What Meaning in a Right to Strike? MedReleaf and the Future of the Agricultural Employees Protection Act.

• Author: Hastie, Bethany
• Position: Canada, Ontario

INTRODUCTION

The Agricultural Employees Protection Act, 2002 (AEPA) (1) is an Ontario statute that regulates labour relations for farm workers, who are excluded from unionizing under the Labour Relations Act, 1995 (LRA). (2) The AEPA has a fraught history, given its explicit purpose in excluding farm workers--often racialized migrants in Canada--from access to the robust rights and protections afforded through unionization. The AEPA was initially created following the Supreme Court of Canada's decision in Dunmore v Ontario (AG), (3) which held as constitutionally invalid the exclusion of farm workers from access to unionization under the provincial LRA without an alternative legislative scheme in place. Since then, the AEPA has been subject to multiple constitutional challenges at the Supreme Court of Canada, often following new pronouncements on the scope and content of subsection 2(d) of the Canadian Charter of Rights and Freedoms (the Charter).

A first challenge to the AEPA was laid to rest in the 2011 Supreme Court of Canada decision in Ontario (AG) v Fraser, which found the AEPA constitutionally compliant under subsection 2(d) of the Charter, which guarantees freedom of association. (4) Following the Supreme Court of Canada decision in Health Services and Support - Facilities Subsector Bargaining Assn v British Columbia, (5) which found that subsection 2(d) guaranteed a right to a process of collective bargaining, Fraser sought to extend this to include a right to particular features of collective bargaining located under the LRA, though this was ultimately unsuccessful at the Supreme Court of Canada.

Most recently, in June 2020, the Ontario Agriculture, Food and Rural Affairs Appeals Tribunal (the Tribunal) released its decision in UFCW v MedReleaf Phase 2. (6) MedReleaf raised further questions about the right to collective bargaining under the AEPA, (7) as well as advancing arguments about the nature and scope of the right to strike. This followed the Supreme Court of Canada's 2015 decision in Saskatchewan Federation of Labour v Saskatchewan (SFL), which found that subsection 2(d) includes a right to strike. (8) The right to strike was the focal point in MedReleaf Phase 2, as the legislation at issue, the AEPA, is silent on this topic. While the Tribunal's decision in MedReleaf Phase 2 recognized a right to strike under the AEPA, it has left open the possibility that this will be interpreted as a bare right without concomitant protections necessary for workers to confidently assert this right without repercussions.

This article explores the right to strike argument as it unfolded in the MedReleaf Phase 2 decision and highlights the enduring tensions that exist in articulating and extending labour rights under subsection 2(d) of the Charter to non-Wagner models of labour relations. The Wagner model has been the historically dominant approach to labour relations under Canadian law. It requires the formation of a defined bargaining unit to facilitate a formalized collective bargaining process with the employer, and is characterized by the twin elements of majority representation and exclusivity of the bargaining agent. (9) Further hallmarks of the Wagner model include: a duty to bargain in good faith and make all reasonable efforts to reach a collective agreement; the right to strike in the event of a bargaining impasse; and, detailed procedures for arbitration during both negotiation and administration of a collective agreement. (10)

The persistent decline in unionization in Canada has been attributed to both decreasing accessibility to unionization under the traditional Wagner model and changing nature of the labour landscape. (11) The processes required to organize and certify a union generates multiple difficulties for the increasing population of non-standard workers in Canada, given the fragmentation, casualization, and high turnover rate of labour in many industries, such as food services and retail. (12) As a result, non-standard workers are known to face myriad challenges in unionizing, due to both formal exclusion under labour law and practical barriers accessing the relevant mechanisms to unionize under labour law. (13) This has highlighted the need for new labour relations models and statutory approaches to collective workplace representation (CWR) in Canada.

As the only known non-Wagner labour relations statute to have survived constitutional challenge in Canada to date, (14) the AEPA presents fertile ground for examining how subsection 2(d) may operate to extend labour rights under a broader array of regulatory approaches. Today, subsection 2(d) can be considered to protect at least three key activities in the realm of labour relations: (1) protection against employer reprisals for engaging in collective action in the workplace; (15) (2) access to a process of collective bargaining with an employer; (16) and, (3) access to strike activity or dispute resolution to resolve a bargaining impasse. (17) We argue that, despite the many limitations and failures of the AEPA as a regulatory framework for extending labour rights and CWR, the protections afforded under subsection 2(d) may nonetheless provide a meaningful foundation for exercising associational rights under this statute. This sets the stage for a richer consideration of regulatory approaches to CWR and labour rights in Canada beyond the Wagner model. However, as we will discuss in this article, attachment to and benchmarking against the Wagner model has, in some ways, stunted progress and limited a robust understanding and application of the full panoply of rights and protections enunciated under subsection 2(d).

While the MedReleaf case advanced arguments about both the right to collective bargaining, and the right to strike, our article focuses exclusively on the latter. The right to strike as a protected activity under subsection 2(d) has been recognized much more recently than a right to collective bargaining and was not considered in the original challenge to the AEPA in Fraser. (18) Further, the silence of the AEPA in respect of strike activity invites a more nuanced examination of the scope, content and (potential) power of subsection 2(d) to fill statutory voids in respect of CWR frameworks. Finally, given both the historical and contemporary understandings of the nature, purpose, and function of strike activity, examining its practical availability outside of Wagner-style statutes holds particular value in considering future directions for CWR and labour law in Canada.

We begin, in section I, by reviewing the history and content of the AEPA and its previous constitutional challenge in Fraser to provide important background and context to the MedReleaf case. We describe, in section II, the arguments and analysis concerning the right to strike in the MedReleaf Phase 2 decision, highlighting how these narrowed the opportunity for a richer examination and interpretation of subsection 2(d) and the AEPA by focusing substantially on a comparison with strike regulation and protections as understood under the LRA. This tendency to benchmark labour rights against the Wagner model has created enduring challenges for subsection 2(d) and the future of Canadian labour law. (19) We unpack the Tribunal's analysis in greater detail in section III and establish that the Tribunal, perhaps unsurprisingly, failed to add meaning and strength to how a right to strike might operate under the AEPA. In section IV, we outline and establish that the language of the AEPA itself, coupled with subsection 2(d) jurisprudence and fundamental rule of law principles, create the necessary foundation to make a right to strike a meaningful and protected activity under the AEPA. We go onto consider the potential future of the right to strike under the AEPA in section V, highlighting possible ramifications regarding a right to strike if agricultural workers are deemed as "essential services", or if the right to strike is otherwise restricted through future legislative action. Finally, we conclude by revisiting the enduring challenges of reliance on Wagner-model labour relations statutes as a benchmark and anchor for interpreting and applying freedom of association under the AEPA, and more generally in non-unionized environments.

1. THE AEPA: A BRIEF HISTORY

   The AEPA was created by the Ontario legislature in direct response to the Supreme Court of Canada's decision in Dunmore. (20) That decision had found that the exclusion of agricultural workers from the LRA in Ontario, without providing an alternative legislative regime for labour organizing, violated subsection 2(d) of the Charter, which protects freedom of association. (21) The AEPA was, in response to the Supreme Court of Canada's decision in Dunmore, explicitly created to exclude farm workers from access to unionization, and in doing so, entrenched their precarity in the Canadian labour landscape. The inability to collectively bargain is inextricable from a historic trend of powerlessness experienced by farm workers attempting to assert and enhance workplace rights, gain control over workplace conditions, and who have faced an overall inaccessibility to justice. (22) The ongoing struggle of farm workers--who are often members of racialized communities, socioeconomically disadvantaged, and quite often migrant and temporary workers--underpinned the factual records in Dunmore and Fraser, and the inherently exclusionary purpose of the AEPA perpetuates longstanding vulnerabilities and "exceptionalism under the law" attached to farm workers in Canada. (23)

   Despite being the product of a legislative agenda to deny farm workers a robust set of rights, the AEPA provides an opportunity to examine whether and how subsection 2(d) may work to extend meaningful labour rights to non-Wagnerian labour relations schemes. As a labour statute, the AEPA is firmly outside the Wagner model. First, it allows for the...