Defining the ‘Meaningful’ – Collective Bargaining and Freedom of Association (Ontario (Attorney General) v. Fraser) Part II
In April, the Supreme Court of Canada (SCC) handed down its latest pronouncement on the relationship between the Charter’s guarantee to freedom of association and the collective bargaining process in Ontario (AG) v. Fraser (Fraser). In Fraser, a majority of the Court determined that Ontario’s Agricultural Employees’ Protection Act (AEPA) is consistent with the Charter’s s. 2(d) guarantee to freedom of association. In part II of its three-part analysis of the Fraser decision, this week thecourt.ca looks at the majority and concurring opinions affirming AEPA’s validity. While eight of the Court’s nine justices found AEPA constitutional, the respective decisions demonstrate significant fragmentation regarding the proper interpretation of the 2007 Health Services decision and the extent of government obligations pursuant to s. 2(d) of the Charter.
The Court split over the correct interpretation of s. 5(1) of the AEPA, which states that:
The employer shall give an employees’ association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer.
The majority found that s. 5 contains not just a right for employee associations to make representations, but also an implied duty for employers to negotiate in good faith. In light of this implied duty, the majority held that the Act ensured a meaningful process, as mandated by Dunmore and, especially, Health Services. Chief Justice McLachlin and Justice Lebel, writing on behalf of Binnie, Fish and Cromwell, JJ., based their decision on an interpretation of Health Services far more limited than what had previously been attributed to it. Specifically, the majority argued that Health Services did not go so far as to constitutionalize a right to a specific collective bargaining process, but merely elaborated on the Court’s holding from Dunmore as to what constitutes a meaningful procedure for the purposes of s. 2(d).
In so doing, the majority continually used a seemingly far-fetched distinction, arguing that the term “collective bargaining” in Health Services referred to a general process of association for the purpose of achieving collective goals, rather than a specific process, such as the dominant Wagner model mandated in the United States. In light of this differentiation, the majority was able to affirm the validity of Health Services, albeit with a far less progressive ratio. Simultaneously, it was able to account for specific references made by the then Minister of Agriculture and Food that the Act did not instill collective bargaining, by interpreting the term “collective bargaining” in that context to be referring to a specific process.
In sum, the majority found that s. 2(d) mandates that governments not substantially interfere with the right to associate to achieve collective goals, that Health Services merely elaborated on what constitutes a meaningful process pursuant to Dunmore rather than impose an obligation to endorse a specific model, and that employers do, in fact, have a constitutional obligation to negotiate in good faith.
Concurring Judgment (i) – Rothstein & Charron
Justices Rothstein and Charron also found AEPA consistent with s. 2(d), though for virtually opposite reasons. Specifically, they found that s. 5 of AEPA does not contain an implied duty to negotiate in good faith, but that s. 2(d) demands no such duty. Accordingly, they held that, to the extent it constitutionalized a right to collective bargaining, Health Services should be overturned.
In holding that Health Services should be overturned, Justices Rothstein and Charron advanced several arguments. First, that Health Services incorrectly focused on the goals of an association rather than the ability of the claimants to associate. Second, that s. 2(d) protects freedoms, not rights, and that no individual employee has the right to require an employer meet and make reasonable efforts to arrive at an acceptable employment contract. Third, that in Health Services, the Court falsely privileged certain associations over others, when a content-neutral approach would be more consistent with other Charter jurisprudence. Fourth, that the effect of Health Services was to constitutionally protect collective agreements on the basis that they are the fruits of collective bargaining. Finally, stressing the importance of showing deference to the legislative branch in the field of labour relations, Rothstein and Charron also held the Health Services regime unworkable.
Concurring Judgment (ii) – Deschamps
For her part, Justice Deschamps held merely that the Health Services decision did not have a broader scope than Dunmore, and that AEPA was consistent with Dunmore. Therefore, Justice Deschamps found no duty to negotiate in good faith either implied in AEPA or mandated by the Charter, but without calling for Health Services to be overturned.
Points of Contention
While, in this case, eight of the Court’s nine justices found AEPA constitutionally valid, their respective judgments evidence a significant schism within the Court with regard to the proper interpretation of the 2007 Health Services decision and the extent of government obligations pursuant to s. 2(d). The extent of this schism is further evidenced by Justice Abella’s dissent, to be discussed in part III of this series.
As regards Health Services, the conventional thinking had been that the Court had constitutionalized a relatively progressive regime protecting the process of collective bargaining. In Fraser, however, the majority backed away from such a stalwart position, clarifying Health Services as merely an elucidation of the type of “meaningful process” from Dunmore demanded by the Charter. Justice Deschamps’ concurring judgment takes a similar, but more limited, approach to Health Services. Conversely, Justice Rothstein and Charron’s concurring judgment accepts that Health Services set a far more progressive precedent, but, as such, was wrongly decided.
In backing away from the liberal position commentators initially attributed to Health Services, the majority found it useful to characterize the term “collective bargaining” as having two meanings – one specific, one broad. While conveniently allowing the majority to account for the seeming inconsistency between the affirmation of “collective bargaining” in Health Services and statements in the legislature assuring that AEPA had not instilled “collective bargaining,” there is nothing in either the Health Services decision nor the legislative record suggesting the term was actually used with such differing connotations. Put concretely, the majority employed some creative analysis to avoid having to either overturn AEPA or solidify an especially demanding interpretation of the right to freedom of association. For previous opinions on Health Services from thecourt.ca, click here, here, here, or here.
Substantively, the majority and the respective concurring opinions demonstrate a divide over the obligations on employers flowing from s. 2(d). The majority held that employers do, in fact, have an obligation to negotiate in good faith flowing from the right to freedom of association. Conversely, the two concurring opinions held that employers were under no such obligation. Charter jurisprudence aside (namely the proper interpretation of Health Services), the correctness of the majority’s decision rests on one’s understanding of the scope of freedom of association. The concurring judgments took a far more literal approach, holding that s. 2(d) jurisprudence should focus on the capacity of claimants to associate rather than the goals of any given association.
In this regard, I would argue the majority actually came to the right conclusion, albeit improperly. As a matter of policy, we should want employers to have to negotiate in good faith with employee representations. Such a policy helps alleviate the inherent power balances between the two groups, encouraging fair deals that ultimately improve the economic standing of, in this case, farm workers. That said, whether or not an employer has an obligation to respond to employee association demands has no actual bearing on the capacity or freedom of farm workers to associate. A preferable approach may have been for the Court to declare it in the interests of justice that labour legislation include an obligation for employers to negotiate in good faith, while nonetheless holding that the Charter does not demand it. Such an approach would carry significant normative value while allowing the Court to avoid being dragged into policy debates appropriately left to the legislature and to simultaneously craft a more simplistic and consistent s. 2(d) jurisprudence.
Both the majority and concurring judgments stressed the importance of showing deference to the legislative branch. While this should come as no surprise given that labour law exhibits significant overlap between rights and policy, it can also be understood as part of the Court’s general approach to legislative sequels.
Also of note, both the majority and concurring judgments were quick to dismiss the s.15 claims as inappropriate given that farm workers do not represent the type of immutable class the Charter seeks to protect, and because the formal legislative distinction between farm workers and other employees does not rise to the level of discrimination. This continues a general trend to avoid framing issues in terms of s.15 where alternatives, in this case s. 2(d), provide other frameworks in which to analyze them.
The lone Justice willing to go so far as to say that the Charter demands that employers negotiate with employee associations in good faith and that AEPA failed to deliver on such an obligation was Justice Abella. In fact, as will be discussed in part III of thecourt.ca’s coverage of Fraser, she was willing to go even further than that. Join us next week for an account of Justice Abella’s dissent and some concluding thoughts!
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