As I reflect on the forty plus years that I have spent as a labour activist I think of hard-fought battles that our members have won as a result of their collective decision to engage in strike action. I vividly remember many of the victories that have been achieved at bargaining tables as skilled union negotiators hammered out deals that protected the interests of our members. When I think of the successes of our union and of the broader labour movement, I do not think of the courts. Traditionally, the courts in this country have chosen to interpret the law in a manner which is generally unsympathetic to the circumstances of working people and the trade unions which represent them.
The passing of the Canadian Charter of Rights and Freedoms ("Charter") offered some hope to trade union activists, but the promise that the Charter offered was quickly extinguished. Rejection of a collectivist approach to rights, which were collectivist in nature, made it a virtual certainty that our courts would not provide workers with a tool that could be used to assist them in the fight for economic and workplace justice. (1) Following the disappointing decisions of the Supreme Court of Canada ("the Supreme Court"), in what became known as the "labour trilogy" many trade unionists concluded that the courts would not expand the rights of working people and that the demands for economic fairness for working people would have to be won in the public sphere. (2) It is a view that I share.
Recent Supreme Court jurisprudence is being heralded as a sea-change in some circles. Trade unions, their supporters and other social activists are pointing to the Supreme Court's pronouncements in B.C. Health Services as a landmark decision which gives labour rights new status as rights which warrant constitutional protection. (3) Any recognition by the Supreme Court of the importance of the right to collectively bargain, and its connection to the fundamental right to freely associate is welcome. However, I would not consider this a radical change in direction. The Supreme Court's recognition of the right to associate freely reflects a recent trend in which the Court makes incremental changes to labour laws so that they better reflect modern day social realities.
Ultimately, it is my view that no court will ever take the initiative to provide workers with any significant degree of workplace justice. Expansive legal protection of fundamental labour rights, including the freedom to associate, and its associated activities, will not be extended until workers recognize their shared experiences and the strength of their collective voice. It is only when workers use the power of their numbers to demand a fundamental shift in the political and economic structures which determine the quality of their work lives that societal institutions, including the courts, will be forced to take notice.
The Charter's Early Years: Association as an Individual Activity
When the Charter was enacted many trade unionists were hopeful that rights which we have always viewed as fundamental to workers, including the right to collectively bargain might be recognized by our legal system. It seemed self evident that in order to give any meaning to the fundamental freedom of association as recognized by section 2(d) of the Charter, the courts would need to acknowledge the very activities which were necessary to give any meaningful content to the right. Any notion that the Charter would provide legal protections for labour rights was quickly dispelled. The Supreme Court decisions in the labour trilogy made it clear that the collective action that workers require to protect their rights would not be granted constitutional protection. (4)
In the cases that constitute the labour trilogy, the Justices of the Supreme Court inexplicably reasoned that freedom of association applied to protect individuals exercising their rights, but that it did not provide any...