C. Conclusion

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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The Supreme Court was initially reluctant to intervene in important aspects of the area of labour relations under the Charter. Freedom of association was held not to include the right to strike or the right to engage in collective bargaining, and the Court refused to interfere with mandatory dues and union membership. The Court did not grant unions new protection against legislative action curtailing bargaining and strikes, but neither did it give new tools to those opposed to the majoritarian nature of collective bargaining and intent on overturning agency and closed shop provisions. This cautious approach was decried by those who had hoped that the Charter would expand the scope of collective bargaining.34Others saw it as a middle-of-the-road posture, consistent with the Court’s tendency in other areas to refuse to recognize economic activity as worthy of Charter protection.35In the end, however, the narrow interpretation of section 2(d) was found to be inconsistent with the Court’s generally liberal approach to Charter interpretation and with the concern shown in other areas for the rights and interests of vulnerable groups. The more generous interpretation of section 2(d) in Dunmore and Health Services clearly opens a new chapter in which collective bargaining rights are protected although the precise nature and extent of that protection remains a work in progress.


ADAMS, R, "Prospects for Labour’s Right to Bargain Collectively after BC Health Services" (2009) 59 UNBLJ 85

BAKAN, J, Just Words: Constitutional Rights and Social Wrongs (Toronto: University of Toronto Press, 1997) c 5

BARRETT, s, "Dunmore v Ontario (Attorney General): Freedom of Association at the Crossroads" (2003) 10 CLEIJ 83 Basu, R, "Revolution and Aftermath: BC Health Services and Its Implications" (2008) 42 Sup Ct L Rev (2d) 165

BEATTY, D.M., Putting the Charter to Work: Designing a Constitutional Labour Code (Montréal: MCGILL-Queen’s University Press, 1987)

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BEATTY, DM, "Labouring outside the Charter" (1991) 29 Osgoode Hall LJ 839

CAMERON, J, "Due Process, Collective Bargaining, and s 2(d) of the Charter: A Comment on BC Health Services" (2006-2007) 13 CLELJ 323

CAMERON, J, "The Labour Trilogy’s Last Rites: BC Health and a Constitutional Right to Strike" (2009-2010) 15 CLELJ 297

FUDGE, J, "Labour Is Not a Commodity: The Supreme Court and Freedom of Association" (2004) 67 Sask L Rev 425

HUGHES, P, "Dunmore v Ontario (Attorney...

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