Legal news and trends for Canadian in-house counsel and c-suite executives
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By Henry Dinsdale and Jeff Goodman Here we go again Canadian labour law and the Charter ada decision in Health Services v. British Columbia, and the Ontario Court of Ap- peal's follow-up decision in 2008, Fraser v. Ontario (Attorney General), are the most recent and powerful signs of this jurisprudential shift. In the years immediately following T the adoption of the Charter of Rights and Freedoms in 1982, labour cases were second only to criminal law cases in the Supreme Court's major Charter decisions. In those early decisions, the court was clear that freedom of associa- tion was an individual right. The way in which governments chose to regulate labour relations was evolutionary in nature and the court appeared reluctant to elevate even the most accepted foun- dational principles of Canadian labour law to the status of protected constitu- tional rights. In its 2001 decision Dun- more v. Ontario (Attorney General), the Supreme Court signalled a willingness to consider a break from its initial ap- proach. In B.C. Health Services, to the surprise of many, the court made the break, but cautiously. In November 2008, the Ontario Court of Appeal in Fraser challenged the Su- preme Court's cautious approach in an apparent effort to establish as Charter rights some of Canada's legislated foun- dational labour law principles. In B.C. Health Services, the Supreme Court overturned decades of its own jurisprudence and held that freedom of association under the Charter includes protection for collective bargaining, but only in three limited ways. First, s. 2(d) he last several years have seen a seismic shift in the consti- tutional underpinnings of Canadian labour law. The 2007 Supreme Court of Can- protects only a process of collective bar- gaining and does not guarantee a sub- stantive or economic outcome. Second, only a general process of good faith col- lective bargaining is protected and not a particular model of labour relations or a specific bargaining method. Third, only substantial interferences with col- lective bargaining receive constitutional protection. The Court of Appeal in Fraser has ex- panded the Charter right of collective bargaining. Fraser considered a consti- tutional challenge to the exclusion of agricultural workers from Ontario's La- bour Relations Act and their inclusion in a separate statutory regime under the Agricultural Employees Protection Act. Under the AEPA, agricultural workers have the express right to form or join an employees' association and to make representations to their employers about terms and conditions of employment. Unlike the LRA, however, the AEPA does not compel employers to respond to and bargain about the representations made by employees, does not regulate labour disputes, and does not require that only one trade union represent employees at a workplace who share the same commu- nity of interest. Relying on B.C. Health Services, the Court of Appeal held that the AEPA violated agricultural workers' right to bargain collectively and that this viola- tion could not be justified under section one of the Charter. The appeal court dismissed allegations that the AEPA breached agricultural workers' freedom to organize and right to equality. In its reasons, the court observed that agricultural workers are a vulnerable group in society and that in light of this vulnerability, it was "virtually impossible" for agricultural workers to engage in col- lective bargaining with their employers absent statutory protections for collec- tive bargaining. In the court's view, the inclusion of agricultural workers under the AEPA perpetuated the inability of ag- ricultural workers to engage in collective bargaining with their employers. On this basis, it held that the AEPA substantially interfered with the ability of agricultural workers to exercise their right to bargain collectively. The Court of Appeal identified four statutory protections to which agri- cultural workers should be entitled: A statutory duty to bargain in good faith; a statutory right to select a trade union on a majority basis and once selected that trade union must have the exclu- sive right to bargain and to represent those employees; a statutory mecha- nism for resolving bargaining impasses (ie strikes/lockouts or binding arbitra- tion); and a statutory mechanism for resolving disputes regarding the inter- pretation or administration of collec- tive agreements. While the court recognized the AEPA served the legitimate purposes of pro- tecting the family farm, farm produc- tion, and farm viability, it considered the exclusion of all agricultural workers from a statutory collective bargaining regime to be over broad and not ad- equately tailored to meet the objectives of the legislation. It is not clear that the Fraser decision will be appealed to the Supreme Court of Canada. Yet there is little doubt that the court will be called upon to address Fraser and elaborate on its decisions in Dunmore and B.C. Health Services. Once again, we are entering a period of signifi- cant judicial involvement in the explora- tion of the intersection of labour law and the Charter. IH Henry Dinsdale and Jeff Goodman are la- bour and employment law partners with Heenan Blaikie LLP in Toronto. INHOUSE FEBRUARY 2009 • 7