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

Author:Oliphant, Benjamin

    The 'parallel liberty' standard--the freedom to do with others what one may do alone--has a long pedigree. (124) While no panacea in itself, by asking whether a certain activity is prohibited generally, or prohibited only if exercised in combination with others, the standard strikes at the heart of the protected freedom. This is because it directly focuses the analysis on whether an activity is being unduly limited, in purpose or effect, because of its associational nature. It would in this way realign the default standard of breach with the purpose of section 2(d), as opposed to the purpose or deemed importance of the activity for which protection is sought. (125)

    Moreover, it should be noted that the Supreme Court has never expressly rejected this approach; it has only supplemented it. Recall that the parallel liberty approach was endorsed by both McIntyre J and Dickson CJ in the Alberta Reference, and was adopted explicitly by majorities in CEMA and Delisle, both of which remain good law. (126) While the Supreme Court may have overturned the Trilogy's conclusion on collective bargaining, it did not invalidate the parallel liberty approach derived from that case as a method of demonstrating a constitutional violation. (127) According to Bastarache J in Dunmore--in a ruling endorsed in both BC Health and Fraser--a purposive approach to section 2(d) should start with the parallel liberty approach established in the Alberta Reference, "which enables a claimant to show that a group activity is permitted for individuals in order to establish that its regulation targets the association per se." (128) The standard or standards criticized above would then serve as an additional method for establishing a 2(d) violation. Thus, although the 'parallel liberty' standard has fallen into disuse, it is still available to judges and I will argue below that it is the best way out of the quagmire. For this argument to stick, it is important to address the arguments that have been levied against it, which I believe fail to provide sufficient grounds for its rejection as a principled bedrock doctrine for section 2(d).

    i. Arguments Against the Parallel Liberty Standard

    A number of reasons have been offered for rejecting the parallel liberty standard holus bolus, none of which withstands close scrutiny. One criticism that requires attention is that the standard leaves collective--in particular union--activities entirely unprotected. (129) An appropriate rendering of the parallel liberty definition shows these claims to be misplaced: the standard protects all collective activities that an individual is free to do alone and all collective entitlements an individual possesses. Although McIntyre J's 'freedom to golf' analogy has been much maligned, (130) it aptly illustrates that collective activities are very much protected as long as individuals are legally free or entitled to partake in those activities alone. Thus, because individuals have no independent constitutional right to golf, a government could conceivably prohibit the activity entirely, for groups and individuals alike; however, "the Legislature could not constitutionally provide that golf could be played in pairs but in no greater number, for this would infringe the Charter guarantee of freedom of association." (131) In the labour context, as described in more detail below, the parallel liberty definition would protect the freedom of individuals acting collectively to refuse to work without a contract, simply because individuals are presently afforded this freedom. Thus, Dickson CJ was correct in stating that a standard providing no protection for collective activities is "legalistic, ungenerous, indeed vapid." (132) However, with respect, I think he is wrong to assume that the parallel liberty approach, properly applied, fails to provide sufficient protection to collective activities. It simply does not extend to collectivities, constitutional rights or immunities not afforded to individuals.

    If the criticism of the parallel liberty definition is to be compelling, it must then rest on the cogency of finding that there is a meaningful range of collective activities that really have no individual analogue, a proposition accepted by both McIntrye J and Dickson CJ in the Trilogy. This is difficult to maintain from the outset, for the simple reason that all collective human acts, by anatomical necessity, are performed by individuals. Of course, all activities modified by a collective adjective or adverb ('synchronized swimming', 'doubles tennis') or that are inherently collective ('singing in a choir', 'engaging in a duel') cannot strictly speaking be conceived of on an individual basis; however, is not at all clear that these etymological facts tell us anything meaningful about the proper scope of a fundamental freedom, (133) as they do not entail the conclusion that they cannot support individual analogues. (134) Indeed, the examples given on occasion, such as expressing a majority viewpoint, making collective representations or singing in a choir, (135) all have painfully obvious individual analogues--expressing a viewpoint, making individual representations and singing solo. (136) Thus, if the government can and does ban singing, it can a fortiori ban singing in groups; if it cannot or does not ban singing, it cannot ban singing in groups, or the product of group based singing, absent a section 1 justification. (137)

    At times, admittedly, identifying an individual analogue may not be so effortless, and would require some flexibility in application. (138) For example, a reasonable individual analogue to 'federating' unions (because an individual cannot 'federate' alone) is simply the ability of individuals to unionize in the first place. (139) If individuals can unionize by majority vote, then restrictions on their ability to combine unions by a majority vote would for all intents and purposes prohibit associational activity in which individuals are free to engage. (140) While an overly doctrinaire application of the 'individual analogue' standard may leave a non-trivial range of activities unaccounted for, a suitably flexible application would have rectified this deficiency without leaving us mired in the jurisprudential morass described above.

    By the same token, it is difficult to maintain that there is no individual analogue to activities such as striking; in the case of a timely strike, the individual analogue is simply the ability to withhold labour in the absence of a viable contract of employment; for a wildcat strike during the terms of an agreement, the analogy would be refusing to work during the term of a contract, potentially subject to any contractual breaches such conduct entails. As Beatty & Kennett describe the situation:

    It is not that the workers in [the Trilogy] were attempting to secure the freedom to do collectively what the law rendered unlawful if they tried to act in this way on their own. Just the opposite. They wanted the laws under review, which rendered their collective decision to withhold their services unlawful, to match the [common] law which permitted them to refuse work when they acted on their own. (141) Chief Justice Dickson noted in the Alberta Reference that the impugned legislation in that case prohibited "a collective refusal to work at the conclusion of a collective agreement" and therefore there "can be no doubt that the legislation is aimed at foreclosing a particular collective activity because of its associational nature." (142) The reason there can be "no doubt" on this point is because those acting individually were not so restrained. Put differently, if the government had enacted a law that prevented all workers (including non-unionized employees) from ceasing to work at the end of their employment contract, it would have been difficult to conclude that it was only associational activity that was targeted or foreclosed. The government would be attacking the freedom of all workers to withdraw their services, not freedom of association, and some other constitutional provision would have to be relied upon in order to ground a challenge.

    The most startling aspect of the dispute between the Justices in the Trilogy was the agreement on all sides that the parallel approach cannot apply where activities become not only quantitatively different, but qualitatively different, when done in concert. Justice McIntyre took this to mean strike activity (and other supposedly 'qualitatively different' activities) must fall outside of the scope of section 2(d), while Dickson CJ took this to mean that the individual analogy approach is structurally inadequate. The apparently untested solution is to assert that whether or not such acts become more effective or "qualitatively different" when done in concert, it simply does not negate the individual analogy. As Professor Pothier argued a decade ago:

    In large measure, it is precisely because collective action is qualitatively different from individual activity that people choose to engage in collective action; it is often the collective exercise which turns ineffective action into effective action ... the real difference between an individual quit and a collective strike as a bargaining tactic is that someone engaged in the latter has a much greater chance of succeeding, and a much lesser chance of ending up jobless. Is this difference not precisely the point of protecting freedom of association, namely to enable people to be more effective by acting together? (143) This is exactly the point, and helps explain why an activity being 'qualitatively' different is of little analytical value in defining freedom of association, however relevant it may be to the section 1 justification stage. (144)

    On the parallel liberty standard, then, there is no need to locate the freedom to strike as one merely derivative of collective...

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