Enter stage right: players and roles in a post-B.C. Health Services world.

• Author: Bilson, Beth
• Position: UNBLJ Forum: Recent Developments in Canadian Labour and Employment Law

When the Supreme Court of Canada issued its decision in Health Services and Support Facilities Subsector Bargaining Association v. British Columbia in June of 2007, the Canadian labour relations world was taken by surprise. (1) Most participants in collective bargaining relationships and commentators on labour issues had assumed that the Court had articulated its basic approach to the associational rights protected in the Canadian Charter of Rights and Freedoms in the labour trilogy of the 1980s. (2) It seemed unlikely that, a scant twenty years later, the Court would readily alter such a foundational statement on the nature and scope of Charter rights.

The trilogy had itself disappointed many who had hoped the Charter would be a useful vehicle for trade unions and their members to assert their rights. The Court seemed reluctant to draw on international instruments which characterized the activities of employees through their trade unions in human rights language. In addition, the Court analogized the rights attached to trade unions with those associated with other kinds of voluntary organizations--a process famously captured by Harry Arthurs in his trenchant expression "the right to golf." (3) Supporters of collective bargaining perhaps naturally concluded that the opportunities apparently offered by the wording of section 2(d) had been definitively foreclosed by the decisions in the trilogy.

Though it was significant, the 2004 decision of the Court in Dunmore v. Ontario (Attorney General) did not immediately seem to point to a comprehensive reappraisal of the trilogy. (4) The decision of the Ontario legislature to re-exclude agricultural workers from collective bargaining legislation--which had only shortly before been amended to include them--brought into sharp relief the absolute nature of the exclusion. The Supreme Court of Canada concluded that a total prohibition of agricultural workers from access to associations through which they could make representations to their employers fell afoul of section 2(d). The Court made it clear, however, that the legislature need not permit agricultural workers access to the same collective bargaining regime as other employees, and emphasized that workers were entitled to associate to approach their employers but that the Charter guarantee did not protect any specific process or outcome.

The decision in Dunmore did not clearly signify that the Court had had a change of heart about the conclusion in the trilogy that there is a basic separation between the rights of individuals to join and be part of organizations, and any activities those organizations may engage in or purposes they may have. Nor did it suggest that the Court would consider exploring the scope of associational rights in relation to particular aspects of the collective bargaining process once employees are represented by unions, or in relation to particular subject matter which collective bargaining may address.

In the B.C. Health Services decision, however, the Supreme Court rejected many of the limitations placed on the interpretation of section 2(d) in the trilogy. The Court went beyond considering merely whether the associational right under the Charter would permit workers access to some form of collective bargaining and found collective bargaining itself to enjoy protection. In assessing the constitutionality of British Columbia legislation which would limit collective bargaining rights in the health care sector, the Court considered whether the legislation would "substantially interfere" with collective bargaining and therefore infringe employee rights under section 2(d).

The Court found that the legislation did violate the Charter rights of employees, either by disregarding the results of past collective bargaining or by pre-empting the possible results of future collective bargaining. The Court stressed that section 2(d) in this context protected the process of collective bargaining, not any substantive content or outcomes of that process. The Court focused on provisions of the legislation which would permit employers to contract out work without consulting the trade unions representing their employees and to ignore any clauses in collective agreements which required consultation, and on provisions concerning layoffs and bumping rights. The Court held that these provisions constituted substantial interference with collective bargaining, and that these infringements of Charter rights were not saved by section 1.

Though the Court stated that the right protected by the Charter is a right to process, not a right to outcome, the assessment that precluding collective bargaining on certain key issues or ignoring the agreements the parties have reached on those issues can constitute substantial interference with collective bargaining has taken the Court a long way into evaluating what content is at the core of meaningful collective bargaining. It is interesting in this respect that the decision was informed by the Court's understanding of the evolution of the institution of collective bargaining in Canadian labour history; the choice of collective bargaining as a labour relations model worthy of statutory protection came about in response to conflicts and events which were only significant because they were examples of disagreement about concrete subject matter. (5)

The B.C. Health Services decision has not yet been completely absorbed into the legal discourse concerning the appropriate scope of collective bargaining. That it has implications going far beyond those of Dunmore has been confirmed in the recent decision of the Ontario Court of Appeal in Fraser v. Ontario (Attorney General), where the legislation that replaced the legislation struck down in Dunmore was subject to a constitutional challenge. (6) The Court found that, though the new legislation might adequately provide for the right of employees to organize, it did not provide adequate protection for collective bargaining. In particular, it did not: 1) establish a duty to bargain in good faith, 2) recognize the principles of exclusive representation based on majority support, or 3) create a mechanism for resolving bargaining impasses and disputes regarding the interpretation and administration of a collective agreement. It might be argued that, although that the Court of Appeal in Fraser took the principles in Dunmore to a new level using the prism of B.C. Health Services, its preoccupation was essentially with the same issue raised in Dunmore--how to ensure threshold access for workers to a mechanism that meaningfully supports their associational rights. The Court of Appeal decision in Fraser does demonstrate at the same time that one of the messages of B.C. Health Services is that the courts regard the term "collective bargaining" as referring to a framework with its own coherence, integrity, and core content, and that substitutes will be viewed with suspicion.

If it is too early to be sure where the principles laid out in B.C. Health Services will ultimately take us, it still may be useful to try to assess the significance of this surprising decision. I will briefly consider the implications of the B.C. Health Services case for one particular set of issues, those related to the various actors in the labour law environment--employers, unions, governments, courts, labour tribunals and international organizations. In the ongoing drama of labour relations in Canada, these actors have all acted and reacted in ways which over time have become familiar. With the B. C. Health Services decision, however, the balance has subtly shifted and I would suggest that the actors' roles are being redefined in ways we cannot yet fully appreciate.

THE COURTS

It is the courts which have undergone the most complete transformation over the past two decades or so. North American collective bargaining legislation emerged partly as a corrective to the stifling effect of common law judicial doctrine on collective activity by workers. The boundless enthusiasm and endless creativity of judges in the invention of industrial torts, the deployment of the labour injunction and the myriad rationales for the defence of employer prerogative led trade unions and their supporters to see the courts as partisan and repressive. After World War II, Canadian legislatures, following the example set by the United States Congress with the passage of the Wagner Act, accepted that the recognition of collective bargaining would promote industrial peace and economic prosperity. (7) Given the courts' reluctance to accept the legitimacy of collective activity by workers, legislatures created new mechanisms in the form of tripartite labour tribunals for the administration of collective bargaining statutes and the resolution of disputes between the parties to collective bargaining relationships.

The courts initially made efforts to restrict the authority of these new bodies through the instrument of judicial review, and continued to make use of traditional doctrines, particularly in the context of industrial disputes, where the elaboration of causes of action in tort--primarily as a backdrop for issuing labour injunctions--continued unabated.

It is not possible in this paper to describe the evolution of judicial review of administrative decision-making over the last fifty years. It is sufficient for my purpose here to point out that a reappraisal of the stance of the courts towards labour tribunals operating under collective bargaining legislation formed the basis of new principles for judicial review articulated in the 1970s and 1980s. In decisions like Canadian Union of Public Employees v. New Brunswick Liquor Corporation, the Supreme Court of Canada--in particular, Dickson J acknowledged the importance to employees of their working environment and expressed a new spirit of deference to the bodies overseeing the collective bargaining process that determined working...