Earlier today, the Supreme Court of Canada released a landmark ruling in Ontario (Attorney General) v. Fraser, 2011 SCC 20 (“Fraser“), concluding that Ontario’s Agricultural Employees Protection Act, 2002 (“AEPA“) is constitutional. The Court rejected the Ontario Court of Appeal’s position in Fraser v. Ontario (Attorney General), 2008 ONCA 760 that section 2(d) of the Charter requires the enactment of significant additional statutory protections for agricultural workers.
In fact, the Supreme Court’s majority decision, written by Chief Justice McLachlin and Justice LeBel, determined that the Court of Appeal had significantly overstated the scope of collective bargaining rights that are protected by the guarantee of freedom of association in section 2(d). Based on a much narrower approach to collective bargaining under the Charter, the majority concluded that the AEPA satisfies the applicable constitutional requirements because it provides agricultural workers in Ontario with a meaningful process by which they can pursue workplace goals.
Justices Rothstein and Charron concurred in the result reached by the majority, but for quite different reasons. They would have reversed the Supreme Court’s earlier decision in BC Health Services on the grounds that BC Health Services was wrongly decided and that the majority decision maintained an unworkable distinction between the process of collective bargaining and collective bargaining outcomes. It would appear that the door has now been opened to a further narrowing, or possibly even a complete rejection, of the constitutional protection afforded to collective bargaining in BC Health Services.
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