• Supreme Court Affirms that Constitutional Protection of Collective Bargaining is Limited
  • May 19, 2011 | Author: Sébastien Beauregard
  • Law Firm: Norton Rose Canada LLP - Montreal Office
  • On April 29, 2011, the Supreme Court of Canada issued its decision in the Fraser case.[1] The decision clarifies the reasons given by the Court in its 2007 ruling in Health Services,[2] which ruling recognized that some constitutional protection was afforded to collective bargaining through the guarantee of freedom of association enshrined in section 2(d) of the Canadian Charter of Rights and Freedoms (the "Charter"). In Fraser, the Court affirms that the freedom of association guarantee does not go so far as to constitutionalize the fundamental protections provided by Canadian labour relations legislation.


    In 2001, in its ruling in the Dunmore[3] case, the Supreme Court of Canada had held that Ontario legislation abolishing the rights of agricultural workers to unionize and bargain collectively was unconstitutional because it violated the guarantees of freedom of association and equality protected by the Charter. Subsequent to that declaration of constitutional invalidity, the Ontario legislature adopted the Agricultural Employees Protection Act, 2002[4] ("AEPA"), which, among other things, granted agricultural workers the right to form an association and participate in its activities, to make representations to their employers regarding their terms and conditions of employment, and to be protected against interference, coercion and discrimination in the exercise of those rights. A constitutional challenge was mounted against that legislation on the grounds that it failed to respect the minimum safeguards afforded by the freedom of association guarantee.

    The Court of Appeal for Ontario found the AEPA to be unconstitutional on the basis that it failed to respect the right to bargain collectively as recognized in Health Services. The Court of Appeal was of the view that the AEPA infringed freedom of association by failing to provide the minimum safeguards for the exercise of collective bargaining rights, which safeguards consist of: 1) a statutory duty to bargain in good faith; 2) statutory recognition of the principles of exclusivity and majoritarianism; and 3) a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements. The ruling was appealed, giving rise to this decision by the Supreme Court.


    The Supreme Court, in a majority decision (Justices McLachlin, LeBel, Binnie, Fish and Cromwell), concluded  that the Court of Appeal went way too far in effectively constitutionalizing the Wagner model of collective bargaining. It should be recalled that the Court, in referring to the Wagner model, is referring to the labour legislation[5] adopted by the US government in 1935, on which the various Canadian statutes are based and which includes among its basic principles the above-mentioned rights enumerated by the Ontario Court of Appeal.

    The Supreme Court reminds us that the effects of the holding in Health Services were in fact more modest. As the Court notes, in Health Services, the Court merely affirmed a derivative right to collective bargaining, i.e., the right to "a process that allows employees to make representations and have them considered in good faith by employers, who in turn must engage in a process of meaningful discussion." (para. 54).

    In light of these principles, the Court goes on to find that the AEPA respects freedom of association by providing for the right to form an association which can make representations to the employer and by requiring the employer to listen to oral representations and read written representations. While the provisions do not expressly include a requirement that the employer consider the submissions in good faith, the Court considers that such a requirement follows from the law by implication. In the Court's view, that is enough to respect the right of association protected by the Charter.

    In reasons that concur in the result, Justices Rothstein and Charron are also of the view that the AEPA respects freedom of association. However, they reach that conclusion on the basis that Health Services was wrongly decided and that there is no such right to bargain collectively protected by freedom of association. For her part, Justice Deschamps is also of the opinion that the AEPA respects freedom of association, but considers the majority bench to be attributing a scope to the Health Services ruling that is too broad, which ruling should not be seen as going so far as to impose a duty on employers to bargain in good faith. Lastly, Justice Abella, in a dissenting opinion, subscribes to the interpretation adopted by the majority in Health Services., but thinks that the AEPA does not respect employees' right to bargain in good faith. She concludes that given the singular employment disadvantage that agricultural workers face, the absence of statutory recognition of exclusive union representation has the effect of breaching section 2(d) of the Charter.


    Since Health Services was handed down, a number of unions and some adjudicators had maintained that some extension of the protections afforded to employees under the various labour relations statutes might be warranted as a result of that ruling. Now, the Supreme Court has clearly affirmed that the freedom of association protected by the Charter does not justify extending those protections: it merely provides that employees have the right to associate in order to make representations to their employers and that employers have the obligation to consider such representations.

    It is interesting that the majority in Fraser, in defining the right to bargain collectively, uses terms that are much less strong than the ones that were used in Health Services. For example, in Health Services, the Court appeared to extend the right to bargain collectively so as to require the employer to establish an actual dialogue, including holding bargaining sessions, whereas the employer's duty to consider in good faith the views expressed by the employees' association seems to suffice for the majority in Fraser (para. 99).

    Lastly, another important clarification by the justices of the majority bench is worthy of note. They explain that Health Services did not operate to prevent legislation from nullifying terms of a collective agreement. Rather, in Health Services, it was such nullification coupled with effective denial of future bargaining that made such unilateral government action unconstitutional.

    [1] Ontario (Attorney General) v. Fraser, 2011 SCC 20.

    [2] Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 391.

    [3] Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016.

    [4] S.O. 2002, c. 16.

    [5] National Labor Relations Act, also referred to as the WagnerAct.