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

AuthorPaul JJ Cavalluzzo
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

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT