The Fraser Case: A Wrong Turn in a Fog of Judicial Deference

• Author: Paul JJ Cavalluzzo
• Pages: 155-189

155

CHAPTER SEVEN

The Fraser Case: A Wrong Turn in

a Fog of Judicial Deference

Paul JJ Cavalluzzo

A. Introduction

At the outset let me advise that in Fraser I represented the farm work-

ers throughout the proceedings up to and including the argument

before the Supreme Court of Canada. I make this pronouncement

not only to disclose my perspective and experience but also to en-

courage other lawyers to comment on cases in which they have par-

ticipated. No person knows the case like the counsel who argued it.

Counsel’s comments are particularly important in the area of Charter

law where fundamental freedoms are at stake. Our law libraries are

f‌illed with scholarly texts and articles on Charter jurisprudence. In

Fraser, the majority and Rothstein J debated about the extent of the

scholarly criticism of BC Health Services.1 Indeed, Rothstein J relied

1 Throughout this paper I will be referring to six crucial s 2(d) decisions of the

Supreme Court of Canada which culminated in Ontario (AG) v Fraser, 2011 SCC 20

[Fraser]. The Labour Trilogy included Reference Re Public Service Employee Relations

Act (Alberta), [1987] 1 SCR 313 [Alberta Reference] (challenge to compulsory arbitra-

tion provisions in legislation); PSAC v Canada, [1987] 1 SCR 242 (challenge to federal

compensation restraint legislation) [PSAC]; RWDSU v Saskatchewan, [1987] 1 SCR

460 [Saskatchewan Dairy Workers] (challenge to back-to-work legislation applicable

to dairy workers). The trilogy was importa nt in that the majority ruled that s 2(d)

does not protect the right to strike but was evenly split on whether s 2(d) protects

the right to collective bargaining. The next case, Professional Institute of the Public

Service of Canada v Northwest Territories, [1990] 2 SCR 367 [PIPSC], is important

because, for the f‌irst time, a majority of the Court concluded that s 2(d) does not

Paul JJ Cavalluzzo156

upon the academic criticism in rejecting the scope of protection for

section 2(d) as found by the Court in BC Health Services. He found

that the extent of academic criticism of BC Health Services was a

reason for overturning it.2

Frequently, academic articles cited by courts lack knowledge of

the facts and attention to what is at stake in the dispute that can

only be comprehensively presented by counsel. Since Charter cases

are necessarily contextual, it is important that systemic “on the

ground” considerations become part of the general discussion. The

record, judicial history, arguments, and conduct of the hearing are

important in terms of assessing the judgment of any court. Moreover,

an analytical critique of the impact of the judicial decision on the

parties who must live with it is of crucial importance to ensure that

the “consumers” are heard. In my view, counsel on the case can make

an important and invaluable contribution to the development and

evolution of the Canadian Charter of Rights and Freedoms. Counsel

are accountable to clients who have important interests and rights

at stake and who also f‌inance the litigation, whereas academic com-

mentators are accountable to their peers and students, as well as to

the principles of academic integrity and freedom. Charter law is far

too important to be left to the academics alone!

This chapter has been divided in f‌ive parts. First, there is a re-

view of the record before the court and a brief survey of the judi-

cial history. The second part focuses on the f‌inding of the majority

that the constitutional claim of the farm workers was premature. In

the third part, I focus on the doctrine of judicial deference and how

the doctrine played a signif‌icant role in the analysis of the major-

ity and the concurring decision of Rothstein J. In the fourth part, I

protect the right to collective bargaining. The next case is Dunmore v Ontario (AG),

[2002] 3 SCR 1016 [Dunmore]. Dunmore is the farm workers case which gave rise

to the Agricultural Employees Protection Act, which is the Act at issue in Fraser. It is

important because it held that s 2(d) protects some collective or group activities,

which strayed from the view of the majority in the Labour Trilogy and PIPSC t hat

the focus of s 2(d) is on individual rights alone. However, importantly, Dunmore

upheld the existing precedent made in PIPSC that s 2(d) does not protect the right

to bargain collectively. It did hold that s 2(d) does protect the right to organize.

The f‌inal case preceding Fraser is Health Services and Support—Facilities Subsector

Bargaining Assn v British Columbia, [2007] 2 SCR 391 [BC Health Services]. BC Health

Services is crucial because it overruled PIPSC and the Labour Trilogy to hold that

s 2(d) protects the right to bargain collectively. It also followed Dunmore’s holding

that s 2(d) protects more than individual rights and activities.

2 The use and role of academic commentary in judicial decisions is inevitable but

controversia l.

The Fraser Case: A Wrong Turn in a Fog of Judicial Deference 157

deal with the Wagner or North American model of labour relations

upon which, in my view, the majority and Rothstein J spent undue

time discussing and placed undue emphasis. The f‌inal part describes

the role that international human rights law played in the decision.

In my conclusion, I suggest that all of the judges, except Abella J,

participated in a larger political battle than the constitutional claim

presented in the record before them. As a result, the plight of farm

workers in Ontario was given inadequate focus and attention and,

accordingly, their discriminatory treatment by the legislature of On-

tario continues. One can think of few other more vulnerable workers

who have required the intervention of the Charter in order to elimin-

ate this historic discrim ination.

B. The Record

Farm workers in Ontario are one of the most economically vulner-

able and politically powerless groups of workers. Since the incep-

tion of labour and other employment-related laws, the legislature of

Ontario has discriminated against farm workers by failing to give

them the same statutory benef‌its and protections given to other

employees. This legislative discrimination was a clear result of their

political and economic vulnerability in comparison to the political

and economic power of the farmers’ lobby. Unfortunately, in Fraser,

the Supreme Court of Canada failed to address this extraordinary

imbalance of power.

In the 1940s when Ontario introduced collective bargaining

legislation, farm workers were excluded from its application. At that

time, the sole justif‌ication for the exclusion was that unionization

and collective bargaining would be inappropriate on the family farm.

Whether or not the “family farm exception” was a legitimate excuse

to deny farm workers the right to organize and bargain collective-

ly, its legitimacy wore thin as the nature of agricultural production

changed from the family farm to the corporate farm or “agribusiness.”

It can reasonably be argued that the exclusion of farm work-

ers from the collective bargaining law has a more nefarious genesis

than the family farm exception. Like most collective bargaining laws

in Canada, the Ontario legislation was taken from the Wagner Act

passed by Congress in 1935 as part of FDR’s “New Deal.” The Wagner

Act, like Ontario’s law, excluded agricultural workers and domestics.

The political rationale for the exclusion was based in racism as is