Sara SlinnOsgoode Hall Law School

15 August 2012

The Charter’s Freedom of Association: Windfall or Downfall ?

Charter of Rights & Freedoms (1982)1. The Canadian Charter of Rights and Freedoms guarantees the

rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms: …(d) freedom of association.

Constitution: Notwithstanding Clause 33. (1) Parliament or the legislature of a province may expressly

declare … that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 … of this Charter.

Perspectives on Charter as a tool for labour rights

Realists / Pragmatists / Romantics (Etherington)

Fudge (2000) : Charter disappointing "But, neither have ERs and individual EEs been able to deploy Charter rights to unravel the key components of the statutory collective bargaining regime”

s.2(d) Charter: a short history“Trilogy” SCC cases 1987

Individual right Collective bargaining, strikes outside FOA scopeDoes not extend to objects or goals of an association“Decontextualized” approach Judicial deference

Lavigne (1999) & Advance Cutting (2001)Maintained individual conceptionBut applied collective conception in applying s.2(d) or 1.

Short history, cont.Delisle (1999) - reaffirmed Trilogy

Dunmore (2001) More contextual approach – recognizing interference

with freedom to associate & positive govt obligation

BCHS (2007)Collective conceptionProcedural – not substantiveSubstantial interference threshold – scope and modality

context drivenEliminate judicial deference No particular systemNot address strikes

Short history, cont.Plourde (2009)

Affirm BCHSprivate employer key contextual featureParallel reasoning

Fraser (2011)Purports to affirm BCHS “Derivative” not a “stand alone” rightReplace ‘substantial interference’ with (apparent)

‘effective impossibility’ Retreat on deference (?)

Post-Fraser interpretation: (Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530)

Adopts ‘effectively impossible’ interpretation of Fraser & MPAO.

Extends ‘effective impossibility test’: “…the substantive content of s. 2(d) must be the same whether raised as a

sword to claim the positive right to an effective legislative regime to protect freedom of association or used as a shield to defend against legislation that impinges upon existing statutory protections. It follows that the “effectively impossible” test applies to this case.”

Post-Fraser interpretation: (Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530)

Charter FOA includes good faith bargaining on important workplace issues

Not a mere right to make representations: requires employer to engage in a process of consideration and discussion to have them considered by the employer

Identifies fundamental elements Charter FOA requires for GFB: parties meet and engage in meaningful dialogue. Must avoid unnecessary delays and

make a reasonable effort to arrive at an acceptable contract;

protects only “the right . . . to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method”.

Does NOT: impose a particular process. Different situations may demand different processes and

timelines; require the parties to conclude an agreement or accept any particular terms guarantee a legislated dispute resolution mechanism in the case of an impasse;

The right to a “meaningful process” can be infringed by a ban on employee associations or by setting up “a system that makes it impossible to have meaningful negotiations on workplace matters”.

Wagner model pillars

Common conception: (eg. Fudge, Langille)

1) Exclusive, majoritarian representation

2) Unfair labour practice (ULP) protection

3) Duty to bargain in good faith

4) Dispute resolution mechanism (arbitration / conciliation / strike / lockout)

5) Duty of fair representation (Langille suggests)

“Process” view of Wagner Model collective bargaining

Certification-- Bargaining -- Impasse -- Resolution (exclusive, Good faith Arbitration Voluntary settlemajority) Mediation Arbitration

awardU security Conciliation

Fact-finding LegislationStrike / lockout

Zenith: Fraser - ON Court of Appeal

Winkler, C.J.:“At a minimum, the following statutory protections are

required [by the Charter FOA] to enable agricultural workers to exercise their right to bargain collectively in a meaningful way:

(1) a statutory duty to bargain in good faith; (2) statutory recognition of the principles of exclusivity and

majoritarianism; and (3) a statutory mechanism for resolving bargaining impasses

and disputes regarding the interpretation or administration of collective agreements.”

Potential threats:Problematic features:(1) Contextual over abstract rights interpretation

BCHS ‘unmoored the conceptual foundation’ Remains adrift

(2) Procedural not substantive -> “derivative” vs “stand alone” right(3) Significantly reduced judicial deference

Implications for: Certification / union security / negotiations / dispute resolution

Procedural – not Substantive Connected to deference question: in order to confer measure of

protection on labour issues.

Predicated on characterising collective bargaining as a procedure - separable from (substantive) fruits.

BCHS relied on Laskin description of collective bargaining : “Collective bargaining is the procedure through which the views of the

workers are made known, expressed through representatives chosen by them, not through representatives selected or nominated or approved by employers. More than that, it is a procedure through which terms and conditions of employment may be settled by negotiations between an employer and his employees on the basis of a comparative equality of bargaining strength.” (BCHS para. 29)

Deference to legislatureJudicial ‘no go’ zone:Early rationale: modern legislative rights such as collective

bargaining require the balancing of competing interests -- therefore courts should defer to legislatures in such cases.

Minority: defer to legislatures since labour relations a matter of politics and economics BUT maybe some aspects justiciable.

Historically legislators protectors of labour; courts notContext of neo-liberal super-majority governments & “new

constitutionalism” or “real constitution”

ParallellismPlourde SCC: legislation prohibiting ULP finding for

closing of business “The legislature has crafted a balance between the rights of labour and

the rights of management in a way that respects freedom of association.

… Care must be taken not only to avoid upsetting the balance the

legislature has struck in the Code taken as a whole, but not to hand to one side (labour) a lopsided advantage because employees bargain through their union (and thereby can invoke the freedom of association) whereas employers, for the most part, bargain individually.”

Freedom from Association issues to be revisited.

Process / Derivative right:Mounted Police Association of Ontario v. Canada (Attorney General) 2012 ONCA

Does the right to collective bargaining under s. 2(d) of the Charter ? guarantee workers the right to be represented in their relationship with their employer

by an association of their own choosing ? NO require that the vehicle for dealing with workers’ collective concerns with management

be structurally independent of management ? NO

Because, none of these elements satisfy the ‘effective impossibilty’ test.

Three reasons for this conclusion: RCMP members formed voluntary associations – though statutorily precluded from

bargaining. Statutory EE representation body (SRRP) exists.

Not independent from ER BUT, engages in some collective workplace representation – NOT compensation

The existence of the Mounted Police Legal Fund ONCA calls it independent – but is not Not represent all officers – private, incorporated body

Parsing & context-driven decisions: Arbitration & dispute resolution

Series of federal wage restraint legislation (ERA) decisions:

Meredith et al. v. Attorney General of Canada, 2011 FC 735 ERA provisions effectively preventing the Treasury Board from considering the submissions of

the RCMP Pay Council in setting wages infringed RCMP officers’ s. 2(d) rights - not justified under s. 1.

Association des réalisateurs c. Canada (Procureur général), [2012] J.Q. no 6770 ERA provisions overriding terms of pre-existing collective bargaining agreements and prevented

further negotiation on wages for the period of the legislation Violated s. 2(d) - not justified under s. 1 because the government can control its allocation of

funding to the CBC directly without interfering with CBC workers’ collective bargaining.

Federal Government Dockyard Trades and Labour Council v. Canada (Attorney General), 2011 BCSC 1210ERA provisions overriding an arbitral award did not violate s. 2(d) Did not interfere with a freely negotiated term of a collective bargaining agreement. “Arbitration reflects the breakdown of the bargaining process and is a substitute for it, not one form of

its culmination.” (para. 180)

Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530 ***

Arbitration – ACJ ONCAArbitration does not attract constitutional protection (para. 39).

Regarding the argument and ONSC finding on resumption of bargaining:

“Further negotiation may be possible after the constitutionally protected phase of the process of bargaining has concluded but that possibility, a remote one on the facts of this case, does not expand the scope of the protected right” (para. 40)

Arbitration – evidence? First contract arbitration – once commencing the process:

BC 56.0% voluntary contract; 15.5% were resolved by the mediation or voluntary agreement to seek med/arb; 6% arbitrated conclusion.

QU 37.7% voluntary contractMB 44.7% voluntary contract

Looking forward…(1) Protective role for legislatures diminished / removed

Notwithstanding clause

(2) Likely continued ‘Taylorist parsing’ of collective bargaining & FOA effective diminishing scope of FOA

(3) Contextual approach producing permanent exceptionalism

(4) Revisiting of freedom from association