Everything You Thought You Knew About Labour Law

• Author: Omar Ha-Redeye
• Date: January 18, 2015

Sometimes judges get it wrong. Even when they sit on the highest court of the land.

The nature of the common law is that decisions which are poorly written (a generous excuse for decisions which are poorly decided) still have binding authority, especially when made by the Supreme Court of Canada.

The interpretation of freedom of association under s. 2(d) of the Charter has undergone considerable change over the years. Courts generally applied a restrictive approach towards this right, until the 2007 decision in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia (“B.C. Health“), where the court effectively pushed back against the province’s attempt to override unionization rights in the health sector.

The implications of appearing to provide the right to collective bargaining in this decision created significant waves across the bar. This enthusiasm proved short-lived, as the Court subsequently released a decision in 2011 in Ontario (Attorney General) v. Fraser (“Fraser“), which scaled back the interpretation of B.C. Health. The Court that s. 2(d) did not provide a right to unionize or collective bargaining (except for in a “derivative” sense). They upheld the use of agricultural associations under the Agricultural Employees Protection Act, created after the Court’s decision in Dunmore v. Ontario (Attorney General).

This week, everything we thought we knew about labour law in Canada and s. 2(d) changed with the Court’s decision in Mounted Police Association of Ontario v. Canada (Attorney General) (“Mounted Police“), indicating that the RCMP have a right to meaningful collective bargaining. Strangely enough, a very similar issue appeared before the Court 15 years ago in Delisle v. Canada (Deputy Attorney General), which came to a different conclusion that the exclusion of the RCMP from Public Service Labour Relations Act was constitutional.

The Court is allowed to change its mind. Judicial flexibility is one of the key hallmarks of independence. But when the law and interpretation of the constitution shifts so drastically, it also leads to some very creative legal writing.

Its not entirely the Court’s fault. Ask 9 judges to rule on something, and you might get 10 different opinions. Or, ask 7 judges to interpret s. 2(d) in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner) (“PIPC“) and you will get 5 separate decisions. Alternative arguments are the hallmark of a dedicated...