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it mandated employers to negotiate "in good faith" with their employees, despite the fact the law does not pro- tect the right of agricultural workers to strike or bargain collectively. "Farm workers in Ontario are entitled to meaningful processes by which they can pursue workplace goals. The right of an employees' association to make representations to the employer and have its views considered in good faith is a derivative right under s. 2(d) of the Charter, necessary to meaningful exer- cise of the right to free association. The AEPA provides a process that satisfies this constitutional requirement," the court's majority opinion ruled. The court was divided, however, with two justices deciding to write sepa- rate opinions from the majority, though Justice Rosalie Abella was the only one who dissented. "The AEPA violates s. 2(d) of the Charter because it does not protect, and was never intended to protect, collective bargaining rights," wrote Abella. Sara Slinn, a professor at Osgoode Hall Law School, says there will be negative effects stemming from Fraser, particularly on vulnerable employees, when it comes to bargaining power. She calls the "good faith" standard set by the court "a minimalist option. These employers will not have a hard time to say 'no' in good faith, and engage in extremely tough bargaining." So what's next for farm workers? One solution, says Slinn, could be alter- native schemes similar to other groups that are excluded from strikes or typical collective bargaining. They could still offer some protection for workers if applied correctly, she adds. But beyond the case itself and its effects on Ontario farm workers, Fraser is important because it's not often that Canada's top court rules on labour rela- tions. Fraser marks a departure from a previous trend of protecting stronger collective bargaining rights set in a 2007 SCC case, Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia. The Supreme Court had ruled there that s. 2(d) of the Charter guarantees a right to a process of collective bargaining. In Fraser, the SCC also overruled the Ontario Court of Appeal, which had declared certain aspects of the AEPA unconstitutional in 2008. This past April, as the Supreme Court came out with the Fraser ruling, Ontario's Chief Justice Warren K. Winkler was speaking at a seminar on labour rela- tions in Toronto. Though the topic was related to labour arbitration, Winkler, like most legal scholars and lawyers in the room, said he was eagerly anticipat- ing news from Ottawa — a big screen set up to show the ruling live. When it comes to labour law, Winkler is prob- ably Canada's pre-eminent expert. He A balanced approach recognizes that learning is a two-way street. The most productive relationships are born of mutual understanding. That's why we're as committed to learning about a client's business as we are to helping clients understand the intricacies of labour law. Toronto 416.408.3221 I London 519.433.7270 I filion.on.ca www.CANADIAN Lawyermag.com A U GUST 2011 51 lion_CL_Feb_09.indd 1 1/20/09 3:48:02 PM