Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016,
2001 SCC 94
Tom Dunmore, Salame Abdulhamid,
Walter Lumsden and Michael Doyle, on their
own behalf and on behalf of the United Food and
Commercial Workers International Union Appellants
v.
Attorney General for Ontario
and Fleming Chicks Respondents
and
Attorney General of Quebec,
Attorney General for Alberta,
Canadian Labour Congress and
Labour Issues Coordinating Committee (“LICC”) Interveners
Indexed as: Dunmore v. Ontario (Attorney General)
Neutral citation: 2001 SCC
94.
File No.: 27216.
2001: February 19;
2001: December 20.
Present: McLachlin C.J. and L’Heureux‑Dubé,
Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Freedom
of association -- Exclusion of agricultural workers from statutory labour
relations regime -- Whether exclusion infringes freedom of association – If so,
whether infringement justifiable -- Canadian Charter of Rights and Freedoms,
ss. 1 , 2 (d) -- Labour Relations and Employment Statute Law Amendment Act,
1995, S.O. 1995, c. 1, s. 80 -- Labour Relations Act, 1995, S.O.
1995, c. 1, Sched. A, s. 3(b).
In 1994, the Ontario legislature enacted the Agricultural
Labour Relations Act, 1994 (“ALRA”), which extended trade union and
collective bargaining rights to agricultural workers. Prior to the adoption of
this legislation, agricultural workers had always been excluded from Ontario’s
labour relations regime. A year later, by virtue of s. 80 of the Labour
Relations and Employment Statute Law Amendment Act, 1995 (“LRESLAA”),
the legislature repealed the ALRA in its entirety, in effect subjecting
agricultural workers to s. 3(b) of the Labour Relations Act,
1995 (“LRA”), which excluded them from the labour relations regime
set out in the LRA. Section 80 also terminated any certification
rights of trade unions, and any collective agreements certified, under the ALRA.
The appellants brought an application challenging the repeal of the ALRA
and their exclusion from the LRA, on the basis that it infringed their
rights under ss. 2 (d) and 15(1) of the Canadian Charter of
Rights and Freedoms . Both the Ontario Court (General Division) and the
Ontario Court of Appeal upheld the challenged legislation.
Held (Major J.
dissenting): The appeal should be allowed. The impugned legislation is
unconstitutional.
Per McLachlin C.J. and
Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.: The purpose of
s. 2 (d) of the Charter is to allow the achievement of
individual potential through interpersonal relationships and collective
action. This purpose commands a single inquiry: has the state precluded
activity because of its associational nature, thereby discouraging the collective
pursuit of common goals? While the traditional four-part formulation of the
content of freedom of association sheds light on this concept, it does not
capture the full range of activities protected by s. 2 (d). In some
cases s. 2 (d) should be extended to protect activities that are
inherently collective in nature, in that they cannot be performed by
individuals acting alone. Trade unions develop needs and priorities that are
distinct from those of their members individually and cannot function if the law
protects exclusively the lawful activities of individuals. The law must thus
recognize that certain union activities may be central to freedom of
association even though they are inconceivable on the individual level.
Ordinarily, the Charter does not oblige the
state to take affirmative action to safeguard or facilitate the exercise of
fundamental freedoms. There is no constitutional right to protective
legislation per se. However, history has shown and Canada’s
legislatures have 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 order to make the
freedom to organize meaningful, in this very particular context, s. 2 (d)
of the Charter may impose a positive obligation on the state to extend
protective legislation to unprotected groups. The distinction between positive
and negative state obligations ought to be nuanced in the context of labour
relations, in the sense that excluding agricultural workers from a protective
regime contributes substantially to the violation of protected freedoms.
Several considerations circumscribe the possibility of
challenging underinclusion under s. 2 of the Charter : (1) claims
of underinclusion should be grounded in fundamental Charter freedoms
rather than in access to a particular statutory regime; (2) the evidentiary
burden in cases where there is a challenge to underinclusive legislation is to
demonstrate that exclusion from a statutory regime permits a substantial
interference with the exercise of protected s. 2 (d) activity; and
(3), in order to link the alleged Charter violation to state action, the
context must be such that the state can be truly held accountable for any
inability to exercise a fundamental freedom. The contribution of private
actors to a violation of fundamental freedoms does not immunize the state from Charter
review.
In order to establish a violation of s. 2 (d)
of the Charter , the appellants must demonstrate that their claim relates
to activities that fall within the range of activities protected by s. 2 (d)
of the Charter , and that the impugned legislation has, either in purpose
or effect, interfered with these activities. In this case, insofar as the
appellants seek to establish and maintain an association of employees, their
claim falls squarely within the protected ambit of s. 2 (d).
Moreover, the effective exercise of the freedoms in s. 2 (d) require
not only the exercise in association of the constitutional rights and freedoms
and lawful rights of individuals, but the exercise of certain collective
activities, such as making majority representations to one’s employer. Conflicting
claims concerning the meaning of troubling comments in the legislature make it
impossible to conclude that the exclusion of agricultural workers from the LRA
was intended to infringe their freedom to organize, but the effect of the
exclusion in s. 3(b) of the LRA is to infringe their right
to freedom of association.
The LRA is clearly designed to safeguard the
exercise of the freedom to associate rather than to provide a limited statutory
entitlement to certain classes of citizens. Through the right to organize
inscribed in s. 5 of the LRA and the protection offered against
unfair labour practices, the legislation recognizes that without a statutory
vehicle employee associations are, in many cases, impossible. Here, the
appellants do not claim a constitutional right to general inclusion in the LRA,
but simply a constitutional freedom to organize a trade association. This
freedom to organize exists independently of any statutory enactment, although
its effective exercise may require legislative protection in some cases. The
appellants have met the evidentiary burden of showing that they are
substantially incapable of exercising their fundamental freedom to organize
without the LRA’s protective regime. While the mere fact of exclusion
from protective legislation is not conclusive evidence of a Charter
violation, the evidence indicates that, but for the brief period covered by the
ALRA, there has never been an agricultural workers’ union in Ontario and
agricultural workers have suffered repeated attacks on their efforts to
unionize. The inability of agricultural workers to organize can be linked to
state action. The exclusion of agricultural workers from the LRA
functions not simply to permit private interferences with their fundamental
freedoms, but to substantially reinforce such interferences. The inherent
difficulties of organizing farm workers, combined with the threat of economic
reprisal from employers, form only part of the reason why association is all
but impossible in the agricultural sector in Ontario. Equally important is the
message sent by the exclusion of agricultural workers from the LRA,
which delegitimizes their associational activity and thereby contributes to
its ultimate failure. The most palpable effect of the LRESLAA and the LRA
is, therefore, to place a chilling effect on non-statutory union activity.
With respect to the s. 1 analysis, the evidence
establishes that many farms in Ontario are family-owned and operated, and that
the protection of the family farm is a pressing enough objective to warrant the
infringement of s. 2 (d) of the Charter . The economic
objective of ensuring farm productivity is also important. Agriculture
occupies a volatile and highly competitive part of the private sector economy,
experiences disproportionately thin profit margins and, due to its seasonal
character, is particularly vulnerable to strikes and lockouts.
There is also a rational connection between the
exclusion of agricultural workers from Ontario’s labour relations regime and
the objective of protecting the family farm. Unionization leads to formalized
labour-management relationships and gives rise to a relatively formal process
of negotiation and dispute resolution. It is reasonable to speculate that unionization
will threaten the flexibility and cooperation that is characteristic of the
family farm. Yet this concern is only as great as the extent of the family
farm structure in Ontario and does not necessarily apply to the right to form
an agricultural association. The notion that employees should sacrifice their
freedom to associate in order to maintain a flexible employment relationship
should be carefully circumscribed, as it could, if left unchecked, justify
restrictions on unionization in many sectors of the economy.
The wholesale exclusion of agricultural workers from
Ontario’s labour relations regime does not minimally impair their right to
freedom of association. The categorical exclusion of agricultural workers is
unjustified where no satisfactory effort has been made to protect their basic
right to form associations. The exclusion is overly broad as it denies the
right of association to every sector of agriculture without distinction. The
reliance on the family farm justification ignores an increasing trend in Canada
towards corporate farming and complex agribusiness and does not justify the
unqualified and total exclusion of all agricultural workers from Ontario’s
labour relations regime. More importantly, no justification is offered for excluding
agricultural workers from all aspects of unionization, in particular those
protections that are necessary for the effective formation and maintenance of
employee associations. Nothing in the record suggests that protecting
agricultural workers from the legal and economic consequences of forming an
association would pose a threat to the family farm structure. Consequently,
the total exclusion of agricultural workers from Ontario’s labour relations
regime is not justifiable under s. 1 of the Charter .
The appropriate remedy in this case is to declare the LRESLAA
unconstitutional to the extent that it gives effect to the exclusion clause
found in s. 3(b) of the LRA, and to declare s. 3(b)
of the LRA unconstitutional. The declarations should be suspended for
18 months, thereby allowing amending legislation to be passed if the
legislature sees fit to do so. Section 2 (d) of the Charter only
requires the legislature to provide a statutory framework that is consistent
with the principles established in this case. At a minimum, these principles
require that the statutory freedom to organize in s. 5 of the LRA
be extended to agricultural workers, along with protections judged essential to
its meaningful exercise, such as freedom to assemble, freedom from
interference, coercion and discrimination and freedom to make representations
and to participate in the lawful activities of the association. The
appropriate remedy does not require or forbid the inclusion of agricultural
workers in a full collective bargaining regime, whether it be the LRA or
a special regime applicable only to agricultural workers.
It is unnecessary to consider the status of
occupational groups under s. 15(1) of the Charter .
Per L’Heureux-Dubé J.:
The purpose of s. 80 of the LRESLAA and s. 3(b) of the LRA
is to prevent agricultural workers from unionizing, and this purpose infringes
s. 2 (d) of the Charter . In the record, there is clear
evidence of intent on the part of the government of Ontario to breach
the s. 2 (d) rights of agricultural workers, including repeated
instances where government officials indicated that the impugned legislation’s
intent was to hinder union-related activities in the agricultural sector. On a
balance of probabilities, the evidence demonstrates that the legislature’s
purpose in enacting the exclusion was to ensure that persons employed in
agriculture remained vulnerable to management interference with their
associational activities, in order to prevent the undesirable consequences
which it had feared would result from agricultural workers’ labour
associations. Furthermore, the evidence does not reveal any positive effects
upon the associational freedom of agricultural workers stemming from their
exclusion from the LRA. The reality of the labour market, which has led
to the development of protective labour legislation, indicates that when the
protection is removed without any restriction or qualification, associational
rights are often infringed, or have the potential to be infringed, to an extent
not confined to unionization activities. Consequently, it was in the reasonable
contemplation of the government at the time of the enactment of the impugned
legislation that the effect of the exclusion clause would be to affect
associational freedoms beyond the realm of unionization, thus breaching
s. 2 (d) Charter rights.
In the present case, there is a
positive obligation on the government to provide legislative protection against
unfair labour practices. A positive duty to assist excluded groups generally
arises when the claimants are in practice unable to exercise a Charter
right. In the case of agricultural workers in Ontario, the freedom to
associate becomes meaningless in the absence of a duty of the State to take
positive steps to ensure that this right is not a hollow one. The government
has breached the s. 2 (d) rights of agricultural workers because it
has enacted a new labour statute which leaves them perilously vulnerable to
unfair labour practices. The absolute removal of LRA protection from
agricultural workers has created a situation where employees have reason to
fear retaliation against associational activity by employers. In light of the
reality of the labour market, the failure of the Ontario legislature to spell
out a regime defining which associational activities are to be protected from
management retaliation has a chilling effect on freedom of association for
agricultural workers. The chilling effect of the impugned provision has forced
agricultural workers to abandon associational efforts and restrain themselves
from further associational initiatives. The freedom of association of
agricultural workers under the LRA can be characterized as a hollow
right because it amounts to no more than the freedom to suffer serious adverse
legal and economic consequences. In a constitutional democracy, not only must
fundamental freedoms be protected from State action, they must also be given
“breathing space”.
Since the impugned legislation infringes s. 2 (d),
it is necessary to make but a single observation with respect to whether the
exclusion of agricultural workers from the LRA constitutes
discrimination under s. 15(1) of the Charter . The occupational
status of agricultural workers constitutes an “analogous ground” for the
purposes of an analysis under s. 15(1) . There is no reason why an
occupational status cannot, in the right circumstances, identify a protected
group. Employment is a fundamental aspect of an individual’s life and an
essential component of identity, personal dignity, self-worth and emotional
well-being. Agricultural workers generally suffer from disadvantage and the
effect of the distinction made by their exclusion from the LRA is to
devalue and marginalize them within Canadian society. Agricultural workers, in
light of their relative status, low levels of skill and education, and limited
employment and mobility, can change their occupational status only at great
cost, if at all.
The impugned legislation is not justifiable under s. 1
of the Charter . While labour statutes, such as the LRA, fulfill
important objectives in our society, s. 3(b) does not pursue a
pressing and substantial concern justifying the breach of the appellants’ Charter
rights. It cannot be argued that Ontario agriculture has unique
characteristics which are incompatible with legislated collective bargaining.
It is also difficult to accept that none of the LRA’s purposes,
enumerated at s. 2 of the LRA, which speak to the basic characteristics
required for the operation of a modern business, are inapplicable in the
agricultural sector. At the very least, the expressions of intent found in
s. 2 of the LRA would apply to factory-like agricultural
enterprises. Without enunciating a constitutionally valid reason, one cannot
countenance a breach of a Charter guaranteed fundamental freedom on
grounds which appear to be based on a policy geared to enhance the economic
well-being of private enterprises. The government is entitled to provide
financial and other support to agricultural operations, including family
farms. However, it is not open to the government to do so at the expense of
the Charter rights of those who are employed in such activities, if such
a policy choice cannot be demonstrably justified.
Even if the impugned legislation pursued a valid
objective, the absoluteness of the exclusion clause, barring all persons
employed in agriculture from all components of the LRA, speaks to the
lack of proportionality between the perceived ills to be avoided and their
remedy. First, a rational connection between the objective of securing the
well-being of the agricultural sector in Ontario and the exclusion of persons
employed in agriculture from all associational protections contained in the LRA
has not been established. If the good labour management principles outlined in
s. 2 of the LRA have a basis in fact, then barring all persons
employed in agriculture from all the benefits under the LRA may have the
opposite effect. Second, the complete exclusion of agricultural workers from
the LRA does not minimally impair their Charter rights. Such a
blunt measure can hardly be characterized as achieving a delicate balance among
the interests of labour and those of management and the public. It weakens the
case for deference to the legislature. This is further aggravated because
those affected by the exclusion are not only vulnerable as employees but are
also vulnerable as members of society with low income, little education and scant
security or social recognition. The current law is not carefully tailored to
balance the Charter freedoms of persons employed in agriculture in
Ontario and the societal interest in harmonious relations in the labour
market. While the important role that family farms play in Ontario agriculture
must be recognized, such a role is not unique to Ontario. Further, both
families and farms have evolved. There is no obvious connection between the
exclusion of agricultural workers from the LRA and farmers or family
farms. A city-based corporation could be operating an agricultural entity and
benefit from the restrictions on the freedoms of association of its
agricultural workers. Labour statutes in other provinces contain agricultural
exemptions that are narrower than the one contained in the LRA. The
objective of securing the well-being of the agricultural sector in Ontario can
be achieved through a legislative mechanism that is less restrictive of free
association than the existing complete exclusion of agricultural workers from
the LRA.
Per Major J.
(dissenting): The appellants failed to demonstrate that the impugned
legislation has, either in purpose or effect, infringed activities protected by
s. 2 (d) of the Charter . In particular, s. 2(d)
does not impose a positive obligation of protection or inclusion on the state
in this case. Prior to the enactment of the LRA, agricultural workers
had historically faced significant difficulties organizing and the appellants
did not establish that the state is causally responsible for the inability of
agricultural workers to exercise a fundamental freedom.
Agricultural workers are not an analogous group for
the purposes of s. 15(1) of the Charter and, as a result, the
exclusion of agricultural workers from the LRA does not violate their
equality rights.
Cases Cited
By Bastarache J.
Referred to: Delisle
v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; RWDSU v.
Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ferrell v. Ontario (Attorney
General) (1997), 149 D.L.R. (4th) 335; R. v. Big M Drug Mart Ltd.,
[1985] 1 S.C.R. 295; Irwin Toy Ltd. v. Quebec (Attorney General), [1989]
1 S.C.R. 927; 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.
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367; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Lavigne
v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v.
Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; R.
v. Skinner, [1990] 1 S.C.R. 1235; Syndicat catholique des employés de
magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959] S.C.R. 206; McGavin
Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718; R. v. Beaulac,
[1999] 1 S.C.R. 768; Haig v. Canada, [1993] 2 S.C.R. 995; Native
Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; R. v. Edwards Books
and Art Ltd., [1986] 2 S.C.R. 713; Vriend v. Alberta, [1998] 1
S.C.R. 493; Law v. Canada (Minister of Employment and Immigration),
[1999] 1 S.C.R. 497; McKinney v. University of Guelph, [1990] 3 S.C.R.
229; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Wallace
v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; R. v. Oakes,
[1986] 1 S.C.R. 103; Thomson Newspapers Co. v. Canada (Attorney General),
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Estates Ltd., [1971] O.L.R.B. Rep. Feb. 58; Spruceleigh Farms,
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aff’d (1989), 70 O.R. (2d) 179, aff’d [1991] 2 S.C.R. 5; Osborne v. Canada
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[1993] 3 S.C.R. 519.
By L’Heureux-Dubé J.
Referred to: Haig
v. Canada, [1993] 2 S.C.R. 995; Reference re
Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Native
Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Delisle v.
Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Cuddy Chicks Ltd.
v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Cuddy Chicks Ltd.,
[1988] O.L.R.B. Rep. May 468; Cuddy Chicks Ltd., [1992] O.L.R.D. No.
1170 (QL); New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the
House of Assembly), [1993] 1 S.C.R. 319; Hunter v. Southam Inc.,
[1984] 2 S.C.R. 145; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M
Drug Mart Ltd., [1985] 1 S.C.R. 295, aff’g (1983), 49 A.R. 194; Vriend
v. Alberta, [1998] 1 S.C.R. 493; Lavigne v. Ontario Public Service
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Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; Egan v. Canada,
[1995] 2 S.C.R. 513; R. v. Beaulac, [1999] 1 S.C.R. 768; Committee
for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne
v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Law v. Canada (Minister
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By Major J. (dissenting)
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Haig v. Canada, [1993] 2 S.C.R.
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(1975), 2 Dal. L.J. 330.
Ontario Government Media Kit for
Bill 7 (An Act to Restore Balance and Stability to Labour Relations and to
Promote Economic Prosperity). Questions and Answers: Repeal of the Agricultural
Labour Relations Act (Bill 91). Toronto: Queen’s Park, 1995.
Ontario. Legislative Assembly. Official
Report of Debates, 1st Sess., 36th Parl., October 4, 1995, pp. 99-100.
Ontario. Task Force on
Agricultural Labour Relations. Report to the Minister of Labour, June
1992.
Ontario. Task Force on
Agricultural Labour Relations. Second Report to the Minister of Labour,
November 1992.
Pothier, Dianne. “Connecting
Grounds of Discrimination to Real People’s Real Experiences” (2001), 13 C.J.W.L.
37.
Sugeno, Kazuo. “Unions as social
institutions in democratic market economies” (1994), 133 Int’l Lab. Rev.
511.
Swepston, Lee. “Human rights law
and freedom of association: Development through ILO supervision” (1998), 137 Int’l
Lab. Rev. 169.
Weiler, Paul C. Reconcilable
Differences: New Directions in Canadian Labour Law. Toronto: Carswell,
1980.
White, James. A Profile of
Ontario Farm Labour. Brampton, Ont.: James White & Associates, 1997.
APPEAL from a judgment of the
Ontario Court of Appeal (1999), 182 D.L.R. (4th) 471, 49 C.C.E.L. (2d) 29,
[1999] O.J. No. 1104 (QL), upholding the decision of the Ontario Court (General
Division) (1997), 155 D.L.R. (4th) 193, 37 O.R. (3d) 287, 49 C.C.E.L. (2d) 5,
[1997] O.J. No. 4947 (QL). Appeal allowed, Major J. dissenting.
Chris G. Paliare and Martin J. Doane, for the appellants.
Richard J. K. Stewart, for the respondent the Attorney General for Ontario.
Alan L. W. D’Silva, Darrell L. Kloeze and Vincent C. Kazmierski,
for the respondent Fleming Chicks.
Written submissions only by Renée
Madore and Monique Rousseau, for the intervener the Attorney General
of Quebec.
Rod Wiltshire, for the intervener the Attorney General for Alberta.
Steven Barrett, for the intervener the Canadian Labour Congress.
Written submissions only by John C.
Murray and Jonathan L. Dye, for the intervener the Labour
Issues Coordinating Committee.
The judgment of McLachlin C.J. and
Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
Bastarache
J. --
I. Introduction
1
This appeal concerns the exclusion of agricultural workers from Ontario’s
statutory labour relations regime. The appellants, individual farm workers and
union organizers, challenge the exclusion as a violation of their freedom of
association and equality rights under the Canadian Charter of Rights and
Freedoms . In particular, they argue that the Labour Relations and
Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1 (“LRESLAA”),
combined with s. 3(b) of the Ontario Labour Relations Act, 1995,
S.O. 1995, c. 1, Sched. A (“LRA”), prevents them from establishing,
joining and participating in the lawful activities of a trade union. In
addition, they claim that the LRESLAA and the LRA violate their
equality rights under s. 15(1) of the Charter by denying them a
statutory protection enjoyed by most occupational groups in Ontario.
2
This is the first time this Court has been asked
to review the total exclusion of an occupational group from a statutory labour
relations regime, where that group is not employed by the government and has demonstrated
no independent ability to organize. For this reason, this appeal raises novel
issues of state responsibility under s. 2 (d) of the Charter ,
notwithstanding its apparent similarity to recent labour relations
jurisprudence. After considering these issues, I conclude that the total
exclusion of agricultural workers from the LRA violates s. 2 (d)
of the Charter and cannot be justified under s. 1. Accordingly, I
conclude that, at a minimum, whatever protections are necessary to establish
and maintain employee associations should be extended to persons employed in
agriculture in Ontario. I am also of the view that it is not necessary to
consider the status of agricultural workers under s. 15(1) of the Charter ;
assuming without deciding the existence of a s. 15(1) violation, such a
violation would not alter the remedy I propose.
II. Factual Background
3
Although agricultural workers have been excluded
from Ontario’s labour relations regime since 1943, the impetus for this appeal
was the passage of the LRESLAA. The LRESLAA was enacted pursuant
to an initiative of Ontario’s Progressive Conservative government in 1995; it
repealed the only statute ever to extend trade union and collective bargaining
rights to Ontario’s agricultural workers. That short-lived statute, the Agricultural
Labour Relations Act, 1994, S.O. 1994, c. 6 (“ALRA”), was enacted
pursuant to an initiative of the New Democratic Party government in 1994
following the recommendations in the Report of the Task Force on Agricultural
Labour Relations: Report to the Minister of Labour (June 1992). The ALRA
lasted from June 23, 1994 to November 10, 1995, during which time the United
Food and Commercial Workers Union (“UFCW”) was certified as the bargaining
agent for approximately 200 workers at the Highline Produce Limited mushroom
factory in Leamington, Ontario. The UFCW also filed two other certification
applications during the period of the ALRA, one for the workers at the
Kingsville Mushroom Farm Inc., and the other for the workers at the respondent
Fleming Chicks. These certification activities came to an end when, with the
passage of the LRESLAA in 1995, the ALRA was repealed in its
entirety. In addition to terminating any agreements certified under the ALRA,
the LRESLAA terminated any certification rights of trade unions and
prohibited employers from punishing workers for any union activity conducted
under the ALRA. The appellants brought an application within one week
of the repeal of the ALRA, arguing that it infringed their rights under
ss. 2 (d) and 15(1) of the Charter .
4
As indicated by the legislative record, the LRESLAA
represents a small piece of the factual context surrounding this
litigation. For over 50 years prior to the ALRA, and ever since its
repeal, the Ontario government has excluded agricultural workers from its
statutory labour relations regime. The first statute to effect this exclusion
was the Collective Bargaining Act, 1943, S.O. 1943, c. 4, which was
modelled on the American National Labor Relations Act (“Wagner Act”),
July 5, 1935, c. 372, 49 Stat. 449 (29 U.S.C. §§ 151 to 169).
Section 24 of the Collective Bargaining Act, 1943 contained a list of
excluded classes, including “domestic servants”, “members of any police force”,
certain other public employees, and “the industry of farming”. The most recent
embodiment of Ontario’s labour relations policy, the LRA, excludes
agricultural workers in the following terms:
3.
This Act does not apply,
.
. .
(b) to a person employed in agriculture,
hunting or trapping;
The net effect of the LRESLAA was to re-subject agricultural
workers to this exclusion clause. Thus, in addition to challenging the
constitutionality of the LRESLAA, the appellants challenge the
constitutionality of s. 3(b) of the LRA.
5
The various enactments dealing with agricultural
workers’ right to unionize, the Wagner Act, the LRA, the ALRA
and the LRESLAA, reflect highly divergent approaches to economic and
labour policy. As noted by Sharpe J. (as he then was) in the Ontario Court
(General Division), the current government in Ontario has “a very different
perspective from that of its predecessor on appropriate economic and labour
policy” and, indeed, rejects any attempt to include agricultural workers in its
labour relations regime ((1997), 155 D.L.R. (4th) 193, at p. 199). Moreover,
the affidavit evidence in this case “presents in stark contrast two conflicting
views of an appropriate labour relations regime for agricultural workers in
Ontario”, one denying the existence of any “industrial relations rationale” for
the current exclusion, and the other maintaining that the collective bargaining
model of the ALRA or the LRA would unduly threaten the province’s
farm economy (pp. 201-2). This latter view is evidently shared by the
Legislature of Alberta, which is the only other Canadian province to exclude
agricultural workers from its labour relations regime. What is central to this
appeal, however, is the constitutional effect of excluding agricultural workers
from the LRA from the perspective of their freedom to associate. Given
my conclusion that this exclusion violates s. 2 (d) of the Charter ,
the above evidence will provide an important foundation for the s. 1 analysis.
III. Relevant Statutory Provisions
6
Labour Relations and Employment Statute Law Amendment Act, 1995,
S.O. 1995, c. 1
1.(1) The Labour Relations Act, 1995, as set out in
Schedule A, is hereby enacted.
80.(1) The Agricultural Labour Relations
Act, 1994 is repealed.
(2) On the day on which this section comes into
force, a collective agreement ceases to apply to a person to whom that Act
applied.
(3) On the day on which this section comes into
force, a trade union certified under that Act or voluntarily recognized as the
bargaining agent for employees to whom that Act applies ceases to be their
bargaining agent.
(4) On the day on which this section comes into
force, any proceeding commenced under that Act is terminated.
Labour
Relations Act, 1995, S.O. 1995, c. 1, Sched. A
3. This Act does not apply,
.
. .
(b) to a person employed in agriculture, hunting or trapping;
Canadian
Charter of Rights and Freedoms
2. Everyone has the following fundamental
freedoms:
.
. .
(d) freedom of association.
IV. Judicial
History
A. Ontario
Court (General Division) (1997), 155 D.L.R. (4th) 193
7
The issues before the Ontario Court (General
Division) in this case were essentially the same as those before this Court,
namely, whether the exclusion of agricultural workers from Ontario’s statutory
labour relations scheme infringes s. 2 (d) and/or s. 15(1) of the Charter
and, if so, whether the infringements are justifiable under s. 1. It might be
noted that Sharpe J. released his decision prior to this Court’s decisions in Delisle
v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, and other cases
that provide important authority for this appeal.
8
Sharpe J. began with the appellants’ s. 2 (d)
claim, observing that the right of workers to form a trade union is protected
by s. 2 (d), while the right to collective bargaining is not. The
balance of Sharpe J.’s s. 2 (d) analysis was thus devoted to whether the
impugned provisions infringed, either in purpose or effect, the former right.
With respect to purpose, Sharpe J. held that while the purpose of the
legislation was undoubtedly to deny agricultural workers the right to bargain
collectively, “it is difficult . . . to discern a governmental
purpose to deny agricultural workers the right to form an association” (pp.
205-6). He then considered the effect of the legislation on s. 2 (d)
rights, holding that to the extent agricultural workers are deprived of the
ability to form trade unions, such deprivation is due to the private actions of
their employers rather than the legislative regime itself. The former actions
being unreviewable by virtue of this Court’s decision in RWDSU v. Dolphin
Delivery Ltd., [1986] 2 S.C.R. 573, Sharpe J. dismissed the s. 2 (d)
claim. In response to the appellants’ claim that the LRESLAA
constituted independently reviewable state action, Sharpe J. held that
reviewing the LRESLAA would essentially constitutionalize the statute it
repealed, namely, the ALRA. This would create “a broad class of
statutes that would enjoy the status of a constitutional guarantee as they
would be immune from repeal” (p. 208), an outcome rejected by the Ontario Court
(General Division) in Ferrell v. Ontario (Attorney General) (1997), 149
D.L.R. (4th) 335.
9
Sharpe J. then turned to the s. 15(1) claim,
which he felt was a more appropriate forum for addressing questions of positive
state obligation under the Charter . With respect to the first prong of
the s. 15(1) analysis, Sharpe J. held that agricultural workers had indeed been
denied a legal benefit or protection enjoyed by most other workers, namely, the
right to engage in statutory collective bargaining. However, Sharpe J.
declined to recognize agricultural workers as an analogous group for the
purpose of establishing discrimination under s. 15(1) . In his view, the
analogous grounds concept was rooted in the denial of human dignity and as such
required the appellants to identify a “personal trait or characteristic” on
which their differential treatment was based. It would not be sufficient, he
held, to identify “occupational status” as such a characteristic, nor to
combine occupational status with economic disadvantage. Thus, Sharpe J.
rejected the s. 15(1) claim and with it the appellants’ constitutional
challenge.
B. Ontario Court of Appeal (1999), 182 D.L.R. (4th) 471
10
Krever J.A., concurred in by Doherty and Rosenberg JJ.A., upheld the
decision of Sharpe J., holding that “[w]e agree with the judgment of Sharpe J.,
both with the result at which he arrived and his reasons”.
V. Constitutional
Questions
11
On June 20, 2000, Binnie J. stated the constitutional questions as
follows:
1. Does s. 80 of the Labour Relations and
Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, limit the
right of agricultural workers
(a) to
freedom of association guaranteed by s. 2 (d) of the Canadian
Charter of Rights and Freedoms ; or
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
2. Does s. 3(b) of the Labour
Relations Act, 1995, S.O. 1995, c. 1, Sched. A, limit the right of
agricultural workers
(a) to
freedom of association guaranteed by s. 2 (d) of the Charter ;
or
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
3. If the answer to any part of
questions 1 or 2 is in the affirmative, is the limitation nevertheless
justified under s. 1 of the Charter ?
VI. Analysis
A. Freedom
of Association
(1) Nature of the Claim
12
The appellants claim that “[f]irst and foremost,
agricultural workers simply wish to unionize”. Although the intervener
Canadian Labour Congress raised the issue of collective bargaining in this
appeal, the appellants directed this Court’s attention to broader issues,
describing a range of union activities not related to collective bargaining.
These activities, which ultimately relate to workers’ “empowerment and
participation in both the workplace and society at large”, include promoting
workplace democracy, protecting employees from abuses of managerial power,
pooling resources, and expressing the views of workers “cogently and
forcefully”. The appellants also described several social and political functions
of trade unions, such as giving workers access to courts, bringing
constitutional challenges on behalf of workers and engaging in political
education and action. In my view, these functions make it clear that the
appellants direct their attack not at legislation restricting collective
bargaining per se, but at legislation restricting the “wider ambit of
union purposes and activities”.
13
In order to establish a violation of s. 2 (d),
the appellants must demonstrate, first, that such activities fall within the
range of activities protected by s. 2 (d) of the Charter , and
second, that the impugned legislation has, either in purpose or effect,
interfered with these activities (see, in the s. 2 (a) context, R. v.
Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 331-36, and in the s. 2 (b)
context, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R.
927, at p. 971). On the first point, I shall review the existing framework of
the s. 2 (d) protection established by this Court in the 1987 “labour
trilogy” and subsequent cases. This discussion will include a purposive
analysis of 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. After reviewing the
content of freedom of association, I shall examine the contours of state
responsibility under s. 2 (d) of the Charter . In particular, I
shall ask whether s. 2 (d) obligates the state simply to respect trade
union freedoms, or additionally to protect trade union freedoms by prohibiting
their infringement by private actors. Following my discussion of the scope of
s. 2 (d), I shall examine the purpose and effects of the impugned
legislation.
(2) Scope of Section 2 (d)
(a) General Framework
14
The scope of s. 2 (d) was first decided by this Court in a
landmark trilogy of labour cases, all of which concerned the right to strike
(see Reference re Public Service Employee Relations Act (Alta.), [1987]
1 S.C.R. 313 (“Alberta Reference”); PSAC v. Canada, [1987] 1
S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460). In the Alberta
Reference, McIntyre J. (writing for himself) stressed the double-edged
nature of freedom of association, holding that “while [freedom of association]
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). On the basis of this principle, McIntyre J.
confined s. 2 (d) to three elements: (1) the freedom to join with others
in lawful, common pursuits and to establish and maintain organizations and
associations (with which all six justices agreed), (2) the freedom to engage
collectively in those activities which are constitutionally protected for each
individual (with which three of six justices agreed) and (3) the freedom to
pursue with others whatever action an individual can lawfully pursue as an
individual (with which three of six justices agreed). These three elements of
freedom of association are summarized, along with a crucial fourth principle,
in the oft-quoted words of Sopinka J. in Professional Institute of the
Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2
S.C.R. 367 (“PIPSC”), at pp. 401-2:
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. [Emphasis added.]
The third and
fourth of these principles have received considerably less judicial support
than the others, having only been explicitly affirmed by three of six judges in
the Alberta Reference and two of seven judges in PIPSC.
Moreover, these elements of s. 2 (d) provided little assistance to this
Court in Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R.
157 (“Egg Marketing”), which involved an activity that could not
conceivably be performed by an individual. Most recently, in Delisle, supra,
this Court did not have to rule on the validity of the existing framework
because all of the activities involved fell within it. In that case, this
Court clarified that s. 2 (d) does not guarantee access to a particular
labour relations regime where the claimants are able to exercise their s. 2 (d)
rights independently.
15
In addition to the four-part formulation in PIPSC,
supra, an enduring source of insight into the content of s. 2 (d)
is the purpose of the provision. This purpose was first articulated in the
labour trilogy and has accordingly been used to define both the “positive”
freedom to associate as well as the “negative” freedom not to (see Alberta
Reference, supra; Lavigne v. Ontario Public Service
Employees Union, [1991] 2 S.C.R. 211, at p. 318; R. v. Advance Cutting
& Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70). In defining this
purpose, McIntyre J. stressed, in Alberta Reference, supra, at p.
395, the unique power of associations to accomplish the goals of individuals:
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.” (L. J.
MacFarlane, The Theory and Practice of Human Rights (1985), p. 82.)
This conception of freedom of association, which was supported by
Dickson C.J. in his dissenting judgment (at pp. 334 and 365-66), has been
repeatedly endorsed by this Court since the Alberta Reference (see PIPSC,
supra, per Sopinka J., at pp. 401-2, per Cory J.
(dissenting), at p. 379; R. v. Skinner, [1990] 1 S.C.R. 1235, per
Dickson C.J., at p. 1243; Lavigne, supra, per
La Forest J., at p. 317, per Wilson J., at p. 251; per McLachlin
J. (as she then was), at p. 343). In Lavigne, Wilson J. (writing for
three of seven judges on this point) conducted an extensive review of this
Court’s s. 2 (d) jurisprudence, concluding that “this Court has been
unanimous in finding on more than one occasion and in a variety of contexts
that the purpose which s. 2 (d) is meant to advance is the collective
action of individuals in pursuit of their common goals” (p. 253). Wilson J.
added that the Court has remained steadfast in this position despite numerous
disagreements about the application of s. 2 (d) to particular practices.
16
As these dicta illustrate, the purpose of s. 2 (d) commands a
single inquiry: has the state precluded activity because of its
associational nature, thereby discouraging the collective pursuit of common
goals? In my view, while the four-part test for freedom of association sheds
light on this concept, it does not capture the full range of activities
protected by s. 2 (d). In particular, there will be occasions where a
given activity does not fall within the third and fourth rules set forth by
Sopinka J. in PIPSC, supra, but where the state has nevertheless
prohibited that activity solely because of its associational nature. These
occasions will involve activities which (1) are not protected under any other
constitutional freedom, and (2) cannot, for one reason or another, be
understood as the lawful activities of individuals. As discussed by Dickson
C.J. in the Alberta Reference, supra, such activities may be collective
in nature, in that they cannot be performed by individuals acting alone. The
prohibition of such activities must surely, in some cases, be a violation of s.
2 (d) (at p. 367):
There will, however, be occasions when no analogy involving individuals
can be found for associational activity, or when a comparison between groups
and individuals fails to capture the essence of a possible violation of
associational rights. . . . The overarching consideration
remains whether a legislative enactment or administrative action interferes
with the freedom of persons to join and act with others in common pursuits.
The legislative purpose which will render legislation invalid is the attempt to
preclude associational conduct because of its concerted or associational
nature. [Emphasis added.]
This passage,
which was not explicitly rejected by the majority in the Alberta Reference
or in PIPSC, recognizes that the collective is
“qualitatively” distinct from the individual: individuals associate not
simply because there is strength in numbers, but because communities can embody
objectives that individuals cannot. For example, a “majority view” cannot be
expressed by a lone individual, but a group of individuals can form a
constituency and distill their views into a single platform. Indeed, this is
the essential purpose of joining a political party, participating in a class
action or certifying a trade union. To limit s. 2 (d) to activities that
are performable by individuals would, in my view, render futile these
fundamental initiatives. At best, it would encourage s. 2 (d) claimants
to contrive individual analogs for inherently associational activities, a
process which this Court clearly resisted in the labour trilogy, in Egg
Marketing, supra, and in its jurisprudence on union security clauses
and the right not to associate (see Syndicat catholique des employés de
magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959] S.C.R. 206 (“[t]he
union is . . . the representative of all the employees in the unit
for the purpose of negotiating the labour agreement”, hence “[t]here is no room
left for private negotiation between employer and employee” (per Judson
J., at p. 212)); McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R.
718 (“[t]he reality is, and has been for many years now throughout Canada, that
individual relationships as between employer and employee have meaning only at
the hiring stage” (per Laskin C.J., at p. 725)); I. Hunter,
“Individual and Collective Rights in Canadian Labour Law” (1993), 22 Man.
L.J. 145, at p. 147 (“[i]ndividual rights vis-à-vis their employer
are replaced by rights in respect of their union, which, in turn, is mandated
to advance the interests of bargaining-unit members”); 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, at pp. 587-88). The collective dimension of s. 2 (d) is also
consistent with developments in international human rights law, as indicated by
the jurisprudence of the Committee of Experts on the Application of Conventions
and Recommendations and the ILO Committee on Freedom of Association (see,
e.g., International Labour Office, Freedom of Association: Digest of
decisions and principles of the Freedom of Association Committee of the
Governing Body of the ILO (4th ed. 1996)). Not only does this
jurisprudence illustrate the range of activities that may be exercised by a
collectivity of employees, but the International Labour Organization has
repeatedly interpreted the right to organize as a collective right (see
International Labour Office, Voices for Freedom of Association (Labour
Education 1998/3, No. 112): “freedom is not only a human right; it is also, in
the present circumstances, a collective right, a public right of organisation”
(address delivered by Mr. Léon Jouhaux, workers’ delegate)).
17
As I see it, the very notion of “association” recognizes the qualitative
differences between individuals and collectivities. It recognizes that the
press differs qualitatively from the journalist, the language community from
the language speaker, the union from the worker. In all cases, the community
assumes a life of its own and develops needs and priorities that differ from
those of its individual members. Thus, for example, a language community
cannot be nurtured if the law protects only the individual’s right to speak
(see R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 20). Similar
reasoning applies, albeit in a limited fashion, to the freedom to organize:
because trade unions develop needs and priorities that are distinct from those
of their members individually, they cannot function if the law protects
exclusively what might be “the lawful activities of individuals”. Rather, the
law must recognize that certain union activities -- making collective
representations to an employer, adopting a majority political platform,
federating with other unions -- may be central to freedom of association even
though they are inconceivable on the individual level. This is not to say that
all such activities are protected by s. 2 (d), nor that all
collectivities are worthy of constitutional protection; indeed, this Court has
repeatedly excluded the right to strike and collectively bargain from the
protected ambit of s. 2 (d) (see Alberta Reference, supra, per
Le Dain J., at p. 390 (excluding the right to strike and collectively
bargain), per McIntyre J., at pp. 409-10 (excluding the right to
strike); PIPSC, supra, per Dickson C.J., at pp. 373-74
(excluding the right to collectively bargain), per La Forest J., at
p. 390 (concurring with Sopinka J.), per L’Heureux-Dubé J., at p. 392
(excluding both the right to strike and collectively bargain), per Sopinka
J., at p. 404 (excluding both the right to strike and collectively bargain)).
It is to say, simply, that certain collective activities must be recognized if
the freedom to form and maintain an association is to have any meaning. As one
author puts it, the per se exclusion of collective action reduces
employee collectives to mere “aggregate[s] of economically self-interested
individuals” rather than “co-operative undertakings where individual
flourishing can be encouraged through membership in and co-operation with the
community of fellow workers” (see L. Harmer, “The Right to Strike: Charter
Implications and Interpretations” (1988), 47 U.T. Fac. L. Rev. 420, at
pp. 434-35). This would surely undermine the purpose of s. 2 (d), which
is to allow the achievement of individual potential through interpersonal
relationships and collective action (see, e.g., Lavigne, supra, per
McLachlin J., at pp. 343-44, per La Forest J., at pp. 327-28).
18
In sum, a purposive approach to s. 2 (d)
demands that we “distinguish between the associational aspect of the activity
and the activity itself”, a process mandated by this Court in the Alberta
Reference (see Egg Marketing, supra, per Iacobucci and
Bastarache JJ., at para. 111). Such an approach begins with the existing
framework established in that case, which enables a claimant to show that a
group activity is permitted for individuals in order to establish that its
regulation targets the association per se (see Alberta Reference,
supra, per Dickson C.J., at p. 367). Where this burden cannot be
met, however, it may still be open to a claimant to show, by direct evidence or
inference, that the legislature has targeted associational conduct because of
its concerted or associational nature.
(b) State Responsibility Under Section 2(d)
19
The content of the freedom to organize having been discussed, the next
question that arises is the scope of state responsibility in respect of this
freedom. This responsibility is generally characterized as “negative” in
nature, meaning that Parliament and the provincial legislatures need only
refrain from interfering (either in purpose or effect) with protected
associational activity. Conversely, the Charter does not oblige
the state to take affirmative action to safeguard or facilitate the exercise of
fundamental freedoms.
20
However, 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. Knowing this would foreclose the
effective exercise of the freedom to organize, Ontario has provided a statutory
freedom to organize in its LRA (s. 5), as well as protections against
denial of access to property (s. 13), employer interference with trade union
activity (s. 70), discrimination against trade unionists (s. 72), intimidation
and coercion (s. 76), alteration of working conditions during the certification
process (s. 86), coercion of witnesses (s. 87), and removal of Board notices
(s. 88). 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. More broadly, it may be asked whether the distinction
between positive and negative state obligations ought to be nuanced in the
context of labour relations, in the sense that excluding agricultural workers
from a protective regime substantially contributes to the violation of
protected freedoms.
21
This precise question was raised in Delisle,
supra, in which the appellant failed to establish that exclusion from a
protective regime violated s. 2 (d). The Delisle case involved
RCMP officers who were employed by the Canadian government, so it is arguable
that the Court’s decision was not intended to apply where private employers are
involved. However, Justice L’Heureux‑Dubé recognized at para. 7 of a
concurring judgment that s. 2 (d) may require protection against unfair
labour practices in certain circumstances:
I recognize that in cases where
the employer does not form part of government, there exists no Charter
protection against employer interference. In such a case, it might be
demonstrated that the selective exclusion of a group of workers from statutory
unfair labour practice protections has the purpose or effect of encouraging
private employers to interfere with employee associations. It may also be that
there is a positive obligation on the part of governments to provide
legislative protection against unfair labour practices or some form of official
recognition under labour legislation, because of the inherent vulnerability
of employees to pressure from management, and the private power of employers,
when left unchecked, to interfere with the formation and administration of
unions. [Emphasis added.]
This dictum was not rejected by the Delisle majority, which
focused instead on the fact that an interference with associational activity
had not been made out on the facts of the case. Indeed, in making this
finding, I deferred judgment on the appellant’s argument that underinclusion
could have “an important chill on freedom of association because it clearly
indicates to its members that unlike all other employees, they cannot unionize,
and what is more, that they must not get together to defend their interests
with respect to labour relations” (see Delisle, supra, at para.
30). In addition, I left open the possibility that s. 2 of the Charter
may impose “a positive obligation of protection or inclusion on Parliament or
the government . . . in exceptional circumstances which are not at
issue in the instant case” (para. 33).
22
Even before Delisle, Le Dain J.
recognized in the Alberta Reference, supra, that s. 2 (d)
protected workers’ freedom to organize “without penalty or reprisal”, making no
distinction between workers employed by government or private entities (p.
391). What this dictum recognized, in my view, is that without the necessary
protection, the freedom to organize could amount “to no more than the freedom
to suffer serious adverse legal and economic consequences” (see H. W. Arthurs
et al., Labour Law and Industrial Relations in Canada (4th ed. 1993), at
para. 431). Perhaps more importantly for this appeal, this dictum implies that
total exclusion from a regime protecting the freedom to organize could
engage not only s. 15(1) of the Charter , but also s. 2 (d) of the Charter .
Where a group is denied a statutory benefit accorded to others, as is the case
in this appeal, the normal course is to review this denial under s. 15(1) of
the Charter , not s. 2 (d) (see Haig v. Canada, [1993] 2
S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R.
627 (“NWAC”); Delisle, supra). This was properly
recognized by Sharpe J. who noted that “by ‘dipping its toe in the water’, and
affording or enhancing the rights of some”, the government is not obliged to
“go all the way and ensure the enjoyment of rights by all” (p. 207). However,
it seems to me that apart from any consideration of a claimant’s dignity
interest, exclusion from a protective regime may in some contexts amount to an
affirmative interference with the effective exercise of a protected freedom.
In such a case, it is not so much the differential treatment that is at issue,
but the fact that the government is creating conditions which in effect
substantially interfere with the exercise of a constitutional right; it has
been held in the s. 2 (a) context, for example, that “protection of one
religion and the concomitant non-protection of others imports disparate impact
destructive of the religious freedom of the collectivity” (see Big M Drug
Mart, supra, at p. 337). This does not mean that there is a
constitutional right to protective legislation per se; it means
legislation that is underinclusive may, in unique contexts, substantially
impact the exercise of a constitutional freedom.
23
This brings me to the central question of this appeal: can excluding
agricultural workers from a statutory labour relations regime, without
expressly or intentionally prohibiting association, constitute a substantial
interference with freedom of association? A preliminary answer to this
question may be found in Haig, supra, where L’Heureux‑Dubé
J. recognized that “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” (p. 1039). Although such a
situation did not arise in that case, at least three observations are in
order. First, the benefit sought in Haig, namely, participation in a
national referendum, was, unlike inclusion in the LRA, not designed to
safeguard the exercise of a fundamental freedom; thus, this Court was able to
reject the appellants’ claim for positive state action on the grounds that it
would constitutionalize a very limited statutory regime. Second, there was no
evidence in Haig that without the benefit of the referendum, the
appellant would have been incapable of expressing his views on Quebec
secession; thus, the appellants failed to meet the minimum evidentiary burden
required of a s. 2 (b) claim (see Haig, at p. 1040). Finally,
even had the appellant been unable to express his views on Quebec
secession, that surely had nothing to do with his exclusion from the national
referendum. Similar points may be made about NWAC, supra. In
that case, this Court again recognized the possibility of positive government
action in some cases, but concluded that the respondents’ exclusion from a
particular series of constitutional discussions did not suppress their overall
freedom of expression. As in the Haig case, the decisive point was the
nature of the state action sought, combined with the absence of an evidentiary
foundation for the s. 2 claim. By contrast, the appellants argue in this case
that they possess no independent ability to organize, either inside or outside
of the relevant statutory context.
24
In my view, the cases of Haig, NWAC and
Delisle function to circumscribe, but not to foreclose, the possibility
of challenging underinclusion under s. 2 of the Charter . One limit
imposed by these cases is that claims of underinclusion should be grounded in
fundamental Charter freedoms rather than in access to a particular
statutory regime. Thus, in Haig, the majority of this Court held that
“[a] government is under no constitutional obligation to extend [a referendum]
to anyone, let alone to everyone”, and further
that “[a] referendum as a platform of expression is . . . a matter of
legislative policy and not of constitutional law” (p. 1041 (emphasis in
original)). Similarly, in NWAC, the majority of this Court held that
“[i]t cannot be claimed that NWAC has a constitutional right to receive
government funding aimed at promoting participation in the constitutional conferences”
(p. 654). In my view, the appellants in this case do not claim a
constitutional right to general inclusion in the LRA, but simply a
constitutional freedom to organize a trade association. This freedom to
organize exists independently of any statutory enactment, even though the
so-called “modern rights to bargain collectively and to strike” have been
characterized otherwise in the Alberta Reference, supra, per
Le Dain J., at p. 391. While it may be that the effective exercise of
this freedom requires legislative protection in some cases, this ought not
change the fundamentally non-statutory character of the freedom itself. As
long as the appellants can plausibly ground their action in a fundamental Charter
freedom, Haig and NWAC ought simply to be distinguished.
25
Second, the underinclusion cases demonstrate that a proper evidentiary
foundation must be provided before creating a positive obligation under the Charter .
This requirement proved fatal in Haig, NWAC and Delisle
because the claimants in all three cases were unable to prove that the
fundamental freedom at issue, as opposed to merely their requested statutory
entitlement, was impossible to exercise. On the contrary, it was concluded in Haig
that “the referendum itself, far from stifling expression, provided a
particular forum for such expression” (p. 1040). Similarly, it was concluded
in NWAC that “[e]ven assuming that in certain extreme
circumstances, the provision of a platform of expression to one group may
infringe the expression of another and thereby require the Government to
provide an equal opportunity for the expression of that group, there was no
evidence in this case to suggest that the funding or consultation of the four
Aboriginal groups infringed the respondents’ equal right of freedom of
expression” (p. 664). Finally, it was concluded in Delisle that “it is
difficult to argue that the exclusion of RCMP members from the statutory regime
of the PSSRA prevents the establishment of an independent employee
association because RCMP members have in fact formed such an association in
several provinces, including Quebec, where ‘C’ Division was created by Mr.
Delisle himself” (para. 31). In my view, the evidentiary burden in these cases
is to demonstrate that exclusion from a statutory regime permits a substantial
interference with the exercise of protected s. 2 (d) activity. Such a
burden was implied by Dickson C.J. in the Alberta Reference, supra,
where he stated that positive obligations may be required “where the absence of
government intervention may in effect substantially impede the enjoyment
of fundamental freedoms” (p. 361 (emphasis added)). It was also implied by
this Court in NWAC, where Sopinka J. stated that “[i]t will be rare
indeed that the provision of a platform or funding to one or several
organizations will have the effect of suppressing another’s freedom of speech”
(p. 657 (emphasis added)). These dicta do not require that the exercise of a
fundamental freedom be impossible, but they do require that the claimant seek
more than a particular channel for exercising his or her fundamental freedoms.
26
Assuming an evidentiary foundation can be provided, a third concern is
whether the state can truly be held accountable for any inability to exercise a
fundamental freedom. In this case, it is said that the inability to form an
association is the result of private action and that mandating inclusion in a
statutory regime would run counter to this Court’s decision in Dolphin
Delivery, supra. However, it should be noted that this Court’s
understanding of “state action” has matured since the Dolphin Delivery case
and may mature further in light of evolving Charter values. For
example, this Court has repeatedly held that the contribution of private actors
to a violation of fundamental freedoms does not immunize the state from Charter review;
rather, such contributions should be considered part of the factual context in
which legislation is reviewed (see Lavigne, per La Forest
J., at p. 309; see, similarly, R. v. Edwards Books and Art Ltd., [1986]
2 S.C.R. 713, per Dickson C.J., at p. 766). Moreover, this Court has
repeatedly held in the s. 15(1) context that the Charter may oblige
the state to extend underinclusive statutes to the extent underinclusion
licenses private actors to violate basic rights and freedoms (see Vriend v.
Alberta, [1998] 1 S.C.R. 493). Finally, there has been some suggestion
that the Charter should apply to legislation which “permits” private
actors to interfere with protected s. 2 activity, as in some contexts mere
permission may function to encourage or support the act which is called into
question (see Lavigne, per Wilson J., at p. 248). If we apply
these general principles to s. 2 (d), it is not a quantum leap to suggest
that a failure to include someone in a protective regime may
affirmatively permit restraints on the activity the regime is designed to protect.
The rationale behind this is that underinclusive state action falls into
suspicion not simply to the extent it discriminates against an unprotected
class, but to the extent it substantially orchestrates, encourages or sustains
the violation of fundamental freedoms.
27
The notion that underinclusion can infringe freedom of
association is not only implied by Canadian Charter jurisprudence,
but is also consistent with international human rights law. Article 2 of Convention
(No. 87) concerning Freedom of Association and Protection of the Right
to Organize, 67 U.N.T.S. 17, provides that “[w]orkers and employers, without
distinction whatsoever, shall have the right to establish and
. . . to join organisations of their own choosing” (emphasis added),
and that only members of the armed forces and the police may be excluded
(Article 9 ). In addition, Article 10 of Convention No. 87 defines an
“organisation” as “any organisation of workers or of employers for
furthering and defending the interests of workers or of employers” (emphasis
added). Canada ratified Convention No. 87 in 1972. The Convention’s broadly
worded provisions confirm precisely what I have discussed above, which is that
discriminatory treatment implicates not only an excluded group’s dignity
interest, but also its basic freedom of association. This is further confirmed
by the fact that Article 2 operates not only on the basis of sex, race,
nationality and other traditional grounds of discrimination, but on the basis
of any distinction, including occupational status (see L. Swepston,
“Human rights law and freedom of association: Development through ILO
supervision” (1998), 137 Int’l Lab. Rev. 169, at pp. 179-180). Nowhere
is this clearer than in Article 1 of Convention (No. 11) concerning the
Rights of Association and Combination of Agricultural Workers, 38 U.N.T.S.
153, which obliges ratifying member states to secure to “all those engaged in
agriculture” the same rights of association as to industrial workers; the
convention makes no distinction as to the type of agricultural work performed.
Although provincial jurisdiction has prevented Canada from ratifying Convention
No. 11, together these conventions provide a normative foundation for
prohibiting any form of discrimination in the protection of trade union
freedoms (see J. Hodges-Aeberhard, “The right to organise in Article 2 of
Convention No. 87: What is meant by workers ‘without distinction whatsoever’?”
(1989), 128 Int’l Lab. Rev. 177). This foundation is fortified by Convention
(No. 141) concerning Organisations of Rural Workers and Their Role in Economic
and Social Development (I.L.O. Official Bulletin, vol. LVIII, 1975,
Series A, No. 1, p. 28) which extends, under Article 2 , the freedom to organize
to “any person engaged in agriculture, handicrafts or a related occupation in a
rural area, whether as a wage earner or, . . . as a tenant,
sharecropper or small owner-occupier”.
28
In sum, while it is generally desirable to confine claims of
underinclusion to s. 15(1) , it will not be appropriate to do so where the
underinclusion results in the effective denial of a fundamental freedom such as
the right of association itself. This is not to say that such claims will be
common: they are constrained by both s. 32 of the Charter , which
demands a minimum of state action before the Charter can be invoked, as
well as by the factors discussed above. However, a claim for inclusion should
not, in my view, automatically fail a s. 2 (d) analysis: depending on
the circumstances, freedom of association may, for example, prohibit the
selective exclusion of a group from whatever protections are necessary to form
and maintain an association, even though there is no constitutional right to
such statutory protection per se. In this sense, the burden imposed by
s. 2 (d) of the Charter differs from that imposed by s.
15(1) : while the latter focuses on the effects of underinclusion on human
dignity (Law v. Canada (Minister of Employment and Immigration), [1999]
1 S.C.R. 497), the former focuses on the effects of underinclusion on the
ability to exercise a fundamental freedom. This distinction is contemplated by
the wording of the Charter itself and is supported by subsequent
jurisprudence of this Court (see, e.g., Delisle, supra, at para.
25).
29
Before concluding on this point, I reiterate that the above doctrine
does not, on its own, oblige the state to act where it has not already
legislated in respect of a certain area. One must always guard against
reviewing legislative silence, particularly where no legislation has been
enacted in the first place. By the same token, it must be remembered why the Charter
applies to legislation that is underinclusive. Once the state has chosen to
regulate a private relationship such as that between employer and employee, I
believe it is unduly formalistic to consign that relationship to a “private
sphere” that is impervious to Charter review. As Dean P. W. Hogg has
stated, “[t]he effect of the governmental action restriction is that there is a
private realm in which people are not obliged to subscribe to ‘state’ values,
and into which constitutional norms do not intrude. The boundaries of that
realm are marked, not by an a priori definition of what is ‘private’,
but by the absence of statutory or other governmental intervention” (see Constitutional
Law of Canada ( loose-leaf ed.), at p. 34-27). I am not prepared to say
that the relationship between farmers and their employees falls within that
boundary. If, by investigating the effects of a statute that regulates this
sphere, this Court is imposing “positive” obligations on the state, that is
only because such imposition is justified in the circumstances.
(c) Summary of Discussion on Section 2 (d)
30
In my view, the activities for which the appellants seek protection fall
squarely within the freedom to organize, that is, the freedom to collectively
embody the interests of individual workers. Insofar as the appellants seek to
establish and maintain an association of employees, there can be no question
that their claim falls within the protected ambit of s. 2 (d) of the Charter .
Moreover, the effective exercise of these freedoms may require not only the
exercise in association of the constitutional rights and freedoms (such as
freedom of assembly) and lawful rights of individuals, but the exercise of
certain collective activities, such as making majority representations to one’s
employer. 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. Finally, while
inclusion in legislation designed to protect such freedoms will normally be the
province of s. 15(1) of the Charter , claims for inclusion may, in rare
cases, be cognizable under the fundamental freedoms. With this in mind, I turn
to whether s. 3(b) of the LRA interferes with the appellants’
protected freedoms, either in purpose or effect.
(3) Application to the Ontario Legislation
(a) Purpose of the Exclusion
31
The appellants claim that their exclusion from the LRA was
intended to infringe their freedom to organize and, as such, violates the Charter notwithstanding
its actual effects (see Big M Drug Mart, supra, at pp. 331-33; Edwards
Books, supra, per Dickson C.J., at p. 752). A similar
allegation of colourable purpose was assessed in the recent case of Delisle,
supra. In that case, s. 2 “employee” (e) of the Public
Service Staff Relations Act, R.S.C. 1985, c. P-35 , was held not to
interfere with the unionization of RCMP officers, as the purpose of the
provision was simply to withhold from RCMP officers any status or protection
created by the Act itself. The majority rejected extrinsic evidence that the
purpose of the Act was, in the words of the dissenting judges, “to maintain the
inherent difficulty faced by RCMP members in attempting to associate together
to confront management on more equal terms” (para. 88). In the case at
bar, a similar analysis yields an ambiguous result. At first blush, it would
seem that the purpose of the LRA and the LRESLAA is to withhold
from agricultural workers any status or protection created by the former Act,
and not to target non-statutory unionization. On the other hand, the
appellants point out several comments made by Ontario government officials to
the effect that the purpose of the LRESLAA was to prevent
“unionization”. Upon introducing the LRESLAA to the Ontario Legislature
in 1995, for example, the Ontario Minister of Labour stated that “unionization
of the family farm has no place in Ontario’s key agricultural sector”;
moreover, the Minister of Agriculture, Food and Rural Affairs later stated that
“the Agricultural Labour Relations Act is aimed directly at unionizing
the family farm” and that “[w]e do not believe in the unionization of the
family farm” (Legislative Assembly of Ontario, Official Report of Debates,
October 4, 1995, at pp. 99-100). Similar language was employed in the
legislature’s media kit on Bill 7, which stated that the agricultural sector
“would have great difficulty adapting to the presence of unions”. These troubling
comments were made to members of the provincial legislature before they voted
on the LRESLAA and, as such, may have reflected the legislature’s
intention in enacting that statute.
32
There are conflicting claims in this case concerning the meaning of the
above comments and the light they shed on the intention of the legislature. On
the one hand, the ambiguous use of the term “unionization” suggests that the
legislature sought not only to exclude agricultural workers from the statutory
incidents of striking and collective bargaining, but also to insulate Ontario’s
farms from the very presence of unions. Such an intention would, needless to
say, run counter to the Charter ’s guarantee of freedom of association.
On the other hand, the fact that the LRESLAA pursues a collateral
legislative objective, namely the protection of the family farm, makes it
difficult to conclude without speculation that this protection was sought
through the prevention of unionization per se. While my colleague
L’Heureux-Dubé J. marshals compelling evidence to make this point, I remain
struck by the fact that s. 3(b) of the LRA does not, on its face,
prohibit agricultural workers from forming workers’ associations, while it does
bar them from all statutory labour relations schemes.
33
The difficulties of assessing legislative intent cannot be
overemphasized. Such an assessment strikes at the heart of the rapport between
the legislatures and the courts and, if undertaken lightly, can become a rather
subjective process of induction. Moreover, the kind of evidence that is
required to go behind the wording of a statute and make a finding of
unconstitutional purpose is, understandably, not often available on the
legislative record. On the facts of this case, therefore, I think it is more
appropriate to focus on the effects of the impugned provisions, noting that
some of the concerns raised by the above comments will inform the s. 1
analysis.
(b) Effects of the Exclusion
34
In their submissions before this Court, the appellants urged that
because the statutory protections provided by the LRA were a necessary
pre-condition for the formation of agricultural unions in Ontario, the effect
of s. 3(b) of the LRA was to permanently foreclose this
possibility and thus to violate s. 2 (d) of the Charter . In
response, the Attorney General adopted the position of Sharpe J. that LRA protection
was an insufficient condition for the formation of agricultural unions
and, more importantly, that any inability to form agricultural unions in
Ontario stemmed from private, not state action. In my view, the appellants
must prevail on this point. While the respondent rightly observes that the Charter
does not apply to private actors, their argument assumes a rigid dichotomy
between public and private action which, while appropriate in some contexts,
belies the historical reality of agricultural labour relations. I conclude
that the effect of s. 3(b) of the LRA is to violate s. 2 (d)
of the Charter .
35
The history of labour relations in Canada illustrates the profound
connection between legislative protection and the freedom to organize. It may
be suggested that legislative protection is so tightly woven into the fabric of
labour relations that, while there is no constitutional right to protective
legislation per se, the selective exclusion of a group from such
legislation may substantially impact the exercise of a fundamental freedom. To
illustrate this point, I find it necessary to make three observations about the
appellants’ exclusion from the LRA. First, the LRA is designed
to safeguard the exercise of a fundamental freedom, rather than to provide a
limited statutory entitlement to certain classes of citizens. Second, the
appellants in this case are substantially incapable of exercising their
fundamental freedom to organize without the protective regime, as indicated by
the record filed before this Court. Third, the appellants’ exclusion from the LRA
functions not simply to permit private interference with their fundamental
freedoms, but to substantially reinforce such interferences. Central to all of
these points, in my view, is that the freedom to organize constitutes a unique
swatch in Canada’s constitutional fabric, as difficult to exercise as it is fundamental,
into which legislative protection is historically woven.
(i) The LRA is Designed to Safeguard the
Exercise of the Fundamental Freedom to Associate
36
In assessing the appellant’s claim for the repeal of s. 3(b) of
the LRA, it is crucial to examine the essential ambition of the LRA.
As numerous scholars have pointed out, the LRA does not simply
enhance, but instantiates, the freedom to organize. The Act provides the
only statutory vehicle by which employees in Ontario can associate to defend
their interests and, moreover, recognizes that such association is, in many
cases, otherwise impossible. This recognition is evident not only from the
statute’s protections against unfair labour practices, but from the express
“right to organize” it inscribes in s. 5. At the same time, the activities for
which the appellants seek protection antecede, at least notionally, the LRA’s
enactment; as this Court held in Delisle, supra, “[t]he ability
to form an independent association and to carry on [its] protected activities .
. . exists independently of any statutory regime”, even though the
unprotected aspects of collective bargaining and the right to strike are
creatures of statute (para. 33). What this means is that, while the inevitable
effect of allowing this appeal may be to extend a statutory regime to
agricultural workers, depending on the legislative response to this decision,
the appellants are not seeking a constitutional “right” to inclusion in the LRA.
37
The freedom to organize lies at the core of the Charter ’s
protection of freedom of association. So central is this freedom to s. 2 (d)
that, during the legislative hearings preceding the Charter ’s enactment,
an express right to unionize was opposed on the grounds “that that is already
covered in the freedom of association that is provided already in
. . . the Charter ” (emphasis added) (see Minutes of
Proceedings and Evidence of the Special Joint Committee of the Senate and of
the House of Commons on the Constitution of Canada, Issue No. 43, January
22, 1981, at pp. 69-70 (Kaplan)). As recently as Delisle, supra,
L’Heureux‑Dubé J. noted 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” (para. 6 (emphasis in original)). These
remarks echo those of Dickson C.J., who noted in the Alberta Reference,
supra, that “[w]ork is one of the most fundamental aspects in a person’s
life, providing the individual with a means of financial support and, as
importantly, a contributory role in society” (p. 368) (see similarly, McKinney
v. University of Guelph, [1990] 3 S.C.R. 229, per La Forest
J., at p. 300; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986,
at p. 1002; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, per Iacobucci
J., at para. 95). Moreover, the importance of trade union freedoms is widely
recognized in international covenants, as is the freedom to work generally. In
my view, judicial recognition of these freedoms strengthens the case for their
positive protection. It suggests that trade union freedoms lie at the core of
the Charter , and in turn that legislation instantiating those freedoms
ought not be selectively withheld where it is most needed.
38
By protecting the freedom to organize, s. 2 (d) of the Charter
recognizes the dynamic and evolving role of the trade union in Canadian
society. In addition to permitting the collective expression of employee
interests, trade unions contribute to political debate. At the level of
national policy, unions advocate on behalf of disadvantaged groups and present
views on fair industrial policy. These functions, when viewed globally, affect
all levels of society and constitute “an important subsystem in a democratic
market-economy system” (see K. Sugeno, “Unions as social institutions in
democratic market economies” (1994), 133 Int’l Lab. Rev. 511, at p.
519). For these reasons, the notion that minimum legislative protection cannot
be extended to agricultural workers without extending full collective bargaining
rights is misguided. Equally misguided is the notion that inherent
difficulties in the formation of trade unions, or the fact that unions are in
some cases experiencing a decline in membership, diminishes their social and
political significance. On the contrary, unions remain core voluntary
associations based on the principle of freedom of association.
(ii) Without the Protection of the LRA,
Agricultural Workers Are Substantially Incapable of Exercising the Freedom to
Associate
39
The fact that a regime aims to safeguard a fundamental freedom does not,
of course, mean that exclusion from that regime automatically gives rise to a Charter
violation. As I discussed in Delisle, supra, 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. In this case, by contrast,
the appellants contend that total exclusion from the LRA creates a
situation whereby they are substantially incapable of exercising their
constitutional right to associate. Needless to say, this claim must be
assessed against the factual record provided by both the appellants and the
respondents.
40
As a preliminary matter, the appellants state that the repeal of the ALRA
by the LRESLAA caused the immediate demise of the first agricultural
workers’ union in Ontario. While this is an alluring argument, in my view it
obscures the true substance of the appellants’ claim. As discussed above, what
is ultimately impugned in this case is not simply the repeal of the ALRA,
but the combined effect of the LRESLAA and the LRA. This
implicates the decades-long exclusion of agricultural workers from the labour
relations regime, from the first enactment of the Collective Bargaining Act,
1943, until the repeal of the ALRA in 1995. The LRESLAA
occupies only a small space in this history; it ought not prove decisive in
this appeal.
41
Nonetheless, the appellants argue that notwithstanding the ALRA,
they have no realistic chance of associating without the protection of the LRA.
This is mainly because the LRA protects workers from common law
inhibitions on organizing activity, as well as from employer practices designed
to obstruct the formation of unions (see Arthurs, supra, at para. 431;
International Labour Organization, Committee on Freedom of Association, Report
No. 308, Case No. 1900, “Complaint against the Government of Canada (Ontario),
presented by the Canadian Labour Congress (CLC)”, I.L.O. Official Bulletin,
vol. LXXX, 1997, Series B, No. 3, at paras. 145-46 and 187). Perhaps more
broadly, the LRA is described by the intervener Canadian Labour Congress
as having “regulated, structured and channelled” the method through which
Canadian workers are able to organize, to the point where organizing a workers’
association is “virtually synonymous” with unionizing under the legislative
scheme. As just noted, the mere fact of exclusion from protective legislation
is not conclusive evidence of a Charter violation; as I observed in Delisle,
supra, RCMP officers had the strength to form employee associations in
several provinces despite their exclusion from the PSSRA (para. 31).
That being said, it is possible to draw a distinction between groups who are
“strong enough to look after [their] interests without collective bargaining
legislation” and those “who have no recourse to protect their interests aside
from the right to quit” (see Canadian Industrial Relations: The Report of
the Task Force on Labour Relations (1968), at paras. 253-54). As Canada’s
leading Task Force on Labour Relations recognized as early as 1968,
agricultural workers fall into the latter category (para. 254). Not only have
agricultural workers proved unable to form employee associations in provinces
which deny them protection but, unlike the RCMP officers in Delisle,
they argue that their relative status and lack of statutory protection all but
guarantee this result. 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” (p. 216). Moreover, unlike RCMP officers, agricultural
workers are not employed by the government and therefore cannot access the Charter
directly to suppress an unfair labour practice (Delisle, at para. 32).
It is no wonder, therefore, according to the appellants, that agricultural
workers have failed to associate in any meaningful way in Ontario, while RCMP
officers have successfully created independent employee associations in several
provinces across Canada (Delisle, at para. 31).
42
The validity of this claim will depend in part on how strict a
definition of the word “unionize” this Court adopts. The respondent Fleming
Chicks and the intervener Labour Issues Coordinating Committee both adopt a
very strict definition, arguing that UFCW’s involvement in this litigation
proves that the LRA has not functioned to stifle union activity. This
claim is disputed by the appellants’ chief expert, Professor Judy Fudge, who
notes that legislative protection is a necessary precondition for collective
bargaining under Canadian labour relations legislation. As stated earlier in
these reasons, it is only the right to associate that is at issue here, not the
right to collective bargaining. Nevertheless, to suggest that s. 2 (d)
of the Charter is respected where an association is reduced to claiming
a right to unionize would, in my view, make a mockery of freedom of
association. The record shows that, but for the brief period covered by the ALRA,
there has never been an agricultural workers’ union in Ontario. Agricultural
workers have suffered repeated attacks on their efforts to unionize.
Conversely, in those provinces where labour relations rights have been extended
to agricultural workers, union density is higher than in Ontario (see
Statistics Canada, Annual Report of the Minister of Industry, Science and
Technology under the Corporations and Labour Unions Returns Act, Part II,
Labour Unions (1992), at pp. 38-41). The respondents do not contest this
evidence, nor do they deny that legislative protection is absolutely crucial if
agricultural workers wish to unionize. Indeed, to suggest otherwise would
contradict a widespread consensus among Parliament and the provincial
legislatures that without certain minimum protections, the somewhat limited
freedom to organize itself would be a hollow freedom. For these reasons, I
readily conclude that the evidentiary burden has been met in this case: the
appellants have brought this litigation because there is no possibility for
association as such without minimum statutory protection.
(iii) The Exclusion of Agricultural Workers from
the LRA Substantially Reinforces the Inherent Difficulty in Exercising
the Freedom to Associate
43
Their freedom to organize having been substantially impeded by exclusion
from protective legislation, it is still incumbent on the appellants to link
this impediment to state, not just private action (see Dolphin Delivery,
supra). On this point, the respondents argue that since agricultural
workers are isolated, seasonal and relatively under-educated, this, along with
the unfair labour practices of their employers, is what explains the difficulty
in creating associations rather than the underinclusiveness of the
legislation. On the other hand, the appellants argue that the above conditions
are reinforced by legislation which fails to provide minimum protection of
their freedom to organize and further isolates agricultural workers by
excluding them from the general regime of labour relations.
44
In my view, the appellants’ argument must prevail. What the legislature
has done by reviving the LRA is not simply allow private circumstances
to subsist; it has reinforced those circumstances by excluding agricultural
workers from the only available channel for associational activity (see Vriend,
supra, at paras. 99-103). The most poignant chapter in this legislative
history, but by no means the decisive one, is the LRESLAA. Through this
enactment, the Ontario government not only renewed its commitment to preventing
agricultural unions from collective bargaining, but prohibited even the voluntary
recognition of agricultural associations, whatever their attributes might
be. At the same time, it must be presumed that the legislature understood the
history of labour relations and remained of the view that a protective regime
was essential to the exercise of freedom of association in this area.
45
The most palpable effect of the LRESLAA and the LRA is, in
my view, to place a chilling effect on non-statutory union activity. By
extending statutory protection to just about every class of worker in Ontario,
the legislature has essentially discredited the organizing efforts of
agricultural workers. This is especially true given the relative status of
agricultural workers in Canadian society. In Delisle, supra, I
linked RCMP officers’ ability to associate to their relative status, comparing
them with the armed forces, senior executives in the public service and
judges. The thrust of this argument was that if the PSSRA sought to
discourage RCMP officers from associating, it could not do so in light of their
relative status, their financial resources and their access to constitutional
protection. By contrast, it is hard to imagine a more discouraging legislative
provision than s. 3(b) of the LRA. The evidence is that the
ability of agricultural workers to associate is only as great as their access
to legal protection, and such protection exists neither in statutory nor
constitutional form. Moreover, agricultural workers already possess a limited
sense of entitlement as a result of their exclusion from other protective
legislation related to employment standards and occupational health and safety
(see Employment Standards Act Regulations, R.R.O. 1990, Reg. 325, s.
3(1)(i), excluding most agricultural workers from Parts IV-VIII of the Employment
Standards Act, R.S.O. 1990, c. E.14; Occupational Health and Safety Act,
R.S.O. 1990, c. O.1, s. 3(2)). In this context, the effect of s. 3(b)
of the LRA is not simply to perpetuate an existing inability to
organize, but to exert the precise chilling effect I declined to recognize in Delisle.
46
Conversely, the didactic effects of labour relations legislation on
employers must not be underestimated. It is widely accepted that labour
relations laws function not only to provide a forum for airing specific
grievances, but for fostering dialogue in an otherwise adversarial workplace.
As P. Weiler has written, unionization introduces a form of political democracy
into the workplace, subjecting employer and employee alike to the “rule of law”
(see Reconcilable Differences: New Directions in Canadian Labour Law
(1980), at pp. 31-32). In this context, the wholesale exclusion of
agricultural workers from a labour relations regime can only be viewed as a
stimulus to interfere with organizing activity. The exclusion suggests that
workplace democracy has no place in the agricultural sector and, moreover, that
agricultural workers’ efforts to associate are illegitimate. As surely as LRA
protection would foster the “rule of law” in a unionized workplace, exclusion
from that protection privileges the will of management over that of the
worker. Again, a contrast to Delisle, supra, is apposite: a
government employer is less likely than a private employer to take exclusion
from protective legislation as a green light to commit unfair labour
practices, as its employees have direct recourse to the Charter .
47
For these reasons, I believe it is inappropriate for the Ontario
Legislature to distance itself from the effects of the LRA and the LRESLAA.
The enactment of the Collective Bargaining Act, 1943 reflected the
legislature’s awareness of employer unfair labour practices and its concomitant
recognition that legislation was necessary to enable workers’ freedom of
association. The Collective Bargaining Act, 1943 was enacted against a
background of staunch resistance to the labour movement; in large part, it was
intended to prevent discrimination against union members. In this context, the
exclusion of an entire category of workers from the LRA can only be
viewed as a foreseeable infringement of their Charter rights. It was
obviously open to the respondents to argue that the legislature has since
altered its view of the need for protective legislation and that the LRA
is not even required for the majority of workers today. However, by reviving
the exclusion in 1995 and providing time-limited protection against
penalty and reprisal, the legislature clearly acknowledged otherwise (see LRESLAA,
s. 81(1)). In essence, after recognizing agricultural workers’ need for
protection, the legislature made things more difficult for them by excluding
them from the protective regime put in place in 1943. For these reasons, the
respondents cannot claim that circumstances have changed substantially since
the enactment of the Collective Bargaining Act, 1943; rather, it
can only justify the exclusion of agricultural workers on the basis of
collateral concerns such as the protection of the family farm and the need to
maintain a competitive agricultural sector – issues which, needless to say,
must be considered under s. 1 of the Charter .
48
In sum, I believe it is reasonable to conclude that the exclusion of
agricultural workers from the LRA substantially interferes with their
fundamental freedom to organize. The inherent difficulties of organizing farm
workers, combined with the threats of economic reprisal from employers, form
only part of the reason why association is all but impossible in the
agricultural sector in Ontario. Equally important is the message sent by s. 3(b)
of the LRA, which delegitimizes associational activity and thereby
ensures its ultimate failure. Given these known and foreseeable effects of s.
3(b), I conclude that the provision infringes the freedom to organize
and thus violates s. 2 (d) of the Charter .
B. Section
1
49
Having established a violation of s. 2 (d) of the Charter ,
the question arises as to whether exclusion from the LRA constitutes a
reasonable limit on agricultural workers’ freedom to organize. In this regard,
s. 1 of the Charter obliges the respondents, as the parties seeking
to uphold the limitation, to establish both that the objective underlying the
limitation is of sufficient importance to warrant overriding a constitutionally
protected right or freedom, and that the means chosen to reach this objective
are proportionate (see R. v. Oakes, [1986] 1 S.C.R. 103, at pp.
136-39). This analysis must be undertaken with a close attention to the
factual and social context surrounding the enactment of the LRA; as I
noted in Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1
S.C.R. 877, at para. 87, “context is the indispensable handmaiden to the proper
characterization of the objective of the impugned provision, to determining
whether that objective is justified, and to weighing whether the means used are
sufficiently closely related to the valid objective so as to justify an
infringement of a Charter right”. The contextual factors established in
Thomson Newspapers and subsequent cases will prove especially helpful at
the minimum impairment stage of the s. 1 analysis.
(1) Sufficiently Important Objective
50
According to settled s. 1 jurisprudence, the respondents must establish
that the objectives of the infringing measures, in this case s. 80 of the LRESLAA
and s. 3(b) of the LRA, “are of sufficient importance to warrant
overriding a constitutionally protected right or freedom” (Big M Drug Mart,
supra, at p. 352). The appellants argue that these objectives must be
those “that originally motivated the government action in question”, and that
“[t]he exclusion contained in the 1943 Act simply followed the approach taken
in the U.S. Wagner Act which had excluded agricultural workers on racial
grounds”. In support of this view, the appellants note that at the time the Wagner
Act was enacted, agricultural workers in the American South were
predominantly Black and, due to their alienation from the political process,
were unable to prevail over the will of powerful Southern Democrats. In my
view, this argument confuses the objective underlying the passage of the 1943
Act with the social and political factors surrounding its enactment. While it
may be that Southern Democrats held the balance of power at the time the Wagner
Act was enacted, and further that the majority of agricultural workers
lacked access to the political process on account of their race, this does not
prove that these workers were excluded “on racial grounds”. What it
establishes, rather, is that the “administrative reasons” cited for excluding
agricultural workers were accepted without debate because the workers
themselves lacked an effective political voice. While this undoubtedly taints
the legacy of the Wagner Act and the LRA, it does not alter the
apparent policy objectives underlying the exclusion of agricultural workers.
51
The respondent Attorney General for Ontario proffers two broad
objectives in this case, no doubt designed to avert the suggestion that its
objectives have shifted since the 1943 Act:
(1) to recognize the unique characteristics of
Ontario agriculture and its resulting incompatibility with legislated
collective bargaining; and
(2) to further the purpose of the LRA by
extending legislated collective bargaining only to fields of employment where
the Act’s purposes can be realized.
While it is
widely recognized that certain occupations may, in certain cases, be
incompatible with collective bargaining, the judiciary and some essential
services, for example, it is less certain that agricultural workers fall into
this category. The Attorney General tenders extensive affidavit evidence on
this point, arguing that the prevalence of the “family farm” and the
vulnerability of the agricultural production process militate against
legislated collective bargaining. For their part, the appellants maintain that
the family farm no longer typifies Ontario agriculture and that the
vulnerability of the agricultural production process, assuming it exists, does
not militate against legislated collective bargaining. This discussion is
however somewhat irrelevant in that the breach of the right of association does
not extend to collective bargaining. What the government of Ontario must
justify with regard to this appeal is its substantial interference with the
right to form agricultural associations.
52
Judging from the parties’ evidence, I am satisfied both that many farms
in Ontario are family-owned and -operated, and that the protection of the
family farm is a pressing enough objective to warrant the infringement of s. 2 (d)
of the Charter . The fact that Ontario is moving increasingly towards
corporate farming and agribusiness does not, in my view, diminish the
importance of protecting the unique characteristics of the family farm; on the
contrary, it may even augment it. Perhaps more importantly, the appellants do
not deny that the protection of the family farm is, at least in theory, an
admirable objective. The choice to “pursue the pastoral path” implies a unique
and non-commercial way of life; this way of life is entitled, according to
many, to the same level of protection as “that which prevails in our factories
and office buildings” (D. M. Beatty, Putting the Charter to Work:
Designing a Constitutional Labour Code (1987), at p. 91). If providing
this protection means restraining the activities of those who would interfere
with that choice, the appropriate response is not to deny the protection,
however, but to balance these interests against one another. Such balancing,
in my view, is the essence of s. 1 of the Charter (see R. v. Sharpe,
[2001] 1 S.C.R. 45, 2001 SCC 2, at para. 97). As Professor Beatty puts it, at
p. 91, “the freedom of those who choose to experience their lives in such
non-commercial, self-sustaining ways may justify restraining the freedom of
others who would wish to associate with them in a way which would threaten or
deny them the opportunity to realize their choice”.
53
With respect to the economic rationale, I disagree with the appellants
that “[t]he Government has provided no evidence that the Ontario agricultural
sector is in a fragile competitive position or that it is likely to be
substantially affected by small changes in the cost and operating structure of
Ontario farming”. The Attorney General notes that agriculture occupies a
volatile and highly competitive part of the private sector economy, that it experiences
disproportionately thin profit margins and that its seasonal character makes it
particularly vulnerable to strikes and lockouts. Moreover, these
characteristics were readily accepted by the Task Force leading to the adoption
of the ALRA, which recommended a system of compulsory arbitration in
order to guard against the economic consequences of strikes and lockouts (see
Task Force on Agricultural Labour Relations (Ontario), Second Report to the
Minister of Labour (November 1992), at pp. 2 and 7). Whether such a
recommendation is more constitutionally reasonable than a wholesale exclusion
of agricultural workers is, in my view, an issue of proportionality rather than
pressing and substantial objective. In other words, accepting the importance of
protecting the family farm and ensuring farm productivity, the crucial question
is whether the total exclusion of agricultural workers from the LRA is
(1) a rational way of achieving this objective, (2) a measured response to this
objective, and (3) not so severe in its effects that the Charter breach
outweighs the objective’s importance (Oakes, supra).
(2) Proportionality
(a) Rational Connection
54
At this stage, the question is whether a wholesale exclusion of
agricultural workers from the LRA is carefully tailored to meet its
stated objectives. Put differently, can the formation of agricultural unions
rationally be regarded as a threat to the unique characteristics of Ontario’s
agriculture? Or conversely, does a regime which substantially impedes the
right to form agricultural unions advance the cause articulated by the Attorney
General? In my view, the Attorney General has demonstrated that unionization
involving the right to collective bargaining and to strike can, in certain
circumstances, function to antagonize the family farm dynamic. The reality of
unionization is that it leads to formalized labour-management relationships and
gives rise to a relatively formal process of negotiation and dispute
resolution; indeed, this may well be its principal advantage over a system of
informal industrial relations. In this context, it is reasonable to speculate
that unionization will threaten the flexibility and cooperation that are
characteristic of the family farm and distance parties who are otherwise, to
use the respondent’s words, “interwoven into the fabric of private life” on the
farm. That said, I hasten to add that this concern ought only be as great as
the extent of the family farm structure in Ontario and that it does not
necessarily apply to the right to form an agricultural association. In cases
where the employment relationship is formalized to begin with, preserving
“flexibility and co-operation” in the name of the family farm is not only
irrational, it is highly coercive. The notion that employees should sacrifice
their freedom to associate in order to maintain a flexible employment
relationship should be carefully circumscribed, as it could, if left unchecked,
justify restrictions on unionization in many sectors of the economy.
55
Even less convincing than Ontario’s family farm policy, in my view, is a
policy of denying the right of association to agricultural workers on economic
grounds. While this may be a rational policy in isolation, it is nothing short
of arbitrary where collective bargaining rights have been extended to almost
every other class of worker in Ontario. The reality, as acknowledged by all
parties to this appeal, is that many industries experience thin profit margins
and unstable production cycles; this may be due to unpredictable and
time-sensitive weather conditions, as in the case of agriculture, or to other
factors such as consumer demand and international competition. In my view, it
would be highly arbitrary to accept this reasoning in respect of almost every
industry in Ontario, only to extend it in respect of vulnerable agricultural
workers to the point of denying them the right to associate. As Professor
Beatty has written, “[i]f indeed collective bargaining increases the costs of
labour to the overall detriment of society, then our legislators should repeal
the legislation in its entirety rather than selectively exclude those most in
need of its protection” (Beatty, supra, at p. 90). I conclude that the
respondents have not met the onus of proof with regard to the economic
rationale.
(b) Minimum Impairment
56
The next issue is whether recognizing the unique characteristics of
Ontario agriculture and its resulting incompatibility with the formation of
agricultural associations as a reasonable minimum justifies the complete
exclusion of agricultural workers from the LRA. The LRA excludes
all persons “employed in agriculture, hunting or trapping” from its
application, defining agriculture as “farming in all its branches, including
dairying, beekeeping, aquaculture, the raising of livestock including
non-traditional livestock, furbearing animals and poultry, the production,
cultivation, growing and harvesting of agricultural commodities, including
eggs, maple products, mushrooms and tobacco, and any practices performed as an
integral part of an agricultural operation” (see LRA, s. 1(1)). This
provision has been broadly interpreted by Ontario’s Labour Relations Board,
albeit with some reluctance and interpretive difficulty. In Wellington
Mushroom Farm, [1980] O.L.R.B. Rep. May 813, for example, a majority of the
board denied LRA certification to the employees of a mushroom factory,
even though the actual growing of the mushrooms took place within a
single-storey concrete block building. The majority of the board recognized
that the employer’s operation did “not differ in any material respect from a
typical manufacturing plant”, but it concluded that the growing of mushrooms
constituted an agricultural activity in the ordinary sense of the term (p. 819).
In other cases, the board has denied LRA protection to stationary
engineers employed at a greenhouse, truck drivers hired to transport chickens
and employees of a chicken hatchery (see Calvert-Dale Estates Ltd.,
[1971] O.L.R.B. Rep. Feb. 58; Spruceleigh Farms, [1972] O.L.R.B. Rep.
Oct. 860; Cuddy Chicks Ltd., [1988] O.L.R.B. Rep. May 468, application
for judicial review dismissed (1988), 66 O.R. (2d) 284 (Div. Ct.), aff’d
(1989), 70 O.R. (2d) 179 (C.A.), aff’d [1991] 2 S.C.R. 5; see also, G. W.
Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at pp. 6‑49 and
6-50).
57
The Attorney General claims, rightly in my view, that to exclude a given
occupation from the LRA “involves a weighing of complex values and
policy considerations that are often difficult to balance” and that this
balancing “will in large part depend upon the particular perspective,
priorities, views, and assumptions of the policy makers, as well as the
political and economic theory to which they subscribe”. Similar statements
have been made about labour relations generally, which have been described as
“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” (Alberta Reference, supra, per McIntyre
J., at p. 414). Policy choices are based on value judgments. This Court will
only interfere with such choices where a more fundamental value is at stake and
where it is apparent that a free and democratic society cannot permit the
policy to interfere with the right in the circumstances of the case. The basis
for the policy choice must be questioned strictly. It is not the motive of the
legislature that is at issue, but the foundation for its policy. What is
justified is that which is based on a general public purpose, is practically
necessary and has a rational basis that can be supported after a normative
evaluation of the area of intervention. Given the delicate balance between
interests that is required here, as well as the added complexity of protecting
the character of the family farm, one might be tempted to conclude that a wide
margin of deference is owed to the enacting legislature when applying the
minimum impairment test (see Thomson Newspapers, supra, at paras.
111-15). However, as outlined in Thomson Newspapers, political
complexity is not the deciding factor in establishing a margin of deference
under s. 1. Rather, the margin will vary according to whether legislature has
(1) sought a balance between the interests of competing groups, (2) defended a
vulnerable group with a subjective apprehension of harm, (3) chosen a remedy
whose effectiveness cannot be measured scientifically, and (4) suppressed an
activity whose social or moral value is relatively low. In my view, these
factors on the whole favour a strict application of the minimum impairment test
in the context of this appeal.
58
In Delisle, supra, Cory and Iacobucci JJ. applied the
above factors to a provision much like the one impugned in this case,
concluding that “none of the contextual factors discussed by Bastarache
J. in Thomson Newspapers favours an exercise of deference to the
legislature” (para. 128 (emphasis in original)). In my view, this analysis
should be applied to this case with two minor exceptions. With respect to the
second factor, the vulnerable group at issue in this case is a constituency of
family farmers whose unique way of life stands to be jeopardized by collective
bargaining legislation. This suggests that the margin of deference ought to be
widened, although I hasten to add that the appellants also represent a
vulnerable group worthy of legislative protection. The third factor yields a
similarly ambiguous result. On the one hand, there is no concrete evidence to
refute the conclusion that totally excluding agricultural workers from the LRA
achieves the legislature’s objectives. Nor is there any scientific way of
measuring whether the formation of agricultural unions undermines the family
farm lifestyle. However, one can surely draw on statistical evidence, as both
parties have in this case, to determine the prevalence of the family farm in
Ontario. Given the centrality of this issue to the respondents’ case, it would
be inappropriate to accord deference to the legislature and avoid evaluating
their statistical claims.
59
With this in mind, I turn to the question of whether the legislature has
impeded the appellants’ associational activity more than is reasonably
necessary to achieve its stated objectives. The Attorney General makes three
arguments in defence of its policy: first, that unionization is not
appropriate for the “vast majority” of Ontario agricultural operations; second,
that no appropriate dispute resolution mechanism exists for agricultural
workers; and third, that extending collective bargaining rights to certain
sectors of agriculture would be “arbitrary and impracticable”. It is also
submitted that legislatures are entitled to a margin of deference when
balancing complex matters of economic policy. In my view, these arguments all
fail on a single point: they do not justify the categorical exclusion of
agricultural workers where no satisfactory effort has been made to protect
their basic right to form associations.
60
This effort need not produce the result most desirable to this Court;
however, the legislature must “attempt very seriously to alleviate the effects”
of its laws on those whose fundamental freedoms are infringed (Edwards Books,
supra, per Dickson C.J., at p. 782). In Edwards Books,
for example, this Court considered whether a Sunday closure law constituted a
justifiable limit on the religious freedom of Saturday observers. The law
provided an exemption for stores that had been closed on Saturday. However,
the exemption was withheld from stores that employed more than seven employees
and occupied 5,000 square feet of retail space or more. Despite the existence
of less intrusive legislation in other provinces, three members of this Court
characterized the exemption as “a satisfactory effort on the part of the
Legislature of Ontario” (p. 782) and, on that basis, upheld the Act under s.
1 . By contrast, neither enactment in this case includes a concrete attempt to
alleviate the infringing effects on agricultural workers. Not only does the
legislation fail to distinguish between different types of agriculture, but
there is no evidence that the Ontario Legislature even turned its mind to
freedom of association when enacting either statute. Rather, each enactment
merely cloned a piece of existing legislation -- be it the Wagner Act or
the LRA -- and, in so doing, relied on studies that had been
commissioned by a previous legislature.
61
In my view, there are at least two ways in which the LRESLAA
might impair Charter rights more than is reasonably necessary to achieve
its objectives: first, by denying the right of association to every sector
of agriculture, and second, by denying every aspect of the right,
specially whatever protection is necessary to form and maintain employee
associations, to agricultural workers. A similar approach to s. 1 was applied
in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, in which this
Court struck down a prohibition on partisan political activity by public
servants. Much like the legislation at issue in this appeal, the provision in Osborne
banned “all partisan-related work by all public servants, without
distinction either as to the type of work, or as to their relative role, level
or importance in the hierarchy of the public servant” (per Sopinka J.,
at p. 100 (emphasis added)). Moreover, in Osborne the Court was
referred, as in this case, to legislation in other jurisdictions that made distinctions
both as to the activity proscribed and the level of public servant, without any
weakening of the underlying objective. Based on these factors, Sopinka J.
concluded that “[t]he restrictions on freedom of expression in this case are
over-inclusive and go beyond what is necessary to achieve the objective of an
impartial and loyal civil service” (p. 100). Although the Court differed on
whether to strike down the legislation or to read it down in that particular
case, its minimum impairment analysis provides unequivocal authority for the
current appeal (see, similarly, Rocket v. Royal College of Dental Surgeons
of Ontario, [1990] 2 S.C.R. 232, striking down a restriction on advertising
by dentists on grounds that it was overbroad).
62
Turning to the Ontario legislation, my view is that the s. 1
justification suffers, first, from the lack of a recognition of the evolving
nature of Ontario agriculture. To the extent the term “family farm” refers to
a unique management style characterized by significant family involvement, it
may indeed continue to describe the vast majority of farms in Ontario and
across Canada. However, to the extent that it treats farm workers as members
of that family rather than typical employees, it ignores an increasing trend in
Canada towards corporate farming and complex agribusiness. On this point, the
Attorney General’s expert himself concedes that “[t]he modern viable family
farm no longer consists of 20 acres and a few cows, but typically represents a
sophisticated business unit with a minimum capital value of $500,000 to
$1,000,000, depending on the commodity and type of operation”. If this is the
case, it is not only over-inclusive to perpetuate a pastoral image of the
“family farm”, but it may be that certain if not all “family farms” would not
be affected negatively by the creation of agricultural associations.
63
The reality is that family involvement does not suffice to alter the
essential qualities of an employment relationship; these qualities may include
a contract of employment, a consistent wage, regular hours and a hierarchical
relationship between employer and employee. Moreover, the traditional family
farm is rapidly assuming a less important role in the agricultural sector, as
evidenced by increases in non-family farm incorporations, hired farm labour,
seasonal workers and average labour costs (see J. White, A Profile of
Ontario Farm Labour (March 1997)). Under these circumstances, what the
Attorney General for Ontario refers to as an “integration of business and
family life” does not, in my view, justify the unqualified and total exclusion
of agricultural workers from the LRA. This conclusion echoes that of
numerous labour boards legislatures and scholars of labour law, all of whom
deny any industrial relations rationale for totally excluding agricultural
workers from LRA protection (see, e.g., Wellington Mushroom Farm,
supra; South Peace Farms and Oil, Chemical and Atomic Workers
International Union, Local No. 9-686, [1977] 1 Can. L.R.B.R. 441; K.
Neilson and I. Christie, “The Agricultural Labourer in Canada: A Legal Point
of View” (1975), 2 Dal. L.J. 330; Adams, supra, at p. 6-50;
Labour Law Casebook Group, Labour and Employment Law: Cases, Materials and
Commentary (6th ed. 1998), at pp. 220-21; Beatty, supra, at pp.
91-92).
64
The Attorney General submits that distinguishing various sectors of
agriculture requires an impossible line-drawing exercise which the legislature
should have the discretion to reject. However, the fact that some legislation
includes exceptions for smaller or family-run farms, most notably labour codes
in New Brunswick and Quebec, as well as the ALRA itself, suggests that
such an exercise is eminently possible, should the legislature choose to
undertake it (see Industrial Relations Act, R.S.N.B. 1973, c. I-4, s.
1(5)(a); Labour Code, R.S.Q., c. C-27, s. 21; ALRA).
Moreover, it cannot be assumed that a categorical exclusion of agricultural
workers removes the need to draw difficult lines. Such an exclusion relies on
courts and labour boards to define the meaning of the term “agriculture”, a
term that may be as fraught with value judgments as the term “family farm” (see
Adams, supra, at pp. 6-49 and 6-50; Neilson and Christie, supra,
at pp. 335-41). Thus, while the decision whether to distinguish various
sectors of agriculture ultimately rests with the legislature, there is little
reason to believe that by totally excluding agricultural workers from the LRA,
an impossible line-drawing exercise is avoided.
65
More importantly, the Attorney General offers no justification for
excluding agricultural workers from all aspects of unionization,
specially those protections that are necessary for the effective formation and
maintenance of employee associations. It might be inferred that in order to
protect the family farm and ensure the productivity of the farm economy, the
legislature felt it necessary to discourage any form of union and to
suffer that agricultural workers be exposed to a raft of unfair labour
practices. Yet no policy could, in my view, be more repugnant to the principle
of least intrusive means. If what is truly sought by s. 3(b) of the LRA
is the protection of the family farm, the legislature should at the very least
protect agricultural workers from the legal and economic consequences of
forming an association. There is nothing in the record to suggest that such protection
would pose a threat to the family farm structure, and if demonstrated that it
would in some cases, the legislature could create the appropriate exceptions.
I am of the view that the wholesale exclusion of agricultural workers from the LRA
is not a reasonable limit on freedom of association and that it is not
necessary to balance the effects of this exclusion against its stated purpose.
C. Remedy
66
To the extent they substantially impede the effective exercise of the
freedom of association, both the LRESLAA and s. 3(b) of the LRA
must be declared contrary to the Charter . Given the nature of these
enactments, however, determining the appropriate remedy is not without
difficulty. First, the respondents point out that the precise effect of
striking down the LRESLAA would be to re-enact the statute it repealed,
namely, the ALRA. As this Court is not in a position to enact such
detailed legislation, nor to confer constitutional status on a particular
statutory regime, I prefer to strike down the LRESLAA to the extent
that it gives effect to the exclusion clause of the LRA. The
precise effect of this remedy is to strike down that exclusion clause, which is
the alternate remedy sought by the appellants. This remedy presents its own
problems, as it obliges the legislature to extend the full panoply of
collective bargaining rights in the LRA to agricultural workers. As
such action is not necessarily mandated by the principles of this case, I would
suspend the declarations of invalidity for 18 months, allowing amending
legislation to be passed if the legislature sees fit to do so. Such a remedy
was discussed by Lamer C.J. in Rodriguez v. British Columbia (Attorney
General), [1993] 3 S.C.R. 519, at p. 570, in response to legislation he had
found to be over-inclusive:
. . . this Court has recognized that an immediate declaration of
invalidity is not always advisable, especially where, as here, the provision
pursues an important objective but is over-inclusive: were this Court to
strike down the provision effective immediately, those whom the government
could protect constitutionally with a more tailored provision, and who indeed
should be protected, would be left unprotected. This would clearly pose a
“potential danger to the public”. . . .
67
This raises the question of whether s. 2 (d) requires that a
minimum level of LRA protection be extended to agricultural workers. As
implied by Rodriguez, supra, the Charter only obliges the
legislature to provide a statutory framework that is consistent with the
principles established in this case, including both the s. 2 (d) and s. 1
analysis. In my view, these principles require at a minimum a regime that
provides agricultural workers with the protection necessary for them to
exercise their constitutional freedom to form and maintain associations. The
record shows that the ability to establish, join and maintain an agricultural
employee association is substantially impeded in the absence of such statutory
protection and that this impediment is substantially attributable to the
exclusion itself, rather than to private action exclusively. Moreover, the
freedom to establish, join and maintain an agricultural employee association
lies at the core of s. 2 (d) of the Charter ; the appellants’ claim
is ultimately grounded in this non-statutory freedom. For these reasons, I
conclude that at minimum the statutory freedom to organize in s. 5 of the LRA 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.
68
In choosing the above remedy, I neither require nor forbid the inclusion
of agricultural workers in a full collective bargaining regime, whether it be
the LRA or a special regime applicable only to agricultural workers such
as the ALRA. For example, the question of whether agricultural workers
have the right to strike is one better left to the legislature, especially
given that this right was withheld in the ALRA (s. 10). Rather than
adjudicate such issues at the remedy stage, I adopt the position of Cory and
Iacobucci JJ. in Delisle, supra, at para. 151, which is to
fashion a remedy according to the nature of the appellant’s claim:
The Court has been asked in this case to rule upon whether the impugned
[provision] is unconstitutional because of its anti-associational purpose. We
have found that the exclusion of RCMP members from the basic associational
protections in the PSSRA does have this purpose and violates the Charter ,
yet because of the manner in which the appellant has articulated his claim
we have done so without being required to decide whether a Charter
violation results from the total exclusion of RCMP members from the PSSRA’s
collective bargaining regime. As explained by Sopinka J. in PIPSC, supra,
at p. 405, it may be that such a total exclusion could interfere with the
ability of employees to associate, and thus infringe the Charter ’s
freedom of association guarantee. We do not believe that it is appropriate
to decide, at the remedy stage of the analysis, whether it is constitutionally
permissible to exclude RCMP members entirely from a collective bargaining
regime. Moreover, we do not wish to prejudge the question of whether
Parliament may wish to extend limited collective bargaining rights to RCMP
members. [Emphasis added.]
69
Should a claim for inclusion arise in the future, the threshold question
will be whether the provision relates to an activity falling within the
framework established by the labour trilogy or that otherwise furthers the
purpose of s. 2 (d) of the Charter . If this threshold is crossed,
the question becomes whether excluding agricultural workers from the provision
in question substantially impedes this activity either in purpose or effect.
If the effect of the exclusion is impugned, the claimant’s position should be
assessed in light of the considerations discussed above.
VII. Conclusion
70
For the foregoing reasons, I would allow the appeal with costs
throughout. I would declare the LRESLAA unconstitutional to the extent
that it gives effect to s. 3(b) of the LRA, and I would declare
s. 3(b) of the LRA unconstitutional. I would suspend such
declarations for a period of 18 months. I would answer the constitutional
questions as follows:
1. Does s. 80 of the Labour Relations and
Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, limit the
right of agricultural workers
(a) to
freedom of association guaranteed by s. 2 (d) of the Canadian
Charter of Rights and Freedoms ; or
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
Section 80 of the Labour Relations and Employment Statute Law
Amendment Act limits freedom of association guaranteed by s. 2 (d)
of the Charter to the extent that its effect is to re-subject
agricultural workers to the exclusion clause found in s. 3(b) of the Labour
Relations Act, 1995, S.O. 1995, c. 1, Sched. A. For this reason, it
is not necessary to answer the s. 15(1) question.
2. Does s. 3(b) of the Labour
Relations Act, 1995, S.O. 1995, c. 1, Sched. A, limit the right of
agricultural workers
(a) to
freedom of association guaranteed by s. 2 (d) of the Charter ;
or
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
Section 3(b) of the Labour Relations Act, 1995 limits the
right of agricultural workers to freedom of association guaranteed by
s. 2 (d) of the Charter . For this reason, it is not
necessary to answer the s. 15(1) question.
3. If the answer to any part of
questions 1 or 2 is in the affirmative, is the limitation nevertheless
justified under s. 1 of the Charter ?
No.
The following are the reasons delivered by
71
L’Heureux-Dubé J. --
I have read the reasons of Bastarache J. I believe that this case can be
resolved on simpler grounds. I will therefore outline the reasoning
upon which I base my opinion.
72
At the heart of this case is the question of whether the right of
agricultural workers in Ontario to associate in order to pursue common goals
and their equality rights have been violated by s. 80 of the Labour
Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1
(“LRESLAA”), and s. 3(b) of the Ontario Labour Relations Act,
1995, S.O. 1995, c. 1, Sched. A (“LRA”). The issues in the present
appeal are (1) whether the government of Ontario has a positive obligation to
protect the appellants’ constitutionally guaranteed rights under s. 2 (d)
of the Canadian Charter of Rights and Freedoms ; and (2) whether the
impugned legislation violates s. 15(1) of the Charter .
73
My colleague has set out the facts in this case as well as
a description of its judicial history. Except where otherwise expanded upon or
noted, I adopt this factual background.
74
In 1994, a specialized legislative regime, the Agricultural
Labour Relations Act, 1994, S.O. 1994, c. 6 (“ALRA”), was enacted
granting agricultural workers in Ontario protection against unfair labour
practices. The United Food and Commercial Workers Union (“UFCW”) was
established shortly after the enactment of the ALRA and was certified as
the bargaining agent for approximately 200 workers at the Highline Produce
Limited mushroom factory farm in Leamington, Ontario. During the period that
the ALRA was in effect, the UFCW filed two further certification
applications, one for the workers at Kingsville Mushroom Farm Inc., and the
other for the workers at the respondent Fleming Chicks.
75
On November 10, 1995, a new government repealed the ALRA
and replaced it with legislation that mandated the dissolution of agricultural
labour unions. The new LRA excluded persons in agriculture from
application of the Act, including statutory protection against unfair labour
practices.
76
In Haig v. Canada, [1993] 2 S.C.R. 995, speaking for a
majority of the Court, I addressed the issue of positive government obligations
in the context of Charter analysis by first noting, at p. 1038 (quoting Reference
re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R.
313 (“Alberta Reference”), per Dickson C.J., dissenting, at p.
361):
Section 2 of the Charter protects fundamental “freedoms” as
opposed to “rights”. Although these two terms are sometimes used
interchangeably, a conceptual distinction between the two is often
drawn. “Rights” are said to impose a corresponding duty or
obligation on another party to ensure the protection of the right in question
whereas “freedoms” are said to involve simply an absence of interference or
constraint. This conceptual approach to the nature of “freedoms” may
be too narrow since it fails to acknowledge situations where the absence of
government intervention may in effect substantially impede the enjoyment of
fundamental freedoms (e.g., regulations limiting the monopolization of the
press may be required to ensure freedom of expression and freedom of the
press). [Emphasis added by L’Heureux-Dubé J. in Haig.]
77
Having set the stage, I then proceeded to develop an argument in Haig
that has direct application to this case, stating, at p. 1039:
. . . 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.
In the proper context, these may perhaps be
relevant considerations leading a court to conclude that positive governmental
action is required. [Emphasis added.]
78
In Native Women's Assn. of Canada v. Canada, [1994]
3 S.C.R. 627, at p. 667, I pointed out that Haig also stands for the
proposition that while the government may have been under no constitutional
obligation to provide for the right to a referendum under s. 2 (b) of the
Charter , once the government decides to provide a specific platform of
expression, it must do so in a manner consistent with the Charter . I
refer specifically to p. 1041 of Haig:
While s. 2(b) of the Charter does not
include the right to any particular means of expression, where a government
chooses to provide one, it must do so in a fashion that is consistent with the
Constitution. The traditional rules of Charter scrutiny
continue to apply. Thus, while the government may extend such a
benefit to a limited number of persons, it may not do so in a discriminatory
fashion, and particularly not on [a] ground prohibited under s. 15 of the Charter .
[Emphasis added.]
79
Turning to the labour relations context in Delisle v.
Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, a case dealing with
s. 2(d) rights of government employees, I noted, at
para. 7:
. . . in cases where the employer
does not form part of government, there exists no Charter protection
against employer interference. In such a case, it might be
demonstrated that the selective exclusion of a group of workers from statutory
unfair labour practice protections has the purpose or effect of encouraging
private employers to interfere with employee associations. It may also
be that there is a positive obligation on the part of governments to provide
legislative protection against unfair labour practices or some form of official
recognition under labour legislation, because of the inherent vulnerability of
employees to pressure from management, and the private power of employers, when
left unchecked, to interfere with the formation and administration of unions.
80
This case is one where I believe there is a positive obligation
on the government to provide legislative protection against unfair labour
practices.
81
In 1943, the Ontario Legislature enacted a protective shield for
workers, namely, the Collective Bargaining Act, 1943, S.O. 1943, c. 4.
But this shield was missing panels, including the protection of agricultural
workers. The shield’s pattern had been imported from American legislation. In
1994, 12 years after the enactment of the Charter , the government attempted
to make the shield whole by enacting the ALRA. The patched shield was
intact for 17 months. In 1995, the legislature removed the panel and
reinstated, in a new labour statute, a modified version of the original
exclusion clause. Thus, under the often harsh labour relations climate,
agricultural workers were once again made to stand out as a result of their
exclusion from the protection offered by the statutory shield, in stark
contrast to the vast majority of workers who were protected by the LRA.
82
I start with an examination of the legislative history and
factual background, an analysis intended to complement the narrative included
in my colleague’s reasons. It should be noted that both the decision of the
Ontario Court (General Division) ((1997), 155 D.L.R. (4th) 193, per
Sharpe J. (as he then was)) and that of the Ontario Court of Appeal ((1999),
182 D.L.R. (4th) 471), predate this Court’s decision in Delisle, supra.
I. Legislative History and Factual Background
83
Ontario was the first jurisdiction in Canada “to adopt a
fully-fledged collective bargaining statute” (H. W. Arthurs et al., Labour
Law and Industrial Relations in Canada (4th ed. 1993), at para. 90). On
April 14, 1943, the Collective Bargaining Act, 1943 was assented to in
Ontario. At s. 24, it listed the categories of employees excluded from the
Act, including “domestic servants”, “members of any police force”, certain
other public employees, and “the industry of farming”.
84
The Collective Bargaining Act, 1943 was modelled on
a statute enacted by the United States Congress in 1935, the National Labor
Relations Act, July 5, 1935, c. 372, 49 Stat. 449 (29 U.S.C. §§ 151 to 169)
(called the “Wagner Act” after its sponsor, Senator Wagner of New
York). Senator Wagner considered this ground-breaking statute more “than a
weapon against the disruption of industry by labor-management disputes”. He
envisaged it “as an ‘affirmative vehicle’ for economic and social progress” (C.
J. Morris, ed., The Developing Labor Law (1971), at p.
27).
85
Senator Wagner’s address to Congress (79 Cong. Rec. 7565 (1935)),
was prescient in its use of terminology familiar to current Canadian Charter
jurisprudence: “Caught in the labyrinth of modern industrialism and dwarfed by
the size of corporate enterprise, [the employee] can attain freedom and dignity
only by cooperation with others of his group” (quoted in Morris, supra,
at p. 27 (emphasis added)).
86
The Wagner Act excluded certain categories of employees,
including agricultural workers. Several of these exclusions are reflected in
the Collective Bargaining Act, 1943.
87
On April 6, 1944, the Collective Bargaining Act, 1943 was
repealed and replaced with The Labour Relations Board Act, 1944,
S.O. 1944, c. 29 (“LRBA”). At s. 10(a), the LRBA affirmed
that it did not apply to “the industry of farming”.
88
The LRBA was repealed and replaced with The Labour
Relations Act, 1948, S.O. 1948, c. 51, which was subsequently
repealed and replaced with The Labour Relations Act, 1950, S.O. 1950, c.
34. At s. 2 of the 1950 Act, the restriction was amended to read:
2. This Act does not apply,
.
. .
(b) to any person employed in agriculture, horticulture,
hunting or trapping;
89
On April 12, 1960, clause b of s. 2 was amended (S.O.
1960, c. 54, s. 1) by striking out “horticulture” in the first line and adding
a new clause bb:
2. This Act does not apply,
.
. .
(b) to any person employed in agriculture, hunting or
trapping;
(bb) to any person, other than an employee
of a municipality or a person employed in silvaculture [sic], who is
employed in horticulture by an employer whose primary business is agriculture
or horticulture.
90
The issues surrounding the statutory provision at the heart of
this case were referred to indirectly in Cuddy Chicks Ltd. v. Ontario
(Labour Relations Board), [1991] 2 S.C.R. 5, where this Court examined the
jurisdiction of the Ontario Labour Relations Board (“OLRB”) to determine the
constitutionality of s. 2(b) of the Labour Relations Act, R.S.O.
1980, c. 228 (now s. 3(b) of the LRA) in the course of
proceedings before the OLRB. One of the issues on appeal was whether the
Ontario Court of Appeal erred in holding that the OLRB had jurisdiction to
decide the constitutional validity of s. 2(b) of its enabling statute by
applying the Charter as part of its duty to consider statutes bearing on
proceedings before it.
91
The underlying case in Cuddy Chicks can be summarized as
follows. In April 1987, the United Food and Commercial Workers International
Union, Local 175, filed an application for certification before the OLRB
relating to employees at the chicken hatchery of Cuddy Chicks Limited. Section
2(b) of the 1980 Labour Relations Act stated that the Act does
not apply “to a person employed in agriculture”. The OLRB noted at para. 44 of
its reasons in Cuddy Chicks Ltd., [1988] O.L.R.B. Rep. May 468, that it
was the union, not the employees, that made the Charter application. On
filing the application, the union gave notice that, if the employees were found
to be agricultural employees, it would request the OLRB to hold s. 2 (b)
invalid as being contrary to s. 2 (d) and s. 15(1) of the Charter .
In affirming that the employees were indeed so employed, the OLRB stated, at
para. 9, that:
There is no doubt that the hatchery is a highly
mechanized, technologically sophisticated operation and that the employees
in many respects work in factory-like conditions with set shifts, year-round
employment and the benefits and disciplinary provisions similar to or the same
as one would expect to find in a factory. We accept respondent counsel’s
submission that agriculture has become highly technological and commercial, but
that that does not make those activities non-agricultural: Wellington
Mushroom Farm, [1980] OLRB Rep. May 813. It is thus the nature of the
activities and not the way they are performed or the tools by which they are
performed that is relevant. [Emphasis added.]
92
On the issue of the OLRB’s jurisdiction to hear the Charter
challenge, a majority of the Board decided that it had jurisdiction and
directed the Registrar to set dates for the panel to hear evidence and argument
on the union’s Charter challenge to s. 2(b) of the 1980 Act.
This hearing was postponed due to litigation launched by Cuddy Chicks Limited,
which eventually came before this Court.
93
In Cuddy Chicks, supra, this Court ruled that the
OLRB had jurisdiction to examine whether s. 2(b) of the 1980 Labour
Relations Act was contrary to the Charter .
94
The matter was not carried forward, however, because of the
imminence of legislative change. In Cuddy Chicks Ltd., [1992] O.L.R.D.
No. 1170 (QL), the Board reported, at para. 1, that:
The applicant and respondent, by letter dated March
23, 1992, have jointly requested the Board to hold this matter in abeyance, in
light of the amendments currently being considered for the Act, in particular
as it affects the exclusion of “agricultural” employees in section 2 (b).
95
In June 1992, the Report of the Task Force on Agricultural
Labour Relations: Report to the Minister of Labour was released. The
recommendations contained in this report influenced legislation subsequently
introduced by the Ontario government, the ALRA, which was assented to on
June 23, 1994. In recognition of certain specific concerns about the impact of
the extension of statutory labour rights to the agricultural sector, the
ALRA prohibited strikes and lockouts, substituting in their place a dispute
resolution process, the final stage of which was binding final offer selection
by an arbitration board.
96
The ALRA was repealed by a newly elected government in
1995. The LRESLAA, which was assented to on November 10, 1995, replaced
the predecessor Labour Relations Act and related amendments, and
repealed the ALRA.
97
The LRESLAA also stipulated that any agreements certified
under the ALRA were henceforth terminated, as were any certification
rights of trade unions. The LRESLAA explicitly prohibited employers from
reprisals against workers on account of union activity under the ALRA.
The effect of the LRESLAA was to subject agricultural workers to the
exclusion clause of the LRA (s. 3(b)). Alberta is the only other
Canadian province with labour relations legislation incorporating an
unqualified exclusion of agricultural workers.
98
The LRA is a substantial statute implementing a
comprehensive labour relations regime. Its comprehensiveness can perhaps be
appreciated by contrasting its 169 sections with the 27 sections of the Collective
Bargaining Act, 1943.
99
The LRA features an expansive definition of “agriculture”
at s. 1(1):
“agriculture” includes farming in all its branches, including dairying,
beekeeping, aquaculture, the raising of livestock including non‑traditional
livestock, furbearing animals and poultry, the production, cultivation, growing
and harvesting of agricultural commodities, including eggs, maple products,
mushrooms and tobacco, and any practices performed as an integral part of an
agricultural operation, but does not include anything that was not or would not
have been determined to be agriculture under section 2 of the predecessor to
this Act as it read on June 22, 1994;
100
The exclusionary section of the LRA largely replicates the
language of its predecessor:
3. This Act does not apply,
(a) to a domestic employed in a private
home;
(b) to a person employed in
agriculture, hunting or trapping;
(c) to a person, other than an employee
of a municipality or a person employed in silviculture, who is employed in
horticulture by an employer whose primary business is agriculture or
horticulture;
(d) to a member of a police force within
the meaning of the Police Services Act;
(e) except as provided in Part IX of the Fire
Protection and Prevention Act, 1997, to a person who is a firefighter
within the meaning of subsection 41(1) of that Act;
(f) to a member of a teachers’ bargaining
unit established by Part X.1 of the Education Act, except as provided by
that Part, or to a supervisory officer, a principal or a vice‑principal;
(g) to a member of the Ontario Provincial
Police Force;
(h) to an employee within the meaning of
the Colleges Collective Bargaining Act;
(i) to a provincial judge; or
(j) to a person employed as a labour
mediator or labour conciliator. [Emphasis added.]
101
It is worth noting that apart from the first three excluded
categories, the remaining targets of the exclusion belong to groups that enjoy
legal and social recognition and respect. Members of these groups must undergo
rigorous selection and training processes before gaining admittance, and they
generally enjoy stable employment conditions, comfortable salaries and benefits
during their working lives, and adequate pension plans upon retirement. In
many cases they also enjoy the protection and services of an established and
dedicated union, which can engage in collective bargaining pursuant to other
statutes. A parallel can be drawn between the situation of members of these
relatively privileged and correspondingly less vulnerable groups, and the RCMP
officers in Delisle, supra.
102
In stark contrast, entry into the first three excluded
categories generally requires little if any formal training.
And, at least insofar as agricultural workers are concerned, working conditions
are characterized by long hours, low wages, little job security or social
recognition, and few employment benefits beyond those strictly mandated by law
(see the affidavit of Professor Judy Fudge from Osgoode Hall Law School). As
Sharpe J. noted in his reasons, “agricultural workers are a disadvantaged
group. They are poorly paid, face difficult working conditions, have low
levels of skill and education, low status and limited employment mobility” (p.
216).
103
I would like to make explicit reference to the fact that in these reasons
we are not deciding on the rights, or lack thereof, of foreign seasonal
agricultural workers and their families, who are regulated under federal
legislation.
II. Charter
Analysis
104
At issue in the present appeal is whether the impugned legislation
violates the appellants’ freedom of association and equality rights guaranteed
under the Charter .
105
In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of
the House of Assembly), [1993] 1 S.C.R. 319, McLachlin J. (as she then
was), stated that “[t]he Charter has changed the balance of power
between the legislative branch and the executive on the one hand, and the
courts on the other hand, by requiring that all laws and government action must
conform to the fundamental principles laid down in the Charter ” (p. 389
(emphasis added)).
106
As stated by Dickson J. (as he then was), for this Court in Hunter
v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156, the intent of the Charter
is to constrain government action:
I begin with the obvious. The Canadian Charter
of Rights and Freedoms is a purposive document. Its purpose is to
guarantee and to protect, within the limits of reason, the enjoyment of the
rights and freedoms it enshrines. It is intended to constrain governmental
action inconsistent with those rights and freedoms. [Emphasis added.]
107
This Court has, on several occasions, set forth the guidelines to
be employed in construing Charter provisions. In R. v. Oakes,
[1986] 1 S.C.R. 103, at p. 119, Dickson C.J. stated that “[t]o identify the
underlying purpose of the Charter right in question . . . it is
important to begin by understanding the cardinal values it embodies”. In R.
v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, Dickson J. stated:
In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court
expressed the view that the proper approach to the definition of the rights and
freedoms guaranteed by the Charter was a purposive one. The meaning
of a right or freedom guaranteed by the Charter was to be ascertained by
an analysis of the purpose of such a guarantee; it was to be understood, in
other words, in the light of the interests it was 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 Southam 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 added.]
108
As stated by Laycraft J.A. of the Court of Appeal of Alberta in R.
v. Big M Drug Mart Ltd. (1983), 49 A.R. 194, “the Charter has both a
positive and a negative impact. Acting positively it grants and guarantees
rights to Canadians; negatively it imposes a corresponding and opposite limit
on the power of government” (p. 203).
109
In Vriend v. Alberta, [1998] 1 S.C.R. 493, at para.
60, the majority discussed the scope of government obligations under s. 32 of
the Charter in the context of underinclusive legislation:
The relevant subsection, s. 32(1)(b), states
that the Charter applies to “the legislature and government of each
province in respect of all matters within the authority of the legislature of
each province”. There is nothing in that wording to suggest that a positive
act encroaching on rights is required; rather the subsection speaks only of
matters within the authority of the legislature. Dianne Pothier has
correctly observed that s. 32 is “worded broadly enough to cover positive
obligations on a legislature such that the Charter will be engaged even
if the legislature refuses to exercise its authority” (“The Sounds of Silence:
Charter Application when the Legislature Declines to Speak” (1996), 7 Constitutional
Forum 113, at p. 115). The application of the Charter is not
restricted to situations where the government actively encroaches on rights.
[Emphasis in original.]
110
The original Acts were drafted and amended in the pre-Charter
era. To develop an ex post facto finding of Charter -complying
legislative intent would be a speculative exercise. The same
cannot be said about the drafting of the 1995 legislation, which must meet the
constitutional guarantees set out in the Charter . The entrenchment of
the Charter marks an important date in our legal evolution.
A. Section 2(d) Analysis
111
The appellants claim that the LRESLAA and the LRA
violate agricultural workers’ freedom of association under s. 2 (d) of
the Charter . The freedom of association is a fundamental freedom under
the Charter . In the Alberta Reference, supra, Dickson
C.J. elaborated on the role of freedom of association as follows, at p. 334:
Freedom of association is the freedom to combine
together for the pursuit of common purposes or the advancement of common causes. It
is one of the fundamental freedoms guaranteed by the Charter , a sine
qua non of any free and democratic society, protecting individuals from the
vulnerability of isolation and ensuring the potential of effective
participation in society. In every area of human endeavour and
throughout history individuals have formed associations for the pursuit of
common interests and aspirations. Through association individuals
are able to ensure that they have a voice in shaping the circumstances integral
to their needs, rights and freedoms. [Emphasis added.]
112
In the same case, McIntyre J. stated at p. 408 that the
“fundamental purpose of freedom of association . . . [is] to permit the
collective pursuit of common goals”.
113
In Lavigne v. Ontario Public Service Employees Union,
[1991] 2 S.C.R. 211, at p. 252, Wilson J. reviewed the analysis on freedom of
association in the Alberta Reference, supra, and concluded that:
[I]n construing the purpose behind s. 2 (d) this Court was
unanimous in finding that freedom of association is meant to protect the
collective pursuit of common goals. This reading of the purpose behind the
guarantee of freedom of association has been confirmed in more recent
cases. For instance, s. 2 (d) was considered again in the labour
relations context in Professional Institute of the Public Service of Canada
v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 (“P.I.P.S.”). [Emphasis added.]
114
Thus, I agree with my colleague Bastarache J. that the purpose of
s. 2 (d) is to protect the collective pursuit of common goals. With
respect, however, I do not agree with his assertion that the right not to
associate is protected under s. 2 (d) of the Charter (see R. v.
Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70), but
this right is not implicated in the present case, and I say no more about it.
115
Worker organizations are a powerful and vibrant example of the
collective pursuit of common goals. In the Alberta Reference, supra,
at pp. 334-35, Dickson C.J. commented on the fundamental importance of the
freedom to associate in the context of labour relations:
Freedom of association is the cornerstone of
modern labour relations. Historically, workers have combined to overcome
the inherent inequalities of bargaining power in the employment relationship
and to protect themselves from unfair, unsafe, or exploitative working
conditions. As the United States Supreme Court stated in N.L.R.B. v. Jones
& Laughlin Steel Corp., 301 U.S. 1 (1937), at p. 33:
Long ago we stated the reason for labour organizations. We said that
they were organized out of the necessities of the situation; that a single
employee was helpless in dealing with an employer; that he was dependent
ordinarily on his daily wage for the maintenance of himself and family; that if
the employer refused to pay him the wages that he thought fair, he was
nevertheless unable to leave the employ and resist arbitrary and unfair
treatment; . . .
The “necessities of the situation” go beyond, of course, the
fairness of wages and remunerative concerns, and extend to matters such as
health and safety in the work place, hours of work, sexual equality, and other
aspects of work fundamental to the dignity and personal liberty of employees.
[Emphasis added.]
116
The above comments reflect universal aspirations, and it is not
surprising that Senator Wagner’s words, supra, at para. 85, closely
resemble the language employed by Dickson C.J. close to half a century later.
117
In Delisle, Cory and Iacobucci JJ., writing in dissent,
stated, at para. 67:
The Court has also acknowledged the inherent
vulnerability and inequality of the individual employee in the workplace in the
face of management. In Slaight Communications Inc. v. Davidson,
[1989] 1 S.C.R. 1038, at p. 1051, Dickson C.J. concluded, on behalf of the
majority of the Court, that employees are a vulnerable group in Canadian
society. In Wallace, supra, Iacobucci J. noted that
this vulnerability is underscored by the very importance which our society
attaches to employment. He emphasized the inequality of bargaining
power and information between employees and employers, noting that this power
imbalance is not limited to the context of the employment contract proper, but
rather affects “virtually all facets of the employment relationship”: para.
92.
118
In the Alberta Reference, supra, Dickson C.J.,
while commenting about the freedom of association, stated, at p. 368:
Work is one of the most fundamental aspects in a
person’s life, providing the individual with a means of financial support and,
as importantly, a contributory role in society. A person’s
employment is an essential component of his or her sense of identity, self‑worth
and emotional well‑being. Accordingly, the conditions in which
a person works are highly significant in shaping the whole compendium of
psychological, emotional and physical elements of a person’s dignity and self
respect.
119
In Lavigne, supra, at p. 241, Wilson J. reiterated that the Charter is concerned with the purpose of
state action with regards to Charter rights as well as their effect on
an individual’s guaranteed rights or freedoms. The oft-quoted passage from Dickson
J. in Big M Drug Mart, supra, summarizes the
point, at p. 331:
In my view, both purpose and effect are relevant in
determining constitutionality; either an unconstitutional purpose or an
unconstitutional effect can invalidate legislation. All legislation is
animated by an object the legislature intends to achieve. This object is
realized through the impact produced by the operation and application of the
legislation. Purpose and effect respectively, in the sense of the
legislation’s object and its ultimate impact, are clearly linked, if not
indivisible. Intended and actual effects have often been looked to for
guidance in assessing the legislation’s object and thus, its validity.
[Emphasis added.]
Purpose of the Exclusion Clause
120
The purpose of s. 3(b) of the LRA is clear: to
prevent agricultural workers from unionizing. This purpose infringes s. 2 (d)
of the Charter .
121
In Delisle, supra, at para. 6, after
expressing my agreement with Cory and Iacobucci JJ. with regard to their views
on the importance of freedom of association and the inherent vulnerability of
workers in the face of management, I added that:
The unique context of labour relations must always be
considered in constitutional claims in this area, and 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. The contextual
approach to Charter analysis must also take into account the history of
the need for government intervention to make effective the rights of workers to
associate together. I agree with my colleagues that both intrinsic
and extrinsic sources are admissible and significant in determining legislative
purpose and effects, and with their comments on the fact that an invalid
purpose is sufficient to find a violation of a Charter right. [Emphasis
in original.]
122
In Delisle I based my conclusion that no s. 2 (d)
breach had taken place in part on the fact that the evidence “[did] not show
that the object of the exclusion was to impede the formation of independent
employee associations”, but rather that “the exclusion stemmed from a desire
not to grant RCMP members all of the rights contemplated by the legislation and
access to the particular remedies contained within it” (para. 5). In that case, the employer was the government and thus it was possible
to presume that the government/employer knew of its responsibility under the Charter
to respect the workers’ associational rights. As a result, it was possible to
assume that the purpose of the impugned law was to deny RCMP employees certain
statutory benefits, but still respect their basic right to associate. That is
not the case here, where the employers are not part of government, and
therefore their anti-associational acts could not be challenged under the Charter .
Accordingly, there can be no presumption that the Ontario government expected
that the Charter would protect farm workers’ basic freedom to
associate.
123
I respectfully disagree with my colleague when he argues that
there was no clear evidence of intent on the part of the government of Ontario
to breach the s. 2 (d) rights of the appellants. It is difficult to
countenance such a thesis in light of the factual record which includes not
only the direction to terminate existing associations contained in the LRESLAA
and the s. 3(b) exclusion contained in the LRA, but also the
repeated instances where government officials made it clear that the new Act’s
intent was to hinder union-related activities in the agricultural sector,
including comments made to members of the provincial legislature before they
voted on the LRESLAA.
124
To interpret the factual record so narrowly by arguing that it
was not clear whether these statements were aimed solely at curtailing
unprotected rights to engage in collective bargaining or whether they were also
aimed at curtailing Charter -protected associational rights defies
purposive Charter jurisprudence. It appears to me that in situations,
such as this one, where there are strong indicia that the intent of a
legislative initiative is to curtail a Charter right, the onus shifts to
the government to justify the breach under s. 1.
125
I believe that, in the circumstances of this case, the proper
approach is the one taken by Dickson J. in Big M Drug Mart, supra,
at p. 334:
. . . I agree with the respondent that the legislation’s purpose is
the initial test of constitutional validity and its effects are to be
considered when the law under review has passed or, at least, has purportedly
passed the purpose test. If the legislation fails the purpose test, there
is no need to consider further its effects, since it has already been
demonstrated to be invalid. Thus, if a law with a valid purpose interferes
by its impact, with rights or freedoms, a litigant could still argue the effects
of the legislation as a means to defeat its applicability and possibly its
validity. In short, the effects test will only be necessary to
defeat legislation with a valid purpose; effects can never be relied upon to
save legislation with an invalid purpose. [Emphasis added.]
126
Charter litigation decisions cannot be made in a factual
vacuum. However, it is important to assess carefully on whom the burden of
proof should lie, and the degree of proof required. Cory and Iacobucci JJ. in Delisle
present a helpful outline, at para. 76:
A Charter claimant who seeks to establish
that impugned legislation infringes a Charter right or freedom by virtue
of its purpose bears the onus of establishing the alleged invalid purpose on a
balance of probabilities. The ordinary rules of evidence applicable
in civil trials apply. Accordingly, it cannot be assumed that the purpose
of a law is invalid solely because an invalid purpose is a plausible purpose of
the law. There must be clear evidence that an invalid purpose is
probable. In addition, the evidence must rebut the presumption of
constitutionality. That is, if there are two equally probable
purposes for the impugned legislation, and one of these purposes is valid and
is not inextricably linked to the invalid purpose, then the valid purpose is
presumed to apply: Slaight Communications, supra, at p. 1078, per
Lamer J. (as he then was); Canada (Attorney General) v. Mossop, [1993] 1
S.C.R. 554, at pp. 581‑82, per Lamer C.J. However,
where the Charter claimant is able to adduce a preponderance of evidence
of the invalid purpose, the presumption of constitutionality is rebutted and
the court is required to find an infringement of the Charter . [Emphasis
added.]
127
In assessing whether the purpose of a legislative provision is
constitutional, “the court [should] consider only the purpose of the provision
itself and not the broader purpose of the surrounding legislation as a whole” (Delisle,
supra, per Cory and Iacobucci JJ., at para. 78). Thus, in the present
appeal, the essential issue under s. 2 (d) of the Charter is
whether the purpose of s. 80 of the LRESLAA and s. 3(b) of the LRA
infringes freedom of association, not whether the legislation as a whole does
so. Both intrinsic and extrinsic sources are admissible and important in
determining legislative purpose.
128
The evidence in this case leads me to conclude that this is one
of those rare cases in which the Ontario Legislature’s purpose in enacting a
legislative provision must be found to infringe the Charter . There is
clear evidence that on a balance of probabilities the Legislature’s purpose in
enacting the impugned s. 3(b) was to ensure that persons employed in
agriculture “remained vulnerable to management interference with their associational
activities, in order to prevent the undesirable consequences which it was
feared would result from [agricultural workers’] labour associations” (Delisle,
supra, per Cory and Iacobucci JJ., at para. 80).
129
There were several official announcements as to
the purpose of s. 3(b). These can be categorized as announcements where
the concept of protecting the “family farm” from unionization featured
prominently, and those where incompatibility between agriculture and
unionization was cited as the reason for the repeal of the ALRA.
130
The following fall into the first category: (i) a statement by
the Ontario Minister of Labour in the Legislature on October 4, 1995, upon
introducing the LRESLAA, that “[t]his action . . . recognizes that
unionization of the family farm has no place in Ontario’s key agricultural
sector”; and (ii) a statement by the Ontario Minister of Agriculture, Food and
Rural Affairs also in the Legislature and on the same date that “[o]ur farmers,
who are on the agrifood industry’s front lines, are looking to us to help them
maintain their competitive edge in the new global marketplace. . . . [T]he Agricultural
Labour Relations Act is aimed directly at unionizing the family farm. We do
not believe in the unionization of the family farm” (Legislative Assembly of
Ontario, Official Report of Debates, October 4, 1995, at pp. 99-100).
131
In the second category, the statements refer to agriculture in
general, without specific reference to family farms. First, a media kit
released by the government gave the following explanation as to why the ALRA
was being repealed: “The horticulture and agriculture sectors are extremely
sensitive to time and to climate conditions as these directly affect production
of many agricultural commodities. For this reason, these sectors would have
great difficulty adapting to the presence of unions”. Second, on January 17,
1996, after the enactment of the LRESLAA, the Minister of Labour
responded in a letter that “[t]he Government repealed Bill 91 because of the
Government’s view that unionization in the agricultural sector is incompatible
with the unique characteristics of that sector”.
132
Contrasting the first statement from the Ontario Minister of
Labour from the latter one, it seems that if the purpose of the LRESLAA
was to protect the family farm from unionization, then passage of a statute
prohibiting all unionization in Ontario’s agricultural sector reflects
overreach.
133
In addition, the comments Cory and Iacobucci JJ. make in Delisle,
supra, at para. 87, are germane:
In this context, leaving aside altogether the
collective bargaining rights and the grievance procedure set out in the PSSRA,
the fact that RCMP members are excluded from the application of even these
limited associational protections is significant. The PSSRA is
modelled upon The Industrial Relations and Disputes Investigation Act.
It was enacted at a time when legislative awareness of the fundamental
importance of the freedom of employees to associate was high, as evidenced by
domestic and international legislation at the time. It is
unquestionable that Parliament was aware of the importance of freedom of
association for all employees, and of the possibility of protecting this freedom
without providing all employees with collective bargaining rights. The
symbolism inherent in declining to guarantee to RCMP members even the basic
freedom to associate must have been recognized. [Emphasis added.]
134
Substituting agricultural workers for the RCMP and the Ontario
Legislature for the Parliament, and applying the facts to our situation leads
to a similar conclusion as that reached by Cory and Iacobucci JJ. in Delisle,
where, at para. 89, they state:
The key consideration, in examining Parliament’s purpose in excluding
members of the RCMP from the PSSRA, is the reason for the decision to
exclude. If Parliament’s purpose in excluding a particular
employee group from a labour statute was to ensure that the employee group
remained vulnerable to management interference with labour association, this is
impermissible in light of s. 2 (d). Even though the effect of
the exclusion may be simply to maintain the status quo of employees
whereby they are burdened with the inherent imbalance of power in the
employment context, the central consideration is whether Parliament's
deliberate decision to exclude flowed from a purpose that is in conflict with
the fundamental freedom of employees to associate. It is of some
relevance that the status quo in the labour relations context is one of
inherent employee vulnerability to management interference with labour
associations. It is simply not open to Parliament to enact a
statutory provision where the motivation for enacting the provision is anti‑associational,
subject of course to s. 1 of the Charter . [Emphasis in original.]
135
As pointed out by Cory and Iacobucci JJ. in Delisle, supra,
at para. 102, another factor which may be of assistance would be the existence
of any positive effect that the exclusion of persons employed in agriculture
may have had on the associational freedom of such persons:
Dickson J. in Big M Drug Mart, supra,
emphasized that the effects of impugned legislation need not be looked to if
the purpose of the legislation is invalid, and further that even if the effects
are looked to and found to be “inoffensive” this fact will not affect a finding
that the purpose of the legislation is invalid. Nonetheless, courts
may, where appropriate, look to the effects of legislation for assistance in
inferring the legislation's purpose, as Dickson J. noted, at p.
331. In particular, where the effects of the impugned legislation
are contrary to the invalid purpose alleged by the Charter claimant, a
court should weigh the evidence carefully before concluding that the purpose is
indeed invalid. In light of the presumption of constitutionality, it is
fitting for a court to look for the existence of any such beneficial effects
before ruling that the purpose of a law is contrary to the Charter .
[Emphasis added; emphasis in original deleted.]
136
The evidence before us fails to reveal any positive effects upon
the associational freedom of persons employed in agriculture stemming from
their exclusion from the LRA. In fact, I can point to the dearth of
employee associations established by persons employed in agriculture in Ontario
(see Delisle, at para. 106). The associational record is dismal. But
so is the situation of agricultural workers across Canada when it comes to
employee associations. Data for 1989 evidences that while, on average, 34.1 percent
of Canadian workers belonged to unions, a mere 1.9 percent of workers in
agriculture were unionized (Arthurs, supra, at para. 93).
137
The government argues that (a) the banning of unions does not
prevent the creation of associations by agricultural workers; and (b) the
government did not engage in anti-associational activity, but rather it was
private parties who did so.
138
In the context of Ontario’s labour market, it would be
disingenuous of the government to argue that it believed that following the
enactment of the LRA the freedom of association of agricultural workers
would be restricted solely in terms of union activities. The reality of the
labour market, which has led to the development of protective labour
legislation, indicates that when the protection is removed without any
restrictions or qualifications, associational rights are often infringed, or
have the potential to be infringed, to an extent not confined to unionization
activities. In my view, it cannot be said that the government was unaware, in
advance, of this very effect of its legislation.
139
My colleague has concluded that the effect of the enactment of
the LRA breaches s. 2 (d) of the Charter . While I agree, I
also believe that in a situation such as the present one, intent can be imputed
on the government. Such cases will be rare and subject to specific
circumstances. In this case, (a) the context is that of specialized
legislation which seeks to maintain a delicate balance between employees and
employers; (b) there was an absolute exclusion from protection; (c) it was in
the reasonable contemplation of the government at the time of the enactment
that the effect of the exclusion clause would be to affect associational
freedoms beyond the realm of unionization, thus breaching s. 2 (d)
rights.
140
In the present case, the appellants claim that the government has
breached the s. 2 (d) rights of agricultural workers in Ontario because
it has enacted a new labour statute, which leaves them perilously vulnerable to
unfair labour practices. The appellants’ claims have merit, particularly when
viewed in the context of (a) the recent history of Ontario labour legislation,
where the ALRA was enacted only to be repealed by new legislation
mandating the dismantling of unions organized under the ALRA and
excluding agricultural workers from the LRA without any provisos for
protection from unfair labour practices, except for a prohibition against
reprisals for agricultural workers who organized under the ALRA; (b) the
inherent vulnerability of workers when confronting management; (c) the specific
vulnerability and powerlessness of agricultural workers; and (d) the long
experience of labour strife which has led to the enactment of statutes
protecting workers against unfair labour practices.
141
The difficulties facing employees attempting to organize without
the benefit of statutory protection against unfair labour practices would
appear to be much greater outside large urban centres, where at least it would
be plausible to attend meetings and events without fear of the employer
becoming aware of such initiatives. In the countryside, where many workers
live on or near their place of employment, where the only meeting hall may be
the local Legion or the dance hall in the nearest town, the odds would be
stacked against escaping scrutiny by the employers.
142
My colleague makes the point that any interference with s. 2 (d)
rights must be substantial. While I agree with him that trivial breaches of
the Charter should not be given much credence, I believe that we must
seek to examine the severity of the Charter breach from the point of
view of the party whose rights are affected. As I stated in Egan v. Canada,
[1995] 2 S.C.R. 513, at para. 58, “groups that are more socially vulnerable
will experience the adverse effects of a legislative distinction more vividly
than if the same distinction were directed at a group which is not similarly
socially vulnerable”.
143
In this case, the government argues that by proclaiming that the
intent of the legislation was to exclude unionization from the agricultural
sector, it merely meant to restrain “collective bargaining” activities. There
is no discussion regarding the impact of the LRA on the associational
activities in which workers often participate which are separate from the
collective bargaining process.
144
This leads us to the issue raised by Dickson C.J. in the Alberta
Reference, supra, at pp. 362-63, where he stated, in dissent, that
“[i]f freedom of association only protects the joining together of persons for
common purposes, but not the pursuit of the very activities for which the
association was formed, then the freedom is indeed legalistic, ungenerous,
indeed vapid”.
145
We could perhaps draw a useful analogy from the argument made with
regards to language rights by my colleague in R. v. Beaulac, [1999] 1
S.C.R. 768, at para. 20, where he stated that:
Language rights are not negative rights, or passive rights; they can
only be enjoyed if the means are provided. This is consistent with the notion
favoured in the area of international law that the freedom to choose is
meaningless in the absence of a duty of the State to take positive steps to
implement language guarantees; see J. E. Oestreich, “Liberal Theory and
Minority Group Rights” (1999), 21 Hum. Rts. Q. 108, at p. 112; P. Jones,
“Human Rights, Group Rights, and Peoples’ Rights” (1999), 21 Hum. Rts. Q.
80, at p. 83: “[A] right . . . is conceptually tied to a duty”; and R. Cholewinski,
“State Duty Towards Ethnic Minorities: Positive or Negative?” (1988), 10 Hum.
Rts. Q. 344. [Emphasis added.]
146
Similarly, in the case of agricultural workers in Ontario,
the freedom to associate becomes meaningless in the absence of a duty of the
state to take positive steps to ensure that this right is not a hollow one.
147
In Committee for the Commonwealth of Canada v. Canada,
[1991] 1 S.C.R. 139, I pointed out, at p. 214:
Rights and freedoms must be nurtured, not
inhibited. Vague laws intruding on fundamental freedoms create paths of
uncertainty onto which citizens fear to tread, fearing legal sanction.
Vagueness serves only to cause confusion and most people will shy from
exercising their freedoms rather than facing potential punishment.
148
In the case at bar, citizens employed in agriculture fear not
legal sanctions but sanctions from their employers. The absolute removal of LRA
protection from agricultural workers created a situation where employees have
reason to fear retaliation against associational activity by employers. The
Ontario legislation could have qualified the exclusion clause by enjoining
retaliatory activity by employers for non-union related associational
activity. In light of the reality of the labour market, the failure of the
Ontario Legislature to spell out a regime defining which associational
activities are to be protected from management retaliation creates a chilling
effect for agricultural workers. The concept of chilling effect is premised on
the idea that individuals anticipating penalties may hesitate before exercising
constitutional rights. In a constitutional democracy, not only must
fundamental freedoms be protected from state action, they must also be given
“breathing space”.
149
The rights protected under s. 2 (d) of the Charter
are not confined to the work environment, but cover the full range of
activities undertaken by individuals in a vibrant democracy. An employer,
however, whose principal interaction with his employees may be confined to the
employment situation, may view associational activities as manifestations or
precursors of unionization. By taking preventive action, by firing,
disciplining or warning targeted employees, with the resulting chilling effect
on present and future activities by other employees, an employer would thus be
infringing a right considered fundamental in our society. The
chilling effect, of course, would not be confined to the employees of that
particular employer.
150
The democratic dimensions of the freedom to associate have been
rightly referred to in our jurisprudence. Other dimensions are also
important. For example, those working in the production of food may, through
associational activity, share and enhance their skills and knowledge, an
important consideration when one takes into account the fact that agricultural
workers are often exposed to dangers from machinery, chemicals and pesticides.
Exchanging views on recent developments may ensure that unsafe practices will
be identified at an earlier stage. Society would also prize their role as
potential stewards over the safety of the products generated and of the
environment in general. A statutory regime that may have a chilling effect on
such activities would appear to run contrary to the common good.
151
In the context of the exclusion under s. 3(b) of the LRA,
the situation is exacerbated because agricultural workers in Ontario, as
pointed out by my colleague, are also excluded from employment standards,
occupational health and safety, and other protective legislation such as the Tenant
Protection Act, 1997, S.O. 1997, c. 24. Section 3(b) of the Tenant
Protection Act states that it does not apply to living accommodations whose
occupancy is conditional upon the occupant continuing to be employed on a farm,
whether or not the accommodations are located on that farm.
152
The chilling effect of the impugned provision has forced
agricultural workers to abandon associational efforts and to restrain
themselves from further associational initiatives. It may be of assistance to
examine the resulting impact on the freedom of association in light of the
comments made by Dickson J. in Big M Drug Mart, supra, at pp.
336-37, with regard to freedom of religion:
Freedom can primarily be characterized by the
absence of coercion or constraint. If a person is compelled by the state or
the will of another to a course of action or inaction which he would not
otherwise have chosen, he is not acting of his own volition and he cannot be
said to be truly free. One of the major purposes of the Charter is to
protect, within reason, from compulsion or restraint. Coercion includes not
only such blatant forms of compulsion as direct commands to act or refrain from
acting on pain of sanction, coercion includes indirect forms of control
which determine or limit alternative courses of conduct available to others.
Freedom in a broad sense embraces both the absence of coercion and constraint,
and the right to manifest beliefs and practices. [Emphasis added.]
153
Thus, the test is clearly not that agricultural workers are free
to associate as they wish. If that were the case and no associational activity
took place, then the conclusion would be that they had the opportunity and
chose not to. If the analysis incorporates the reality of the labour market,
the chilling effect of the lack of freedom becomes manifest.
154
I agree with my colleague that Professor Fudge is correct when
she states in her affidavit that “[w]hile the existence of labour relations
legislation is no guarantee that a particular group of workers will be able to
join a trade union and engage in collective bargaining with their employer, the
absence of such legislative protection virtually guarantees that workers will
not enjoy these rights and freedoms”. In that light, it is fair to
characterize the freedom of association of agricultural workers under the LRA
as being but a hollow right because, as stated by Arthurs, supra, at
para. 431, and cited with approval by my colleague, the freedom to organize
would amount “to no more than the freedom to suffer serious adverse legal and
economic consequences”.
155
As stated by Cory and Iacobucci JJ. in Delisle, supra,
at para. 68:
The ability of employees to form and join an
employee association is thus crucially linked to their economic and emotional
well‑being. Membership in employee groups assists the individual member
in a great many ways. Simply to join a trade union is an important exercise of
an individual's freedom of expression. It is a group which so often brings
to the individual a sense of self‑worth and dignity. An employee
association provides a means of openly and frankly discussing work‑related
problems without fear of interference or intimidation by the employer. The
association provides a means of expressing a collective voice, not only in
communicating with the employer, but also in communicating with government,
other groups, and the general public. The fundamental importance of the union
remains, even though a statute may prohibit the employees from going on strike,
or from holding a sit‑in. The freedom of employees to participate in an
employee association is basic and essential in our society. A statute whose
purpose or effect is to interfere with the formation of employee associations
will clearly infringe s. 2 (d) of the Charter . [Emphasis added.]
156
The outcome of the exercise of freedom of association is not
determinable on an ex ante basis: a meeting by employees could be used
as much to organize a picnic as to discuss occupational health and safety
issues. The boundary line between permissible and impermissible associational
activity is invisible. To use Dickson C.J.’s terminology, in a non-vapid s. 2 (d)
environment the line would not exist. In an environment where workers do not
enjoy protection from unfair labour practices, an employer has no reason to
assume that such associational activities will not lead to the forbidden
terrain of collective bargaining. The reality is that employers often take
anticipatory action against those who undertake organizational activities.
157
In Lavigne, supra, at p. 263, Wilson J. stated that
once the positive freedom of association had been established, then it remained
to establish whether the appellant has been prevented from forming or joining
associations of her or his choosing. In Lavigne, the answer was no. In
our case, by contrast, the answer is yes.
158
With respect, I do not share the views of my colleague, as
expressed by him in Delisle, at para. 29, that it would be problematic
to recognize positive rights because it will force government to take an “all
or nothing” approach to the promotion of freedoms. This is because a positive
duty to assist excluded groups generally arises when the claimants are in
practice unable to exercise a Charter right. In addition, s. 1 of the Charter
would allow the government to justify excluding some groups from the
application of certain policies. In our case, once the statutory exclusion is
removed, the claimants will be in a position to effectively exercise their s.
2 (d) rights.
159
However, when the Ontario government repealed the ALRA and
enacted the LRA it committed acts which affected the associational
rights of agricultural workers in Ontario. As the majority of the Court stated
in Vriend, supra, at para. 62:
It might also be possible to say in this case that
the deliberate decision to omit sexual orientation from the provisions of the IRPA
is an “act” of the Legislature to which the Charter should apply. This
argument is strengthened and given a sense of urgency by the considered and
specific positive actions taken by the government to ensure that those
discriminated against on the grounds of sexual orientation were excluded from
the protective procedures of the Human Rights Commission. However, it is not
necessary to rely on this position in order to find that the Charter is
applicable.
160
The Ontario government, in this case, first ensured that those
workers who had initiated associational activities under the protection of the ALRA
would no longer pursue them and, secondly, it took “the deliberate decision to
omit” persons employed in agriculture from the LRA.
161
In the Alberta Reference, supra, at pp. 376-77,
Dickson C.J., in the context of an exclusion clause concerning the right to
strike under Alberta’s Hospitals Act, stated that:
The situation with respect to employees of
employers who operate approved hospitals under the Hospitals Act is
quite different. Prohibiting the right to strike across the board in hospital
employment is too drastic a measure for achieving the object of protecting
essential services. It is neither obvious nor self‑evident that all
bargaining units in hospitals represent workers who provide essential services,
or that those who do not provide essential services are “so closely linked” to
those who do as to justify similar treatment. As pointed out above, the
Freedom of Association Committee of the I.L.O. expressed concern about the
overinclusiveness of s. 117.1 of the Labour Relations Act:
132. The Committee notes that this broad exclusion
covers kitchen help, janitors, gardeners, etc. . . . Given that this provision
is not sufficiently specific as regards the important qualification of
“essential employee”, the Committee refers to the principle . . . concerning
circumstances in which recourse to strike action may be prohibited. It
requests the Government to re‑examine section 117.1 so as to confine the
prohibition of strikes to services which are essential in the strict sense of
the term. [Emphasis in original.]
162
In our case, the overinclusiveness of the LRA’s
impugned provision cannot be justified. Although there may be a rare case
where an agricultural operation could justifiably be exempted from the
protections of the LRA, the broad exclusion incorporated in the Act,
excluding all persons employed in agriculture from all provisions
of the Act clearly is, in Dickson C.J.’s words in the above quote, “too drastic
a measure”. Such overinclusiveness “could lead to results in certain cases
which would defy both rationality and fairness” (Oakes, supra, at
p. 142).
163
In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69,
a case concerning a challenge to the federal provisions prohibiting public
servants from working for or against candidates or political parties, I
concurred with Wilson J.’s reasons that once legislation is found to be
over-inclusive, infringes a Charter right and cannot be justified under
s. 1, “the Court has no alternative but to strike the legislation down or, if
the unconstitutional aspects are severable, to strike it down to the extent of
its inconsistency with the Constitution” (pp. 76‑77).
164
The term “underinclusiveness” is often used in s. 15
jurisprudence including cases where, as here, overt exclusion from a statute
has taken place. As stated in Vriend, supra, at para. 61, it is
the substance not the form of the legislation that matters. However, while the
ultimate legal effect may be similar, we should be alert to the impact on the
affected parties. There is, after all, a difference between a sign that states
“Members Only” from one that states “Agricultural Workers Excluded”.
B. Section
15(1) Analysis
165
The appellants also argue that the LRESLAA
and the LRA violate agricultural workers’ equality rights under s. 15(1)
of the Charter . Because I have already found that the impugned
legislation infringes s. 2 (d), I find it necessary to make but a single
observation with respect to s. 15(1) . I agree with the trial judge that “the
central issue to be resolved” under s. 15(1) “is whether [the agricultural
workers’] exclusion from the collective bargaining regime constitutes
discrimination on an ‘analogous ground’” (p. 209). I disagree, however, that
the occupational status of agricultural workers does not satisfy this prong of
the s. 15(1) analysis.
166
In Law v. Canada (Minister of Employment and Immigration), [1999]
1 S.C.R. 497, the Court held, at para. 93, that the determination of whether a
ground or confluence of grounds is analogous to those listed in s. 15(1)
is made on the basis of a complete analysis of the purpose of s. 15(1) ,
the nature and situation of the individual or group at issue, and the social,
political and legal history of Canadian society’s treatment of the group. A
ground or grounds will not be considered analogous under s. 15(1) unless it can
be shown that differential treatment premised on the ground or grounds has the
potential to bring into play human dignity . . . .
In other
words, “[t]o say that a ground of distinction is an analogous ground is merely
to identify a type of decision making that is suspect because it often leads to
discrimination and denial of substantive equality” (Corbiere v. Canada
(Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para.
8). A ground need not be immutable to be analogous; it can be based on
characteristics that the government has no legitimate interest in expecting
claimants to change to receive equal treatment under the law, or, in other
words, characteristics that are difficult to change, or changeable only at
great cost (Corbiere, supra, at paras. 13-14; see also Vriend,
supra, at para. 90). In Egan, supra, I took the position
that reliance on grounds amounts to an “indirect means by which to define
discrimination” (para. 35 (emphasis in original deleted)), whereas the
preferable approach would be to focus on the group adversely affected by the
distinction as well as on the nature of the interest affected. I remain
convinced that this is the most direct and truthful way of addressing the
problem of discrimination. Nonetheless, even under the majority’s current
“grounds” approach, there is no reason why an occupational status cannot, in
the right circumstances, identify a protected group.
167
First, this Court has repeatedly recognized that employment is a
fundamental aspect of an individual’s life and an essential component of
identity, personal dignity, self-worth and emotional well-being (see, e.g., McKinley
v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38, at para. 53 (quoting Alberta
Reference, supra, per Dickson C.J., at p. 368)). Second,
though it has had the opportunity to do so, this Court has never declared
categorically that a ground of differential treatment based on an occupational
status may not be subject to scrutiny under s. 15(1) (see especially Delisle,
supra, at para. 44; R. v. Généreux, [1992] 1 S.C.R. 259, at p.
311). In Delisle, while the majority concluded that RCMP officers did
not satisfy this prong of the Law test, it left the door open for the
possibility that other occupationally oriented forms of discrimination could
fall under the scope of s. 15(1) by limiting its holding to RCMP officers only
(see Delisle, supra, at para. 44). In my concurring reasons in
that case, I expressed my belief that an occupational status could constitute a
suspect marker of discrimination, at para. 8:
[O]ccupation and working life are often important sources of personal
identity, and there are various groups of employees made up of people who are
generally disadvantaged and vulnerable. Particular types of employment status,
therefore, may lead to discrimination in other cases, and should be recognized
as analogous grounds when it has been shown that to do so would promote the
purposes of s. 15(1) of preventing discrimination and stereotyping and
ameliorating the position of those who suffer social and political disadvantage
and prejudice.
Legal
commentators have also embraced the notion that occupational distinctions
between certain groups can be subject to Charter scrutiny (see, e.g., D.
Gibson, The Law of the Charter: Equality Rights (1990), at p. 257; D.
Pothier, “Connecting Grounds of Discrimination to Real People’s Real
Experiences” (2001), 13 C.J.W.L. 37, at p. 57).
168
In this case, there is no doubt that agricultural workers, unlike the
RCMP officers in Delisle, do generally suffer from disadvantage,
and the effect of the distinction is to devalue and marginalize them within
Canadian society. Agricultural workers “are among the most economically
exploited and politically neutralized individuals in our society” and face
“serious obstacles to effective participation in the political process” (D. M.
Beatty, Putting the Charter to Work: Designing a Constitutional Labour Code (1987),
at p. 89). Indeed, the trial judge clearly found, at p. 216, that
agricultural workers have historically occupied a disadvantaged place
in Canadian society and that they continue to do so today. For the purposes of
the s. 15 analysis, I have no hesitation in finding on the evidence that
agricultural workers are a disadvantaged group. They are poorly paid, face
difficult working conditions, have low levels of skill and education, low
status and limited employment mobility.
In light of
this, I believe it safe to conclude of agricultural workers what Wilson J.
concluded of non-citizens in Andrews v. Law Society of British Columbia,
[1989] 1 S.C.R. 143, at p. 152, namely that they “are a group lacking in
political power and as such vulnerable to having their interests overlooked and
their rights to equal concern and respect violated. They are among ‘those
groups in society to whose needs and wishes elected officials have no apparent
interest in attending’”. Thus, the critical question here is whether the
government has a legitimate interest in expecting agricultural workers to
change their employment status to receive equal treatment under the law.
169
In my view, this question must be answered in the negative. Not unlike
the off-reserve aboriginal band members faced with the challenge of changing
their status to on-reserve band members identified in Corbiere, I
believe that agricultural workers, in light of their relative status, low
levels of skill and education, and limited employment mobility, can change
their occupational status “only at great cost, if at all” (Corbiere, supra,
at para. 14). The fact that the agricultural workforce may be highly transient
only reflects the unstable nature of the industry, and does not change the
basic point that the workers lack other employment options; indeed, many of the
seasonal workers are students and the unemployed. In my view, it is abundantly
clear that agricultural workers do not enjoy the same “labour market
flexibility” as RCMP officers (Delisle, supra, at para. 44) or
other more advantaged professionals, and I see no reason to disturb the trial
judge’s considered findings of fact regarding the predicament of agricultural
workers.
170
Accordingly, I find that the occupational status of agricultural workers
constitutes an analogous ground. I note that in arriving at this conclusion, I
make no findings about “occupational status” generally as a suspect marker of
discrimination under s. 15(1) .
C. Section
1 Analysis
171
The role of s. 1 in the Charter was first fully examined
by this Court in Oakes, supra. In R. v. Edwards
Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 768, Dickson C.J. summarized
the steps in the analysis:
Two requirements must be satisfied to establish
that a limit is reasonable and demonstrably justified in a free and democratic
society. First, the legislative objective which the limitation is
designed to promote must be of sufficient importance to warrant overriding a
constitutional right. It must bear on a “pressing and substantial
concern”. Second, the means chosen to attain those objectives must
be proportional or appropriate to the ends. The proportionality
requirement, in turn, normally has three aspects: the limiting
measures must be carefully designed, or rationally connected, to the objective;
they must impair the right as little as possible; and their effects must not so
severely trench on individual or group rights that the legislative objective,
albeit important, is nevertheless outweighed by the abridgment of rights.
As with all Charter
analysis, a contextual approach is to be followed.
(1) Sufficiently Important Objective
172
Labour statutes, such as the LRA, fulfill important
objectives in our society. Harmonious relations between management and labour
have an impact not only on the economic relations between the parties, but also
on social welfare as a whole. However, for the purposes of our analysis, our
focus is on s. 3(b) of the LRA.
173
As indicated earlier in my reasons, I have concluded that
s. 3(b) breaches the Charter . This, however,
does not necessarily end the s. 1 inquiry; “a legislative provision whose
purpose infringes the Charter may nonetheless be found to have an
objective that is sufficiently important to justify overriding a Charter freedom”
(Delisle, supra, at para. 112, per Cory and Iacobucci
JJ.).
174
The respondents argued that there were two factors justifying the
passage of s. 3(b). First, that Ontario agriculture has unique
characteristics as a result of which it is incompatible with legislated
collective bargaining, and second that the LRA’s purposes could not be
realized in the agricultural sector.
175
Neither of these arguments are, in my opinion, persuasive.
First, it is difficult for me to believe that the production of eggs or
mushrooms, let alone all other agricultural products, in Ontario is
truly “unique”. Secondly, it is also difficult to accept that none of
the LRA’s purposes, which speak to the basic characteristics required
for the operation of a modern business, could be realized in the agricultural
sector.
176
The LRA also added a new s. 2 , titled “Purposes” that
states:
2. The following are the purposes of the Act:
1. To facilitate collective bargaining between
employers and trade unions that are the freely‑designated representatives
of the employees.
2. To recognize the importance of workplace
parties adapting to change.
3. To promote flexibility, productivity and
employee involvement in the workplace.
4. To encourage communication between employers
and employees in the workplace.
5. To recognize the importance of economic growth
as the foundation for mutually beneficial relations amongst employers,
employees and trade unions.
6. To encourage co‑operative participation
of employers and trade unions in resolving workplace issues.
7. To promote the expeditious resolution of
workplace disputes.
177
Of the seven purposes of the Act, only one makes explicit
reference to collective bargaining. The other six sections refer to the
importance of “adapting to change”, the promotion of “flexibility, productivity
and employee involvement in the workplace”, the encouragement of
“communication between employers and employees in the workplace”, the
resolution of “workplace issues”, and the promotion of the “expeditious
resolution of workplace disputes”.
178
It is worth reiterating that the sentiments contained in these
expressions of intent are not confined to matters pertaining to collective
bargaining. They cover issues related to change, employee involvement,
communications between management and labour, and the resolution, without
limitation, of workplace issues. Thus, the expressions of intent in s. 2 of
the LRA are consistent with a policy focused on the importance of
ensuring that the productivity of the labour force would continuously improve
with the result that the economy would advance towards strengthening its
relative competitiveness. This is an important factor in a globalized economic
environment, especially given that old-fashioned economic protectionism is
neither affordable nor permissible under international trade rules.
179
It would be difficult to argue that such expressions of intent
would not be applicable to the agricultural sector. At the very least they
would apply to factory-like enterprises. The question also arises whether, if
the government of Ontario has concerns about the economic well-being of the
agricultural sector, be it its corporative sector or the one represented by
“family farms”, when excluding the sector as a whole from the provisions of the
Act did it also intend to exclude from this sector the impact of the
expressions of intent, essentially comprising a good management wish list,
expressed in s. 2 of the statute? The statutory silence on this issue points
towards a policy inconsistency to which the legislature, while entitled, ought
to have paid effective attention for the purposes of protecting its statutory
initiatives from Charter review.
180
In short, the respondents’ argument boils down to this: (a)
agriculture is economically vulnerable and barely profitable if at all; (b) the
government must ensure that costs are kept down and to this end it has decided
to exclude persons employed in agriculture from the LRA, regardless of
the size, nature or profitability of the enterprise; (c) the government does
not believe that any of the indicia of good management practice listed in s. 2
of the LRA, whose application will assist an enterprise cope with change
while enhancing its productivity, and thus enhance profitability, are necessary
in any aspect of agricultural production no matter how industrialized.
181
The respondents are asking us to countenance, without enunciating
a constitutionally valid reason, a breach of a Charter -guaranteed
fundamental right on grounds which appear to be, at least in part, based on a
policy geared to enhance the economic well-being of private enterprises. This
we cannot do.
182
The government is entitled to provide financial and other support
to agricultural operations, including family farms. What is not open for the
government to do is to do so at the expense of the Charter rights of
those who are employed in such activities, if such a policy choice cannot be
demonstrably justified. This they have failed to do.
(2) Proportionality
183
In light of my colleague’s conclusion that the legislation passes
the first branch of the Oakes test, I will address the question of
whether the impugned measures meet the proportionality branch of this test. The
absoluteness of the exclusion clause, barring all persons employed in
agriculture from all components of the LRA, speaks to the lack of
proportionality between the perceived ills to be avoided and their remedy. For
example, are there no situations in Ontario’s agricultural sector where workers
should not be so absolutely barred?
(a) Rational Connection
184
At this stage of the proportionality analysis, the
respondents must show, on the basis of reason or logic, a causal connection
between the objective of protecting the well-being of the agricultural sector
in Ontario and the means chosen to secure this objective. While
scientific evidence of a causal connection (or of a lack thereof) is relevant
at this stage of the s. 1 inquiry, it is not always required (Delisle,
supra, at para. 119 (citing RJR‑MacDonald Inc. v. Canada (Attorney
General), [1995] 3 S.C.R. 199, at paras. 153‑54, per
McLachlin J.); Ross v. New Brunswick School District No. 15, [1996] 1
S.C.R. 825, at para. 101).
185
The respondents’ argument is that the stated objective of
securing the well-being of the agricultural sector in Ontario can be achieved
through the exclusion of persons employed in agriculture from all associational
protections contained in the LRA. Excluding the possibility
that the impermissible cost-cutting argument is the sole basis for the
respondents’ position, the logical connection is not immediately apparent.
186
In fact, the purported means to secure the stated objective,
barring all persons employed in agriculture from all the benefits under the LRA,
may have the opposite effect. If the LRA’s good labour management
principles outlined in s. 2 of the LRA have a basis in fact, then
excluding the agricultural labour force from the application of those
principles through the comprehensive labour scheme contained in the LRA
will lead to an enterprise which would be less well managed, and with lower
productivity, than would otherwise be the case. This would impact
profitability. As stated by Cory and Iacobucci JJ. in Delisle, supra,
at para. 124:
Generally speaking, where this Court has been faced with contradictory
evidence of causation for the purpose of the rational connection inquiry, the
difficulty has been simply in deciphering whether the evidence supported a
causal link. This case raises the somewhat unusual situation that some of
the evidence not only does not support a causal link between the legislative
objective and the means used to achieve that objective, but it supports
precisely the reverse conclusion, namely that the means chosen engender the
very mischief sought to be cured. It seems contrary to the
purpose of s. 1 of the Charter to find that the state has demonstrably
justified its law in circumstances where it is equally probable that the law
causes the very social harm it purports to target. [Emphasis added.]
(b) Minimal Impairment
187
As stated by Cory and Iacobucci JJ. in Delisle, supra,
at para. 126, “[l]abour relations law is typically an area in which courts have
shown the legislature a degree of deference, owing to the complexity and
delicacy of the balance sought to be struck by legislation among the interests
of labour, management, and the public”. In this regard, they make reference to
comments by McIntyre J. in the Alberta Reference, supra, at p.
414:
Labour law, as we have seen, is a fundamentally important as well as an
extremely sensitive subject. It is based upon 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. The balance between the two forces
is delicate and the public‑at‑large depends for its security and
welfare upon the maintenance of that balance. One group concedes
certain interests in exchange for concessions from the other. There
is clearly no correct balance which may be struck giving permanent satisfaction
to the two groups, as well as securing the public interest. The
whole process is inherently dynamic and unstable. Care must be taken
then in considering whether constitutional protection should be given to one
aspect of this dynamic and evolving process while leaving the others subject to
the social pressures of the day.
188
I agree with the argument made by Cory and Iacobucci JJ.
in Delisle, supra, at para. 129, when they state that “the complete exclusion of a class of employees from a
comprehensive labour relations scheme can hardly be characterized as achieving
a delicate balance among the interests of labour and those of management and
the Canadian public”. The application of such a
blunt measure weakens the case for deference to the legislature.
189
This is further aggravated because those affected by the
exclusion are not only vulnerable as employees but are also vulnerable as being
members of society at large with low income, little education, scant security
or social recognition. As stated by Cory and Iacobucci JJ. in Delisle,
at para. 130, the Act:
. . . is not designed to protect a vulnerable group in Canadian
society. It is true that the public at large is vulnerable to the
harmful effects of a police strike. However, in our view, the
general public is not a vulnerable group in the sense understood in this
Court's s. 1 jurisprudence: see, e.g., Irwin Toy Ltd. v. Quebec
(Attorney General), [1989] 1 S.C.R. 927, at p. 995, per Dickson C.J.
and Lamer and Wilson JJ.; Ross, supra, at para. 88; Thomson
Newspapers, supra, at paras. 88‑90, per Bastarache
J. The only vulnerable group at issue in the present analysis is RCMP
members themselves. Although clearly police officers are not
generally considered a vulnerable group within the overall fabric of Canadian
society, they are members of a vulnerable group in a relative sense insofar as
they are employees. As mentioned above, Dickson C.J. noted in Slaight
Communications, supra, at p. 1051, that legislation which seeks
to ameliorate the position of employees falls within “a class of cases in which
the governmental objective is that of protection of a particularly vulnerable
group, or members thereof”. It follows that legislation whose
purpose is to maintain the inherent weakness of employees, such as para. (e)
in the present case, is not entitled to deference. Indeed, such
legislation should be examined with particular care. [Emphasis added.]
190
The question at this stage of the s. 1 inquiry is whether
the exclusion expressed by s. 3(b) of the LRA impairs the
appellants’ freedom of association as little as reasonably possible in order to
achieve the legislation’s objective. McLachlin J. stated, at para.
160 of RJR‑MacDonald, supra:
The impairment must be “minimal”, that is, the law
must be carefully tailored so that rights are impaired no more than
necessary. The tailoring process seldom admits of perfection and the
courts must accord some leeway to the legislator. If the law falls
within a range of reasonable alternatives, the courts will not find it
overbroad merely because they can conceive of an alternative which might better
tailor objective to infringement . . . . On the other hand, if the government
fails to explain why a significantly less intrusive and equally effective
measure was not chosen, the law may fail.
191
The essential practical question at this stage is whether
the Ontario Legislature could have granted to persons employed in agriculture,
either within the LRA itself or through the enactment of a separate
statute, some of the basic associational protections contained in the LRA
without compromising the stated objective of assisting the well-being of the
agricultural sector in Ontario (Delisle, supra,
at para. 134).
192
In view of the arguments made above, I am of the opinion that the
stated objective of securing the well-being of the agricultural sector in
Ontario can be achieved through a legislative mechanism that is less
restrictive of free association than the existing complete exclusion of
agricultural workers from the LRA. The current law is not
carefully tailored to balance the Charter freedoms of persons employed
in agriculture in Ontario and the societal interest in harmonious relations in
the labour market.
193
While it is important to recognize the important role that family
farms play in Ontario agriculture, such a role is not unique to Ontario in the
context of Canada’s agricultural experience. Since the passage of the Collective
Bargaining Act, 1943, both families and farms have evolved in
Canada. Both institutions have experienced, and in many cases continue to
experience, significant changes and associated difficulties. Both institutions
enjoy, and deserve, strong social support from the community at large.
194
However, it is important not to put forward an argument based on
a pastoral image which may no longer reflect current reality. In this regard,
it is helpful to recall the words of the British Columbia Labour Relations
Board, expressed almost a quarter of a century ago, in the case of South
Peace Farms and Oil, Chemical and Atomic Workers International Union, Local No.
9-686, [1977] 1 Can. L.R.B.R. 441. The case was decided two years after
British Columbia amended its labour legislation to delete provisions expressly
excluding farm workers from obtaining bargaining rights under the Labour
Code of British Columbia Act, S.B.C. 1973, c. 122. The Board stated that
opposition to the extension of labour legislation to farm workers “has been
grounded in an anachronistic image of the ‘family farmer’ which is increasingly
less accurate” (p. 450). The Board also remarked that the employer in that
case was a “sophisticated, well-run business and, in terms of employee
relations, much more analogous to an employer in the industrial sector” (p.
449 (emphasis added)). If true in 1977, how much more so today.
195
The Ontario experience with regard to the existence in the
agricultural sector of “sophisticated, well-run business and, in terms of
employee relations, much more analogous to an employer in the industrial sector”
is not dissimilar to that outlined by the British Columbia Labour Relations
Board in 1977. My colleague cites in his reasons the case of Wellington
Mushroom Farm, [1980] O.L.R.B. Rep. May 813, a case also cited by the OLRB
in Cuddy Chicks, supra, at para. 9, where the majority of the
board denied LRA certification to the employees of a mushroom factory.
However, the majority agreed with the dissenting Board member that “there [was]
no ‘industrial relations basis’ for denying [these] employees the right to
bargain collectively” (p. 819; see also G. W. Adams, Canadian Labour Law (2nd
ed. (loose-leaf)), at p. 6-49). The comments made by the OLRB in Cuddy
Chicks, are also applicable in this context.
196
In this case we are being asked by the respondents, without
being presented with credible pressing and substantial reasons, to justify
distinguishing workers who sort and pack chicken eggs in a factory-like
environment from workers who pack and sort Easter eggs in a factory-like
environment. The respondents claim that the former workers
should not enjoy rights under statutory labour laws, whereas the latter ones
are deserving of protection. I do not agree.
197
There is no obvious connection between the exclusion of
agricultural workers from the LRA and a farmer: a city-based
corporation could be operating an agricultural entity. There
is no reference in the LRA to “farmer(s)” or “family farm(s)”. The sole
reference in the Act to a farm is the one contained in the expression “farming
in all its branches” in the definition of the term “agriculture”. Nor is there
a requirement that an owner, or a relative of the owner, of an agricultural
enterprise, be it a family farm or a factory-like operation, be personally
involved in the operation. Under the Act, an absentee owner of a large
agricultural operation would benefit from the restrictions on the freedom of
association of its agricultural employees.
198
Other Ontario statutes contain language which makes explicit
reference to family farms. For example, the Corporations Tax Act,
R.S.O. 1990, c. C.40, defines at s. 1(2) a “family farm corporation” as “a
corporation that is throughout the taxation year a corporation, . . . (c) which
carried on the business of farming in Ontario through the employment of a
shareholder or a member of his or her family actually engaged in the operation
of the farm”. Section 1 of the Junior Farmer Establishment Act, R.S.O.
1990, c. J.2, defines a “family farm” as being “a farm operated by a junior
farmer and one or more of a spouse of the junior farmer and any persons related
to the junior farmer through blood relationship or adoption”. In s. 1(1) of
the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, a
“farmer” is defined as “a person whose chief occupation is farming” and “who is
living upon and tilling his or her own land, or land to the possession of which
he or she is for the time being entitled”.
199
While not determinative of the issue, these statutes are relevant
to the argument regarding the overinclusiveness of the exclusion clause in the LRA
in that there are ready examples in Ontario’s legislation which have managed
agricultural sectors in a more specific manner than in the LRA.
200
In addition, it is worth citing the provisions in the labour
statutes of two provinces which incorporate agricultural exemptions.
201
In New Brunswick, the Industrial Relations Act, R.S.N.B.
1973, c. I-4, s. 1(5) stipulates that entities with four or fewer agricultural
employees will not be treated as a bargaining unit:
1(5) For the purposes of this Act,
(a) a unit, where an employee is employed in agriculture, shall
comprise five or more employees;
202
In Quebec, s. 21 of the Labour Code, R.S.Q., c. C-27,
allows a single employee to form a group for the purpose of certification but
it also states that:
Persons employed in the operation of a farm shall
not be deemed to be employees for the purposes of this division [Certification
of Associations of Employees] unless at least three of such persons are
ordinarily and continuously so employed.
203
An important point is made clear in the statutes mentioned in the above
paragraphs: a family farm, be it in the form of a corporation or not, requires
a farmer on the farm. As stated by Dickson J. in Rathwell v. Rathwell,
[1978] 2 S.C.R. 436, at p. 461, when making reference to a family farming
operation, that the owners “worked on and operated all of the land as one farm,
a family farm”. At p. 457, he stated:
I do not know what term one might properly apply to the Rathwell
properties -- “family farm”, or “farming business”, and with all respect to
those of a contrary view, I do not think it matters. In one sense, it was a
family farm, in another a business, in another it was a way of life. The
property was all operated as one family unit by Mr. and Mrs. Rathwell working
together.
204
It is clear that not all rural families own “family farms”. The
breadwinners in these families are often employed in agriculture. Their Charter
rights do not differ from those of other members of the community.
(c) Deleterious and Salutary Effects
205
At this stage, the words of Cory and Iacobucci JJ. in Delisle,
supra, at para. 148, are apt:
Having found that the impugned para. (e) of
the definition of “employee” in s. 2 of the PSSRA does not minimally
impair the appellant’s freedom of association, it is not necessary to consider
the proportionality between the importance of the objective and the deleterious
effects of the measure, or between the deleterious and salutary
effects. We would note, though, that it is unlikely that the
provision would be found proportionate at this stage of the inquiry. The exclusion
of RCMP members from the PSSRA’s basic associational protections has
few, if any, demonstrable salutary effects which could not be achieved by a
lesser exclusion. Its negative effects, on both a symbolic level and
a practical level, are severe and cut to the core of the Charter ’s s. 2(d)
protection.
III. Conclusion
206
I agree that the impugned provision in the LRA
should be struck down to the extent of its inconsistency with the Charter with the proviso that I agree with my colleague that the Ontario
government be given leeway for 18 months for the enactment of a
constitutionally compliant replacement.
207
I would answer the constitutional questions as follows:
1. Does s. 80 of the Labour Relations and
Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, limit the
right of agricultural workers
(a) to
freedom of association guaranteed by s. 2 (d) of the Canadian Charter
of Rights and Freedoms ; or
Yes.
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
In view of the answer above there is no need to answer this question.
2. Does s. 3(b) of the Labour
Relations Act, 1995, S.O. 1995, c. 1, Sched. A, limit the right of
agricultural workers
(a) to
freedom of association guaranteed by s. 2 (d) of the Charter ; or
Yes.
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
In view of the answer above there is no need to answer this question.
3. If the answer to any part of questions 1 or
2 is in the affirmative, is the limitation nevertheless justified under s. 1 of
the Charter ?
No.
The following are the reasons delivered by
208 Major J. (dissenting) – In spite of the
benefit of the reasons of Justices L’Heureux-Dubé and Bastarache, I am unable,
principally for the reasons of Sharpe J. (as he then was) in the Ontario Court
(General Division), to agree with their disposition of this appeal. In my
view, neither s. 2 (d) nor s. 15 of the Canadian Charter of Rights and
Freedoms is infringed and I would dismiss the appeal.
I. Section
2 (d)
209 As
identified by Bastarache J., at para. 13, in order to establish a violation of
s. 2 (d), the appellants must demonstrate that the impugned legislation
has, either in purpose or effect, infringed activities protected by s. 2 (d).
The appellants did not discharge this burden.
A.
Purpose of the Exclusion
210 I
agree with Bastarache J.’s analysis and conclusion (at para. 32) with regard to
the appellants’ failure to establish the unconstitutionality of the purpose of
the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”).
B.
Effect of the Exclusion
211 In
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, the
majority held (at para. 33):
On the whole, the fundamental freedoms protected by
s. 2 of the Charter do not impose a positive obligation of protection or
inclusion on Parliament or the government, except perhaps in exceptional
circumstances which are not at issue in the instant case.
212 At
paras. 24-26, Bastarache J. has articulated three factors to be considered in
determining whether such “exceptional circumstances” exist in a particular
case, such that a positive obligation is imposed on the state by s. 2 (d).
I respectfully disagree with his conclusion that a consideration of these
factors in the present case leads to a finding of a s. 2 (d) violation.
Specifically, a consideration of the third factor leads to the opposite
conclusion on the facts of this case. The third factor is “whether the state
can truly be held accountable for any inability to exercise a fundamental
freedom” (para. 26). As noted by Bastarache J. at para. 23, in Haig v.
Canada, [1993] 2 S.C.R. 995, even if the appellant had been unable to
express his views on Quebec secession, this inability was not caused by his
exclusion by the state from the national referendum. Thus, the third factor
essentially compels an examination of the causal role of the state in the
appellants’ inability to exercise the fundamental freedom. In order for the
state to “truly be held accountable”, the appellants must be able to
demonstrate by direct evidence or inference that the state is causally
responsible for his inability to exercise a fundamental freedom, in that the
state “substantially orchestrates, encourages or sustains the violation of
fundamental freedoms” (para. 26).
213 As
recognized by Bastarache J. at para. 42, workers faced significant difficulties
organizing prior to the enactment of the LRA. In light of this historic
difficulty, I am unable to agree with the following conclusion of Bastarache J.
(at para. 45):
In this context, the effect of s. 3(b) of the LRA is not
simply to perpetuate an existing inability to organize, but to exert the
precise chilling effect I declined to recognize in Delisle.
214 In
my opinion, the appellants have failed to establish that the state is causally
responsible for the inability of agriculture workers to exercise a fundamental
freedom. I conclude that s. 2 (d) does not impose a positive obligation
of protection or inclusion on the state in this case. As a result, the effect
of the impugned legislation does not infringe agriculture workers’ freedom of
association.
II. Section
15
215 I
adopt the following conclusion of Sharpe J. in this case ((1997), 155 D.L.R.
(4th) 193, at pp. 216-17):
However, with reference to identifying personal characteristics, the
evidence before me indicates that agricultural workers are a disparate and
heterogenous group. There is nothing in the evidence to indicate that they are
identified as a group by any personal trait or characteristic other than that
they work in the agricultural sector. The evidence indicates that farm owners
and operators also suffer from low wages, and that many have low education levels.
The low status and prestige of farm workers is similar to that of other manual
labourers. In my view, the evidence shows that the legislative decision to
exclude agricultural workers from the collective bargaining regime does not
reflect stereotypical assumptions about the personal characteristics of
agricultural workers, either individually or as a class. Rather, it is based
upon the policy-maker’s perception of the characteristics and circumstances of
the agricultural industry. The effects of the legislative exclusion impact the
diverse group of individuals who work in that sector of the economy and who are
not otherwise identifiable as a group.
While a sub-group of temporary seasonal workers
brought to Ontario pursuant to a highly structured federal program may be
identifiable by race and the status of non-citizen, I fail to see how their
situation advances the applicants’ case. These seasonal foreign workers were
not covered by ALRA, they are not subject to LRA, and they would
not gain the right to be members of a union or enjoy the right to engage in
collective bargaining if this application were successful.
In light of this factual record, in the end, the
applicants’ case must turn on whether the economic disadvantage of a group of
workers, identified as a group only by the fact that they work in a particular
sector of the economy, constitutes an analogous ground within the meaning of s.
15(1) . I hardly need state that the wisdom, or lack thereof, from the
perspective of labour relations policy, of the decision to exclude agricultural
workers from collective bargaining has no bearing on this question.
In my view, the disadvantaged position occupied by
agricultural workers is not sufficient to constitute the legislative
classification “agricultural workers” as an analogous ground for the purposes
of s. 15 . Economic disadvantage is often the product of discrimination on an
analogous ground, and hence serves as a marker that may indicate the presence
of such discrimination. There are, however, many causes of economic
disadvantage that do not attract the scrutiny of s. 15 , and a showing of
economic disadvantage does not, by itself, establish discrimination on an
analogous ground within the meaning of s. 15 . In my view, the absence of
evidence of any traits or characteristics analogous to those enumerated in s.
15 which serve to identify those who make up the group of agricultural workers
is fatal to their s. 15 claim.
III. Conclusion
216 I
would dismiss the appeal. I would answer the constitutional questions as
follows:
1. Does s. 80 of the Labour Relations and
Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, limit the
right of agricultural workers
(a) to freedom of association guaranteed by s.
2 (d) of the Canadian Charter of Rights and Freedoms ; or
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
No.
2. Does s. 3(b) of the Labour
Relations Act, 1995, S.O. 1995, c. 1, Sched. A, limit the right of
agricultural workers
(a) to freedom of association guaranteed by s.
2 (d) of the Charter ; or
(b) to equality before and under the law and
equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter ?
No.
3. If the answer to any part of questions 1 or
2 is in the affirmative, is the limitation nevertheless justified under s. 1 of
the Charter ?
In view of the answers to questions 1 and 2 there is no need to answer
this question.
Appeal allowed with costs, Major
J. dissenting.
Solicitors for the appellants: Paliare Roland Rosenberg
Rothstein, Toronto.
Solicitor for the respondent the Attorney General for
Ontario: The Attorney General for Ontario, Toronto.
Solicitors for the respondent Fleming Chicks: Fasken
Martineau DuMoulin, Toronto.
Solicitor for the intervener the Attorney General of
Quebec: The Attorney General of Quebec, Montréal.
Solicitor for the intervener the Attorney General for
Alberta: The Attorney General for Alberta, Edmonton.
Solicitors for the intervener the Canadian Labour
Congress: Sack Goldblatt Mitchell, Toronto.
Solicitors for the intervener the Labour Issues Coordinating
Committee: Heenan Blaikie, Toronto.
See Erratum [2002] 3 S.C.R. iv