SCC to Visit Constitutional Right to Collective Bargaining Once Again

Last Thursday, the SCC granted leave to appeal in Fraser v. Ontario (Attorney General) (32968). This case involves the appeal of an Ontario Court of Appeal decision (2008 ONCA 760) finding that a provincial law prohibiting the ability of agricultural workers to bargain collectively violates the workers’ s. 2(d) Charter right to freedom of association.

This decision represents the SCC coming full circle in its constitutional dialogue with the Ontario government on this matter. Starting in 2001, the SCC decided in Dunmore v. Ontario, 2001 SCC 94 [Dunmore] that s. 2(d) of the Charter prevented the Ontario government from excluding agricultural workers from the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. The SCC did so by finding that s. 2(d) contained a right to organize. The Ontario government responded to the decision by enacting the Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 [AEPA], an act which provided rights for agricultural workers that are only as broad as was necessary to meet the requirements in Dunmore. The constitutionality of AEPA was itself challenged and upheld by an applications judge. That decision was appealed to the Ontario Court of Appeal.

Before the OCA could hear the appeal, the SCC released its decision in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 [Health Services] – a landmark decision that reversed 20 years of jurisprudence concerning collective bargaining. It found that not only did s. 2(d) include a right to organize, but that it also included a right to collective bargaining. In light of this pronouncement, the OCA found that AEPA was unconstitutional. The Ontario government sought leave to appeal to the SCC, and leave has now been granted.

This case will give the SCC an opportunity to examine the implications of Health Services to see if any tweaking is necessary. Indeed, as noted by Judy Fudge and subsequent commentators in her post at theCourt.ca here, the decision left questions as to the contours of the right to collective bargaining, and whether the right to collective bargaining can be limited to the duty to bargain in good faith.

Health Services set a new course for the law as it relates to collective bargaining. By approving leave to appeal, the SCC has acknowledged that it has not said its last word on the scope of s. 2(d) of the Charter. It’ll be interesting to see what, if any refinements to the law are made in Fraser.