Defining the ‘Meaningful’ – Collective Bargaining and Freedom of Association (Ontario (Attorney General) v. Fraser) Part I

In April the Supreme Court of Canada (SCC) handed down its latest pronouncement on the relationship between the Charter’s guarantee to freedom of association and the collective bargaining process in Ontario (AG) v Fraser (Fraser). In Fraser, a majority of the Court determined that Ontario’s Agricultural Employees’ Protection Act (AEPA) is consistent with the Charter’s s. 2(d) guarantee to freedom of association.

Given the importance of the Fraser decision, thecourt.ca has opted to divide its analysis into three sections: (1) background, (2) reasons for the majority and concurring judgments, and (3) reasons for the dissent. We tip things off this week with a description of how the case arrived at the SCC.

In 2001, the SCC in Dunmore v Ontario (Minister of Labour) (Dunmore) found that Ontario’s exclusion of agricultural workers from the Labour Relations Act (LRA) violated their right to freedom of association by precluding the formation of trade unions and the capacity for collective bargaining. In so doing, the Court made a suspended declaration of invalidity, allowing Premier Mike Harris’ government an opportunity to rectify the legislative deficiency. Rather than include agricultural workers in the LRA, the government passed the AEPA. This legislation grants farm workers the right to organize and to make representations to their employers regarding their terms and conditions of employment, and the right to be protected against interference, coercion and discrimination in the exercise of these rights, but seemingly did not oblige employers to bargain with these associations in good faith. The AEPA also provides for a labour tribunal to decide disputes regarding its application.

Subsequently, in the 2007 decision Health Services & Support Facilities Subsector Bargaining Assn v British Columbia (BC Health Services), the SCC reversed its traditional approach to collective bargaining, declaring it protected under s. 2(d) of the Charter. In this regard, Dunmore had actually represented an exception to the Court’s jurisprudence. Previously, the court had viewed the collective bargaining process as a creature of modern legislation, distinct from, and not protected by, the fundamental freedoms envisioned by the Charter.

In 2006, agriculture workers and the United Food and Commercial Workers (UFCW) union challenged the AEPA on the basis that it infringed agriculture workers’ ss. 2(d) and 15 rights to freedom of association and equality, respectively, by excluding them from protections accorded to other workers under the LRA. The application was dismissed by the Ontario Superior Court. In 2008, however, the Court of Appeal (OCA), led by Chief Justice Warren Winkler, unanimously overturned the lower court’s decision, declaring the AEPA to be inconsistent with s. 2(d) and ordering a suspended declaration of invalidity. The Court of Appeal’s decision was based largely on the SCC’s pronouncements on the relationship between collective bargaining and the right to freedom of assembly from BC Health Services, which had yet to be rendered when the case was before the Superior Court.

In its decision, the OCA reasoned that the lack of an explicit obligation for employers to negotiate in good faith prevented agricultural workers from being able to engage in a “meaningful” collective bargaining process. This determination regarding meaningfulness formed the heart of the Supreme Court’s decision.

Fraser came to the SCC after the OCA’s ruling in 2008. Specifically, the government appealed the OCA’s seeming demand that legislation contain a duty to bargain in good faith, a requirement that employee representatives be selected on principles of majoritarianism and a mechanism for resolving labour and administrative disputes to be consistent with s. 2(d).

Justices McLachlin and Lebel for the majority decided that the AEPA contained an implied duty to bargain in good faith, and was thus constitutionally valid. The majority’s decision and Justices Rothstein and Deschamps’ concurring opinions will be discussed in Part II of this series. In dissent, Justice Abella decided that there was no implied duty to bargain in good faith, thereby rendering the legislation invalid. This dissent will be discussed in part III of this series.

In the big picture, some observers have suggested that the Court’s decision represents a shift away from the progressive approach carved out in Dunmore and BC Health Services. More likely, Fraser represents the usual foot shuffling and clarification that takes place after the Court’s jurisprudence has taken a significant step in any particular direction. Likewise, as part of the ongoing dialogue between the legislative and judicial branches, the Court’s seeming unwillingness to overturn the AEPA outright is consistent with it’s general treatment of cases involving legislative sequels.