The Trilogy and labour boards: where has all the good faith gone?

• Author: Flaherty, Michelle
• Position: Canada - Symposium: The Labour Trilogy

Table of Contents I. INTRODUCTION II. THE DUTY OF GOOD FAITH ANDTHE SHIFTING SANDS OF SUBSECTION 2(D) A. Good Faith: What Does it Mean? B. Good Faith: Where Does it Belong? III. A CASE IN POINT: INDEPENDENT ELECTRICITY MARKET OPERATOR V CANADIAN UNION OF SKILLED WORKERS IV. CONCLUSION I. INTRODUCTION (1)

I have been invited to address the Labour Trilogy (2) and its particular impact on the work of labour boards. This topic raises interesting issues because, in the main, the scope of the freedom of association has been defined by the courts. (3) To a large extent, labour boards have taken a backseat, leaving the courts to determine the content of the freedom of association at subsection 2(d) of the Charter. (4)

Given that they have not been principle players in the development of the law under subsection 2(d), what has the Trilogy and its legacy meant for labour boards? I argue that the Supreme Court of Canada's jurisprudence under subsection 2(d) has impacted labour boards in two principal ways. First, especially since the Supreme Court of Canada's decision in Health Services and the expansion of the scope of subsection 2(d), labour boards have been on the front line of scrutinizing key labour statutes for compliance with the Charter. (5) Even before the Supreme Court of Canada's decision in Health Services, labour boards had been considering questions related to the constitutionality of their own statutes. (6) It is no coincidence, however, that this type of litigation proliferated before both the courts and labour boards after the Court's decision in Health Services. (7) While it may have been difficult to mount a viable challenge under the earlier and narrower vision of the freedom of association, the Court's reasoning in Health Services in particular and its identification of an obligation to consult and bargain in good faith broadened the range of possible challenges. An expanded view of the freedom of association has meant more constitutional challenges and a larger role for labour boards as they consider their own statutes in light of a broadened freedom of association under the Charter. (8)

Second, recent Supreme Court of Canada decisions under subsection 2(d) have been notable as much for what they have decided as for what they have left unresolved. (9) One of the key unresolved issues, at least from the perspective of labour boards, is the meaning and role of the constitutional duties to bargain and consult in good faith. (10) The duty to bargain in good faith has long been present in Canadian labour legislation (11) and labour boards have spent decades developing jurisprudence to give meaning to the term. (12) Importantly, in Health Services, the Court incorporated the existing labour relations notion of good faith bargaining into the freedom of association analysis under subsection 2(d), thereby creating a constitutional obligation for parties to bargain in good faith. (11)

This aspect of Health Services has been criticized for constitutionalizing a particular labour relations model (the Wagner model), (14) and because it is said to amount to the drafting of labour laws, which encroach on matters best left to the legislatures. (15) The Court in Fraser, responding to some of this criticism, specified that Health Services was not meant to constitutionalize any particular model of labour relations. (16)

While the obligation of good faith under subsection 2(d) is carried forward from Health Services to Fraser, the function and content of that obligation becomes murky. (17) Good faith is no longer, as the reasoning in Health Services seemed to suggest, akin to the obligation to bargain in good faith developed under the Wagnerian model of Canadian labour statutes. (18) Since Fraser, the constitutional obligation to bargain and consult in good faith seems to have become something less robust than this, although, it is still meant to ensure "meaningful discussion" and a process whereby employees may make representations. (19) Since Fraser, it has fallen to lower courts and labour boards to give some meaning to the constitutional notion of good faith and to divine which point along a spectrum of possible interpretations the Supreme Court had in mind.

This paper looks at the duly to bargain in good faith and what it has come to mean under subsection 2(d). The paper highlights some of the ambiguities created by the Supreme Court's decisions in Health Services and Fraser. I begin with a brief review of the Supreme Court's jurisprudence under subsection 2(d) of the Charter. I then consider some of the conceptual difficulties labour boards and lower courts have been left to contend with following the Supreme Court's recent decisions in Health Services and Fraser. Finally, I present the Ontario Labour Relations Board, the Divisional Court and the Court of Appeal's decisions in Independent Electricity Market Operator v Canadian Union of Skilled Workers, (20) as examples of how these conceptual difficulties have impacted labour board and court decision making.

2. THE DUTY OF GOOD FAITH AND THE SHIFTING SANDS OF SUBSECTION 2(D)

   I begin with a brief summary of the jurisprudence developed by the courts under subsection 2(d) of the Charter. As others in this volume have covered this ground in more detail, my objective is not to summarize exhaustively legal developments, but to set the stage for a better understanding of the role labour boards play in determining issues relating to freedom of association and good faith. (21)

   The Trilogy was an important jurisprudential milestone because it was the Supreme Court of Canada's first real attempt to define the content of the freedom to associate at subsection 2(d) of the Charter. While the specific issue in the Trilogy cases was whether subsection 2(d) protected the right to strike, the Court engaged in a fulsome discussion of the scope of the freedom of association. The result of which was a relatively limited vision of the freedom to associate: one that did not create group rights or include the right to strike. (22) As Justice Sopinka explained in P1PSC, the freedom to associate protected the freedom to establish, belong to and maintain an association as well as the freedom to exercise individual freedoms in association with others. However, the Court held that it did not create any group rights or protect an activity solely on the grounds that it went to an essential purpose of an association. (23)

   While the sands have shifted considerably since the Trilogy, the evolution of the freedom to associate was incremental and somewhat unpredictable. In the almost 20 years following the Trilogy, an often divided Supreme Court contended with competing views of the freedom to associate and struggled to come to terms with the reasoning in the Trilogy. (24) As many of the Court's decisions gave little in the way of clear guidance to parties, boards and lower courts, the actual content of the freedom to associate remained uncertain.

   The shift to a broader vision of the freedom of association began with Dunmore (25) and ultimately led to Health Services--where the Supreme Court explicitly overruled many aspects of the Trilogy. (26) In Health Services, the Court found that provincial legislation that invalidated certain provisions of existing collective agreements and effectively barred future collective bargaining on those matters violated the freedom of association at subsection 2(d) of the Charter. In reaching this conclusion, the Court expanded the meaning of subsection 2(d) to include protection for the "capacity of members of labour unions to engage, in association, in collective bargaining on fundamental workplace issues." (27) The Supreme Court held that the freedom of association now guarantees a bargaining process, including the right to unite, to present demands to employers collectively and to engage in meaningful discussions to attempt to achieve workplace-related goals. (28) In Health Services, the Court appeared to: a) constitutionalize some aspects of the existing obligations under labour law statutes to bargain in good faith; (29) and (b) broaden the scope of the protected freedom to include access to a meaningful process for collective bargaining. (30)

   While freedom of association was expanded with Health Services, as the Court emphasized in Fraser, there are a number important limits to its scope. (31) First, the Supreme Court of Canada has made clear that the freedom of association relates to access to a collective bargaining process, but does not guarantee any particular result. (32) It does not, for example, guarantee that workers will achieve a collective agreement or that any agreement reached will include any particular protections or conditions of work. Second, while the freedom includes access to a process of collective bargaining, it does not guarantee a particular .model of collective bargaining or even a model that is particularly robust. (33) Again, there is no guarantee of any particular protections. While access to collective bargaining must include an opportunity to have a meaningful dialogue, it guarantees very little else. Third, the test for establishing a violation of the freedom of association is an exigent one. In Fraser, the Court explained that subsection 2(d) is breached only where it is shown that it is impossible to meaningfully exercise the freedom to associate due to substantial interference by government action (34) or absence of government action. (35) In Fraser, the Court stated that its decisions in Dunmore and Health Services do not "support the view ... that legislatures are constitutionally required, in all cases and for all industries, to enact laws that set up a uniform model of labour relations ..." (36) Rather, in considering whether a positive obligation exists to create a statutory labour relations scheme, the courts must look to the evidence and whether, absent such a regime, it will be impossible to...