What Fraser Means For Labour Rights in Canada

AuthorSteven Barrett and Ethan Poskanzer
What Fraser Means For Labour
Rights in Canada
Steven Barrett and Ethan Poskanzer*
This chapter explores some of the implications of the Supreme Court
of Canada decision in Fraser1 for the future of labour rights in Can-
ada (or at least for litigating labour rights in the courts), from both a
practical and doctrinal perspective.
The judgments in Fraser have already been summarized in pre-
vious chapters, as has the Supreme Court of Canada’s earlier free-
dom of association jurisprudence. Therefore, rather than repeat this
discussion, we begin this chapter in Part A with an analysis of the
potential short- and medium-term impacts of Fraser on litigation
strategy and outcomes. This part begins with an assessment of the
Court’s perpetuation of the distinction between legislative action
and so-called legislative inaction (or exclusion), and then turns to a
review of the practical impact of the Fraser decision on existing and
future constitutional challenges to legislation and government ac-
tion in the collective bargaining sphere.
In Part B, we shift to the doctrinal debate between the majority’s
reasons upholding Health Services,2 and Rothstein J’s reasons advo-
* A caveat is in order. We both appeared as counsel for the Canadian Labour Con-
gress as intervener in the Supreme Court of Canada in Delisl e, Dunmore, Health
Services, and Fraser. As with everyone else, while we come at these issues with a
perspective, our analysis should be assessed on its merits.
1 Ontario (AG) v Fraser, 2011 SCC 20 [Fraser].
2 Health Services and Support—Facilities Subsector Bargaining Association v British
Columbia, [2007] 2 SCR 391 [Health Services].
What Fraser Means For Labour Rights in Canada 1 91
cating for the reversal of Health Services (and, in particular, against
the extension of section 2(d) protection to collective bargaining). By
identifying and analyzing the differences between them, we hope to
shed some light on the potential shape and contour of labour rights
litigation in the years to come. Our discussion includes an assess-
ment of Rothstein J’s criticism of the Health Services decision (and so
too of the Fraser majority’s reasons), based on his contention that the
rest of the Court has inappropriately extended constitutional pro-
tection to associational objects and outcomes, has incorrectly recog-
nized a uniquely collective dimension to freedom of association, and
has wrongly privileged worker and trade union associational activ-
ities. In so doing, we also assess the extent to which his analysis of
the underlying purpose of section 2(d) is inconsistent with its actual
historical and philosophical origins, and purpose and rationale. Part
B also considers the extent to which Rothstein J’s own approach to
freedom of association logically, doctrinally, and practically supports
some form of meaningful section 2(d) protection for both collective
bargaining and the right to strike.
A. The Doctrinal and Practical Implications of the Fraser
Majority’s Reasons
1) Perpetuating a Rigid Distinction Between Legislative Action
and “Inaction”
From a doctrinal perspective, the Fraser decision would seem to per-
petuate a somewhat artif‌icial and rigid distinction between legis-
lative action and inaction (a distinction which, as discussed below,
seems particularly inappropriate in the labour relations context).
More specif‌ically, in its reasons, the Fraser majority upheld the Agri-
cultural Employees Protection Act (AEPA)3 regime based on its charac-
terization of the constitutional challenge to the legislative exclusion
of agricultural workers from the normative collective bargaining re-
gime applicable to virtually all other workers as merely involving a
challenge to the failure to aff‌irmatively extend legislative protection.
On this basis, the majority upheld the AEPA by asserting that legis-
latures are not
3 Agricultural Employees Protection Act, SO 2002, c 16 [AEPA].
Steven Barrett and Ethan Poskanzer192
constitutionally required, in all cases and for all industries, to enact laws
that set up a uniform model of labour relations imposing a statutory
duty to bargain in good faith, statutory recognition of the principles of
exclusive majority representation and a statutory mechanism for resolv-
ing bargaining impasses and disputes regarding the interpretation or
administration of collective ag reements.4
As it turns out, the majority would seem particularly susceptible
to the criticism that it wrongly focused its approach on a concern
with imposing positive obligations on legislatures to “constitution-
alize” the Wagner Act model, given that elsewhere in its reasons,
the majority recognized the inappropriateness and impossibility of
maintaining a rigid distinction between positive rights and negative
freedoms upon which that concern is premised. As the Fraser major-
ity wrote:
[67] . . . This bright line between freedoms and rights, seems to us im-
possible to maintain. Just as freedom of expression implies correlative
rights, so may freedom of association. The freedom to do a thing, when
guaranteed by the Constitution interpreted purposively, implies a right
to do it. The Charter cannot be subdivided into two kinds of guaran-
tees—freedoms and rights.
[70] . . . A purposive protection of freedom of association may require
the state to act positively to protect the ability of individuals to engage
in fundamentally important collective activities, just as a purposive in-
terpretation of freedom of expression may require the state to disclose
documents to permit meaningf ul discussion.5
Nonetheless, despite questioning the rationale for a rigid distinc-
tion between positive rights and negative freedoms in general terms,
the majority seemingly conceives and determines the Fraser case as
if it primarily if not exclusively involves a claim for legislative protec-
tion of positive rights.
Moreover, even if one were to accept the traditional distinction
between positive rights and negative freedoms in the abstract, it
would seem to be somewhat unrealistic, given the labour relations
context in which the case arose, to conceptualize the issue in Fraser
as not, at the very least, also implicating a negative freedom, namely,
freedom from the deliberate and overt legislative exclusion of agri-
cultural workers from the general normative collective bargaining
4 Fras er, above note 1 at para 47 of the majority’s reasons.
5 Ibid.

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