain.
(Legislative Assembly of
Ontario, Official Report of Debates (Hansard), No. 43A, October
16, 2002, at p. 2128 (emphasis added))
[333]
Judging from their conduct, the parties involved
in this appeal seem to have accepted there were no protections for the process
and enforcement of collective bargaining in the AEPA. The United Food
and Commercial Workers Union Canada represented workers at Rol-Land Farms Ltd.
After a vote in which an overwhelming majority voted in favour of
certification, the union wrote to Rol-Land requesting a meeting to begin
negotiations. The owner of Rol-Land Farms did not respond to the letter and
refused to recognize the union. The same union also represented employees at
Platinum Produce, where the employer gave the union the opportunity to make
brief oral representations, but said it had no obligation to bargain towards a
collective agreement. The meeting lasted 15 minutes.
[334]
In the years since the AEPA was enacted
in 2002, there is no evidence of a single successfully negotiated collective agreement
or even of any negotiations. I appreciate that statutory interpretation does
not draw on the perceptions of the statute’s intended consumers, but where, as
here, there is perfect harmony between statutory language, legislative
intention, and public perception, the usual interpretative tools are
vindicated.
[335]
In addition to finding a violation of s. 2 (d)
based on the explicit failure, by text and by design, to include even a hint of
a process of collective bargaining, let alone a duty to engage in meaningful
and good faith efforts to arrive at a collective agreement, I also agree with
Winkler C.J.O. that for agricultural workers, the absence of a statutory
enforcement mechanism and of majoritarian exclusivity is an infringement of s.
2 (d).
[336]
Health Services
recognized that s. 2 (d) of the Charter obliged the state, either
as employer or as legislator, to protect the process of collective bargaining
(para. 88). The content of that protection will of course mean different
things in different contexts. The determinative question will inevitably be,
as Bastarache J. said in Dunmore, what protections are “essential” to
the “meaningful exercise” of the right.
[337]
The right at issue in Dunmore was the
right to organize. Bastarache J. concluded that this required ancillary
protection for the freedom to assemble, to participate in the lawful activities
of the “employees’ association” and to make representations, along with the
right to be free from interference, coercion and discrimination in the exercise
of those freedoms (para. 67). All of these protections found their way into
the AEPA, which is why the trial judge gave it his stamp of
constitutional approval.
[338]
Now, as a result of Health Services, we
are dealing with a right to a process of good faith collective bargaining and
consultation. What protections are essential for the meaningful exercise of
this right for agriculture workers?
[339]
For a start, there is no point to having a right
only in theory. Unless it is realizable, it is meaningless. There must
therefore be an enforcement mechanism not only to resolve bargaining disputes,
but to ensure compliance if and when a bargain is made.
[340]
At the moment, there is in fact a statutory
mechanism in place for the enforcement of the AEPA — the Agriculture,
Food and Rural Affairs Appeal Tribunal. But the fact that this Tribunal exists
is, by itself, of no consequence if it cannot address the rights
constitutionally guaranteed by Health Services.
[341]
Section 11 of the AEPA gives the Tribunal
authority to grant a remedy for a contravention of the AEPA. But it is
not a contravention of the AEPA to refuse to engage in a good faith
process to make reasonable efforts to arrive at a collective agreement. It is
therefore not part of the Tribunal’s mandate. No mandate, no jurisdiction; no
jurisdiction, no remedy.
[342]
It strikes me as fundamentally contrary to our
jurisprudence to invite the Tribunal to interpret its home statute in a way
that contradicts the clear statutory language and legislative intent. If, on the other
hand, the AEPA had included the protections set out in Health
Services, the Tribunal would certainly have the authority to address and
remedy any bargaining disputes and would therefore comply with what is required
by s. 2 (d).
[343]
This brings us finally to whether the process of
good faith bargaining for agricultural workers requires that the
employer bargain only with the union selected by a majority of the employees in
the bargaining unit. This is known as the principle of majoritarian
exclusivity, a routine protection in Canada’s labour laws. In the context of
this case, and given the unique vulnerability of agriculture
workers, I agree with Winkler C.J.O. that statutory recognition of such
exclusivity is essential for them to exercise their bargaining rights
meaningfully.
[344]
As long ago as 1944, when labour ministers from
across Canada agreed to the principles which found their way into the model The
Industrial Relations and Disputes Investigation Act, S.C. 1948, c. 54,
majoritarian exclusivity was a central protection. Most provinces quickly
aligned their legislation with these principles (Adams, vol. 1, at paras.
1.240-1.250).
[345]
With the exception of specific public services
and the construction industry in Quebec (An Act respecting labour relations,
vocational training and workforce management in the construction industry,
R.S.Q., c. R-20), majoritarian exclusivity has remained a defining principle of
the Canadian labour relations model (Rayner, at p. 16; Carter et al., at para.
574).
[346]
The reason for the protection is grounded in
common sense and the pre-1944 experience. A lack of exclusivity allows an
employer to promote rivalry and discord among multiple employee representatives
in order to “divide and rule the work force”, using tactics like engaging
in direct negotiations with individual employees to undercut “the credibility
of the union . . . at the bargaining table” (Paul Weiler, Reconcilable Differences: New
Directions in Canadian Labour Law (1980), at p. 126; see also Adams, vol.
1, at para. 3.1750).
[347]
Rol-Land Farms, for example, unrestrained by the legal
requirement to bargain only with one bargaining agent, sponsored its own
“employee association” in direct competition with the union that had the
workers’ majority support. That is precisely the kind of conduct that Bora
Laskin identified in 1944 as the flaw in Canada’s then existing labour
legislation, namely that “it neither compelled employers to bargain
collectively with the duly chosen representatives of their employees nor did it
prohibit them from fostering company-dominated unions” (“Recent Labour
Legislation in Canada” (1944), 22 Can. Bar Rev. 776, at p. 781). It also
led Canada’s labour ministers that same year to include exclusivity among what were
considered to be indispensable protections for collective bargaining rights.
[348]
The inevitable splintering of unified representation
resulting from the absence of statutory protection for exclusivity is
particularly undermining for particularly vulnerable employees. Professor
David M. Beatty vividly observed that agricultural workers are “among the most
economically exploited and politically neutralized individuals in our society”:
Because they are heavily
drawn from a migrant and immigrant population, these workers face even more
serious obstacles to effective participation in the political process. . . .
Denying agricultural workers the benefits of [collective bargaining] means that
the legal processes which enable much of the rest of our workforce to be
involved in decision-making at the workplace in a realistic way are unavailable
to the farm workers. Thus a group of workers who are already among the least
powerful are given even less opportunity than the rest of us to participate in
the formulation and application of the rules governing their working
conditions.
(Putting the Charter to Work: Designing a
Constitutional Labour Code (1987), at p. 89)
See also Task Force on Labour Relations, Canadian
Industrial Relations: The Report of Task Force on Labour Relations (1968)
(the “Woods Report”), at p. 86.
[349]
These conclusions were echoed by the trial judge
in Dunmore, Sharpe J., whose observations were endorsed in this Court by
Bastarache J.:
Distinguishing features of agricultural workers are
their political impotence, their lack of resources to associate without state
protection and their vulnerability to reprisal by their employers; as noted by
Sharpe J., agricultural workers are “poorly paid, face difficult working
conditions, have low levels of skill and education, low status and limited
employment mobility” . . . . [para. 41]
[350]
The conditions of singular employment
disadvantage for workers in the agricultural sector, as the trial judge in this
case acknowledged, remain operative today. Permitting multiple
representatives of disparate individuals or groups in such a workplace
effectively nullifies the ability of its workers to have a unified and
therefore more cogent voice in attempting to mitigate and ameliorate their
relentlessly arduous working conditions.
[351]
I acknowledge that different models of labour
relations exist globally, some of which do not recognize the principle of
majoritarian exclusivity (Clyde W. Summers, “Exclusive Representation: A
Comparative Inquiry into a ‘Unique’ American Principle” (1998), 20 Comp.
Lab. L. & Pol’y J. 47; Roy J. Adams, “Prospects for Labour’s Right to
Bargain Collectively After B.C. Health Services” (2009), 59
U.N.B.L.J. 85). These models, however, have been developed in entirely
different historical contexts and systems of collective bargaining and have yet
to be seriously road-tested in the Canadian context outside of the construction
industry in Quebec. This is not to say that there is no room for innovation in
the modalities of the Canadian labour relations model. But to “innovate” by
eliminating a fundamental protection for the most vulnerable of workers is
nullification, not innovation.
[352]
Can the absence of these statutory protections
be justified under s. 1 of the Charter ? In my view they cannot.
[353]
Chief Justice Winkler found that the relevant
objectives of the rights limitation — the failure to provide agricultural
workers with the necessary statutory protections to exercise the right to
bargain collectively — were “to protect the family farm and farm
production/viability” (para. 122).
[354]
These were found by this Court to be pressing
and substantial objectives in Dunmore and are conceded to reach the
necessary threshold in our case.
[355]
Even assuming that there is a rational
connection between at least the second objective and the limitation, I see the
minimal impairment branch of the Oakes test as being determinative.
Under this step we ask whether there are “less harmful means of achieving the
legislative goal” (Alberta v. Hutterian Brethren of Wilson Colony, 2009
SCC 37, [2009] 2 S.C.R. 567, at para. 53). The AEPA has an absolute
exclusion of any protection for a process of collective bargaining: all
agricultural workers, in all sectors of agriculture, no matter the size and
nature of the agricultural enterprise, are precluded from exercising their s.
2 (d) rights. If the government has impeded those rights more than is
reasonably necessary to achieve its stated objectives, then this absolute
exclusion is not constitutionally justified.
[356]
The first governmental objective of the absolute
exclusion is the protection of family farms. Is a one-size-fits-all exclusion
responsive to protecting family farms? It seems to me clear that less harmful
means than outright exclusion are readily available to achieve the objective.
Two provinces, for example, Quebec and New Brunswick, have specific exemptions
for farms employing less than three (Labour Code, R.S.Q., c. C-27, s.
21) or five (Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 1(5)(a))
workers.
[357]
It is also worth remembering that we are dealing
with a highly diversified sector, only some of which consists of family farms.
As Bastarache J. noted, there is an “increasing trend . . . towards corporate
farming and complex agribusiness” (Dunmore, at para. 62). Rol-Land
Farms, for example, is a mushroom farm that employs between 270-300 workers.
The nature of this kind of farm, as described in Wellington Mushroom
Farm, [1980] O.L.R.B. Rep. 813, does “not differ in any material respect
from a typical manufacturing plant” (para. 29). The description in the reasons
of Vice-Chairman R. O. MacDowell is telling:
There is no close involvement with the
family farm. The production process is not seasonal, but rather, resembles a
production cycle. The labour force is neither casual nor transitory. The
operation is of considerable size, employing close to 200 employees in a single
location with a “factory atmosphere”; and the company is much less economically
vulnerable than many other employers to which The Labour Relations Act
applies. [para. 25]
[358]
Preventing all agricultural workers from
access to a process of collective bargaining in order to protect family farms,
no matter their size or character, is the antithesis of minimal impairment.
Such a limitation harms the s. 2 (d) right in its entirety, not
minimally.
[359]
The other government objective is more general —
the protection of the viability of farms and agricultural production. It is
instructive to consider the 1992 recommendations of the Ontario government’s
consultative Task Force on Agricultural Labour Relations, composed of representatives
from the agricultural community, organized labour, farm workers and government
(Report to the Minister of Labour (June 1992); Second Report to the
Minister of Labour (November 1992)). The Task Force’s recommendations in
its two reports are germane not because they should be seen as binding, but
because they demonstrate that there are “less harmful means” than an absolute
exclusion to achieve the government’s objective of protecting agricultural
production and viability.
[360]
The Task Force considered whether — and how —
agricultural workers should be entitled to bargain collectively, given the
unique characteristics of the agricultural sector. It concluded that “all
persons employed in agriculture and horticulture” should be able to engage in
collective bargaining, including those on family or smaller farms, but in
accordance with a separate labour relations scheme that is “sufficiently
modified” to reflect the “particular needs” of the agricultural sector (First
Report, at pp. 7-8).
[361]
The “single most critical issue” raised by farm
owners before the Task Force was the “threat of work stoppage” (First Report,
at p. 3). In response to this and many other submissions, the Task Force
recommended that all forms of work stoppage be prohibited and replaced by a
dispute resolution process that:
• emphasizes
the preference for negotiated settlements between the parties.
• provides a conciliation
and mediation service to assist the parties in reaching a negotiated
settlement.
• provides an arbitration process for the final and binding
resolution of all outstanding matters between the parties following exhaustion
of the negotiation process. [First Report, at p. 10]
It also recommended that there
be an Agricultural Labour Relations Act, to be administered by a separate Board
(Second Report, at p. 17).
[362]
The government adopted these recommendations in
the Agricultural Labour Relations Act, 1994, S.O. 1994, c. 6 (“ALRA”).
The ALRA included protection for collective bargaining, including
exclusivity, but prohibited work stoppages (ss. 3, 10 and 11). The inherent
compromise in that legislation is reflected in its preamble:
It is in
the public interest to extend collective bargaining rights to employees and
employers in the agriculture and horticulture industries.
However, the agriculture and
horticulture industries have certain unique characteristics that must be
considered in extending those rights. Those unique characteristics include
seasonal production, climate sensitivity, time sensitivity, and perishable nature
of agriculture and horticulture products, and the need for maintenance of
continuous processes to ensure the care and survival of animal and plant life.
[363]
The ALRA was repealed in 1995 (c. 1, s.
80). Thereafter, agricultural workers were left only with their pre-existing
exclusion from the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1,
Sch. A, creating the spark that ignited Dunmore.
[364]
And since s. 1 of the Charter directs us
to compare how other democratic governments limit a particular right, it is also
helpful to look at how other Canadian jurisdictions deal with agricultural
workplaces. Except in Alberta, agricultural workers in every province have the
same collective bargaining rights as other employees, including exclusivity (Labour
Relations Code, R.S.B.C. 1996, c. 244, s. 1; The Trade Union Act,
R.S.S. 1978, c. T-17, s. 2; The Labour Relations Act, R.S.M.
1987, c. L10, s. 1; Labour Code (Que.), s. 21; Industrial Relations
Act (N.B.), s. 1(5)(a); Trade Union Act, R.S.N.S. 1989, c.
475, s. 2(1); Labour Act, R.S.P.E.I. 1988, c. L-1, s. 7; Labour
Relations Act, R.S.N.L. 1990, c. L-1, s. 2(1); Labour Relations Code,
R.S.A. 2000, c. L-1, s. 4(2)(e)).
[365]
Reviewing the consequences of the
near-universality of extending bargaining rights to Canadian agricultural
workers, the 1992 Task Force concluded that the availability of the right to
bargain collectively in these provinces has not “had a significant negative
impact on farm economics” (First Report, at p. 3). This state of national
affairs clearly does not preclude the government from offering a s. 1
justification unique to Ontario, but it has not, and perhaps realistically
cannot, explain why Ontario’s farming interests are so different as to
warrant a complete exclusion rather than less intrusive means of achieving its
objectives.
[366]
The agricultural sector undoubtedly faces
significant economic challenges, but so do many others, in none of which are
employees deprived of access to a process of collective bargaining.
[367]
The government has therefore not justified why
achieving protection for agricultural viability and production requires so
uniquely draconian a restriction on s. 2 (d) rights. The limitation is,
in fact, like its relationship to protecting family farms, not even remotely
tailored to meet the government’s objective in a less intrusive way. It is, in
fact, not tailored at all. As Winkler C.J.O. concluded:
. . . the legislature made no attempt
to engage in a line-drawing exercise . . . to tailor a collective bargaining
system that recognizes the challenges facing the agricultural sector. [para.
135]
[368]
On the other hand, it bears repeating that the AEPA
was designed before Health Services was decided. The government could
hardly be expected to tailor its legislation in accordance with a bargaining
regime it had neither a duty nor an intention to implement at the time.
Nonetheless, the fact is that Health Services intervened and changed the
microscope under which the AEPA was scrutinized. And under the new
lens, the complete absence of any statutory protection for a process of
collective bargaining in the AEPA cannot be said to be minimally
impairing of the s. 2(d) right.
[369]
I would therefore dismiss the appeal without
costs.
APPENDIX
Labour Relations Act, 1995, S.O.
1995, c. 1, Sch. A
3. This Act does not apply,
. . .
(b.1) to
an employee within the meaning of the Agricultural Employees Protection Act,
2002;
Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16
1.
(1) The purpose of this Act is to protect the rights of agricultural
employees while having regard to the unique characteristics of agriculture,
including, but not limited to, its seasonal nature, its sensitivity to time and
climate, the perishability of agricultural products and the need to protect
animal and plant life.
(2) The
following are the rights of agricultural employees referred to in subsection
(1):
1. The
right to form or join an employees’ association.
2. The
right to participate in the lawful activities of an employees’ association.
3. The
right to assemble.
4. The
right to make representations to their employers, through an employees’
association, respecting the terms and conditions of their employment.
5. The
right to protection against interference, coercion and discrimination in the
exercise of their rights.
2.
(1) In this Act,
. . .
“employees’
association” means an association of employees formed for the purpose of acting
in concert;
. . .
5.
(1) The employer shall give an employees’ association a reasonable
opportunity to make representations respecting the terms and conditions of
employment of one or more of its members who are employed by that employer.
(2) For
greater certainty, an employees’ association may make its representations
through a person who is not a member of the association.
(3) For
the purposes of subsection (1), the following considerations are relevant to
the determination of whether a reasonable opportunity has been given:
1. The
timing of the representations relative to planting and harvesting times.
2. The
timing of the representations relative to concerns that may arise in running an
agricultural operation, including, but not limited to, weather, animal health
and safety and plant health.
3. Frequency
and repetitiveness of the representations.
(4) Subsection
(3) shall not be interpreted as setting out a complete list of relevant
considerations.
(5) The
employees’ association may make the representations orally or in writing.
(6) The
employer shall listen to the representations if made orally, or read them if
made in writing.
(7)
If the representations are made in writing, the employer shall give the
association a written acknowledgment that the employer has read them.
. . .
8. No employer, employers’ organization or person acting on behalf of
an employer or an employers’ organization shall interfere with the formation,
selection or administration of an employees’ association, the representation of
employees by an employees’ association or the lawful activities of an
employees’ association, but nothing in this section shall be deemed to deprive
an employer of the employer’s freedom to express views so long as the employer
does not use coercion, intimidation, threats, promises or undue influence.
9. No employer, employers’ organization or person acting on behalf
of an employer or an employers’ organization,
(a) shall
refuse to employ or to continue to employ a person, or discriminate against a
person in regard to employment or any term or condition of employment because
the person was or is a member of an employees’ association or was or is
exercising any other right under this Act;
(b) shall
impose any condition in a contract of employment or propose the imposition of
any condition in a contract of employment that seeks to restrain an employee or
a person seeking employment from becoming a member of an employees’ association
or exercising any other right under this Act; or
(c) shall
seek by threat of dismissal, or by any other kind of threat, or by the
imposition of a pecuniary or other penalty, or by any other means to compel an
employee to become or refrain from becoming or to continue to be or to cease to
be a member or officer or representative of an employees’ association or to
cease to exercise any other right under this Act.
10. No person, employees’ association, employers’ organization or other
entity shall seek by intimidation or coercion to compel any person to become or
refrain from becoming or to continue to be or to cease to be a member of an
employees’ association or of an employers’ organization or to refrain from
exercising any right under this Act or from performing any obligations under
this Act.
. . .
18. The Labour Relations Act, 1995 does not apply to employees or
employers in agriculture.
Appeal
allowed and action dismissed, Abella
J. dissenting.
Solicitor
for the appellant: Attorney General of Ontario, Toronto.
Solicitors
for the respondents: Cavalluzzo Hayes Shilton McIntyre &
Cornish, Toronto.
Solicitor for the
intervener the Attorney General of Canada: Attorney General of
Canada, Ottawa.
Solicitor for the
intervener the Attorney General of Quebec: Attorney General of
Quebec, Québec.
Solicitor for the
intervener the Attorney General of New Brunswick: Attorney General
of New Brunswick, Fredericton.
Solicitor for the
intervener the Attorney General of British Columbia: Attorney General
of British Columbia, Vancouver.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of
Alberta, Edmonton.
Solicitors
for the intervener the Ontario Federation of Agriculture: Heenan
Blaikie, Toronto.
Solicitors for
the intervener the Federally Regulated Employers — Transportation and
Communications: Heenan Blaikie, Montréal.
Solicitors for
the intervener Conseil du patronat du Québec Inc.: Heenan Blaikie,
Montréal.
Solicitors for
the intervener the Mounted Police Members’ Legal Fund: Heenan
Blaikie, Toronto.
Solicitors for
the intervener the Canadian Employers Council: Stewart McKelvey,
St. John’s.
Solicitors for
the interveners the Coalition of BC Businesses and the British Columbia
Agriculture Council: Heenan Blaikie, Vancouver.
Solicitors for
the interveners Justicia for Migrant Workers and the Industrial Accident
Victims Group of Ontario: Pieters Law Office, Toronto.
Solicitors for
the intervener the Canadian Labour Congress: Sack Goldblatt
Mitchell, Toronto.
Solicitors for
the intervener the Canadian Police Association: Paliare, Roland,
Rosenberg, Rothstein, Toronto.
Solicitors for the intervener the Canadian Civil
Liberties Association: Green & Chercover, Toronto.
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