B. The Right Not to Associate

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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To this point, the focus has been on the freedom to associate, but sometimes an individual may not want to associate with another. This claim arose in Lavigne, where a community college teacher who was not a union member objected to a collective agreement provision forcing him to pay dues to the union. The compelled payment of dues, known as the "Rand formula" (or the agency shop), differs from compelled membership in the union (or a closed shop provision). Even though Lavigne was not compelled to join the union, he disagreed with a number of purposes for which his union dues were being spent, including opposing cruise missile testing and supporting certain causes, such as access to abortion.

The collective agreement was subject to Charter scrutiny because the employer, the college’s Council of Regents, was closely controlled by government and hence could be considered a Crown agent.28Four of seven judges held that the mandatory dues provision did not violate section 2(d), while three members of the Court held that section 2(d) was violated but that the legislation could be saved under section 1.

Justice Wilson and two others concluded that section 2(d) did not include a right not to associate (sometimes called a "negative right"). In her view, however, this did not leave an individual unprotected from the harms that might come from forced association. The section 2(b) guarantee of freedom of expression would be available to an individual who was compelled to be associated with views he or she did not hold.29Justice MCLACHLIN concluded that some instances of compelled association might violate section 2(d), but not the requirement to pay union dues. In her view, section 2(d) protected only against "coerced ideological conformity." She did not think that Lavigne’s payment of dues associated him with the union’s causes.30Justice La Forest, with whom two other judges concurred, found that section 2(d) included a right not to associate, which had been breached in this case. In his view, it is contrary to the Charter either to prevent individuals from joining together or to compel them to do so in some circumstances. While certain forced associations are a reality of modern society, La Forest J found that there was a Charter violation, since Lavigne was required to contribute to causes beyond the

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immediate concerns of the bargaining unit. Compelling him to contribute funds to the union for bargaining purposes, including...

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