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LEGAL REPORT: LABOUR & EMPLOYMENT "The question now is whether the court's much-anticipated decision in the Fraser appeal will put a stop to some of the more free-wheeling applications of s. 2(d) or whether the labour landscape will soon look like a moonscape. . . ." — BILL ARMSTRONG, ARMSTRONG MANAGEMENT LAWYERS Debate has raged — sometimes ran- corously — in online forums and at con- ferences over the course of this year over the meaning of Fraser and the potential fallout of the Supreme Court's decision. Some call it tantamount to judges writ- ing labour codes, and fear it will open the door to future conflicts between legislatures and the courts. Others say the interpretations the three-judge Ontario appeal court gave to Canadian labour law cornerstones like bargaining in good faith, majoritarian exclusivity, and dispute-resolution mechanisms to settle bargaining impasses and contract grievances — all fundamental elements of the Wagner Act model, the legislative scheme that is in effect for most private sector workers across Canada — could put labour law into a deep freeze while extending its reach to a minority of workers not currently covered. On the other hand, if the Supreme Court relies on the tenets of international labour law, as it has done in other recent cases, some believe its Fraser decision could revolu- tionize labour law in this country. One thing all parties appear to agree on is the series of legislative events and courtroom rulings that led to Fraser. It all began in the early years of Charter litigation when the Supreme Court, in Armstrong's words, "devoted a consid- erable volume of analysis to explaining what the Charter protection for free- dom of association did not protect." For example, the court's rulings in the late 1980s on three cases — Reference Re Public Service Employee Relations Act (Alta.); PSAC v. Canada; and RWDSU v. Saskatchewan — established there was no constitutional guarantee of the right to bargain collectively or to strike. A number of rulings since have both refined and broadened the interpreta- tion of s. 2(d). For example, in its 1999 decision in Delisle v. Canada (Deputy Attorney General), the SCC ruled that the personal freedom of association guarantee under s. 2(d) does not extend to associations or organizations. "[T]he 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 here," former justice Michel Bastarache wrote for the majority. As a result, the court rejected RCMP officer Gaétan Delisle's consti- tutional challenge to the federal Public Service Staff Relations Act and part of the Canada Labour Code and upheld the federal police force's exclusion from public services legislation. Two years later, however, the court added a new twist to the freedom of asso- ciation conundrum when it ruled that a clause in Ontario's Labour Relations Act that excluded agricultural workers from provincial labour relations legislation — making it difficult, if not impossible for them to organize — was a violation of their Charter right to freedom of associ- ation. "It was a groundbreaking ruling," Adams says about Dunmore v. Ontario (Attorney General), a 2001 decision that came about in response to the court chal- lenge launched by the United Food and Commercial Workers, Canada's largest private-sector union and the main one trying to organize agricultural workers in Ontario — to the decision by former Ontario premier Mike Harris' govern- ment to remove agricultural workers Read the Ontario Court of Appeal ruling in Fraser v. Ontario (Attorney General) here: canlii.org/en/on/onca/ doc/2008/2008onca760/2008onca760 .html and all of the Supreme Court of Canada's rulings are available at scc.lexum.umontreal.ca. from legislation enacted by the previous NDP government under Bob Rae that instituted statutory bargaining rights to all workers in the province. In response, the Harris government introduced the Agricultural Employees Protection Act that gave, in Adams' opinion, "minimally secured farm work- ers' right to organize but gave them no explicit right to bargain and no pro- tected right to strike." Soon after, how- ever, former UFCW head Mike Fraser launched a court challenge on behalf of Ontario agricultural workers against an Ontario mushroom grower with some 300 employees, 70 per cent of whom had already joined the union, who refused the UFCW's offer to bargain collec- tively. Despite his description of farm work- ers as being "poorly paid, face diffi- cult working conditions, have low levels of skills and education, low status and limited employment mobility," the trial judge in Fraser upheld the AEPA. But before the Ontario Court of Appeal heard — and eventually overturned — that ruling, the Supreme Court rendered a decision in another case involving provincial labour laws that once again moved the goalposts on the definition of freedom of association and prepared the playing field for the historic Fraser ruling. In 2002, the British Columbia gov- ernment introduced the Health and Social Services Delivery Improvement Act in an effort to defuse a perceived health-care crisis through provisions that enable employers to cut costs and increase operational flexibility through contracting out, layoffs, bumping, and job security. "The legislation invalidat- ed agreement provisions that conflicted with its provisions, precluded the par- ties from contracting out of the statute, and enacted a provision whereby the www. C ANADIAN Law ye rmag.com NO VEMBER / DECEMBER 2010 47