Table of Contents I. LEGAL SOUVENIRS FROM THE FOREIGN COUNTRY OF THE TRILOGY II. TWO SOUVENIRS FROMTIIE FOREIGN LAND OF THE TRILOGY OF THE TRILOGY: ONE ABANDONED AND ONE RETAINED III. HOW WE SHOULD DEAL WITH UNWANTED SOUVENIRS IV. A FINAL SOUVENIR--A FINAL DOMINO I. LEGAL SOUVENIRS FROM THE FOREIGN COUNTRY OF THE TRILOGY
Many people are familiar with the opening line of Hartley's novel The Go-Between: "[t]he past is a foreign country: they do things differently there." (2) But it is still a shock to realize that one used to live in that foreign country--and that one has simply forgotten how differently they do things there. I had to face this truth when re-reading the Supreme Court of Canada's ("the Supreme Court") 1987 labour law trilogy ("the Trilogy"). (5) There it was in black and white in PSAC v Canada: in 1982 the Federal Government has taken the draconian step of extending collective agreements and imposing "Compensation Restraint" (4) by, and pay attention to this, fixing the wages of the Public Service Alliance of Canada members at six per cent in the first year and five per cent in the second. That is some restraint by today's standards! It does no good to point out that the inflation rate was around 11.5 per cent per year in that foreign country. That is just another reminder of how foreign that country really is. This is the sort of thing we can expect when we are offered the opportunity to time travel, to visit that foreign land we once inhabited ourselves. We are likely to be startled as with travel to any foreign land. Sometimes we are startled by how odd the practices there really are--but sometimes we are startled by how well they do things there and ask, why can we not do that at home? This conference on the 25th anniversary of the Trilogy opens that door to the past. In what follows, I make the claim that some of the legal ways they do things differently there still have effects in the present, and not necessarily for the better. These legal "souvenirs" from that foreign country have current effects in two ways. First, we now have thrown away some of our legal souvenirs from that foreign country which we should, in fact, have retained. Second, we have retained some souvenirs from that foreign country which we would now be better off throwing away. Both of these possibilities are in play when we compare the homeland of our present constitutional labour law with that foreign country of its past, which is the Trilogy. (5)
In Part II of what follows, I identify the approach to the content of section 2(d) of the Charter articulated in the Trilogy by Justice McIntyre and Chief Justice Dickson as the most important souvenir from the foreign country of the Trilogy that we have thrown away, but which we ought to have held onto. This is because it is an essential part of a legally coherent (and not just politically attractive) account of freedom of association. I also identify as a souvenir we should have abandoned, but have instead retained, our continued rejection of the constitutional guarantee of "equality" as a key tool in our legal thinking about these cases. I then show, in Part III, that this pair of truths about our treatment of basic ideas from the foreign land of the past explains a great deal about our current legal confusion regarding section 2(d), including the very unsatisfactory results and reasoning in the Fraser decision of the Supreme Court, (6) as well as in important and subsequent appellate level decisions. I then, in Part IV discuss another souvenir which has a curious life history. 1'his is the dissent of Chief Justice Dickson in the Trilogy and in particular his use of international law to defend his approach to section 2(d). This is a souvenir we did not buy at the time, but which seems to have made it into our intellectual luggage, lingering there until recently discovered and put on prominent display. The discovery and embracing of this particular souvenir is a matter of some real jurisprudential, and as it turns out, real world regret.
TWO SOUVENIRS FROM THE FOREIGN LAND OF THE TRILOGY: ONE ABANDONED AND ONE RETAINED
The most basic of the practices of the foreign country of the Trilogy which we have now rejected, but should have retained, is the following: we would be much better off now if we were to accept Justice McIntyre and Chief Justice Dickson's conception of section 2(d) as set out in the Trilogy (freedom of association is the freedom to do with others what I am free to do myself) (7) and apply it to the facts correctly, as McIntyre famously did not. (8) This is not the current Supreme Court's view and this is, in my view, a large source of the current problems we have with section 2(d). (9)
The most important example of our holding onto a souvenir, when we should not have picked it up in the first place, is our continued rejection of the idea of equality as the legally safe vehicle for the protection of labour rights in Canada, now and for the foreseeable future. (10)
If anyone doubted these two points before the Supreme Court's decision in Fraser (11)--I do not see how they can after Fraser. Fraser is "Exhibit A" in the case in favour of both of these two points (Exhibits "B" and "C" might be the Ontario Court of Appeal decisions in Mounted Police Assn of Ontario (12) and Assn of Justice Counsel (13)--legal curiosities unimaginable in a legally coherent world).
This, and much else, was pointed out after BC Health. (14) But it took the wisdom, and perhaps courage, of a great labour lawyer--Chief Justice of Ontario Warren Winkler (in Fraser at the Ontario Court of Appeal) (15)--to show how much of a problem BC Health had created for the Canadian labour law community. In Dunmore, (16) the Court had created new, properly called in my view (but without using the word), "derivative" unfair labour practice rights and duties protecting agricultural workers. (17) The Court did not use the word "derivative" right until much later, in Fraser, and then it did so erroneously. One large problem is that the current Supreme Court alleges that you can think about section 2(d) without the distinction between rights and freedoms and, as a result, it has shown little understanding of what derivative rights--a very important idea might look like, and what their creation might entail. In BC Health, it continued this pattern of creating of new derivative rights--by creating, even though not asked to, and even though not possibly raised by the legal case involved, the right/duty "to bargain in good faith." Some people brought forth the message that this may not have been a good idea and was not supported by the reasoning on offer. (18) Some other people then adopted the time-honoured strategy of shooting at least certain of those messengers. (19)
But it took Chief Justice Winkler to make the consequences of the BC Health ruling too plain to ignore. This is because as a good legal thinker and good labour lawyer Winkler saw the predicament in which BC Health had left him--and all of us.
Here it is. If you do say that there is a "duty" on employers to bargain in good faith with workers, and that as a result that workers have a "right" that employers do so, then you have to face up to the boldness of this idea. The boldness of that idea is quite obvious and it is this: if you are going to say that the Constitution protects collective bargaining, including a duty to bargain in good faith on the employer, as the Court held in BC Health, then you have to have an answer to the question which inevitably follows: "Well, alright, if I as an employer have a duty to bargain, with whom must I bargain--i.e. to whom do I owe this duty?" This is one way of asking "if the employer has a duty, who has the right?" This is a question which cannot, legally, be left unanswered.
And it is precisely that question (which only has to be answered in the very few labour law systems which contain such a duty, such as Canada's) which many or most of the other provisions in Canadian labour legislation are designed to answer. These are the provisions on bargaining units, certification, majoritarianism, exclusivity, the existence of a labour board to run the show, and so on. (20) These two parts of the system--the duty to bargain and majoritarianism/exclusivity and the rest of the scheme are conceptually joined. You cannot separate them. They are required by the connection between right and duty. If there is a duty then there is a right and we have to be able to specify who the rights holders and duty bearers are. Most other labour law systems do not create these problems for themselves because they do not create the right/duty to bargain in the first place. This is something which comes as a surprise to many Canadian labour lawyers. But we in Canada do create it and as a result we need to have also a labour law system which answers the obvious question it creates. And our legislation does so, at great length.
HOW WE SHOULD DEAL WITH UNWANTED SOUVENIRS
This is where the Ontario Court of Appeal decision in Fraser is of utmost importance. As a very experienced labour lawyer Chief Justice Winkler saw all of this clearly and knew that his/our options were rather starkly drawn. His options were: (a) in good common law fashion, to gently point out the mistakes in reasoning the Supreme Court made in BC Health, show how it was not necessary to decide the point in that case in any event because it did not arise, and then show what would follow if the decision were taken at face value: that you would need to constitutionalize the other parts of the system including exclusivity, majoritarianism, bargaining units, dispute settlement, and so on. Finally, to suggest that on the Supreme Court's own statements to the effect that the Court is not constitutionalizing "a particular model of labour relations" (21) it really did not mean, on pain of contradiction, to hold that there was a duty to bargain in good faith...