In Pursuit of Equality: Rethinking the Constitutionalization of Labour Rights after Fraser
| Author | Alex Kerner |
| Position | His Juris Doctor at the University of Victoria in 2013 |
| Pages | 81-103 |
APPEAL VoLuME 18
n
81
ARTICLE
IN PURSUIT OF EQUALITY: RETHINKING
THE CONSTITUTIONALIZATION OF LABOUR
RIGHTS AFTER FRASER
By Alex Kerner*
CITED: (2013) 18 Appeal 81-103
INTRODUCTION
When the Supreme Court of Ca nada (“the Court”) released its Ontario ( Attorney General)
v Fraser (“Fraser” ) decision in late April 2011,1 the labour movement had to reevaluate
whether a legal strategy of constitutionalizing collective bargaining rights continued to
make sense. For most of the twe ntieth century, courts consistently fettere d and punished
workplace organizing and militancy, engendering distrust toward t he judiciary among
trade unionists.2 After the enactment of the Canadian Charter of Rights and Freedoms
(“Charter”) in 1982,3 there was some modest optimism t hat workers’ rights to collectively
bargain and strike could nd a place w ithin the new Constitution’s listed rights and
freedoms. e Court quick ly extinguished such hopes in its Labour Trilogy, refusing to
read the right to strik e or bargain collectively into the ‘fre edom of association’ guarantee
listed under section 2(d) of the Charter.4 However, within two de cades of these decisions
the Court shif ted gears, with Dunmore v Ontario (Attorney General) (“Dunmore”)5 and
Health Services and Suppor t-Facilities Subsector Bargaining Associati on v British Columbia
(“Health Services”)6 indicating a thawi ng of judicial antipathy towards labour. Af ter three
decades of diminishing membership and reduced political and economic clout, unions
and their allies were understandably excited when Canada’s highest court stated that in
* Alex will complete his Juris D octor at the University of Vic toria in 2013. He has a Bachelor of
Arts (Honours) and Maste r of Arts from the University o f Toronto. This article was written for
the “Civil Liberties an d the Charter” course, taught by Je remy Webber, and Alex is grateful for
all the support and fe edback he received from his profess or and classmates. He wants to thank
Rebecca Cynader for her metic ulous editing, which has made the nishe d article signicantly
better than its origin al form. He is especially apprecia tive of his partner, Joy, who is an ever-
present source of inspiration and encouragement.
1 Ontario (AG) v Fraser, 2011 SCC 20, [2011] 2 SCR 3 [Fraser].
2 Eric Tucker, “The Constitutional Right to Bargain Collect ively: The Ironies of Labour His tory in the
Supreme Court of Canada ,” (2008) 61 Labour/LeTravail 151 at 171.
3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11 [the Charter].
[Alberta Reference]; Retail, Wholesale and Department Store Union v Saskatchewan, [1987] 1 SCR
DLR (4th) 249. Although not directly touching upo n the inclusion of labour rights within t he
Charter, RWDSU v Dolphin Delivery Ltd, [1986] 2 SCR 573, 33 DLR (4th) 174 also signaled to unions
that the new era of robust consti tutionalism would oer little to org anized labour.
6 Health Services and Support—Facilities Subsector Bargaining Association v British Columbia, 2007
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certain circumstances t he state has a positive obligation to ensure an “eective exercise”
of freedom of association,7 and held that collective bargaining was a right within the
meaning of this f reedom.8 When the Cour t was asked in Fraser to elaborate on what
this right constituted, however, a majority refused to tie any substantial procedura l
requirement to collective barg aining beyond the obligation to listen in good fa ith.9
While thi s rather hollow guarantee disappointed those who h ad hoped for a more robust
constitutionalizing of collective bargaining rights, I believe the Fraser decision also
provides an opportunity to reorient the focus of labour rights litigation. Envisioning
the aspirations of organized labour through the lens of freedom of association has
been a fruitfu l endeavour, but simultaneously limiting. is approach has focused on
the importance of a procedural guara ntee to collective bargaining, but has given less
signicance to t he equality-advancing outcomes t hat workplace democracy and collect ive
bargaining have sought to achieve. If the Court is now hesitant to use the section 2(d)
freedom to describe what a collective bargaining system should look like, it may be
worthwhile to gauge whet her the Charter’s section 15 equality provision can better
advance the goals of labour. In Health Services, the Court seems to have suggested as
much, asserting t hat “one of the fundamenta l achievements of collective bargain ing is to
palliate the hi storical inequality between employers and employees” and that “[c] ollective
bargaini ng […] enhances the Charter value of equality.”10
In this paper, I will a rgue that unions should look more seriously to the Charter ’s equality
provision as an alternative avenue to advocate for the constitutionaliz ation of labour
rights, both because this would provide an additional line of argument to persuade the
Court and because it may actually strengthen workers’ section 2(d) claims. Although
the Court has ref used to include employment status or class in the list of ana logous
grounds in its equality test, several concurrent opinions have suggested that this is
not an insurmountable hurdle and that work and employment may be an essentia l
element of a person’s identity.11 e importance the Cour t assigned to equality concerns
in collective bargaining rights litigation was most evident in the Dunmore decision,
which was ultimately characterized as a section 2(d) case but nonetheless relied heavily
on the language of equality to buttress the Ontario agricultural workers’ freedom of
association claim. e Court’s understanding of equality and discrimination, however,
has progressively narrowed over the years, with recent decisions refusing to deem
certain treatments unequal if they fall outside of the parameters of stereotyping a nd
prejudice.12 e task of pushing the Court to better defend collective bargaining rights
under section 15(1) will, therefore, require convincing the Court to embrace a broader
understanding of discrimination— one which includes laws that maintain socia l and
economic disempowerment.
is article w ill advance its arg ument in four parts. In Part I, I w ill examine how the C ourt
has considered the question of collective bargaining since the emergence of the Charter,
tracing the jurisprudence from the Labour Trilogy until Fraser, as well as the academic
critiques that have emerged in resp onse to the judiciary’s approach to the collective goals
7 Dunmore, supra note 5 at para 30.
8 Health Services, supra note 6 at para 2.
9 Fraser, supra note 1 at para 103.
10 Health Services, supra note 6 at par a 84 [emphasis added].
11 Justice L’Heureux-Dubé in Dunmore, supra note 5 at p ara 166, acknowledged an equalit y breach
in the Ontario government ’s treatment of agricultural workers, al though the Court felt that
only in certain cases coul d an occupational category sati sfy the enumerated and analo gous
grounds test. Justice Deschamps in Fraser, supra note 1 at p ara 319 gave a cautious endorsement,
acknowledging that such an a pproach would be “more faithful to the de sign of the Charter.”
12 Health Services, supra no te 6 at para 165; Fraser, supra note 1 at para 116.
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