Freedom of Association and the Procedural Right to Collectively Bargain: From Health Services to Fraser

more+
less-

In 1987 the Supreme Court of Canada released three decisions concurrently that collectively became known as the “Labour Trilogy”, which generally stood for the proposition that the Charter s. 2(d) freedom of association did not include the right to strike. In 1990 the Supreme Court of Canada released its reasons in Professional Institute, which stood for the proposition that the Charter s. 2(d) freedom of association did not include the right to collectively bargain. Fourteen years after the Labour Trilogy was decided, the Supreme Court signalled a shift in its interpretational views concerning the Charter s. 2(d) freedom of association in the context of labour when it released its reasons in Dunmore. The Court favourably discussed international and democratic human rights principles, and left open the possibility of its future interpretation of the Charter s. 2(d) freedom of association as mirroring Canada’s international commitments to honour International Labour Organization principles including the right of workers to organize, bargain collectively, and strike. Part II of this paper briefly reviews the Labour Trilogy, Professional Institute, and Dunmore.

On 8 June 2007 the Supreme Court of Canada released its reasons in Health Services. The decision represented a sea change in the Court’s interpretation of the Charter s. 2(d) freedom of association in the context of labour. Health Services expressly reversed Professional Institute and some, but not all, of the law represented by the Labour Trilogy. The Court interpreted the Charter s. 2(d) freedom of association as including the procedural right to collective bargain; however the constitutional status of workers’ right to strike was explicitly not addressed in the decision, leaving its status less certain. Part III of this paper briefly discusses Health Services.

After Health Services, various courts and administrative tribunals applied the principles as set out by the Court in that case. Part IV of this paper briefly discusses six of the most important of those decisions that arose out of Canada’s common law jurisdictions.

On 29 April 2011 the Supreme Court of Canada released its reasons in Fraser. Part V of this paper discusses the Fraser decisions at both the Ontario Court of Appeal and Supreme Court of Canada levels. The Supreme Court of Canada’s reasons for judgment were fractured into four divergent camps, with aspects of the reasons that could be described as surprising, if not shocking, departures from established precedent and judicial convention.

Part VI concludes the paper with the observation that the law in Canada as it stands after Fraser remains as it was after Health Services, although arguably with a higher “impossible” standard of proof placed on Charter, s. 2(d) claimants, and the novel introduction of the procedural right to collective bargain being a “derivative right” under Charter s 2(d). Fraser also introduced uncertainty into previously certain principles of statutory interpretation.

LOADING PDF: If there are any problems, click here to download the file.

Published In: Constitutional Law Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© E. Wayne Benedict | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »