By the time you read this, the highest court in the land may have already ruled on a landmark case involving the country’s humblest workers. If and when the decision does come, it will bring relief to the many labour experts who have been waiting as eagerly as teenagers anticipating the launch of the next iPod. “I think it may be the most important case in Canadian labour law in a century,” says Roy J. Adams, professor emeritus of industrial relations at McMaster University and the Ariel F. Sallows Chair of Human Rights at the University of Saskatchewan’s College of Law. “The implications are absolutely huge.”
Debate has raged — sometimes rancorously — in online forums and at conferences over the course of this year over the meaning of Fraser and the potential fallout of the Supreme Court’s decision. Some call it tantamount to judges writing labour codes, and fear it will open the door to future conflicts between legislatures and the courts. Others say the interpretations the three-judge Ontario appeal court gave to Canadian labour law cornerstones like bargaining in good faith, majoritarian exclusivity, and dispute-resolution mechanisms to settle bargaining impasses and contract grievances — all fundamental elements of the Wagner Act model, the legislative scheme that is in effect for most private sector workers across Canada — could put labour law into a deep freeze while extending its reach to a minority of workers not currently covered. On the other hand, if the Supreme Court relies on the tenets of international labour law, as it has done in other recent cases, some believe its Fraser decision could revolutionize labour law in this country.
One thing all parties appear to agree on is the series of legislative events and courtroom rulings that led to Fraser. It all began in the early years of Charter litigation when the Supreme Court, in Armstrong’s words, “devoted a considerable volume of analysis to explaining what the Charter protection for freedom of association did not protect.” For example, the court’s rulings in the late 1980s on three cases — Reference Re Public Service Employee Relations Act (Alta.); PSAC v. Canada; and RWDSU v. Saskatchewan — established there was no constitutional guarantee of the right to bargain collectively or to strike.
A number of rulings since have both refined and broadened the interpretation of s. 2(d). For example, in its 1999 decision in Delisle v. Canada (Deputy Attorney General), the SCC ruled that the personal freedom of association guarantee under s. 2(d) does not extend to associations or organizations. “[T]he fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue here,” former justice Michel Bastarache wrote for the majority. As a result, the court rejected RCMP officer Gaétan Delisle’s constitutional challenge to the federal Public Service Staff Relations Act and part of the Canada Labour Code and upheld the federal police force’s exclusion from public services legislation.
Two years later, however, the court added a new twist to the freedom of association conundrum when it ruled that a clause in Ontario’s Labour Relations Act that excluded agricultural workers from provincial labour relations legislation — making it difficult, if not impossible for them to organize — was a violation of their Charter right to freedom of association. “It was a groundbreaking ruling,” Adams says about Dunmore v. Ontario (Attorney General), a 2001 decision that came about in response to the court challenge launched by the United Food and Commercial Workers, Canada’s largest private-sector union and the main one trying to organize agricultural workers in Ontario — to the decision by former Ontario premier Mike Harris’ government to remove agricultural workers from legislation enacted by the previous NDP government under Bob Rae that instituted statutory bargaining rights to all workers in the province.
In response, the Harris government introduced the Agricultural Employees Protection Act that gave, in Adams’ opinion, “minimally secured farm workers’ right to organize but gave them no explicit right to bargain and no protected right to strike.” Soon after, however, former UFCW head Mike Fraser launched a court challenge on behalf of Ontario agricultural workers against an Ontario mushroom grower with some 300 employees, 70 per cent of whom had already joined the union, who refused the UFCW’s offer to bargain collectively.
Despite his description of farm workers as being “poorly paid, face difficult working conditions, have low levels of skills and education, low status and limited employment mobility,” the trial judge in Fraser upheld the AEPA. But before the Ontario Court of Appeal heard — and eventually overturned — that ruling, the Supreme Court rendered a decision in another case involving provincial labour laws that once again moved the goalposts on the definition of freedom of association and prepared the playing field for the historic Fraser ruling.
In 2002, the British Columbia government introduced the Health and Social Services Delivery Improvement Act in an effort to defuse a perceived health-care crisis through provisions that enable employers to cut costs and increase operational flexibility through contracting out, layoffs, bumping, and job security. “The legislation invalidated agreement provisions that conflicted with its provisions, precluded the parties from contracting out of the statute, and enacted a provision whereby the act prevailed over negotiated collective agreements,” notes Armstrong.
In its decision in Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia, the Supreme Court struck down the act, ruling the legislation “substantially interferes” with the procedural right to collective bargaining it deemed to be guaranteed by s. 2(d). The decision in essence overturned the jurisprudence that had arisen from the so-called “labour trilogy” cases in 1987 that found that s. 2(d) did not include a right to collective bargaining.
In his essay, “The Freedom of Association Mess: How We Got into It and How We Can Get out of It,” University of Toronto labour law professor Brian Langille acknowledges the importance of the Dunmore and Health Services rulings, though he doesn’t agree with the latter being “widely hailed as a step forward for workers’ freedom of association.”
In his essay, which has aroused as much controversy in some quarters as the decision itself, Langille argues against both “the particular conception of collective bargaining the court promoted and the reasons it deployed in support of its holding.” He adds that, in its ruling, “the court misread Canadian labour law history, misunderstood Canada’s international labour law obligations, and misstated Charter values; that it very unhelpfully perpetuated discussions of labour rights as inherently ‘collective’; and that it ignored the distinction between ‘freedoms’ and ‘rights’ that is critical to understanding Charter freedoms in general and freedom of association in particular.”
In essence, he argues the Supreme Court seems determined — but is ill-equipped — to rewrite Canada’s labour code by choosing which employees do and do not have access to labour rights granted under s. 2(d). “This argument,” wrote York University labour and employment law professor David Doorey on his blog, “would require a fundamental rethinking of how courts have treated equality rights.”
Though the Supreme Court relied heavily on international law in Health Services, the Ontario Court of Appeal chose instead to rely on contemporary Canadian labour law. In its decision to overturn the AEPA, it gave the Ontario government a year to introduce a legal regime for farm workers that embraced the familiar labour law principle of “majoritarian exclusivity,” meaning that unions, in order to win bargaining rights, would have to first win the support of the majority of workers in a bargaining unit. And the court went even further by requiring that the legislation “eradicate the possibility of irreconcilable demands from multiple employee representatives, purporting to simultaneously represent employees in the same workplace with similar job functions.”
For Adams, that standard is “offensive” in regards to international human rights law, which he says recognizes the right of workers to organize and bargain through non-majority unions if they choose to do so. He says that’s likely the reason the Supreme Court justices seemed divided at the hearing in Ottawa last December, which he attended. “They gave both sides lots of flack,” says Adams. Since the judges appeared split on some fundamental issues, he thinks the vote will be close. “The most sensible route would be for the court to overthrow [the Ontario Court of Appeal] but let the Ontario government know that is has to effectively protect the rights of agricultural workers to bargain effectively,” says Adams. “But if they uphold the ruling — wow! By making minority unionism illegal, Canada would be completely offside with the international human rights consensus.”