Exiting the freedom of association Labyrinth: resurrecting the parallel liberty standard under 2(d) & saving the freedom to strike.

• Author: Oliphant, Benjamin
• Position: P.36-61

1. INTRODUCTION II. HISTORY OF THE FREEDOM AND RIGHT TO STRIKE IN CANADA i. From Common Law Freedoms to Wagner Act Model Rights ii. The Trilogy iii. Dunmore, BC Health & Fraser III. APPLICATION OF BC HEALTH & FRASER i. Application of the Law to the Right (or Freedom) to Strike ii. Government action rendering a freedom 'impossible' to exercise iii. 'Substantial interference' through government inaction iv. Summary IV. RESURRECTING THE TRILOGY'S PARALLEL LIBERTY STANDARD i. Arguments Against the Parallel Liberty Standard ii. The Parallel Liberty Standard's Compatibility with Other Section 2 Freedoms a. Largely a negative entitlement b. Abstract, content neutral standard of breach c. Individual freedom, not a collective right V. RECONCILING DUNMORE AND BC HEALTH WITH THE PARALLEL LIBERTY APPROACH i. The Dunmore Exception-Impossibility Imposing a Positive Duty on the Government ii. The BC Health Exception-No Individual Analogy as a Matter of Fact VI. CONCLUSION The author would like to extend thanks to Professor Brian Langille, Steven Barrett and

   "One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning"

   Justice Hugo Black, Griswold v Connecticut, 381 US 479 (1965)

1. INTRODUCTION

   Following the constitutionalization of rights to facilitate unionization in Dunmore and collective bargaining rights in BC Health and Fraser, the question of whether the Charter of Rights and Freedoms (Charter) implies a right or freedom to strike has been thrust into the limelight. (1) Resolution of the controversy has become pressing, as courts have been tasked anew with sorting out the scope of freedom of association in the notoriously complex labour relations context (2) just as legislatures appear more willing to abridge these rights, most notably the right to strike. (3) More vexing still, the Court may have reinvigorated old concerns about the wisdom of granting labour rights to public servants, to the extent that it has taken the scope of certain labour rights and the terms of collective agreements out of the hands of the legislatures.

   The principal argument put forward by opponents of collective action in the public sector is, like the argument against the availability of public sector collective bargaining more generally, based on the sovereignty of the state:

   "governments cannot accede to industrial action because to do so would compromise the sovereign authority to govern conferred on the legislative body by the will of the people." (4) This anxiety is exacerbated by the fact that public sector providers often represent a monopoly, such that unlike with private sector strikes (where customers can typically obtain services from other providers), public sector unions may deprive society of a given set of services entirely. (5) Such concerns are not altogether persuasive where the legislature has complete power to legislate with respect to the scope of collective agreements or otherwise define the bounds of labour rights, including the right to strike. It is at least partially the presence of this overriding legislative authority that, in contrast to the United States, (6) the sovereignty concern has been almost entirely absent in the Canadian discourse. (7) Simply put, where legislatures retain the authority over the ultimate scope and content of collective bargaining and associated labour rights, it is difficult to give much credence to the argument that public sector unions wield unconscionable power over public decision making, particularly given the vast influence other organized groups frequently bring to bear. (8) However, it is precisely this democratic safeguard--the ability of legislatures to modify and repeal those rights, or interfere with collective agreements, entirely or on an ad hoc basis--that has been put in jeopardy to an uncertain degree by the recent Supreme Court jurisprudence ostensibly placing certain labour rights and entitlements above the democratic fray.

   The objective of this paper is to address this tension through a discussion of the Court's evolving section 2(d) jurisprudence. In particular, I will outline and assess the abstract parallel liberty standard endorsed in the Labour Trilogy (9)--'the freedom to do with others what one can do alone' (10)--as well as the more contextual, mercurial standard developed by the Supreme Court over the past decade. I will frequently use the example of public sector strike action throughout the paper, as it brings into sharp focus the tension described above that I will argue has been (perhaps unnecessarily) exacerbated by the Court's more recent section 2(d) decisions, but I hope the discussion will have broader application.

   Of course, it cannot be said that any definition of section 2(d) is invalid simply because it delimits the permissible scope of legislation--that is precisely the objective of the Charter, and there is no justification for placing labour relations beyond its ambit. (11) Nor, however, can it be maintained that a sound definition of a fundamental freedom is flawed simply because it does not grant comprehensive constitutional protection to the full litany of labour rights historically extended by legislation, however important those rights may be, that fall outside a reasonable and purposive definition of 'freedom of association'. Given the renewed vitality and relevance of the concern over the operation of legislative prerogatives in the field of labour relations, the courts' overriding objective must be to engage with these issues thoughtfully and deliberately in line with a coherent approach to freedom of association.

   This paper addresses the issue in five parts. Part II contains a brief survey of labour rights in Canada, focusing on the 'right to strike' of public sector workers, as it has developed from the common law freedom to strike to the Court's decisions in Dunmore, BC Health and Fraser. In Part III, I will assess the cogency of defining labour rights according to the various conceptions of section 2(d) outlined in these latter cases, and speculate on potential pitfalls that may be encountered in the absence of a consistent standard for a breach of section 2(d). Part IV addresses the criticisms of the parallel liberty approach, and argues that they are largely predicated not on the defensible standard enunciated in that case, but rather on its misapplication. I will also posit that a reversion to the parallel liberty standard has the added benefit of maintaining conceptual consistency among the fundamental freedoms, through an abstract standard of noninterference that would apply to all individuals, regardless of their associational preferences. Part V contains an attempt to reconcile a reversion to the parallel liberty standard with the Court's recent deviations, in cases like Dunmore and BC Health, by suggesting that both cases may be useful if confined to their exceptional circumstances. Ultimately, it will be concluded that the parallel liberty standard represents a more purposive and enduring definition of freedom of association that, if properly applied, fortuitously strikes a more comfortable balance between the authority of the legislatures and the fundamental freedoms of workers, in the context of the right to strike and elsewhere.

2. HISTORY OF THE FREEDOM AND RIGHT TO STRIKE IN CANADA

   i. From Common Law Freedoms to Wagner Act Model Rights

   Historically, there was no legal 'right' to strike at common law, entailing a correlative obligation on an employer to refrain from retaliatory measures, but rather a common law 'freedom' to do so. (12) The common law was clear that individuals, alone or together, were free to not sign a contract (i.e., to withdraw their services until a suitable contract was in place), as well as repudiate a contract without specific performance being awarded. (13) To this extent, the freedom to strike was relatively unfettered, (14) prior to the enactment of comprehensive, Wagner Act labour law legislation, which significantly circumscribed the common law freedoms of union members in return for a range of labour rights, including a (very limited) right to strike. (15) For our purposes, the key features of Wagner Act model legislation are a process for certification placing both employer and union under a duty to bargain in good faith (thus preventing the need for recognition strikes), majoritarian exclusivity following certification (i.e., a certified union enters into a contract on behalf of the entire bargaining unit), an arbitration process for the enforcement of collective agreements (thus preventing the need for strikes to enforce collective agreements), and a range of unionization rights to protect employees from employer discrimination and retaliation for unionization activities (i.e., unfair labour practices). (16) The Wagner Act model effectively ousted the operation of the common law of contract in workplaces where a union had been certified (17) and restricted strike action to bargaining impasses prior to signing or at the expiry of collective agreements.

   Most of these compensatory labour rights were eventually extended to public sector workers in the 1960s. (18) These statutory rights have remained relatively stable since...