The Constitutionalization of Collective Bargaining Law

Chapter 12: The Constitutionalization of
CollectiveBargaining Law
The Canadian Charter of Rights and Freedoms, Part  of the Constitution Act, , being Sched-
ule B to the Canada Act  (UK), , c  states:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
(b) freedom of thought, belief, opinion and expression, including freedom of the press
and other media of communication;
(c) freedom of peaceful assembly; and
(d) freedom of association.
For labour lawyers, the central question is: What are we to make of the constitutional guar-
antee of “freedom of association?” This constitutional provision, in force since , has
added an important and rapidly growing new dimension to the study and practice of collect-
ive bargaining law in Canada. At various points in the previous several chapters of this book,
we have touched on that new dimension, but we have postponed in-depth discussion of it to
this point, with a view to treating it in a more focused way. Most of the Charter jurisprudence
dealing with our labour law has come under the rubric of freedom of association, and that is
what almost all of this chapter will be about.
It is true that in the leading cases a minor note has been struck by claims (none of them
successful) that certain aspects of collective bargaining law have violated the guarantee of
equality rights in section () of the Charter. Although equality rights at work will be treated in
depth in Chapter , we will not here consider the potential use of section () in the context
of collective labour law. That is not to say there is no such potential. See, for example, Brian
Langille, “The Freedom of Association Mess: How We Got into It and How We Can Get Out of
It” ()  McGill Law Journal . The focus of this chapter is freedom of association.
The Canadian law of freedom of association has had a turbulent history and is dominated
by a series of cases from the Supreme Court of Canada. The Court has elaborated its evolv-
ing view of section (d) in three sets of three cases a “trinity of trilogies.” The rst trilogy
was issued on one day in ; the second trilogy began in  and ended in ; and the
cases constituting the third trilogy were all decided in .
1987:   
Reference re Public Service Employee Relations Act (Alta), []  SCR  [Alberta Reference]
PSAC v Canada, []  SCR  [PSAC]
RWDSU v Saskatchewan, []  SCR  [RWDSU]
Freedom of Association | :
2001–2011:   
Dunmore v Ontario (Attorney General),  SCC  [Dunmore]
Health Services and Support — Facilities Subsector Bargaining Association v British Columbia,
 SCC  [Health Services]
Ontario (Attorney General) v Fraser,  SCC  [Fraser]
2015:   
Mounted Police Association of Ontario v Canada (Attorney General),  SCC  [MPAO]
Meredith v Canada (Attorney General),  SCC  [Meredith]
Saskatchewan Federation of Labour v Saskatchewan (Attorney General),  SCC  [Sask Fed]
The problem addressed in this chapter is, essentially: what are we to make of these
nine cases? They are some of the most important labour law cases in a lifetime. Yet there
remains an extremely dicult legal question. At one level we can see that the Court has
reversed its original approach and critical holdings (against a constitutional “right” to strike,
for example). That much is clear. But much else is not. This chapter takes the view that in
order to understand (to the extent it is understandable) recent law, we need to start at the
beginning. By starting there, we stand a chance of getting a view of our current state of play,
our current diculties, and what may lie ahead.
12:210 The First Trilogy (1987): The Alberta Reference, PSAC, and RWDSU
We begin our story of freedom of association under section (d) of the Charter in the labour
relations context with the Alberta Reference, one of three decisions released simultaneously
in . The central question in the Alberta Reference was whether Alberta legislation prohib-
iting strikes in the public service, and substituting a regime of compulsory interest arbitra-
tion, infringed section (d) of the Charter, and if so, whether the infringement was justied
under section . The brief majority judgment was written by LeDain J. A more detailed, and
very important analysis was oered in McIntyre J’s concurring opinion. But it is Dickson CJ’s
dissent to which special attention must be paid. In this regard, closely read both Dickson’s
legal account of the freedom and its normative importance.
Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 SCR 313
. . . I agree with McIntyre J. that the constitutional guarantee of freedom of association
in s. (d) of the Canadian Charter of Rights and Freedoms does not include, in the case of
a trade union, a guarantee of the right to bargain collectively and the right to strike . . .
In considering the meaning that must be given to freedom of association in s. (d)
of the Charter it is essential to keep in mind that this concept must be applied to a wide
range of associations or organizations of a political, religious, social or economic nature,
with a wide variety of objects, as well as activity by which the objects may be pursued. It
is in this larger perspective, and not simply with regard to the perceived requirements of
a trade union, however important they may be, that one must consider the implications
of extending a constitutional guarantee, under the concept of freedom of association, to
the right to engage in particular activity on the ground that the activity is essential to give
an association meaningful existence.
In considering whether it is reasonable to ascribe such a sweeping intention to the
Charter I reject the premise that without such additional constitutional protection the
guarantee of freedom of association would be a meaningless and empty one. Freedom of
association is particularly important for the exercise of other fundamental freedoms, such
as freedom of expression and freedom of conscience and religion. These aord a wide
scope for protected activity in association. Moreover, the freedom to work for the establish-
ment of an association, to belong to an association, to maintain it, and to participate in its
lawful activity without penalty or reprisal is not to be taken for granted. That is indicated
by its express recognition and protection in labour relations legislation. It is a freedom that
has been suppressed in varying degrees from time to time by totalitarian regimes.
What is in issue here is not the importance of freedom of association in this sense,
which is the one I ascribe to s. (d) of the Charter, but whether particular activity of an asso-
ciation in pursuit of its objects is to be constitutionally protected or left to be regulated by
legislative policy. The rights for which constitutional protection is sought the modern
rights to bargain collectively and to strike, involving correlative duties or obligations resting
on an employer — are not fundamental rights or freedoms. They are the creation of legis-
lation, involving a balance of competing interests in a eld which has been recognized by
the courts as requiring a specialized expertise. It is surprising that in an area in which this
Court has armed a principle of judicial restraint in the review of administrative action
we should be considering the substitution of our judgment for that of the Legislature by
constitutionalizing in general and abstract terms rights which the Legislature has found it
necessary to dene and qualify in various ways according to the particular eld of labour
relations involved. The resulting necessity of applying s.  of the Charter to a review of par-
ticular legislation in this eld demonstrates in my respectful opinion the extent to which
the Court becomes involved in a review of legislative policy for which it is really not tted.
[. . .]
The question raised in this appeal, stated in its simplest terms, is whether the Can -
adian Charter of Rights and Freedoms gives constitutional protection to the right of a trade
union to strike as an incident to collective bargaining . . .
The appellants do not contend that the right to strike is specically mentioned in the
Charter. The sole basis of their submission is that this right is a necessary incident to
the exercise by a trade union of the freedom of association guaranteed by s. (d) of the
Charter. The resolution of this appeal turns then on the meaning of freedom of associ-
ation in the Charter.
Freedom of Association and s. (d) of the Charter
Freedom of association is one of the most fundamental rights in a free society. The
freedom to mingle, live and work with others gives meaning and value to the lives of

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