The Canadian Charter of Rights and Freedoms - A shield for the collective v11
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Transcript of The Canadian Charter of Rights and Freedoms - A shield for the collective v11
The Canadian Charter of Rights and Freedoms:
A shield for the union collective?
Public Sector Labour Relations – Business 9037
Memorial University
St. John’s NL, Canada A1B 3X5
Student Name / Number:
Randy Clarke / 009902685
Table of Contents
Abstract / introduction ...........................................................................................................................1 The Canadian Charter of Rights and Freedoms.....................................................................................2 Reflecting on the Charter – A shield for the union collective?................................................ 2
Overview of Canadian legislation referencing the Charter of Rights and Freedoms ............................4 Methodology and Scope .......................................................................................................... 4 “Charter of Rights and Freedoms” in the legislation ............................................................... 5 Federal jurisdiction .............................................................................................................. 5 Province of Newfoundland and Labrador / Federal jurisdiction ......................................... 5 Northwest Territories ........................................................................................................... 6
Overview of Canadian jurisprudence and literature ..............................................................................6 Freedom of Association ........................................................................................................... 6 A trilogy of failed Charter challenges...................................................................................... 7 PIPSC v. Northwest Territories: Reinforcing status quo ......................................................... 9 Dunmore v. Ontario and the Oakes Test: A rebalancing of rights......................................... 11 Health Services and Support v. British Columbia: An enhanced shield for the collective ... 14 Ontario v. Fraser: Retrenchment or refinement? ................................................................... 20 Saskatchewan v Saskatchewan Federation of Labour: Getting to what is essential.............. 21
Conclusion: A shield for the union collective......................................................................................24 Citations ...............................................................................................................................................26 Appendices...........................................................................................................................................29 Appendix A............................................................................................................................ 29
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 1
Abstract / introduction
This paper briefly revisits the history of the Canadian Charter of Rights and Freedoms
(the Charter), and examines how scholars and practitioners mused over its potential impact on
labour and industrial relations, when it was first passed in 1982. Subsequently, this paper
focuses on Canadian legislation and jurisprudence since this time, to determine what impacts
the Charter may have had on union rights and collective bargaining. Of particular interest are
cases where governments attempted to enact, or enacted legislation that repealed or suppressed
union rights or collective bargaining. This paper endeavours to determine where the Charter
shielded unions and afforded them protection; and where so, examines the level of protection
afforded. This paper is primarily concerned with the outcome of such cases and the tests,
procedures, or processes courts use to determine when the Charter can be used as a shield to
protect union rights and collective bargaining. This paper summarizes findings within its
conclusion, based on observations found from an overview of literature, legislation and
jurisprudence. It is hoped that this paper will contribute to the knowledge of actors and
stakeholders involved with Canadian labour and industrial relations on the topic of the Charter,
and the shielding of union rights and collective bargaining.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 2
The Canadian Charter of Rights and Freedoms
Reflecting on the Charter – A shield for the union collective?
According to Courchene (1984, p. 204), University of British Columbia scientist Alan
Cairns believed an early draft of the Canadian Charter of Rights and Freedoms was intended to
give all Canadians, regardless of locale, equal rights and freedoms that would become part of
the Canadian identity:
At a more profound political level...the Charter was an attempt to enhance and extend the meaning of being Canadian and thus to strengthen identification with the national community on which Ottawa ultimately depends for support. ...The resultant rights and freedoms were to be country-wide [sic] in scope, enforced by a national supreme court, and entrenched in a national Constitution beyond the reach
of fleeting legislative majorities at either level of government. The consequence, and a very clear purpose, was to set limits to the diversities of treatment by provincial governments, and thus to strengthen Canadian as against provincial identities. Rights must not be dependent on the particular place where an individual chooses to reside (Cairns, 1979, p. 354, emphasis added).
The Canadian Act, which included the Constitution Act, was assented into law in 1982.
Within the act was a newly drafted Canadian Charter of Rights and Freedoms (the Charter) that
guaranteed citizens of Canada a number of defined rights and freedoms (Courchene, 1984 and
Khan, 1989). It is important to note that the Charter applies “only to state action”, such as the
passage of legislation (Health Services and Support v. British Columbia, 2007, para. 88).
The ascension of the Canada Act effectively transformed the Canadian constitution. As
stated by Khan (1989, p. 47), the Canadian constitution had been converted into a written
constitution, whereas the British constitution remained unwritten. In 1984, Courchene found
the introduction of the Charter meant that “[t]he British tradition of the supremacy of Parliament
no longer holds with respect to these fundamental rights: there are certain areas where no
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 3
legislature may infringe on the rights and freedoms of Canadians” (p. 244). The question this
paper is concerned with is whether such rights include the shielding of union rights and
collective bargaining.
As found above, since the passing of the Canadian Act, Canadian labour relations now
operate under a written constitution where fundamental rights and freedoms take precedent
over legislative acts or ‘common law’. However, whereby the Charter is silent on the matter of
labour relations, and it does not have specific provisions relating to labour relations or
industrial relations, it has been argued that general rights and freedoms have significant
importance in the development and maintenance of labour relations and industrial law –
namely in reference to section 2 (d) of the Charter, known as ‘freedom of association’ (Khan,
1989, pp. 47-48). Although this may be true, the late Chief Justice of Canada, Mr. Laskin
noted:
History and tradition have hallowed what may be termed political civil liberty which is associated with the operation of our parliamentary institutions and which make parliamentary democracy possible and tolerable. The substance of this kind of liberty is freedom of association, freedom of assembly, freedom of utterance, freedom of press, and freedom of conscience and of religion. Crucial as any of there may be to the preservation of the nature of our polity, they are not absolute (Khan, 1989, p. 47, emphasis added).
Section 1 of the Charter states our rights and freedoms are subject “only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and democratic society”
(The Constitution Act, 1982). Whereby the ‘substances’ of political civil liberty are not
absolute, this paper will review Canadian legislation and jurisprudence to determine whether
the Charter has, or can continue to shield union rights and collective bargaining.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 4
Overview of Canadian legislation referencing the Charter of Rights and Freedoms
Methodology and Scope
The electronic database used to explore current Canadian legislation was CanLII. The
database was searched using the ‘advanced search’ tool to locate legislation, including statutes
and regulations, from Canadian provinces, territories, and federal jurisdictions that referred to
the Charter by name. The precise search phrase used was “Charter of Rights and Freedoms”
which yielded 125 results for the provinces and territories, and 25 results for federal
jurisdictions. Results reviewed in this paper should not be viewed as an all-inclusive list, but
as a brief overview of what was available and found to be relevant. Given the breadth and
depth of statutes and regulations in Canada, any broader focus was not plausible.
Results can be found listed in the heading below, with sub-headings used to identify
results by province, territory, or jurisdiction. Within each subheading, the results are reviewed
with a brief overview of potential implications or arguments that could be made. Within the
appropriate context, such implications or arguments may be found relevant where challenged
within the context of the Charter, in terms of protections afforded to unions when faced with
aggressive legislative acts by government(s). Subsequently in this paper, past and current
jurisprudence is reviewed to uncover other arguments and decisions on this topic.
If a locale is not listed below, it may be a search did not yield relevant results, or the
results may have been found irrelevant for the purposes of this paper, or similar legislation
from another locale may have already been analyzed.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 5
“Charter of Rights and Freedoms” in the legislation
Federal jurisdiction
Section 3 (2) (c) of the Statutory Instruments Act states, “it does not trespass unduly on
existing rights and freedoms and is not, in any case, inconsistent with the purposes and provisions
of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights” (1985). In my
opinion, one could use the language of this Act to argue the federal government has already
recognized the Charter of Rights and Freedoms takes precedence over other forms of legislation,
even if such legislation happens to be within a federal jurisdiction.
Province of Newfoundland and Labrador / Federal jurisdiction
Section 45 (3) (b) of the Canada-Newfoundland and Labrador Atlantic Accord
Implementation Newfoundland and Labrador Act states, “consistent with the Canadian Charter
of Rights and Freedoms, individuals resident in the province shall be given 1st [sic]
consideration for training and employment in the work program for which the plan was
submitted and a collective agreement entered into by the corporation or other body submitting
the plan and an organization of employees respecting terms and conditions of employment in
the offshore area shall contain provisions consistent with this paragraph” (1990). Section 45
(3) (b) of the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
(1988) reads similarly. In my opinion, one could use the language of these Acts to argue the
provinces and the federal government has already recognized the Charter of Rights and Freedoms
applies not only to individual rights, but also to the collective rights of members within a union.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 6
Whereby the above legislation falls within a federal jurisdiction, and applies to the provinces of
Newfoundland and Labrador, and Nova Scotia.
Northwest Territories
Section 53 (2) of the Employment Standards Act states, “The Employment Standards
Officer, or any person acting on behalf of the Employment Officer, has no power to determine any
issue related to the Canadian Charter of Rights and Freedoms” (2007). Section 57 (3) states, “An
Adjudicator has no power to determine any issue related to the Canadian Charter of Rights and
Freedoms”. In my opinion, the language of this Act demonstrates that the Northwest Territories
either acknowledges it holds no jurisdiction over language within the Charter of Rights and
Freedoms, and / or feels such powers would be inappropriate in the hands of appointed territorial
officers and adjudicators. Additionally, one could use the language of this Act to argue that a
territorial government has already recognized the Charter of Rights and Freedoms takes
precedence over territorial legislation.
Overview of Canadian jurisprudence and literature
Freedom of Association
As previously discussed, the Charter is silent on the matter of labour and industrial
relations, and it has been argued general rights and freedoms have significant importance on
development and maintenance of labour relations and industrial law – namely in terms of
‘freedom of association’ (Khan, 1989, pp. 47-48). This is especially true of unions, who self-
identify their purpose of existence, or ‘raison d'être’, to be collective bargaining (Department
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 7
of Justice Canada, 2005). According to Department of Justice Canada, unions, as appellants in
the Canadian court system, have traditionally conceded that not all associational activities were
protected under the Charter. Instead they reportedly identify three core labour freedoms as
being associated with collective bargaining: “(1) the freedom to make collective
representations to one's employers; (2) the freedom to negotiate and agree on the terms and
conditions of employment in a collective manner; and (3) the ability to rely on and enforce
those agreements which are collectively concluded” (2005).
Whenever people labour to earn their daily bread, the right to associate will be of tremendous significance. Wages and working conditions will always be of vital importance to an employee. It follows that for an employee the right to choose the group or association that will negotiate on his or her behalf with regard to those wages and working conditions is of fundamental importance. The association will play a very significant role in almost every aspect of the employee's life at work, acting as advisor, as spokesperson in negotiations, and as a shield against wrongful acts of the employer (Professional Institute of the Public Service of Canada v. Northwest Territories, 1990, emphasis added).
A trilogy of failed Charter challenges
On April 9, 1987, the Supreme Court of Canada (SCC) released its first leading
decision on whether the right to strike and bargain collectively were constitutionally protected
rights in Canada. Specifically, the decision determined “whether the provisions of the Public
Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective
Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve
impasses in collective bargaining, were consistent with the Canadian Charter of Rights and
Freedoms” (Reference Re Public Service Employee Relations Act, 1987). A review of the
case reveals the decision was not unanimous. In a four to two decision (where a seventh judge
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 8
abstained judgement), it was found that section 2 (d) of the Charter “neither guarantees the
right to strike nor protects the right to bargain” (Khan, 1989, p. 48). Three of the judges stated,
freedom of association only protects “freedom to work for the establishment of an association,
to belong to an association, to maintain it, and to participate in its lawful activity without
penalty or reprisal” (Reference Re Public Service Employee Relations Act, 1987). Judge
McIntyre added:
People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. The group can exercise only the constitutional rights of its members on behalf of those members. It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association. Therefore, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.
According to Khan (1989, p. 49), the decision found, given the range of political,
social, religious and economic associations individuals could choose to join, and the wide
variety of functions entities could choose to serve, it could not be said that section 2 (d) of the
Charter intended such functions to have constitutional protection – especially where such
functions were ‘unlawful’. Findings in two similar cases, released concurrently with this
decision, came to parallel conclusions (RWDSU v. Saskatchewan, 1987 and PSAC v. Canada,
1987). These three cases are commonly referred to as the trilogy (Professional Institute of the
Public Service of Canada v. Northwest Territories, 1990). One could summarize the trilogy by
stating, that simply because a collective deems an explicit function to be the purpose of their
being, this does not guarantee such function will be awarded with constitutional protection.
According to Khan (1989, p. 51), the majority decisions in the trilogy, showed that section 2
(d) of the Charter was narrowly defined by the SCC, and failed to protect a union’s right to
strike or collectively bargain. Khan found such a definition meant freedom of association was
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 9
a “hollow right”, “devoid of practical value” that leaves matters of labour relations and
collective bargaining to be decided by legislators, rather than the courts (1989, pp. 51-52).
In the case of RWDSU v. Saskatchewan, Judge Wilson dissented and found, “The
government, in its legislation, forbade any lock-out or strike action. It provided for
compulsory arbitration. The government, in my view, should not automatically respond with a
total strike ban and the institution of compulsory arbitration. In some cases, a partial strike ban
will achieve the government objective…” (1987, para. 70). Judge Wilson recognized,
however, that in some cases, a complete ban might be required where an essential service
existed. He stated past court decisions defined essential services, as a service:
"Whose interruption would endanger the life, personal safety or health of the whole or part of the population" (1987, para. 53). “Essential services initially comprised such things as public utilities, transportation and communications but the legislative definitions have gradually expanded to cover fire-fighters and police and more recently the media, teachers and some classes of public employees” (RWDSY v. Saskatchewan, 1987, para. 57).
Although the Charter challenge had failed in the trilogy, appellants were not alone in
their belief that the Charter should be more broadly defined to protect the collective’s right to
bargain and strike (Langille & Macklem, 2007, pp. 362-363). This was evident by voiced
dissent and a lack of unanimous agreement in the decisions above.
PIPSC v. Northwest Territories: Reinforcing status quo
In Professional Institute of the Public Service of Canada (PIPSC) v. Northwest
Territories (hereinafter referred to as ‘the territory’) (1990), the appellant had previously been
the bargaining agent for a collective group of nurses that had previously been under federal
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 10
jurisdiction. Upon transition of jurisdiction, the nurses became employees of the territory and
ceased to be represented by their former bargaining agent, due to legislation that did not permit
the agent to be automatically recognized. In order for the agent to be recognized, it needed to
be certified by the territory, which required legislation to be passed to have them incorporated
by in law. When PIPSC sought incorporation, it was refused by the territory. PIPSC then
applied to the territorial Supreme Court to have a declaration found that such requirements were a
violation of section 2 (d) of the Charter – namely freedom of association. The territorial Supreme
Court heard the case and found in favour of the appellant. Soon thereafter, the territory appealed
the case to the Supreme Court of Canada (Professional Institute of the Public Service of Canada
v. Northwest Territories, 1990).
In the case, the majority decision by the Supreme Court of Canada (SCC) found in
favour of the territory. It cited decisions of the trilogy and found, similarly, the legislation of
the territory did not limit the existence of PIPSC as an organization, nor did it limit an
individual from becoming a member; it only limited the organizations ability to be recognized
by the government. The SCC found that although the Charter gave individuals the right to
‘freedom of association’, such freedoms do not include protection of “collective bargaining for
working conditions” or a right to be recognized by a government as an “official bargaining
agent” (Professional Institute of the Public Service of Canada v. Northwest Territories, 1990).
The SCC found the failure of PIPSC to be recognized by the territory was no different from a
union failing to meet the process of certification in any other jurisdiction. Whereby, as long as
a process for recognition exists, and an association can apply, there is no further requirement.
As read in the decision, “Ultimately, the appellant's arguments on the failure of this legislation
to provide for certification as of right founder [sic] on the fact that since the activity of
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 11
bargaining is not itself constitutionally protected, neither is a legislative choice of the
bargainer. The impugned provisions amount to nothing more than a legislated form of a labour
relations [sic] regime based upon voluntary recognition”. Furthermore, the SCC confirmed, as
stated in the trilogy, a government has no obligation, under common law, to bargain at all.
Therefore, “if a government does not have to bargain with anyone, there can be no
constitutional impediment to its choosing to bargain with someone” (Professional Institute of
the Public Service of Canada v. Northwest Territories, 1990) [Note: this case does not have
page numbers or paragraphs; thus, I could not provide particulars for in-text citation].
Dunmore v. Ontario and the Oakes Test: A rebalancing of rights
In Dunmore v. Ontario (2001), the SCC found the Ontario government had breached
section 2 (d) of the Charter when it attempted to pass legislation that would have effectively
stripped agricultural workers of their right to collectively bargain. The SCC stated that under
section 1 of the Charter, a government might be permitted such a violation if it can demonstrate
“an objective that is sufficiently important to justify overriding a Charter freedom” (para. 173)
and if it can “[enunciate] a constitutionally valid reason” (para. 181). However, if a
government cannot demonstrate such an objective and reason, a court may declare offensive
legislation invalid and strike it down. The Oakes test is used to make such a determination.
The Oakes test is a two-part test originally used in the decision of R. v. Oakes (1986).
First, the objective of limiting a Charter right must be sufficiently important, and secondly the
party invoking section 1 of the Charter must show the means is reasonable and justifiable.
Additionally, the second part involves three important components. Component (a) finds
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 12
measures must be rational and fair, and designed to achieve the objective in question;
component (b) finds the means should aim to minimize the impairment of any right; and finally
component (c) finds the more severe the impairment of a right, the more important the
objective must be (Heard, n.d.).
In the case of Dunmore v. Ontario, the government was found to have passed part one
of the Oakes test, but failed to meet the requirements of part two.
The government is entitled to provide financial and other support to agricultural operations, including family farms. What is not open for the government to do is to do so at the expense of the Charter rights of those who are employed in such activities, if such a policy choice cannot be demonstrably justified. This they have failed to do. Dunmore v. Ontario (2001, para. 182)
The SCC found that the Ontario Labour Relations Act contained a clause that violated a
group’s right to ‘freedom of association’ and ordered the legislation be amended within
eighteen (18) months. The clause found to be in violation was:
Other associated and relevant statutory provisions referred to in Dunmore v. Ontario (2001,
para. 6) include:
Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A 3. This Act does not apply,
. . . (b) to a person employed in agriculture, hunting or trapping;
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 13
Although subtle, this case arguably varied from Reference Re Public Service Employee
Relations Act (1987). In Reference Re Public Service Employee Relations Act, the SCC
determined an entity could not be given greater constitutional rights than an individual.
However, in Dunmore v. Ontario, both individuals and entities were already given increased
rights vis-à-vis the labour relations legislation. This case also arguably differed from
Professional Institute of the Public Service of Canada (PIPSC) v. Northwest Territories (1990),
whereby in the PIPSC case, there was no legislation enacted that required the jurisdiction to
recognize collective bargaining or bargaining agents. In Dunmore v. Ontario, there was
legislation enacted that required Alberta to recognize collective bargaining and certified
bargaining agents.
Thus, when the provincial government amended legislation to exclude agricultural
workers from protections afforded to other individuals and entities, it effectively stripped
Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1
1.(1) The Labour Relations Act, 1995, as set out in Schedule A, is hereby enacted.
80.(1) The Agricultural Labour Relations Act, 1994 is repealed. (2) On the day on which this section comes into force, a collective
agreement ceases to apply to a person to whom that Act applied. (3) On the day on which this section comes into force, a trade union
certified under that Act or voluntarily recognized as the bargaining agent for employees to whom that Act applies ceases to be their bargaining agent.
(4) On the day on which this section comes into force, any proceeding commenced under that Act is terminated.
Canadian Charter of Rights and Freedoms 2. Everyone has the following fundamental freedoms:
. . . (d) freedom of association.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 14
agricultural workers of their right to ‘freedom of association’ while maintaining it for other
groups (Fudge, 2008, p. 30). Section 1 of the Charter states our rights and freedoms are subject
“only to such reasonable limits prescribed by law as can be demonstrably justified in a free and
democratic society.” This appears to be where the provincial government of Alberta erred.
First, it violated Section 1 of the Charter, and second it failed to demonstrate it had grounds do
so when it failed the Oakes test. Thus, the court struck down the amended legislation and
effectively gave agricultural workers back their right to collectively bargain. This case was a
leading SCC decision on the Charter at the time, and left the door open for future challenges
under the right to ‘freedom of association’ (Health Services and Support v. British Columbia,
2007, para. 22).
Health Services and Support v. British Columbia: An enhanced shield for the collective
In Health Services and Support v. British Columbia (2007) the Supreme Court of
Canada (SCC) up-heaved over twenty years of jurisprudence, in what was called a “landmark
decision” when it effectively recognized the right of unions to collectively bargain under the
Charter (Choko, 2011, p. 1113; Fudge, 2008, p. 25 and Heenann Blaikie, 2007, p. 1). Fudge
argued several explanations why the SCC may have departed from previous decisions – such
as the trilogy cases. One explanation was it might have been due to the ever increasing and
“expansive” reading of freedom of expression. Unlike freedom of expression, which has been
widely defined, freedom of association has been narrowly defined historically (Fudge, 2008, p.
26 and Khan, 1989, pp. 51-52). Additionally, Fudge believed international human rights have
been “gaining more traction” with the SCC (p. 26). This appears a safe assumption given
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 15
quotes from the decision in Health Services and Support v. British Columbia (2007, para. 20
and 78) which found, “collective bargaining is an integral component of freedom of association
in international law, which may inform the interpretation of Charter guarantees” and that “the
Charter, as a living document, grows with society and speaks to the current situations and
needs of Canadians. Thus, Canada’s current international law commitments and the current
state of international thought on human rights provide a persuasive source for interpreting the
scope of the Charter”. Fudge believed such language was the result of what had been
happening at the political level in subsequent years, whereby governments had been permitted
to monopolize decisions relating to labour, in large part, because of past decisions of the SCC.
Furthermore, recent changes may have been an attempt to enhance protection for the collective,
in the face of increasing pressure (Choko, 2011, pp. 1179-1180). According to Fudge, such
pressures include the increased use of litigation – both domestically and internationally – to
preserve bargaining rights (2008, p. 26).
On January 25, 2002, the provincial Liberal government of British Columbia
introduced Bill 29 just months after being elected into power by a large majority (Health
Services and Support v. British Columbia, 2007 and University of British Columbia, 2001).
The bill was introduced in what was described as a “crucial response to a crisis of
sustainability” in the health care system (Fudge, 2008, p. 27). The bill, once passed, would
nullify many sections of negotiated collective agreements and would have affected clauses
relating to “transfer and reassignment rights, restrictions on contracting out, and layoff and
bumping rights” (Fudge, 2008, p. 27). The bill also proposed to amend language pertaining to
the legislative recognition of successor rights, which was firmly entrenched in several
provincial labour relations acts – such as Newfoundland and Labrador and Ontario (Labour
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 16
Relations Act, RSNL 1990, Section 94 and Labour Relations Act, 1995, SO, 1995, Section 68).
Bill 29 was passed within three days of its first reading, despite unions’ willingness to
negotiate a response to the perceived crisis of sustainability, and the need for restructuring
(Fudge, 2008, p. 28).
Following a failed attempt to have the bill thrown out by the Supreme Court of British
Columbia, the unions’ appealed to the Supreme Court of Canada on the grounds the bill was
unconstitutional and violated section 2 (d) of the Charter (Health Services and Support v.
British Columbia, 2007). The SCC heard the case and found that section 2 (d) of the Charter
shields the process of Collective Bargaining. They based their conclusion on four
propositions:
First, a review of the s. 2(d) jurisprudence of this Court reveals that the reasons evoked in the past for holding that the guarantee of freedom of association does not extend to collective bargaining can no longer stand. Second, an interpretation of s. 2(d) that precludes collective bargaining from its ambit is inconsistent with Canada’s historic recognition of the importance of collective bargaining to freedom of association. Third, collective bargaining is an integral component of freedom of association in international law, which may inform the interpretation of Charter guarantees. Finally, interpreting s. 2(d) as including a right to collective bargaining is consistent with, and indeed, promotes, other Charter rights, freedoms and values (Health Services and Support v. British Columbia, 2007, para. 20).
Regarding the first proposition, the SCC found previous cases – such as the trilogy –
failed to shield collective bargaining rights under the Charter and “do not withstand principled
scrutiny and should be rejected” (para. 22). They found that cases, such as Dunmore v.
Ontario, “opened the door” for reconsideration of this view (para. 20).
In conclusion, the SCC found, “the protection of collective bargaining under s. 2(d) of
the Charter is consistent with and supportive of the values underlying the Charter and the
purposes of the Charter as a whole. Recognizing that workers have the right to bargain
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 17
collectively as part of their freedom to associate reaffirms the values of dignity, personal
autonomy, equality and democracy that are inherent in the Charter” (Health Services and
Support v. British Columbia, 2007, para. 86).
Although the SCC was clear that collective bargaining was a shielded right under the
Charter, it was careful to note that such protection only gave unions, and their collective, a
process through which goals could be pursed, and did not guarantee a particular “substantive or
economic outcome”, a specific “model of labour relations”, or a particular “bargaining
method” or set of tools (Choko, 2011, p. 1181, Fudge, 2008, p. 25, Fudge & Tucker, 2009, p.
75 and Health Services and Support v. British Columbia, 2007, para. 91). It did however mean
employees had the right to associate, present their demands collectively and to engage in
discussions in an attempt to achieve workplace goals. It also imposed a duty on the employer
to agree to meet and discuss with bargaining agents, and put constraints on the exercising of
legislative powers in respect to collective bargaining (Health Services and Support v. British
Columbia, 2007, para. 89-90).
It is important to note that where unions refuse to use their right to collectively bargain
to resolve particular issues or disputes, governments – as employers – may have a stronger case
with the courts in defending their use of legislation to end disputes or mandate solutions. In
the case of Newfoundland v. N.A.P.E. (2004), the union was unwilling to revisit previously
negotiated pay equity agreements in the face of a looming “fiscal crisis” (National Association
of Women and the Law, n.d.). In response, the Government of Newfoundland and Labrador
passed legislation effectively eliminating the previous pay equity agreements. This led to a
series of court challenges – the last of which was brought before the SCC. The SCC found the
Government of Newfoundland and Labrador had violated section 2 (d) of the Charter,
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 18
however, they found they were justified under section 1; whereby the government had
attempted to minimize any impairment to the collective’s right (see discussion of Oakes test in
Dunmore v. Ontario). Because the union refused to negotiate, the government was found to
have no other means to accommodate its ‘objective’ and ‘reasonable’ requirements
(Newfoundland v. N.A.P.E., 2004, para. 76-97). In the end, the SCC upheld the government’s
decision – in large part because the union refused to negotiate with government (Fudge, 2008,
p. 41).
Beyond the right to collectively bargain, the Health Services and Support v. British
Columbia (2007) case was also concerned with whether legislatures had the power to appeal or
amend collectively negotiated agreements. In this case, the SCC found provisions that did not
substantially interfere with the union’s ability to engage in collective bargaining could be
modified with legislation – whereby it would not be afforded protection under section 2 (d) of
the Charter (Fudge, 2008, p. 33 and Health Services and Support v. British Columbia, 2007,
para. 89-91). For example, it was found that provisions relating to ‘contracting out’, ‘layoffs’,
and ‘bumping’ dealt with matters that would generally be seen as interfering with a unions
ability to engage in collective bargaining, while provisions relating to ‘transfers’ and
‘reassignments’ generally would not (Health Services and Support v. British Columbia, 2007,
para. 128-131). Thus, modifying provisions relating to ‘Contracting out’, ‘layoffs’, and
‘bumping’ would be considered substantial interference, and therefore a violation of section 2
(d) of the Charter. This is because such provisions “deal with matters central to the freedom of
association”, while ‘transfers’ and ‘reassignments’ generally do not (para. 130).
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 19
Fudge outlines the test used by the SCC in Health Services and Support v. British
Columbia (2007) to determine if substantial interference occurred; and where so, the process
used to determine whether it was demonstrably justified:
The first part requires the claimant to demonstrate that there has been state interference with the collective bargaining process. The second part requires the claimant to establish that the interference was substantial, which, in turn, involves two inquiries — the first, into the significance of the subject matter interfered with, and the second, into the manner of the interference. Once the claimant has established all of these elements, then the onus shifts to the government to demonstrate that the infringement was demonstrably justified.
Health Services and Support v. British Columbia, stated demonstrably justified reasons are
typically “exceptional” or “temporary” and may involve “essential services, vital state
administration, clear deadlocks and national crisis” (2007, para. 196).
In the end, the government lost the case due to an “absence of supporting evidence to
demonstrate that it had considered other less restrictive means for achieving its objective”
(Fudge, 2008, p. 37). In essence, whereby the unions’ were willing to negotiate a response to
the ‘perceived crisis of sustainability’, the government failed to consider less intrusive
measures – thus failing the established Oakes Test (as originally introduced in Dunmore v.
Ontario). According to Fudge, the government failed to establish that Bill 29 would minimally
impair the Charter rights of union members (2008, p. 37).
Although this case has provided increased clarity and has enhanced shielding of union
rights – in terms of ‘freedom of association’ and the right to collectively bargain – the SCC
hesitated to extend this protection to the right to strike (Choko, 2011, p. 1113). Some have
argued the SCC was flawed in its failure to afford such protection:
The Court simply avoided answering this question, ‘noting that the present case does not concern the right to strike, which was considered in earlier litigation on the scope of the guarantee of freedom of association’. But, what
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 20
the Court fails to acknowledge is that it was the Labour Trilogy that decided that freedom of association guaranteed by the Charter did not include the right to strike on the basis of the very same reasoning used to decide that freedom of association did not include collective bargaining — reasoning that the Court rejects as no longer surviving scrutiny (Fudge, 2008, p. 42).
Ontario v. Fraser: Retrenchment or refinement?
A more recent SCC decision, concerning the Charter, and legislation that affected union
rights and collective bargaining, was Ontario v. Fraser (2011). Similar to Dunmore v. Ontario
(2001), this case also involved agricultural workers of Ontario and their right to collectively
bargain. However, unlike Dunmore v. Ontario (2001), when the provincial government
decided to amend legislation in 2011 to exclude agricultural workers from its Labour Relations
Act, it did not completely strip them of their right to collectively bargain – as it had originally
done in 2001. Instead, the government of Ontario decided to introduce a new legislative act
that gave agricultural worker their own, unique set of labour relations provisions. In the end,
the SCC found it was appropriate to exclude agricultural workers from the Ontario Labour
Relations Act.
Although some may see this decision as evidence of retrenchment in terms of
protection afforded by the Charter, I would argue that the government had simply taken what it
had learned in Dunmore v. Ontario (2001), Health Services and Support v. British Columbia
(2007) and other recent decisions, to construct new, refined legislation it felt the SCC would
have no choice but to accept based on its own past tests, procedures and processes it had
identified and defined – as previously discussed. Rather than breaking new ground, I believe
this case only demonstrates that governments have become more adept in assessing the
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 21
periphery of what is, and what is not, acceptable and afforded protection under the Charter. I
believe this was also recognized by the SCC in Ontario v. Fraser (2011) when it was stated:
The decision in Health Services follows directly from the principles enunciated in Dunmore. Section 2(d), interpreted purposively and in light of Canada’s values and commitments, protects associational collective activity in furtherance of workplace goals. The right is not merely a paper right, but a right to a process that permits meaningful pursuit of those goals. The principles within Dunmore and Health Services represent good law, should not be overturned and provide resolution in this appeal.
Saskatchewan v Saskatchewan Federation of Labour: Getting to what is essential
In November of 2007, the Saskatchewan Party was elected into power in the province
of Saskatchewan. The Saskatchewan Party – a right leaning, conservative party made up
largely of former progressive conservatives and like-minded individuals (Saskatchewan Party,
2012a and 2012b) – defeated the left leaning incumbent, the Saskatchewan New Democratic
Party. Within six weeks, the new government introduced the Public Service Essential Services
Act (PSESA), and seen it proclaimed into law by May of 2008 (Saskatchewan v. Saskatchewan
Federation of Labour, 2012, para 1).
PSESA applied to all public sector employers of Saskatchewan; namely the civil
service, crown corporations, arms length agencies, regional health authorities, universities and
municipalities (Saskatchewan v. Saskatchewan Federation of Labour, 2012, para 7 and
Matthews Dinsdale, 2012). PSESA was created in an attempt to create a recognized legal
process whereby essential workers could be identified in the event of a public sector strike.
The legislation permitted the negotiation of essential workers; however, if such negotiations
did not yield a satisfactory agreement, power would then shift to the employer – in essence the
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 22
government – to deem workers essential. Thus, the government, as policy maker, legislator
and arms-length employer, arguably held the discretionary power to impose any agreement it
saw fit (Public Service Essential Services Act, 2008, section 9 and Matthews Dinsdale, 2012).
In Saskatchewan v. Saskatchewan Federation of Labour, the Queen’s Bench for
Saskatchewan found PSESA violated section 2 (d) of the Charter, and found such violation
indefensible under section 1. On February 6, 2012, Justice Ball ruled the act was
“unconstitutional’ and “of no force or effect” (2012, para 283-284). Justice Ball relied on the
SCC decisions in Health Services and Support v. British Columbia (2007) and Ontario v.
Fraser (2011) in making his ruling (Matthews Dinsdale, 2012). Some, such as Matthews
Dinsdale (2012), argue that cases such as this are evidence that some levels of the courts have
recognized a union’s right to strike, and that recent Charter challenges and decisions are still
“ambiguous” and “require extensive clarification.” I agree with Matthews Dinsdale to a
degree; however, I believe the SCC had not intended for unions to be given an unrestricted or
automatic right to strike, based on their previous decisions in Health Services and Support v.
British Columbia (2007) and Ontario v. Fraser (2011). Although I believe the SCC would have
struck down PSESA, I do not believe their decision would have been on the same grounds as
the Queen’s Bench, nor would the SCC have agreed that section 2 (d) was intended to shield a
union’s right to strike.
If we recall earlier analysis in the case of Health Services and Support v. British
Columbia (2007), the SCC found ‘employees had the right to associate, present their demands
collectively and to engage in discussions in an attempt to achieve workplace goals. It also
imposed a duty on the employer to agree to meet and discuss with bargaining agents, and put
constraints on the exercising of legislative powers in respect to collective bargaining’ (para.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 23
89-90). Additionally, the SCC was concerned with any action that would ‘substantially
interfere’ with the ‘union’s ability to engage in collective bargaining’ (para 89-91). Although
the right or privilege to strike may be consistent with the rights and duties listed above, striking
is not the only tool that can be used to ensure them. The SCC guaranteed a union’s right to
collectively bargain, and not to a particular “substantive or economic outcome”, a specific
“model of labour relations”, or a particular “bargaining method” or set of tools (Fudge, 2008,
p. 25 and Health Services and Support v. British Columbia, 2007, para. 91).
In my opinion, this is where the provincial government of Saskatchewan erred. The
government of Saskatchewan took away the unions right to present demands collectively and
to engage in discussions in an attempt to achieve workplace goals, by effectively placing
constraints on how this could be done, which represented ‘substantial interference’ with the
unions ability to engage in collective bargaining. For example, section 6 of PSESA required
negotiations pertaining to essential workers to be agreed upon within 90 days; otherwise,
power would shift to the employer to deem workers essential. Additionally, the language of
PSESA would have permitted the government of Saskatchewan to monopolize decisions
relating to labour, which according to Fudge, is not the purposeful direction the SCC wishes to
take Canadian jurisprudence (2008, p. 26).
I believe that had the government of Saskatchewan passed similar legislation, which
would have given a neutral third party the right to determine numbers of essentials, the
legislation would likely have passed, under scrutiny of the Charter. Had the legislation not
infringed on the unions’ right to collectively bargain, to the point of substantial interference, I
believe the courts – at least in terms of the SCC – would have found the legislation acceptable
under section 2 (d) of the Charter, or at least defensible, under section 1.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 24
Conclusion: A shield for the union collective
Questions surrounding the impact of the Charter, and whether or not it shields union
rights and collective bargaining, are extremely complex. Not only must one consider the
language of the Charter (where some violations are deemed acceptable, while others are not;
see this papers discussion on the Oakes test), one must also consider the language of competing
pieces of legislation and collective agreements. Add onto this the copious layers of tests,
procedures and processes that may, or may not, apply – depending on the inimitable variables
that materialize in jurisprudence – and you quickly begin to understand why confusion and
perceptions of inconsistency exist.
Based on the review of Canadian legislation and jurisprudence, pertaining to the
Charter and afforded shielding of union rights and collective bargaining, if one wished to
provide a simple explanation on how the Charter, legislation and collective agreement
language relate, it could be said the Charter trumps legislation, and legislation trumps
collective agreement language. However, such is only true when legislation is found to be
valid under the Charter. Otherwise, such legislation could be struck down or declared invalid
by the courts, in essence rendering it silent in terms of its impact on collective agreement
language.
Additionally, one must also consider the intricacies of a particular case at hand. Once
this has been done, it would be advisable to search out the most recent tests, procedures and
processes that would appear to apply – such as those discussed and explored in this paper.
Generally, increased weight should be given to those cases that have been heard before the
SCC, whereby the SCC is the highest court in Canada and rarely strikes down its past decisions
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 25
unless it believes they fail to “withstand principled scrutiny” (Health Services and Support v.
British Columbia , 2007, para 22). Lower-level courts can also be considered, but it is
advisable to remember that any decisions breaking new ground or inconsistent with past
rulings of the SCC, may be overturned; especially where lower-level courts may have stretched
an intended interpretation or offended a competing test, procedure or process.
Although it is true that the substances of our political civil liberty are not absolute,
based on Canadian legislation and jurisprudence, the Canadian Charter of Rights and Freedoms
has certainly shielded union rights and collective bargaining. If not for the Charter of Rights
and Freedoms, much of the legislation that has been struck down or declared invalid by the
Supreme Court of Canada to date, would still stand. The Charter is indeed a shield for the
collective; however, it remains to be seen whether the Charter can be also be used as a sword –
in giving the collective, the absolute and unequivocal right to strike.
The Canadian Charter of Rights and Freedoms: A shield for the union collective? 26
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The Canadian Charter of Rights and Freedoms: A shield for the union collective? 29
Appendices
Appendix A
The Oakes Test:
First, the objective to be served by the measures limiting a
Charter right must be sufficiently important to warrant overriding a
constitutionally protected right or freedom.
Second, the party invoking s. 1 must show the means to be
reasonable and demonstrably justified. This involves a form of
proportionality test involving three important components.
a. To begin, the measures must be fair and not arbitrary,
carefully designed to achieve the objective in question and
rationally connected to that objective.
b. In addition, the means should impair the right in question
as little as possible.
c. Lastly, there must be proportionality between the effects of
the limiting measure and the objective -- the more severe the
deleterious effects of a measure, the more important the objective
must be.
This test was developed in R. v. Oakes [1986] 1 SCR 103. The Supreme Court modified it several months later in R. v. Edwards Books & Art [1986] 2 SCR 713; in that case the Court addressed idea of 'impairing as little as possible' and allowed more flexibility to allow a reasonable margin rather than a 'precise line'. Since, the SCC has referred to "margin of appreciation" to allow legislature some room to set the level of impairment. (Irwin Tow v. Quebec [1980] 1 SCR 927,