Karl Klare's vision of democratization in the workplace and the contradictory evolution of labour law jurisprudence in the Supreme Court of Canada.

• Author: Malhotra, Ravi
• Position: Symposium: The Labour Trilogy

Table of Contents I. INTRODUCTION II. AN OVERVIEW OF THE LABOUR LAW REGIME IN CANADA III. KARL KLARE'S FRAMEWORK OF ENHANCING WORKPLACE DEMOCRACY A. The Context B. The Theory IV. LABOUR LAW JURISPRUDENCE ANDTHE SUPREME COURT OF CANADA A. An Overview of Section 2(d) Case Law Prior to 2000 B. Recent Decisions 1. R v Advance Cutting & Coring 2. Dunmore v Ontario (Attorney General) 3. BC Health 4. Fraser V. CONCLUSIONS I. INTRODUCTION

There has been much ink spilled in Canadian legal scholarship over whether courts in general, and the Charter of Rights and Freedoms (1) specifically, have contributed to the cause of social justice and social transformation. (2) Those, typically on the Left, committed to radical or Critical Legal Studies conceptions of law have been particularly dismissive or skeptical of the use of rights discourse and litigation as vehicles of social transformation. In their view, Charter litigation is anti democratic; it channels political conflict into courts where its indeterminate language is interpreted by an unrepresentative, unaccountable judiciary that historically has been anti-union and resistant to human rights claims. (3) They underline that courts deradicalized labour legislation intended to promote collective bargaining and, thereby, to enable individual employees collectively to negotiate improved working conditions. (4) Courts, then, are especially unlikely to give progressive interpretation to redistributive claims brought by unions or other equality-seeking groups relying on as quintessentially liberal a document as the Charter. In an early critique of Charter jurisprudence, for instance, Michael Mandel commented that:

It comes as no surprise that the courts have not allowed themselves to be swept away in the vast literal expanse of section 15 [of the Charter]. They have not attempted to dismantle Canada's hierarchical structure. They have not even made a dent in our basic social inequalities. Nor is there any chance that they will. (5) A more centrist group of progressive scholars, including David Beatty and Brian Langille, have offered a more optimistic, pragmatic view. (6) This group tends to be positive about the Charter's legacy as a democracy-enhancing, but hardly transformative, legal instrument. (7) Feminists and other equality-seeking groups who viewed rights litigation as but one vehicle for social change--albeit a vehicle that could not be abandoned to the powerful--have become more skeptical as the jurisprudence has accrued. From their perspective the initial promise of litigation under section 15 has been reversed over the last decade with profoundly disappointing results to equality seekers. (8)

In this article, I explore recent Supreme Court of Canada decisions (9) that have applied sections 2(d) and 15 of the Charter in the field of labour law. I take a realist approach in assessing whether and how these cases can be said to advance the cause of social justice for workers. (10) adopt the yardstick of Critical Legal theorist Karl Klare, who measures the progressive potential of labour law according to whether it extends the reach and the qualitative yield of collective bargaining and enhances industrial and social democracy. (11) From this perspective, the record of the Court applying the Charter in the labour law field has been mixed. Initially the Court proved skeptics on the Left right in their low expectations of Charter litigation. (12) More recent decisions have injected greater substance into section 2(d) while largely neutralizing any redistributive potential of section 15. The judgments demonstrate a troubling contradiction that is likely to pose serious difficulties in an increasingly globalized economy shaped by a growing domestic workforce of contingent, part-time and casual workers, and of declining job tenure. (13) In this context, I conclude that recent rulings are unlikely to result in extension or enhancement of either collective bargaining or industrial democracy. I advocate a return to section 15 as a feasible, albeit risky, solution to this dilemma.

I maintain that section 15 holds out real promise because it highlights the asymmetrical power relationships that inhere in the modern Canadian workplace and that directly implicate equality issues. It is a far more coherent way of addressing the massive inequality that exists in Canadian society than any argument based on freedom of association could possibly be. Agricultural workers symbolize the exploitation of racialized workers in stressful, physically arduous jobs. (14) They include many migrant labourers with limited fluency in either official language who were promised opportunity in Canada, only to end up in employment under working conditions most Canadians would find shocking. (15) Health care workers symbolize to a large extent the sexist division of labour that exploits often underpaid female employees. (16) A return to section 15 offers new hope that racial and gender inequality in the workplace may be directly addressed and overcomes the tedious evidentiary issues around the precise status of collective bargaining that arise when framing arguments through freedom of association. (17) In Part II, I summarize the core elements of the labour legislation common to all Canadian provinces and the federal sector since the 1940s. Notwithstanding jurisdictional amendments, sector-specific variations and recurring amendments whenever governments change to be more or less union-friendly, this common core represents the status quo of labour relations at the time the Charter came into force. Part III sets out and defends the merits of Klare's framework as a measure of a progressive labour law jurisprudence in light of the momentous changes that have occurred in the global economy over the course of the last two decades. In Part IV, I briefly review the earliest Charter cases that interpret the right to freedom of association in the labour law field. The Court's narrow interpretation of the associational right effectively inhibited further litigation by unions for more than a decade. I then critically analyze four recent Supreme Court of Canada decisions through the filter of Klare's framework. These cases are R v Advance Cutting & Coring Ltd (Advance), (18) which upheld controversial Quebec legislation facilitating an unusual bargaining structure in the construction industry; Dunmore v Ontario (Attorney General) (Dunmore), (19) in which the Court invalidated legislation denying access to collective bargaining for agricultural workers; Health Services and Support--Facilities Subsector Bargaining Association v British Columbia (BC Health), (20) in which the Court constitutionalized the duty to bargain in good faith as a component of the right to freedom of association; and Ontario (Attorney General) v Fraser (Fraser), (21) which overwhelmingly upheld legislation in the agricultural sector that greatly restricted the associational rights of agricultural workers. One of the cases, Advance, rejected an anti-union attack on the specialized construction law regime in Quebec. Dunmore and BC Health give new vitality to section 2(d) of the Charter. Fraser marks a disappointing retreat to a more formalistic approach. Although these are largely positive outcomes, apart from Fraser, I argue they each fall short of improving the democratizing potential of collective bargaining. I provide some brief conclusions in Part V.

2. AN OVERVIEW OF THE LABOUR LAW REGIME IN CANADA

   In the Supreme Court of Canada's decision in the Alberta Reference, (22) Chief Justice Dickson, as he then was, famously remarked that:

   [w]ork is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect. (23) At the heart of labour law lies the often seemingly utopian goal of industrial democracy and industrial citizenship: allowing working people some measure of dignity and control over such a central aspect of their lives. For most people, working is a significant part of their identity, and both working conditions and compensation have become critical aspects of daily life. With the emergence of large scale industry, wage labour has been closely associated with conceptions of citizenship. (24) Consequently, many workers have sought to join trade unions to have a collective voice with which to raise concerns with management about working conditions and to have effective political representation of their interests. (25) Nearly one in three Canadians is a member of a union, and the union density rate is nearly three out of four workers in the public sector. (26)

   Despite variations in the collective bargaining legislation in each province and in the federally regulated sector, certain core fundamentals have defined the Canadian system of labour law since World War II and the establishment of the PC 1003 system. (27) This common core is founded on a compromise between labour and management. Employers lose the freedom to refuse to recognize or bargain with their employees' duly chosen representative and the freedom to discipline or discharge employees involved in union organizing or union activities. Unions lose the freedom to strike or picket over issues of their choice at a time and place of their choice. (28) State-appointed and -funded labour boards have power to certify a union upon demonstration of majority support by employees in what the board defines as an appropriate bargaining unit. (29) 'The certified union acquires exclusive bargaining rights over all employees within the bargaining unit--whether or not...