Fraser et al. v. Ontario (Attorney General), 242 OAC 252

JudgeWinkler, C.J.O., Cronk and Watt, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateMay 21, 2008
JurisdictionOntario
Citations242 OAC 252;301 DLR (4th) 335;2008 ONCA 760;92 OR (3d) 481;(2008), 242 O.A.C. 252 (CA);[2008] OJ No 4543 (QL);182 CRR 109

Fraser v. Ont. (A.G.) (2008), 242 O.A.C. 252 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. NO.036

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 (applicants/appellants) v. Attorney General of Ontario (respondent)

(C44886; 2008 ONCA 760)

Indexed As: Fraser et al. v. Ontario (Attorney General)

Ontario Court of Appeal

Winkler, C.J.O., Cronk and Watt, JJ.A.

November 17, 2008.

Summary:

The Ontario Agricultural Employees Protection Act (AEPA) excluded agricultural workers from the Labour Relations Act, but provided certain protections for organizing. The United Food and Commercial Workers Union Canada and several individuals (the applicants) challenged the constitutionality of the AEPA, arguing that it violated s. 2(d) of the Charter (i.e., the right to freedom of association), by failing to provide agricultural workers in Ontario with sufficient statutory protections to enable them to exercise (a) their freedom to organize and (b) their right to bargain collectively. The applicants also alleged that the AEPA was discriminatory to agricultural workers contrary to s. 15 of the Charter.

The Ontario Superior Court, in a decision reported [2006] O.T.C. 5, dismissed the Charter challenge. The applicants appealed.

The Ontario Court of Appeal allowed the appeal, holding that the AEPA did not violate s. 15 of the Charter, but breached s. 2(d) and was not saved under s. 1. As a remedy, the court declared that the AEPA was unconstitutional in that it substantially impaired the right of agricultural workers to bargain collectively because it provided no statutory protections for collective bargaining. The AEPA was declared invalid and the government was ordered to provide agricultural workers with sufficient protections to enable them to exercise their right to bargain collectively, in accordance with the court's reasons for judgment. The court, however, suspended the declaration of invalidity for 12 months to permit the government time to determine the method of statutorily protecting the rights of agricultural workers to engage in meaningful collective bargaining.

Civil Rights - Topic 2103

Freedom of association - General - Scope of right - [See Civil Rights - Topic 2144 ].

Civil Rights - Topic 2144

Freedom of association - Limitations on - Collective bargaining and right to strike - The Ontario Agricultural Employees Protection Act (AEPA) excluded agricultural workers from the Labour Relations Act, but provided certain protections for organizing - The United Food and Commercial Workers Union Canada and several individuals (the applicants) challenged the constitutionality of the AEPA, arguing that it violated s. 2(d) of the Charter (i.e., the right to freedom of association) by failing to provide agricultural workers in Ontario with sufficient statutory protections to enable them to exercise (a) their freedom to organize and (b) their right to bargain collectively - An applications judge dismissed the Charter challenge - The applicants appealed - The Ontario Court of Appeal allowed the appeal - The court held that the AEPA breached s. 2(d) because it substantially impaired the capacity of agricultural workers to meaningfully exercise their right to bargain collectively - Moreover, the violation of s. 2(d) was not saved under s. 1 of the Charter - The objectives of protecting the family farm and farm production/viability were substantial and pressing goals, but the impugned legislation did not satisfy the proportionality test - The court stated that it was open to the government, however, to draft new legislation that balanced the rights of agricultural workers with the concerns about the family farm and the viability of the agricultural sector in a manner that could withstand s. 1 Charter scrutiny - See paragraphs 1 to 108 and 116 to 137.

Civil Rights - Topic 2144.1

Freedom of association - Limitations on - Collective bargaining and employer or employee groups - [See Civil Rights - Topic 2144 ].

Civil Rights - Topic 2155

Freedom of association - Limitations on - Labour legislation - [See Civil Rights - Topic 2144 ].

Civil Rights - Topic 2181

Freedom of association - Right of - General - [See Civil Rights - Topic 2144 ].

Civil Rights - Topic 2204

Freedom of association - Denial of right of - What constitutes - [See Civil Rights - Topic 2144 ].

Civil Rights - Topic 5668

Equality and protection of the law - Particular cases - Labour legislation - The Ontario Agricultural Employees Protection Act (AEPA) excluded agricultural workers from the Labour Relations Act, but provided certain protections for organizing - The United Food and Commercial Workers Union Canada and several individuals (the applicants) challenged the constitutionality of the AEPA, arguing that it violated s. 15 of the Charter because it denied agricultural workers benefits available under the law to other workers - They claimed that the occupational status of being an "agricultural worker" was an analogous ground of discrimination for purposes of s. 15 - The Ontario Court of Appeal agreed with the applicants that the AEPA perpetuated and reinforced the pre-existing disadvantage of agricultural workers, but held that the distinction was not based on an enumerated or analogous ground - The court stated that the AEPA identified an economic sector and limited the access of workers within that sector to aspects of a particular labour relations scheme - "Agricultural worker" included workers with different qualifications, personal backgrounds and occupations within an economic sector - The category of "agricultural worker" did not denote a personal characteristic of the type necessary to support a s. 15 discrimination claim - See paragraphs 109 to 115.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 2144 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The Ontario Agricultural Employees Protection Act (AEPA) excluded agricultural workers from the Labour Relations Act, but provided certain protections for organizing - A union and several individuals (the applicants) challenged the constitutionality of the AEPA, arguing that it violated s. 2(d) of the Charter (freedom of association) - The Ontario Court of Appeal held that the AEPA breached s. 2(d) and was not saved under s. 1 of the Charter - As a remedy, the court declared that the AEPA was unconstitutional in that it substantially impaired the right of agricultural workers to bargain collectively because it provided no statutory protections for collective bargaining - The AEPA was declared invalid and the government was ordered to provide agricultural workers with sufficient protections to enable them to exercise their right to bargain collectively, in accordance with the court's reasons for judgment - The court, however, suspended the declaration of invalidity for 12 months to permit the government time to determine the method of statutorily protecting the rights of agricultural workers to engage in meaningful collective bargaining - See paragraphs 138 to 140.

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights - What constitutes a breach of s. 15 - [See Civil Rights - Topic 5668 ].

Civil Rights - Topic 8672

Canadian Charter of Rights and Freedoms - Equality rights - Analogous categories - [See Civil Rights - Topic 5668 ].

Labour Law - Topic 5

General principles and definitions - General - Right to bargain collectively - [See Civil Rights - Topic 2144 , Civil Rights - Topic 5668 and Civil Rights - Topic 8380.2 ].

Cases Noticed:

Dunmore et al. v. Ontario (Attorney General) et al., [2001] 3 S.C.R. 1016; 279 N.R. 201; 154 O.A.C. 201, refd to. [para. 3].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1, refd to. [para. 7].

Public Service Alliance of Canada v. Canada, [1987] 1 S.C.R. 424; 75 N.R. 161; 38 D.L.R.(4th) 249, refd to. [para. 7].

Retail, Wholesale, Department Store Union, Locals 544, 496, 635 and 955 et al. v. Saskatchewan et al., [1987] 1 S.C.R. 460; 74 N.R. 321; 56 Sask.R. 277; 38 D.L.R.(4th) 277; [1987] 3 W.W.R. 673, refd to. [para. 7].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 8].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 12].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300, refd to. [para. 53].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 100].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 121].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1, refd to. [para. 127].

Statutes Noticed:

Agricultural Employees Protection Act, S.O. 2002, c. 16, generally [para. 5 et seq.].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 116]; sect. 2(d) [para. 37]; sect. 15 [para. 109].

Authors and Works Noticed:

Carter, Donald D., England, Geoffrey, Etherington, Brian, Trudeau, Gilles, Labour Law in Canada (5th Ed. 2002), pp. 286, 287 [para. 88].

Gernignon, B., Odero, A., and Guido, H., ILO principles concerning collective bargaining (2000), 139 Intern'l Lab. Rev. 33, pp. 51, 52 [para. 84].

Hansard (Ont.) - see Ontario, Hansard, Legislative Assembly, Official Report of Debates.

Laskin, Bora, Collective Bargaining in Canada: In Peace and in War (1941), 2:3 Food for Thought, p. 8 [para. 85].

Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. 93A (October 16, 2002), para. 2128 [para. 62].

Ontario, Hansard, Legislative Assembly, Official Report of Debates, No. 46B (October 22, 2002), para. 2339 [para. 62].

Counsel:

Paul J.J. Cavalluzzo and Fay C. Faraday, for the appellants;

Robin K. Basu and Shannon M. Chace, for the respondent;

John D.R. Craig and S. Jodi Gallagher, for the intervener, the Ontario Federation of Agriculture.

This appeal was heard on May 20 and May 21, 2008, before Winkler, C.J.O., Cronk and Watt, JJ.A., of the Ontario Court of Appeal. The following judgment for the court was delivered by Winkler, C.J.O., and released on November 17, 2008.

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40 practice notes
  • Fraser et al. v. Ontario (Attorney General), DTE 2011T-294
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 17, 2009
    ...reported [2006] O.T.C. 5 , dismissed the Charter challenge. The applicants appealed. The Ontario Court of Appeal, in a decision reported 242 O.A.C. 252, allowed the appeal, holding that the AEPA did not violate s. 15 of the Charter, but breached s. 2(d) and was not saved under s. 1. As a r......
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    ...reported [2006] O.T.C. 5 , dismissed the Charter challenge. The applicants appealed. The Ontario Court of Appeal, in a decision reported 242 O.A.C. 252, allowed the appeal, holding that the AEPA did not violate s. 15 of the Charter, but breached s. 2(d) and was not saved under s. 1. As a r......
  • Fraser et al. v. Ontario (Attorney General), 415 NR 200
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 17, 2009
    ...reported [2006] O.T.C. 5 , dismissed the Charter challenge. The applicants appealed. The Ontario Court of Appeal, in a decision reported 242 O.A.C. 252, allowed the appeal, holding that the AEPA did not violate s. 15 of the Charter, but breached s. 2(d) and was not saved under s. 1. As a r......
  • The Constitutionalization of Collective Bargaining Law
    • Canada
    • Irwin Books Labour and Employment Law. Cases, Materials, and Commentary. Ninth Edition
    • June 24, 2018
    ...preludes to any attempt at understanding the Supreme Court’s decision in Fraser, which follows. Fraser v Ontario (Attorney General) , 2008 ONCA 760 WINKLER C.J.O. (for the court): [. . .] 5. In response to Dunmore, the government [of Ontario] enacted the Agricultural Employees Protection A......
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14 cases
  • Fraser et al. v. Ontario (Attorney General), [2011] SCJ No 20 (QL)
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 17, 2009
    ...reported [2006] O.T.C. 5 , dismissed the Charter challenge. The applicants appealed. The Ontario Court of Appeal, in a decision reported 242 O.A.C. 252, allowed the appeal, holding that the AEPA did not violate s. 15 of the Charter, but breached s. 2(d) and was not saved under s. 1. As a r......
  • Fraser et al. v. Ontario (Attorney General), 415 NR 200
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 17, 2009
    ...reported [2006] O.T.C. 5 , dismissed the Charter challenge. The applicants appealed. The Ontario Court of Appeal, in a decision reported 242 O.A.C. 252, allowed the appeal, holding that the AEPA did not violate s. 15 of the Charter, but breached s. 2(d) and was not saved under s. 1. As a r......
  • Fraser et al. v. Ontario (Attorney General), DTE 2011T-294
    • Canada
    • Canada (Federal) Supreme Court (Canada)
    • December 17, 2009
    ...reported [2006] O.T.C. 5 , dismissed the Charter challenge. The applicants appealed. The Ontario Court of Appeal, in a decision reported 242 O.A.C. 252, allowed the appeal, holding that the AEPA did not violate s. 15 of the Charter, but breached s. 2(d) and was not saved under s. 1. As a r......
  • Mounted Police Assoc. v. Can. (A.G.), 2012 ONCA 363
    • Canada
    • Ontario Court of Appeal (Ontario)
    • November 22, 2011
    ...; 363 N.R. 226 ; 242 B.C.A.C. 1 ; 400 W.A.C. 1 ; 2007 SCC 27 , refd to. [para. 36]. Fraser et al. v. Ontario (Attorney General) (2008), 242 O.A.C. 252; 2008 ONCA 760 , refd to. [para. Delisle v. Canada (Attorney General) et al., [1999] 2 S.C.R. 989 ; 244 N.R. 33 , refd to. [para. 39]......
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26 books & journal articles
  • The Constitutionalization of Collective Bargaining Law
    • Canada
    • Irwin Books Labour and Employment Law. Cases, Materials, and Commentary. Ninth Edition
    • June 24, 2018
    ...preludes to any attempt at understanding the Supreme Court’s decision in Fraser, which follows. Fraser v Ontario (Attorney General) , 2008 ONCA 760 WINKLER C.J.O. (for the court): [. . .] 5. In response to Dunmore, the government [of Ontario] enacted the Agricultural Employees Protection A......
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    • Canada
    • Irwin Books The Charter of Rights and Freedoms. Sixth Edition
    • June 22, 2017
    ...130 Ontario (Attorney General) v Fraser, [2011] 2 SCR 3, 2011 SCC 20, rev’g (2008), 92 OR (3d) 481, [2008] OJ No 4543 (CA) ....................................... 210, 211, 212, 213, 214, 218 Ontario (Human Rights Commission) v Etobicoke (Borough), [1982] 1 SCR 202, 132 DLR (3d) 14 ..............
  • Table of Cases
    • Canada
    • Irwin Books Labour and Employment Law. Cases, Materials, and Commentary. Ninth Edition
    • June 24, 2018
    ...Co (Re) , [1974] 1 CLRBR 510 (BCLRB) .................................................. 347–48 Fraser v Ontario (Attorney General) , 2008 ONCA 760, rev’d 2011 SCC 20 .......................... 925, 931 Fresco v Canadian Imperial Bank of Commerce, 2012 ONCA 444 ....................................
  • Exiting the freedom of association Labyrinth: resurrecting the parallel liberty standard under 2(d) & saving the freedom to strike.
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    • University of Toronto Faculty of Law Review Vol. 70 Nbr. 2, March 2012
    • March 22, 2012
    ...Ontario Winkler outlined the central tenants of the Wagner Act model in his decision in Fraser. See Fraser v Ontario (Attorney General), 2008 ONCA 760 at para 80, 92 OR (3d) 481 [Fraser (17) Such that the Supreme Court has concluded that "(t)here is no room left for private negotiation be......
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