Ontario (Attorney General) v. Fraser , 2011 SCC 20 ; [2011] 2 S.C.R. 3, Ontario (Attorney General) v. Fraser, 2011 SCC 20, 2011 SCC 20 (2011)

Docket Number:32968
 
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SUPREME COURT OF CANADA

Citation: Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3

Date: 20110429

Docket: 32968

Between:

Attorney General of Ontario

Appellant and

Michael J. Fraser on his own behalf and on behalf of the

United Food and Commercial Workers Union Canada,

Xin Yuan Liu, Julia McGorman and Billie-Jo Church

Respondents

- and -

Attorney General of Canada, Attorney General of Quebec,

Attorney General of New Brunswick, Attorney General of British Columbia,

Attorney General of Alberta, Ontario Federation of Agriculture,

Federally Regulated Employers - Transportation and Communications,

Conseil du patronat du Québec Inc., Mounted Police Members' Legal Fund,

Canadian Employers Council, Coalition of BC Businesses,

British Columbia Agriculture Council, Justicia for Migrant Workers,

Industrial Accident Victims Group of Ontario, Canadian Labour Congress,

Canadian Police Association and Canadian Civil Liberties Association

Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for judgment:

(paras. 1 to 118):

Reasons concurring in the result (paras. 119 to 296):

Reasons concurring in the result (paras. 297 to 320):

Dissenting reasons

(paras. 321 to 369):

McLachlin C.J. and LeBel J. (Binnie, Fish and Cromwell JJ. concurring)

Rothstein J. (Charron J. concurring)

Deschamps J.

Abella J.

Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3

Attorney General of Ontario Appellant v.

Michael J. Fraser on his own behalf and on behalf of the

United Food and Commercial Workers Union Canada,

Xin Yuan Liu, Julia McGorman and Billie-Jo Church Respondents and

Attorney General of Canada,

Attorney General of Quebec,

Attorney General of New Brunswick,

Attorney General of British Columbia,

Attorney General of Alberta,

Ontario Federation of Agriculture,

Federally Regulated Employers - Transportation and Communications,

Conseil du patronat du Québec Inc.,

Mounted Police Members' Legal Fund,

Canadian Employers Council,

Coalition of BC Businesses, British Columbia Agriculture Council,

Justicia for Migrant Workers, Industrial Accident Victims Group of Ontario,

Canadian Labour Congress,

Canadian Police Association and

Canadian Civil Liberties Association Interveners

Indexed as: Ontario (Attorney General) v. Fraser

2011 SCC 20

File No.: 32968.

2009: December 17; 2011: April 29.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for ontario

Constitutional law - Charter of Rights - Freedom of association - Collective bargaining rights - Separate labour relations legislation governing agricultural workers in Ontario - Whether s. 2(d) requires legislature to provide a particular form of collective bargaining rights to agricultural workers, in order to secure effective exercise of associational rights - If so, whether legislation infringes freedom of association by failing to safeguard the exercise of collective bargaining rights - Whether infringement justifiable - Canadian Charter of Rights and Freedoms, ss. 1, 2(d) - Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 - Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 3(b.1).

Constitutional law - Charter of Rights - Equality rights - Separate labour relations legislation governing agricultural workers in Ontario - Whether the Agricultural Employees Protection Act, 2002 violates workers' right to equality under s. 15 of the Charter by excluding workers from the protections accorded to workers in other sectors - If so, whether infringement justifiable - Canadian Charter of Rights and Freedoms, ss. 1, 15 - Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 - Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 3(b.1).

In 2002, the Ontario legislature enacted the Agricultural Employees Protection Act, 2002 ("AEPA") which excluded farm workers from the Labour Relations Act ("LRA"), but crafted a separate labour relations regime for farm workers. The AEPA was a response to Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, which found that the previous legislative scheme violated s. 2(d) of the Canadian Charter of Rights and Freedoms and declared it constitutionally invalid. It grants farm workers the rights to form and join an employees' association, to participate in its activities, to assemble, to make representations to their employers through their association on their terms and conditions of employment, and the right to be protected against interference, coercion and discrimination in the exercise of their rights. The employer must give an association the opportunity to make representations respecting terms and conditions of employment, and it must listen to those representations or read them. The AEPA tasks a tribunal with hearing and deciding disputes about the application of the Act.

After limited efforts to use the new protections under the AEPA, a constitutional challenge was mounted on the basis the Act infringed farm workers' rights under ss. 2(d) and 15 of the Charter by failing to provide effective protection for the right to organize and bargain collectively and by excluding farm workers from the protections accorded to workers in other sectors. In 2006, the Ontario Superior Court dismissed the application. The Court of Appeal allowed the appeal and declared the AEPA to be constitutionally invalid. It rendered its decision after the release of Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391.

Held (Abella J. dissenting): The appeal should be allowed and the action dismissed.

Per McLachlin C.J. and LeBel, Binnie, Fish and Cromwell JJ.: Section 2(d) of the Charter protects the right to associate to achieve collective goals. This requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith. Laws or state actions that substantially interfere with the ability to achieve workplace goals through collective actions have the effect of negating the right of free association and therefore constitute a limit on the s. 2(d) right of free association, which renders the law or action unconstitutional unless justified under s. 1 of the Charter.

Bargaining activities protected by s. 2(d) in the labour relations context include good faith bargaining on important workplace issues. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation. Good faith negotiation under s. 2(d) requires the parties to meet and engage in meaningful dialogue; it does not impose a particular process; it does not require the parties to conclude an agreement or accept any particular terms; it does not guarantee a legislated dispute resolution mechanism in the case of an impasse; and it protects only the right to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method. What s. 2(d) guarantees in the labour relations context is a meaningful process.

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.

The seriousness of overturning recent precedents of this Court, representing the considered views of firm majorities, cannot be overstated. The arguments advanced in favour of overturning Health Services do not meet the high threshold for reversing a precedent of this Court as it is grounded in precedent, consistent with Canadian values, consistent with Canada's international commitments and consistent with this Court's purposive and generous interpretation of other Charter guarantees. Health Services was consistent with previous cases on the issue of individual and collective rights. It recognized, as did previous jurisprudence, that s. 2(d) is an individual right. It also recognized, as did previous cases, that to meaningfully uphold this individual right, s. 2(d) may properly require legislative protection of group or collective activities. The approach to deference to Parliament and legislatures advanced in Health Services is also consistent with this Court's general jurisprudence. Deference should inform the determination of whether a legislative scheme satisfies the requirements of the Charter, as articulated by the courts. The unworkability of Health Services has not been established. There is no concrete evidence that the principles enunciated in Dunmore and Health Services are unworkable or have led to intolerable results. It is premature to argue that the holding in Health Services, rendered four years ago, is unworkable in practice.

The Ontario legislature is not required to provide a particular form of collective bargaining rights to agricultural workers, in order to secure the effective exercise of their associational rights. In this case, the Court of Appeal has overstated the ambit of the s. 2(d) right. The affirmation of the right to collective bargaining is not an affirmation of a particular type of collective bargaining, such as the Wagner model which is dominant in Canada. What s. 2(d) protects is the right to associate to achieve collective goals. Laws or government action that substantially interfere with the ability to achieve collective goals have the effect of limiting freedom of association, by making it pointless. It is in this derivative sense that s. 2(d) protects a right to collective bargaining. Legislatures are not constitutionally required, in...

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