BETWEEN

IN THE SUPREME COURT OF CANADA (APPEAL FROM THE ONTARIO COURT OF APPEAL)

ATTORNEY GENERAL OF ONTARIO

-and-

S.C.c. No. 32968

APPELLANT (Respondent)

MICHAEL J. FRASER on his own behalf, and on behalf of the UNITED FOOD AND COMMERCIAL WORKERS UNION CANADA, XIN YUAN LID, JULIA MC GORMAN

AND BILLIE-JO CHURCH

-and-ONTARIO FEDERATION OF AGRICULTURE

RESPONDENTS (Appellants)

INTERVENER (Intervening Party in the Court of Appeal)

-and-

ATTORNEY GENERAL OF ALBERTA, ATTORNEY GENERAL OF BRITISH COLUMBIA, ATTORNEY GENERAL OF CANADA, ATTORNEY GENERAL OF NEW BRUNSWICK,

ATTORNEY GENERAL OF NOVA SCOTIA, ATTORNEY GENERAL OF QUEBEC, FEDERALLY REGULATED EMPLOYERS TRANSPORTATION AND COMMUNICATIONS,

CONSEIL DU PATRONAT DU QUEBEC INC., MOUNTED POLICE MEMBERS' LEGAL FUND, CANADIAN EMPLOYERS COUNCIL, COALITION OF BC BUSINESSES AND

BRITISH COLUMBIA AGRICULTURE COUNCIL, JUSTICIA FOR MIGRANT WORKERS AND INDUSTRIAL ACCIDENT VICTIMS GROUP OF ONTARIO, CANADIAN LABOUR CONGRESS, CANADIAN POLICE ASSOCIATION, AND

CANADIAN CIVIL LIBERTIES ASSOCIATION

FACTUM OF THE INTERVENER, CANADIAN LABOUR CONGRESS

INTERVENERS

SACK GOLDBLATT MITCHELL LLP 20 Dundas St West, Suite 1100 Toronto, Ontario M5G2G8

STEVEN BARRETT Telephone: (416) 979-6422 FAX: (416) 591 -7333 E-mail: stevenbarrett@sgmlaw.com Counsel for the Intervener Canadian Labour Congress

TO: THE REGISTRAR Supreme Court of Canada 301 Wellington Street Ottawa, ON KIA on

AND TO:

ATTORNEY GENERAL OF ONTARIO Constitutional Law Branch 720 Bay Street - 4th Floor Toronto, Ontario M5G 2Kl

ROBIN K. BASU Tel.: (416) 326-4476 Fax: (416) 326-4015 E-mail: robin.basu@jus.gov.on.ca Counsel for the Appellant Attorney General of Ontario

CA V ALLUZO HAYES SIDL TON MCINTYRE & CORNISH LLP 300-474 Bathurst Street Toronto, Ontario M5T 2S6

PAUL J.J. CA V ALLUZZO Tel.: (416) 964-1115 Fax: (416) 964-5895 E-mail: pcavalluzzo@cavalluzzo.com Counsel for the Respondents Michael 1. Fraser, and United Food and Commercial Workers of Canada.

SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street, Suite 500 Ottawa, Ontario KIP lC3

COLLEEN BAUMAN Tel.: 613-482-2463 Fax.: (613)-235-3041 E-mail: cbauman@sgmlaw.com Ottawa Agent for the Intervener Canadian Labour Congress

BURKE-ROBERTSON

70 Gloucester Street Ottawa, Ontario K2P OA2

ROBERT E. HOUSTON, Q.C. Tel.: (613) 566-2058 Fax: (613) 235-4430 E-mail: rhouston@burkerobertson.com Ottawa Agent for the Appellant Attorney General of Ontario

NELLIGAN O'BRIEN PAYNE LLP

1500-50 O'Connor Street Ottawa, Ontario KIP 6L2

DOUGALD E. BROWN Tel.: (613) 231 -8210 Fax: (613) 788-3661 E-mail: dougald.brown@nelligan.ca Ottawa Agent for the Respondents Michael 1. Fraser, and United Food and Commercial Workers of Canada.

CAVALLUZO HAYES SHILTON MCINTYRE & CORNISH LLP 300-474 Bathurst Street Toronto, Ontario M5T 2S6

PAULJ.J. CAVALLUZZO Tel.: (416) 964-1115 Fax: (416) 964-5895 E-mail: pcavalluzzo@cavalluzzo.com Counsel for the Respondents Xin Yuan Liu, Julia McGorman, and Billie-Jo Church

HEENAN BLAIKIE LLP Bay Adelaide Centre 2900 - 333 Bay Street, PO Box 2900 Toronto, Ontario M5H2T4 JOHN D.R. CRAIG Telephone: (416) 360-3527 FAX: (416) 360-8425 E-mail: jcraig@heenan.ca Counsel for the Intervener, Ontario Federation of Agriculture

ATTORNEY GENERAL OF ALBERTA 9833-109 Street Bowker Bldg, 4th Floor Edmonton, AB T5K 2E8

ROD WILTSHIRE Tel: (780) 422-7145 Fax: (780) 425-0307 Email: wilshire@gov.ab.ca Counsel for the Intervener Attorney General of Alberta

NELLIGAN O'BRIEN PAYNE LLP

1500-50 O'Connor Street Ottawa, Ontario KIP 6L2

DOUGALD E. BROWN Tel.: (613) 231 -8210 Fax: (613) 788-3661 E-mail: dougald.brown@nelligan.ca Ottawa Agent for the Respondents Xin Yuan Liu, Julia McGorman, and Billie-Jo Church

HEENAN BLAIKIE LLP 55 Metcalfe Street, Suite 300 Ottawa, Ontario KIP 6L5

JUDITH PARISIEN Telephone: (613) 236-4673 FAX: (613) 236-9632 E-mail: jparisien@heenan.ca Ottawa Agent for the Intervener, Ontario Federation of Agriculture

GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn D Ottawa, Ontario KIP 1 C3

HENRY S. BROWN, Q.C. Tel: (613) 233-1781 Fax: (613) 788-3433 E-mail: henry.brown@gowlings.com Ottawa Agent for the Intervener Attorney General of Alberta

ATTORNEY GENERAL OF BRITISH COLUMBIA 1301 -865 Hornby Street Vancouver, BC V6Z 2G3

NEENA SHARMA Tel.: (604) 660-0224 Fax: (604) 660-3365

Counsel for the Intervener Attorney General of British Columbia

ATTORNEY GENERAL OF CANADA Department of Justice 234 Wellington Street, Room 1148, East Tower Ottawa, Ontario KIA OH8

ANNE TURLEY Tel.: (613) 941-2347 Fax: (613) 954-1920 E-mail: anne.turley@justice.gc.ca Counsel for the Intervener Attorney General of Canada

JOSHUA PHILLIPS GREEN & CHERCOVER 30 St. Clair Avenue West, 10th Floor Toronto, Ontario M4V 3A1 Tel.: (416) 968-3333 Fax: (416) 968-0325 E-mail: jphillips@greenchercover.ca Solicitor for the Intervenor Canadian Civil Liberties Association

BURKE-ROBERTSON

70 Gloucester Street Ottawa, Ontario K2P OA2

ROBERT E. HOUSTON, Q.C. Tel.: (613) 566-2058 Fax: (613) 235-4430 E-mail: rhouston@burkerobertson.com Ottawa Agent for the Intervener Attorney General of British Columbia

ATTORNEY GENERAL OF CANADA Bank of Canada Building - East Tower 234 Wellington Street, Room 1212 Ottawa, Ontario, KIA OH8

CHRISTOPHER M. RUP AR Tel.: (613) 941 -2351 Fax: (613) 954-1920 E-mail: christopher.rupar@justice.gc.ca Ottawa Agent for the Intervener Attorney General of Canada

COLLEEN BAUMAN SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street, Suite 500 Ottawa, Ontario KIP lC3 Tel.: 613-482-2463 Fax.: (613)-235-3041 E-mail: cbauman@sgmlaw.com Ottawa Agent for the Intervener Canadian Civil Liberties Association

ATTORNEY GENERAL OF NEW BRUNSWICK Legal Services Branch Centennial Bldg, Room 447 P. O. Box 6000

Fredericton, NB E3B 5H1

GAETAN MIGNEAULT ET MICHELLE BRUN-COUGHLAN Tel: (506) 453-222 Fax: (506) 453-3275 E-mail: gaetan.mignault@gnb.ca Counsel for the Intervener Attorney General of New Brunswick

ATTORNEY GENERAL OF NOVA SCOTIA Department of Justice 5151 Terminal Road, 4th Floor P. O. Box 7 Halifax, NS B3J 2L6 ED GORES Tel: (902) 424-4030

Counsel for the Intervener Attorney General of Nova Scotia

ATTORNEY GENERAL OF QUEBEC 1200, Route de l'Eglise, 2e etage Quebec, Quebec G1V 4M1

MARISE VISOCCHI Tel.: (418) 643-1477 Fax: (418) 646-1696 E-mail: mvisocchi@justice.gouv.qc.ca Counsel for the Intervener Attorney General of Quebec

GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn D Ottawa, Ontario KIP 1C3

HENRY S. BROWN, Q.c.

Tel: (613) 233-1781 Fax: (613) 788-3433 E-mail: henry.brown@gowlings.com Ottawa Agent for the Intervener Attorney General of New Brunswick

GOWLING LAFLEUR HENDERSON LLP 2600-160 Elgin Street P.O. Box 466, Stn D Ottawa, Ontario KIP 1 C3

HENRY S. BROWN, Q.c. Tel: (613) 233-1781 Fax: (613) 788-3433 E-mail: henry.brown@gowlings.com Ottawa Agent for the Intervener Attorney General of Nova Scotia

NOEL & ASSOCIATES

111, Rue Champlain Gatineau, Quebec J8X 3R1

PIERRE LANDRY Tel.: (819) 771-7393 Fax: (819) 771 -5397 E-mail: p.landry@noelassocies.com Ottawa Agent for the Intervener Attorney General of Quebec

HEENAN BLAIKIE LLP 2500 - 1250 Rene-Levesque Blvd West Montreal, Quebec H3B 4Y1

ROY L. HEENAN Telephone: (514) 846-2264 FAX: (514) 846-3427 E-mail : rheenan@heenan.ca Counsel for the Intervener Federally Regulated Employers Transportation and Communications

HEENAN BLAIKIE LLP 2500 - 1250 Rene-Levesque Blvd West Montreal, Quebec H3B 4Yl

ROBERT DUPONT Telephone: (514) 8846-2314 FAX: (514) 846-3427 E-mail : rdupont@heenan.ca Counsel for the Intervener Conseil du patronat du Quebec Inc.

HEENAN BLAIKIE LLP Bay Adelaide Centre 2900 - 333 Bay Street, PO Box 2900 Toronto, Ontario M5H2T4 DAVID STRATAS Telephone: (416) 360-6336 FAX: (416) 360-8425

Counsel for the Intervener Mounted Police Members' Legal Fund

HEENAN BLAIKIE LLP 55 Metcalfe Street, Suite 300 Ottawa, Ontario KIP 6L5

DANPALAYEW Telephone: (613) 236-1668 FAX: (613) 236-9632

Ottawa Agent for the Intervener Federally Regulated Employers Transportation and Communications

HEENAN BLAIKIE LLP 55 Metcalfe Street, Suite 300 Ottawa, Ontario KIP 6L5

DANPALAYEW Telephone: (613) 236-1668 FAX: (613) 236-9632

Ottawa Agent for the Intervener Conseil du patronat du Quebec Inc.

HEENAN BLAIKIE LLP 55 Metcalfe Street, Suite 300 Ottawa, Ontario KIP 6L5

JUDITH PARISIEN Telephone: (613) 236-4673 FAX: (613) 236-9632 E-mail: jparisien@heenan.ca Ottawa Agent for the Intervener Mounted Police Members' Legal Fund

STEWART MCKELVEY 1100 - 100 New Gower Street P.O. Box 5038 St. John's, Newfoundland A1C 5V3

AUGUSTUS G. LILLY, Q.c. Telephone: (709) 722-4270 FAX: (709) 722-4565 E-mail: aglilly@smss.com Counsel for the Intervener Canadian Employers Council

HEENAN BLAIKIE LLP 2200 - 1055 Hastings Street West Vancouver, British Columbia V6E 2E9

PETER A. GALL, Q.c. Telephone: (604) 669-0011 FAX: (604) 669-5101

Counsel for the Intervener Coalition of BC Businesses and British Columbia Agriculture Council

PIETERS LAW OFFICE 181 University Avenue, Suite 2200 Toronto, Ontario M5H3M7

SELWYN A. PIETERS Telephone: (416) 787-5928 FAX: (416) 787-6145 E-mail : selwyn@selwynpieters.com Counsel for the Intervener Justicia for Migrant Workers and Industrial Accident Victims Group of Ontario

LANG MICHENER LLP 300 - 50 O'Connor Street Ottawa, Ontario KIP 6L2

JEFFREY W. BEEDELL Telephone: (613) 232-7171 FAX: (613) 231-3191 E-mail: jbeedell@langmichener.ca Ottawa Agent for the Intervener Canadian Employers Council

HEENAN BLAIKIE LLP 55 Metcalfe Street, Suite 300 Ottawa, Ontario KIP 6L5

JUDITH PARISIEN Telephone: (613) 236-4673 FAX: (613) 236-9632 E-mail: jparisien@heenan.ca Ottawa Agent for the Intervener Coalition of BC Businesses and British Columbia Agriculture Council

SACK GOLDBLATT MITCHELL LLP 30 Metcalfe Street, Suite 500 Ottawa, Ontario KIP 1C3

COLLEEN BAUMAN Tel.: 613-482-2463 Fax.: (613)-235-3041 E-mail: cbauman@sgmlaw.com Ottawa Agent for the Intervener Justicia for Migrant Workers and Industrial Accident Victims Group of Ontario

P ALIARE, ROLAND, ROSENBERG, ROTHSTEIN, LLP Suite 501, 250 University Ave. Toronto, Ontario M5H 3E5

IAN J. ROLAND Telephone: (416) 646-4319 FAX: (416) 646-4301

Counsel for the Intervener Canadian Police Association

GOWLING LAFLEUR HENDERSON LLP 2600 - 160 Elgin St Box 466 Station D Ottawa, Ontario KIP lC3 BRIAN A. CRANE, Q.C. Telephone: (613) 233-1781 FAX: (613) 563-9869 E-mail: brian.crane@gowlings.com Ottawa Agent for the Intervener Canadian Police Association

Table of Contents

PARTS I and II - Overview and Position on the Questions in Issue............................ 1

PART III - Statement of Argument....................................................................................... 1

A. Labour Relations Act (LRA) Exclusion and Agricultural Employees Protection Act (AEPA) Restrictions Interfere with Freedom of Association... 1

(i) Statutory collective bargaining protections are grounded in s. 2(d) freedoms............... .... ......................................................................................... 1

(ii) LRA and AEPA substantially interfere with collective bargaining... 2

(iii) The state is responsible for the exclusion........................................... 6

B. The International Law Context........................................................................... 8

PARTS IV and V - Costs and Disposition of Legal Issues........................................... .. 10

PART VI - Authorities 11

PARTS I and II - OVERVIEW AND POSITION ON THE QUESTIONS IN ISSUE

1. The Canadian Labour Congress (CLC) submits that this Court's recognition that the

freedom of association guarantee extends constitutional protection to collective bargaining

compels the conclusion that excluding agricultural workers from the core legislative protections

through which other workers collectively bargain across Canada, without providing any effective

and meaningful functional equivalent, unjustifiably denies their freedom of association. I Indeed,

if it was a breach of s. 2( d) for the state to prevent the employees in Health Services from

negotiating important job security matters under labour relations legislation, the complete

exclusion of a group of vulnerable employees from a statutory regime, with the effect that they

are unable to bargain over any issues with the protections afforded to other Canadian workers, a

fortiori interferes with the guarantee of freedom of association.

PART 111- STATEMENT OF ARGUMENT

A. Labour Relations Act (LRA) Exclusion and Agricultural Employees Protection Act (AEPA) Restrictions Interfere with Freedom of Association

(i) Statutory collective bargaining protections are grounded in s. 2( d) freedoms

2. As found in Health Services, labour relations statutes in Canada protect, incorporate and

instantiate the constitutionally protected freedom to engage in collective bargaining:

[T]he fundamental importance of collective bargaining to labour relations was the very reason for its incorporation into statute .... The statutes ... did not create the right to bargain collectively. Rather, they afforded it protection. There is nothing in the statutory entrenchment of collective bargaining that detracts from its fundamental nature... By adopting the Wagner Act model, governments across Canada recognized the fundamental need for workers to participate in the regulation of their work environment. This legislation confirmed what the labour movement had been fighting for over centuries and what it had access to in the laissez-faire era through the use of strikes -- the right to collective bargaining with employers. 2

I Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, [2007] 2 S.C.R. 39 1. Referring to Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, this Court observed that "denying . .. access to the labour laws of Ontario designed to support and give a voice to unions" was enough to undermine the protected s. 2(d) freedom recognized in Health Services to "pursue the common goals of negotiating, workplace conditions and terms of employment with their employer that we call collective bargaining": para. 92. The Appellant and OF A suggest that, because the AEP A complies with Dunmore, there is no constitutional issue. However, the issue is not whether the AEPA complies with the understanding of freedom of association articulated in Dunmore, but whether it complies with the broader scope of freedom of association explicitly recognized in Health Services.

2 Health Services, supra, paras. 25 and 63[emphasis added]; see also para. 60. Adopting the conclusion of the Woods Task Force Report, this Court also characterized the freedom to associate and act collectively as "root

2

3. Thus, exclusion from these statutory protections amounts to exclusion from the very

protections which historically and functionally instantiate the freedom to collectively bargain.

All labour relations legislation, in every jurisdiction across Canada, shares these common core

protections. As this Court held in Dunmore, far from being one among many "channels" or

"platforms", the legislative protections provide "the only statutory vehicle by which employees

in Ontario can associate to defend their interests and, moreover, [recognize] that such association

is, in many cases, otherwise impossible.,,3 They are, in short, the exclusive mechanism for

exercising the fundamental freedom.

(ii) LRA and AEPA substantially interfere with collective bargaining

4. In assessing whether there is substantial interference with collective bargaining, this

Court has emphasized that the inquiry must be "contextual and fact-specific",4 and so must focus

on "whether the process of voluntary, good faith collective bargaining ... has been, or is likely to

be, significantly and adversely impacted".5 Contrary to the Appellant's and OFA's submissions,

the claim is not that a particular element of the existing labour relations system has been

constitutionalized in the abstract, but that the effect of the legislative denial of the statutory

freedoms of the existing collective bargaining system": para 64. Indeed, the Woods Report went on to emphasize that "collective bargaining legislation establishes rights and imposes duties derived from these fundamental freedoms": Canadian Industrial Relations: The Report of Task Force on Labour Relations (1968). See also Langille, "The Freedom of Association Mess" 54 McGill L.J. 177 at 181: "Canadian labour relations statutes are best conceived as our domestic version of a detailed and legally enforceable instantiation of the fundamental freedom of association": see also pp. 211-212 .

3 Dunmore, supra, para. 35. The Appellant's factum at para. 13 notes that the LRA does not apply to all economic sectors or job categories, citing separate collective bargaining legislation applicable to hospital employees, government employees and teachers. However, what is common to all of these collective bargaining regimes (as well as the regimes that apply to police, fuefighters, community colleges and ambulance services) is exclusive bargaining agency, a mutual duty to bargain in good faith, and a meaningful process for resolving collective bargaining and collective agreement differences: see also Respondents' factum, para. 104.

4 This Court has consistently recognized that, in determining constitutionality, it is necessary to consider not only the legal effect of a legislative provision or exclusion, but also the practical effect of the legislation on the exercise of constitutionally protected rights and freedoms in the actual context in which it operates: R. v. Big M Drug Mart Ltd., [1985] I S.C.R. 295, per Dickson, C.J.c. at 331-334; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 7l3 , per Dickson, C.J.C. at 752; R. v. Morgentaler, [1988] 1 S.C.R. 30, per Dickson C.J.C. at 57-63 and per Beetz, 1. at 91-106; Black v. Law Society of Alberta, [1989] 1 S.C.R. 591, per La Forest at 618-619; Law v. Canada (Minister of Employment and Immigration) , [1999] 1 S.C.R. 497.

5 Health Services, supra, para. 92. See also Blackett, "Mutual Promise: International Labour Law and B.C. Health Services", (2009) 48 S.C.L.R (2d) 365 (forthcoming), at 367, 390, and 395ff, stressing the importance, from a comparative perspective, of a functional and contextual analysis which has due regard for the specificity of distinctive domestic labour relations systems.

3

procedures substantially interferes with collective bargaining, having regard to the factual,

historical and functional context. 6 In this respect, far from imposing its own view of a

constitutionally mandated collective bargaining system, the Court of Appeal looked to the

legislative choices uniformly made across Canada to instantiate collective bargaining.

5. For almost a century, legislatures have "regulated, structured and channelled" the process

by which Canadian workers engage in organizing and collective bargaining. Just as "organizing a

workers' association is 'virtually synonymous' with unionizing under the legislative scheme"/

collective bargaining in Canada is virtually synonymous with bargaining under the Canadian

statutory collective bargaining regime. Having established, through extensive legislative

intervention, a normative structure applicable to virtually all employees in both the private and

public sectors,8 the state can hardly contend that exclusion from the critical elements of this

regime is not intended to,9 and does not have the effect of, substantially interfering with the

ability of excluded employees to engage in collective bargaining. 10

6. To suggest that the fundamental freedom can be meaningfully exercised outside of this

statutory regime by a return to the "laissez faire era" (and, in the case of the AEPA, by relegating

6 Contrary to the Appellant's/OFA's submissions, it need not be shown that the exercise of a fundamental freedom is impossible without positive state action. In Baier v Alberta [2006] 2 S.C.R. 311 (para. 27), this Court rejected that notion, holding that "the exercise of a fundamental freedom need not be impossible" as a result of the exclusion, but rather that it "permits a substantial interference with activity protected under s. 2 ... "; Dunmore, supra, para. 25.

7 Dunmore, supra, para. 41.

8 Heenan Blaikie LLP, Canada and the ILO: Freedom of Association Since 1982, September, 2002 [reproduced in (2003) 10 C.L.E.L.J . 231] at p. 4: "For close to 50 years, every jurisdiction in Canada has had comprehensive legislation protecting the collective rights of workers (including freedom of association, free collective bargaining and the right to strike) ... "

9 In Irwin Toy [1989] 1 S.C.R. 927 at 978-79 this Court held that that where legislative or governmental restrictions are enacted in order to control or guard against the presumed effect of such expressive activity, their purpose is to interfere with the protected activity. By analogy, insofar as the impugned provisions arise from a concern over the effect of agricultural workers' access to collective bargaining, the exclusion has been enacted to guard against the effects of protected associational activity. However, as Chief Justice Dickson recognized in the Alberta Reference, [1987] 1 S.C.R. 313 (adopted in both Dunmore and Health Services), legislative restrictions aimed at "the collective or associational aspect of the activity" infringe the freedom of association guarantee. In this respect, no law seeks to interfere with individual bargaining; it is only when bargaining activity takes on an associational or collective aspect that the legislative restriction is imposed. Notably, even at trial in Dunmore, Justice Sharpe found that "there can be no doubt that the purpose of [the agricultural exclusion] is to deny agricultural workers [the right to engage in collective bargaining]": Dunmore v. Ontario (Attorney General) [1997] 0.1. No. 4947 (Gen. Div.), para. 26.

10 Langille, supra, p. 181: "Although our particular domestic system is not the only way of applying the abstract expression of freedom, if this is how we have chosen to give effect to this freedom, then in the absence of compelling reasons for exclusion, everyone is entitled to the same protection": see also p. 210.

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workers to a statutory scheme which contains none of these fundamental protections), flies in the

face of this historical and contextual reality. I I On the record, bargaining by agricultural

employees can take place, if it is to take place at all, only under the normative statutory scheme.

Prohibiting bargaining under that regime makes it impossible, from a practical point of view, for

workers to engage in protected associational activity.

7. Indeed, in the case at bar, the adverse effect of the legislative exclusion is reinforced by

the AEP A which, instead of providing for collective bargaining, restricts employees to making

mere representations. However, as this Court made plain in Health Services: 12

... the right to bargain collectively protects not just the act of making representations, but also the right of employees to have their views heard in the context of a meaningful process of consultation and discussion .... [T]he right to collective bargaining cannot be reduced to a mere right to make representations.

8. Another critical contextual factor in the case at bar is the particularly disadvantaged and

vulnerable status of agricultural workers,13 which only serves to compound the adverse impact of

the legislative provisions on their ability to engage in collective bargaining. As Justice

L'Heureux -DuM recognized in Dunmore, "agricultural workers 'are among the most

economically exploited and politically neutralized individuals in our society' and face 'serious

obstacles to effective participation in the political process. ",14

II Health Services, supra, para. 56 " . .. the Depression and resulting industrial tension of the 1930s rendered the old. laissez faire model inappropriate." See also Arthurs et ai., Labour Law and Industrial Relations in Canada, 4th ed., (Markham: Butterworths, 1993) at pp. 196-99; Blackett, supra, at pp. 395-97. The ILO Freedom of Association Committee in Case No. 1900 has also recognized the impact of the LRA agricultural exclusion: see footnote 32.

12 Health Services, supra, para. 114. See also Demir v. Turkey, discussed in para. 13 below.

13 This is not to say that the distinction made in Dunmore between agricultural workers and RCMP members, in the context of forming an association/organizing, can properly be extended to the process of collective bargaining. So far as bargaining is concerned, this Court has consistently recognized that the imbalance of power between employers and employees applies generally: most recently, see Shafran v. KRG Insurance Brokers (Western) Inc. , 2009 SCC 6, per Rothstein 1. at paras. 22-23, and u.F.C.W, Local 1518, v. KMart Canada Ltd., [1999] 2 S.C.R. 1083. More generally, see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, where this Court recognized the inequality between employees and their employer when it comes to bargaining and the vulnerability of employees in the workplace "underscored by the level of importance which our society attaches to employment" (see paras. 92-93). See also Arthurs et ai, supra, at para. 430: "With the removal of criminal prohibitions against union organizations in the last quarter of the nineteenth century, workers were, in principle, free to join unions and to participate in their collective bargaining and related activities. However, this theoretical freedom was translated into practice only relatively infrequently, and with great difficulty."

14 Dunmore, para. 168, and per Bastarache 1., para 41: the "distinguishing features of agricultural workers are their political impotence, their lack of resources to associate without state protection and their vulnerability to reprisal by

5

9. The procedural protections of the LRA identified by Chief Justice Winkler - good faith

bargaining, exclusivity and meaningful dispute resolution - have been uniformly considered by

legislatures across Canada as minimum preconditions for meaningful collective bargaining.

Indeed, in Health Services, this Court recognized the centrality of the duty to negotiate with

representative organizations which the certification system and the duty to bargain in good faith

make possible. IS Thus, in the Canadian context, denial of these normative protections denies

access to collective bargaining as it is structured by law and carried out in practice. As found by

the Court of Appeal and as set out in the Respondents' factum, there is compelling evidence that

the LRA exclusion and the AEP A restrictions substantially impair the ability of agricultural

workers to engage in collective bargaining. Conversely, there is no evidence that the Ontario

Legislature enacted any functionally equivalent protections which would promote or facilitate

access to collective bargaining for agricultural workers. This does not mean that legislatures are

precluded from adopting different collective bargaining and representational mechanisms

(consistent with freedom of association) that actually promote rather than frustrate access to

collective bargaining. 16 However, to paraphrase Justice Grenier in Confederation des syndicats

nationaux c. Quebec (Procureur genera!),17 "given our history of labour relations and the

traditions which have come from it ... [the statutory exclusion] leads to a negation of current

practices in the exercise of freedom of association". 18

10. Finally, while this appeal does not directly raise the issue of whether s. 2(d) extends to

the right to strike, there can be no question that without a meaningful process of dispute

their employers; as noted by Sharpe 1. [at trial] , agricultural workers are 'poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility'''. See also the Court of Appeal's reasons below at para. 69, and the Respondents' factum.

15 Health Services, supra, paras 29, 42-43, 55-63, 77 and 98.

16 In this respect, it is somewhat disingenuous to suggest that, in enacting the AEPA, Ontario was seeking to facilitate new or different forms of collective bargaining, given the terms and impact of the impugned legislation and the open acknowledgement by the Minister, when introducing the legislation, that it was not intended to extend collective bargaining to agricultural employees (as noted by the Court of Appeal at para. 62 of its reasons).

17 2008 QCCS 5076 (CanLII), para. 271. See the discussion in Blackett, supra, at pp. 397-400.

18 As Blackett explains, the protection of freedom of association under intemationallaw explicitly recognizes "the need to understand labour relations institutions as they function within a particular tradition". This is why ILO conventions contain obligations "to promote collective bargaining but recognize that implementation must be by 'measures appropriate to national conditions"': pp. 394-402.

6

resolution, there can be no meaningful process of collective bargaining.19 Regardless of the

sector, every collective bargaining regime in Canada necessarily provides for a meaningful

process of dispute resolution. Reflecting this imperative at international law, the right to strike

has always been recognized as an indispensible component of and corollary to the right to

organize and collectively bargain20 and where it is removed (for example, in essential services),

it must be replaced by some form of independent arbitration.21

(iii) The state is responsible for the exclusion

11 . This is not a case of underinclusion through mere legislative silence, nor is this a case

where the Legislature has merely "dipped its toe in the water". To the contrary, the Ontario

Legislature occupied the field and established a comprehensive statutory framework -- applicable

to virtually all other workers in Ontario -- to give effect to fundamental s. 2( d) freedoms, yet

deliberately excluded a small and vulnerable group of workers and relegated them to a separate

and inferior scheme. Given the extensive scope of its legislative involvement, the Ontario

government can hardly contend that excluding agricultural workers from the very legislative

scheme it has established as the vehicle for collective bargaining is not government action for

which it is responsible?2 Furthermore, the blanket exclusion of agricultural workers from the

protections of collective bargaining legislation can only be viewed as active state encouragement

of actions by employers which inhibit or interfere with the ability of those workers to bargain

19 Alberta Reference, supra, 369-370 and the references cited therein; Weiler, Reconcilable Differences (Toronto: Carswell, 1980), at 64-68. This is also confirmed by this Court's review of Canadian labour history in Health Services, supra.

20 Most recently, the European Court of Human Rights found that the right to strike is protected by the freedom of association guarantee in Article II of the Convention for the Protection of Human Rights and Fundamental Freedoms, relying on international law and its recognition that the right to strike is an essential means of ensuring the effective exercise of the right to collective bargaining: Affaire enerji yapi-yol sen c. Turquie [CEDH], Requete no 68959/01, 21 avril 2009.

21 Convention (No. 87) Concerning Freedom of Association and Protection of the Right to Organize, 68 U.N.T.S. 17 (1948); lLO, Freedom of Association, Digest of Decisions and principles of the Freedom of Association Committee of the Governing Body of the 1LO, 5th edition (Geneva: 1LO, 2006), paras. 520-525, 564-603; Alberta Reference, supra, 351g, 355-59; Blackett, supra, fn 26.

22 The Dunmore Court's observation, in respect to organizing, that "the history of labour relations in Canada illustrates the profound connection between legislative protection and the freedom to [bargain]" and that "legislative protection is so tightly woven into the fabric of labour relations" applies with no less force to collective bargaining. The Legislature has "not simply a\low[ed] private circumstances to subsist; [but] it has reinforced those circumstances by excluding agricultural workers from the only available channel for associational activity:" see Dunmore, supra, paras. 35 and 44.

7

collectively. This Court's reasons m Dunmore m relation to orgamzmg activity are equally

applicable:23

... By extending statutory protection to just about every class of worker in Ontario, the legislature has essentially discredited the [bargaining] efforts of agricultural workers. This is especially true given the relative status of agricultural workers in Canadian society .. .

... The wholesale exclusion of agricultural workers from a labour relations regime can only be viewed as a stimulus to interfere with [bargaining] activity.

12. Finally, as recognized in Dunmore, a finding that the state has "orchestrated, encouraged

or sustained" a violation of fundamental freedoms, by failing to extend statutory protections

needed to instantiate their exercise on an equal and non-discriminatory basis, is particularly

appropriate in the labour relations context. This is not only because of the longstanding presence

of extensive legislative intervention in the structuring of associational activity in the workplace,

but also because of the consensus in international human rights law supporting a "normative

foundation for prohibiting any form of discrimination in the protection of trade union

freedoms".24 Given the integral relationship between collective bargaining legislation and the

exercise of fundamental associational freedoms, selective exclusion from comprehensive

protection triggers sufficient state accountability for the effects of the exclusion. This is

particularly the case given the international consensus, consistent with the language of s. 2( d),

that "everyone" is entitled to freedom of association.25

23 Dunmore, supra, paras. 45-46.

24 Dunmore, supra, para. 27. The principle of non-discriminatory application has been consistently applied by the ILO Freedom of Association Committee. The most pertinent illustration of this principle is the Committee's Report in Case No. 1900, in which it held that the exclusion under Ontario labour legislation of agricultural, domestic and professional employees fails to "give expression to the principle of non-discrimination in trade union matters", noting that the words "without distinction whatsoever" used in Convention No. 87 mean that "freedom of association should be guaranteed without discrimination of any kind based on occupation" (see para. 182). See also Blackett, supra, at 404-406 and Sieghart, The International Law of Human Rights, (Oxford: Clarendon Press, 1983) at 17: "the concept of 'non-discrimination is so central to international human rights law that all but one of the major instruments prescribe it in an Article of general application, expressed to extend to all the specific rights which they declare ... ".

25 In the freedom of religion context, this Court recognized early in its Charter jurisprudence that extending statutory protection to the exercise of fundamental freedoms for some may have the effect of interfering with those of persons who are excluded: see R. v. Big M Drug Mart, supra, at 337: "protection of one rel igion and the concomitant non-protection of others imports disparate impact destructive of religious freedom of the collectivity."

8

B. The International law context

13. In both Dunmore and Health Services, this Court recognized that, under international

law, collective bargaining is considered to be a core component of freedom of association and a

fundamental human right.26 This "global consensus,,27 received strong reinforcement one year

after Health Services, when eighteen judges of the European Court of Human Rights (sitting in

Grand Chamber) ruled, in Demir v. Turkey,28 that the freedom of association guarantee in Article

11 of the European Convention on Human Rights includes collective bargaining. Significantly:

a. in holding that freedom of association includes collective bargaining, the ECHR reversed over thirty years of prior jurisprudence which had restricted the Article 11 freedom of association guarantee to protecting only the right to be heard and make representations: see paras. 153 to 154;29

b. in approaching the issue, the ECHR emphasized that "it must interpret and apply [the Convention] in a manner which renders its rights practical and effective, not theoretical and illusory": see para. 68;

c. consistent with this Court's approach in Dunmore and Health Services, the ECHR: (i) emphasized that, in relying on international norms as a source of law to inform the scope of Convention rights and freedoms, there is no basis for distinguishing between sources of law according to whether or not they have been signed or ratified by the respondent state; and (ii) recognized that "there may be positive obligations on the State to secure the effective enjoyment of [Convention] rights": see para. 78 and 110.

26 Dunmore, supra, para. 16; Health Services, supra, paras. 69-79.

27 Health Services, supra, para. 78. The evolution of the recognition of collective bargaining as a fundament human right and integral component of freedom of association at international law is reviewed in: Adams, "Collective Bargaining: The Rodney Dangerfield of Human Rights" (1999) 50 Labor LJ. 204; Blackett, supra at 369-377; Bellace, "ILO Fundamental Rights at Work and Freedom of Association" (1999) 50 Labor LJ. 191. This history includes not only the 1998 ILO Declaration of Fundamental Principles and Rights at Work (referred to in Health Services at para 78), but also the 1993 Vienna Declaration on Human Rights where Canada joined 171 countries in recognizing core labour rights (including collective bargaining) as human rights; the 1995 Programme of Action of the World Summit for Social Development where Canada joined 117 countries in recognizing freedom of association and collective bargaining; the 1996 Singapore Ministerial Declaration where the WTO renewed its "commitment to the observance of internationally recognized core labour standards", and the 2000 DEeD Guidelines for Multinational Enterprises, adhered by Canada, and committing to negotiation on collective bargaining issues. See also Trade, Employment and Labour Standards (Paris: OECD, 1996) at p. 10 and 27, in which the OECD recognized that core labour rights, including collective bargaining, are fundamental human rights.

28 Demir and Baykara v. Turkey [ECHR-GC], no. 34503/97, 12 November 2008 .

29 As noted in para. 10 above, one year later the ECHR held that the right to strike is also protected as an essential component of freedom of association: Affaire enerji yapi-yol sen c. Turquie, supra.

9

14. Nonetheless, the Appellant and the OF A claim that this Court erred in its approach to

international law in Health Services by confusing Conventions 87 and 98, and by erroneously

concluding that an obligation on an employer to bargain with employees is consistent with ILO

Conventions.3D However, this view:

a. misunderstands the scope of Convention No. 87, which as noted by Chief Justice Dickson in the Alberta Reference,3! has consistently been interpreted to include both collective bargaining and the right to strike;32

b. misunderstands and ignores the impact of the ILO's 1998 Declaration on

Fundamental Principles and Rights at Work and the ILO Constitution, which commit Canada to respect the fundamental right of collective bargaining, as well as Conventions No. 87 and 98;33

30 They rely largely on Langille, "The Freedom of Association Mess" supra, and Langille, "Can We Rely on the I LO?", 13 C.L.E.L. 1. 363. For a general response, see Blackett, supra, at pp. 368-377; Heenan Blaikie supra, at pp. 8-9; and Adams, "The Supreme Court, Collective Bargaining and International Law: A Reply to Brian Langille", 14 C.E.L.LJ. 317. Notably, while Langille is critical of what he regards as the Court's overly restrictive approaches to s. 15 and state action, disagrees with some of the Court's reasoning in Health Services, and asserts that the Court should have found a breach ofs. 15, he agrees with the Court's conclusion that s. 2(d) protects collective bargaining, asserts that it also protects the right to strike and concludes that "arbitrary exclusions from [labour relations] statutes is ... simply arbitrary exclusion from the guarantee of freedom of association." Langille, "Freedom of Association Mess", supra, pp. 181 and 184.

31 Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at pp. 348-359.

32 For the ILO's view, see Freedom of Association, Digest of Decisions and principles of the Freedom of Association Committee of the Governing Body of the fLO, 5th edition (Geneva: ILO, 2006), paras. 880-882. See also ILO Freedom of Association Committee findings in Case No. 1900, supra, and ILO Freedom of Association Committee Case No. 1951, in which the exclusion of certain occupational groups, including agricultural workers, from the right to organize and bargain under Ontario collective bargaining legislation was held to constitute a violation of fundamental freedom of association principles including those embodied in ILO Convention No. 87. See also: Committee of Experts on the Application of Conventions and Recommendations (CEACR), "Individual Observation concerning Convention No. 87, 2008", noting Canada's failure to comply with Convention No. 87, endorsing the Supreme Court of Canada's reliance on Convention No. 87 in Health Services to support the conclusion that collective bargaining falls within the s. 2(d) guarantee, and specifically requesting Canada's response to the Dunmore and Health Services decisions in terms of the impact on excluded workers; and CEACR: Individual Observation concerning Convention No. 87, 2003, specifically stating that the exclusion of agricultural workers from the right to organize and collectively bargain violates Convention No. 87.

33 The Government of Canada played an active role in the creation of the 1998 Declaration, which recognizes that:

2 ... [A]ll members, even if they have not ratified the Conventions in question [including Conventions Nos. 87 and 98], have an obligation arising from the very fact of membership in the organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely

(a) freedom of association and the effective recognition of the right to collective bargaining .. .

See Heenan Blaikie, supra, at pp. 8-9, 16-17, 20 and 22, (also pointing out the "reality ... that Canadian governments and employers probably value the ILO more for its contributions to the development of other nations '

10

c. fails to recognize that international human rights norms inform the interpretation of

the scope of fundamental freedoms (regardless of whether Canada has ratified any particular instrument),34 and entirely ignores the fact that, as recognized by this Court

in Health Services, Canada has ratified two other International Covenants (the

ICESCR and the ICCPR, both of which extend protection to collective bargaining, regardless of the scope of Convention No. 87;35

d. miscasts the ILO commitment to voluntarism, which is aimed at preventing

government from interfering in free collective bargaining and respecting the

autonomy of the bargaining parties from government; never has it been suggested that

it is directed at safeguarding any so-called right of employers to avoid and refuse to engage in collective bargaining;36and

e. fails to recognize the extent to which the ILO has consistently recognized the

principle of good faith bargaining as a necessary and essential component of freedom

of association and collective bargaining.37

PARTS IV AND V - COSTS AND DISPOSITION OF LEGAL ISSUES

15. The CLC requests that the appeal be dismissed without an order of costs for or against it.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

November 23, 2009 . rrett / Ethan P kanzer / Vanessa Payne / Jeffrey Sack

T7"-f"Ir..LDBLATT MITCHELL LLP Solicitors for the Intervener, Canadian Labour Congress

labour laws than for its pronouncements about Canadian violations of freedom of association"); "Freedom of Association in practice: Lessons learned" (ILO, 2008); and Kellerson, "The ILO Declaration of 1998 on Fundamental Principles and Rights", in (1998) 137 International Labour Review 223.

34 Dunmore, para. 27: "Although provincial jurisdiction has prevented Canada from ratifying Convention No. 11, together these conventions provide a normative foundation for prohibiting any form of discrimination in the protection of trade union freedoms" . On this point, see also Demir v. Turkey, discussed above in para. 13.

35 Health Services, supra, paras. 71-74.

36 "The principle of voluntariness should not, however, be interpreted as condonation of employer intransigence": Adams, Reply to Brian Langille, supra, at pp. 325-26.

37 See Freedom of Association, Digest of Decisions, supra, paras. 934-43, and Blackett, supra, at pp. 387-89.

11

PART VI - AUTHORITIES

Cases Paragraphs in factum

Affaire enerji yapi-yol sen c. Turquie [CEDH], Requete no 68959/01, 21 10, 13 avril 2009

Baier v. Alberta, [2006] 2 S.C.R. 311 4

Black v. Law Society of Alberta, [1989] 1 S.C.R. 591 4

Confederation des syndicats nationaux c. Quebec (Procureur general) 9 2008 QCCS 5076 (CanLII)

Demir and Baykara v. Turkey [ECHR-GC], no. 34503/97, 12 November 7, 13, 14 2008

Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 1,3,4, 5,8,11,12, 13,14

Dunmore v. Ontario (Attorney General) [1997] 0.1. No. 4947 (Gen. Div.) 5

Health Services and Support - Facilities Subsector Bargaining Assn. v. 1, 2, 4, 5, 7, 9, 10, British Columbia, [2007] 2 S.C.R. 391 13,14

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 5

Law v. Canada (Minister of Employment and Immigration), [1999] 1 4 S.C.R. 497

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 4, 12

R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 4

R. v. Morgentaler, [1988] 1 S.C.R. 30 4

Reference re Public Service Employee Relations Act (A lta.), [1987] 1 5, 10, 14 S.C.R. 313 (Alberta Reference)

Shafron v. KRG Insurance Brokers (Western) Inc., 2009 SCC 6 8

UFCW , Local 1518, v. KMartCanadaLtd., [1999] 2 S.C.R.I083 8

Wallace v. United Grain Growers Ltd. [1997] 3 S.C.R. 701 8

12

Books I Articles I Reports

Adams, "Collective Bargaining: The Rodney Dangerfield of Human 13 Rights" (1999) 50 Labor L.1. 204

Adams, "The Supreme Court, Collective Bargaining and International Law: 14 A Reply to Brian Langille", 14 Canadian Labour and Employment Law Journal 317

Arthurs et aI. , Labour Law and Industrial Relations In Canada, 4th ed. 6,8 (Markham: Butterworths, 1993)

Bellace, " ILO Fundamental Rights at Work and Freedom of Association" 13 (1999) 50 Labor L.1. 191

Blackett, "Mutual Promise: International Labour Law and B. C. Health 4, 6, 9, 10, 12, 13, Services", forthcoming (2009) 48 S.C.L.R (2d) 365 14

Heenan Blaikie LLP, Canada and the ILO: Freedom of Association Since 5, 14 1982, September 2002, reproduced in (2003) 10 C.L.E.L.J. 231

ILO, Freedom of Association, Digest of Decisions and principles of the 10, 14 Freedom of Association Committee of the Governing Body of the ILO, 5th edition (Geneva: ILO, 2006)

ILO Committee of Experts on the Application of Conventions and 14 Recommendations (CEACR): Individual Observation Concerning Convention No. 87, 2008

ILO Committee of Experts on the Application of Conventions and 14 Recommendations (CEACR): Individual Observation Concerning Convention No. 87, 2003

ILO Freedom of Association Committee, Complaint against the 6, 12, 14 Government of Canada (Ontario) presented by the Canadian Labour Congress (CLC) Report No. 308, Case No. 1900

ILO Freedom of Association Committee, Complaint against the 14 Government of Canada (Ontario) presented by the Canadian Labour Congress (CLC) and the Ontario Secondary School Teachers' Federation (OSSTF) Report No. 325, Case No. 1951

Report of the Director-General, "Freedom of association m practice: 14 Lessons learned" (Geneva: ILO, 2008)

13

Kellerson, "The ILO Declaration of 1998 on Fundamental Principles and 14 Rights", in (1998) 137 International Labour Review 223

Langille, "Can We Rely on the ILO?" (2006-2007), 13(3) C.L.E.L.J. 363 14

Langille, "The Freedom of Association Mess" 54 McGill L.J. 177 2,5,14

Organisation for Economic Co-operation and Development, DEeD 13 Guidelines for Multinational Enterprises, 2008

Organisation for Economic Co-operation and Development, Trade, 13 Employment and Labour Standards, (Paris: OECD, 1996)

Sieghart, The International Law of Human Rights, (Oxford: Clarendon 12 Press, 1983)

Task Force on Labour Relations, Canadian Industrial Relations: The 2 Report of Task Force on Labour Relations (1968)

Weiler, Reconcilable Differences (Toronto: Carswell, 1980) 10

Treaties and Other International Instruments (chronological)

Convention (No. 87) Concerning Freedom of Association and Protection 10, 14 of the Right to Organize, 68 U.N.T.S. 17 (1948)

Convention (No. 98) Right to Organise and Collective Bargaining 14 Convention (1949)

United Nations. World Conference on Human Rights. Vienna Declaration 13 and Programme of Action, AlCONF.157/24 (Part I), 25 June 1993

The Copenhagen declaration and programme of action I World Summit for 13 Social Development, (1995: Copenhagen, Denmark) New York: United Nations, 1995

WTO, Singapore Ministerial Declaration (Adopted on 13 December 1996) 13

Declaration on Fundamental Principles and Rights at Work, 6 IHRR 285 13,14 (1999)