"I will not give you a penny more than you deserve": Ontario v. Fraser and the (uncertain) right to collectively bargain in Canada.

• Author: Braley, Alison
• Position: CASE COMMENT/CHRONIQUE DE JURISPRUDENCE

This case comment first reviews the jurisprudence that most directly informed the Supreme Court's ruling in Health Services. Second, this case comment applies the logic underpinning Health Services to the facts of the case at bar. The general argument is that Ontario v. Fraser represents an inconsistent application of two concepts that are central to the understanding of collective bargaining that the SCC had elucidated in Health Services: the meaning of "good faith" and "substantial interference". The comment concludes that Ontario v. Fraser has narrowed the right to collectively bargain to a greater degree than both proponents and opponents of Health Services might have anticipated.

Ce commentaire d'arret fait d'abord etat de la jurisprudence ayant darectement informe la Cour supreme dans sa decision Health Services. Ensuite, ce commentaire d'arret applique la logique sous-jacente de Health Services aux faits en l'espece. L'argument general est que l'arret Ontario c. Fraser represente une application incoherente de deux concepts centraux, pour la comprehension du droit a la negociation collective, que la CSC a elucides dans Health Services : le sens des concepts de << bonne foi >> et d' << entraves substantielles >>. Ce commentaire conclut que l'arret Ontario c. Fraser limite le droit a la negociation collective a un tel degre que tant les defenseurs que les opposants de l'arret Health Services n'auraient pu l'anticiper.

Introduction I. Relevant Jurisprudence and Developments A. Dunmore B. The Agricultural Employees Protection Act (AEPA) C. The AEPA at Trial D. Health Services 1. The Right to a Meaningful Process II. Ontario v. Fraser A. Analysis 1. The Wagner Model of Collective Bargaining 2. The Two Senses of Good Faith 3. The Tribunal 4. Substantial Interference Conclusion Introduction

On 20 April 2011, the Supreme Court of Canada (SCC) released its much-anticipated decision in Ontario (Attorney General) v. Fraser. (1) This decision held that the labour regime for agricultural workers in Ontario as set out in the Agricultural Employees Protection Act (2) is constitutional. The Fraser decision had the effect of overturning an Ontario Court of Appeal (OCA) ruling that had held that the AEPA was unconstitutional. The reason for the OCA's decision was that the AEPA did not extend to agricultural workers an adequate scheme for collective bargaining, a conclusion with which the SCC disagreed.

Unsurprisingly, employer groups are encouraged by Fraser, particularly the Ontario Federation of Agriculture (OFA), which enjoyed intervener status at early trial stages. (3) So too is the Government of Ontario. (4) The labour community, by contrast, is "shocked" (5) by the decision. Stan Raper of United Food and Commercial Workers Canada (UFCW) referred to the decision as less worthy than "fertilizer". (6) It is arguable that one point upon which the employer and labour groups agree, however, is that this particular outcome was unanticipated. That is because the SCC's landmark decision in Health Services, (7) which provided a level of constitutional protection for collective bargaining, had seemingly changed the landscape of labour relations. Commentators claimed that the Health Services decision represented an "about-face"8 and a new era of dialogue with regard to labour rights. (9) Not all observers felt that this about-face was agreeable. Some felt that the decision was arbitrary and would ultimately lead the Canadian constitutional regime into a black hole of the SCC's own making. (10) On the whole, however, commentators agreed that, for good or ill, Health Services altered the discourse of labour relations in this country, even while uncertainty loomed over how much protection workers had actually gained from it. (11) The decision in Fraser, however, reveals a lesser level of protection for collective bargaining than supporters of the Health Services decision seemed to anticipate, cautiously optimistic as they were, and certainly less than the prognostications of its detractors.

Despite diverging views regarding whether or not the decision in Fraser is ultimately correct, many employer and labour groups agree that this result represents a back-pedalling from the SCC's ruling in Health Services. At least one observer has called the Fraser decision a "significant rethinking of recent developments in Canadian labour and constitutional law" that opens the door to an ultimate reversal of Health Services. (12) In its judgment, the SCC rejects the characterization that Fraser represents a retreat from its decision in Health Services. Others agree with the SCC, claiming that this decision "represents the usual foot shuffling and clarification that takes place after the Court's jurisprudence has taken a significant step in any particular direction." (13)

By contrast, I believe that this decision does represent a significant back-pedalling principally because the Fraser decision is largely incoherent

and has offered little in the way of clarification of what the right to bargain collectively entails. I will demonstrate that the SCC's assessment of the collective bargaining provisions in the AEPA is inconsistent with its assessment of what constituted a meaningful (and thereby constitutional) collective bargaining regime in Health Services. The SCC's inconsistent assessment reveals itself in two ways. First, the SCC applied different standards to the term "good faith" in Fraser than it did in Health Services. Second, the SCC misapplied the substantial interference test elucidated in Health Services to the facts of the case in Fraser. Despite the optimistic predictions from some corners in the wake of Health Services regarding the future of collective bargaining in Canada, Fraser pays little more than lip service to the collective bargaining rights that the SCC had supported just a few years earlier.

1. Relevant Jurisprudence and Developments

   1. Dunmore

      Ontario's agricultural workers have been consistently excluded from the protective provisions enacted in the Ontario Labour Relations Act, (14) except for a time in the early 1990s. In 1995, the Labour Relations and Employment Statute Law Amendment Act (15) was introduced. This legislation once again excluded agricultural workers from a labour regime that protected any right to form a union and to bargain collectively. (16) Subsequently, the LRESLAA was challenged under section 2(d) of the Charter. (17)

      The establishment of an affirmative right to unionize and to bargain collectively has a recent history whose provenance is Dunmore (18) in 2001. In Dunmore, the SCC held that a right to associate included the right to join a union. (19) This right was held to be empty if conditions were such that its exercise was made all but impossible. The right must be made substantive by a legislative framework that would enable agricultural workers to associate, since their efforts to do so are otherwise frustrated by interference and threats of reprisal by employers. (20) Dunmore moved section 2(d) jurisprudence from protecting the so-called negative right enshrined in the Charter to holding that positive legislative action was sometimes required to protect the right to associate. Writing for the majority, Justice Bastarache concluded that in some (although not all) cases, the absence of positive protections to conduct union activities could "substantially interfere" (21) with the very right to associate. While the SCC determined that these cases would most likely appear in the labour relations context, (22) Dunmore stopped short of entrenching a positive right to collectively bargain. In keeping with jurisprudence until that point, it explicitly rejected this idea. (23)

      The substance of the SCC's elaboration of the meaning of section 2(d) jurisprudence in Dunmore consisted of the following: the SCC, following the dissent in the Alberta Reference, (24) recognized that individuals join associations for social intercourse and to achieve common goals. (25) The SCC further recognized that since individuals organize into unions to achieve goals that they can only achieve collectively, the right to join a union is not a repudiation of Charter protection of individual rights, but its vindication: "the law must recognize that certain union activities ... may be central to freedom of association even though they are inconceivable on the individual level." (26) The LRESLAA was held to be unconstitutional because, by excluding agricultural workers from an affirmative framework in which the pursuit of the common goals associated with unionization could be achieved, the state was held to have substantially interfered with the agricultural workers' right to associate. (27)

   2. The Agricultural Employees Protection Act (AEPA)

      The Government of Ontario responded to the Dunmore decision with the AEPA, which came into effect in 2003. The AEPA addressed some of the particular concerns raised in Dunmore, namely the need for basic protections in order for agricultural workers to organize into a union. Among other things, it offered agricultural workers the right to join a union and participate in its lawful activities; (28) the right to be protected against interference, coercion, and discrimination; (29) the right to make "representations" (30) to the employer about terms and conditions of work, either verbally or in writing; (31) and the right to have these representations listened to, (32) or, it submitted in writing, receive an acknowledgment that they had been read. (33) The AEPA also included a right to apply to a tribunal to deal with complaints regarding the application of the Act. (34) Notably, the APEA did not include any right to receive an explanation as to the employer's position on the union's representations, nor any acknowledgement by the employer beyond that provided for above.

      Following the implementation of the AEPA, the UFCW attempted to negotiate collective agreements with two...