Defining the ‘Meaningful’ – Collective Bargaining and Freedom of Association (Ontario (Attorney General) v. Fraser) Part III

In Part III of its three-part analysis of the Fraser decision, looks at the sole dissenting opinion. For Parts I or II, click on the respective numeral.

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 (Attorney General) v Fraser, [2011] 2 SCR 3 [Fraser]. In Fraser, a majority of the Court determined that Ontario’s Agricultural Employees’ Protection Act, 2002, SO 2002, c 16 [AEPA] is consistent with the Charter’s s. 2(d) guarantee to freedom of association. While Justice Abella was alone in finding AEPA unconstitutional, taken with the majority and concurring opinions, her dissent ensured that the full spectrum of opinions on the extent of obligations flowing from s. 2(d) of the Charter were represented, demonstrating the divided nature of the SCC as regards the freedom of association.

At the outset, Justice Abella openly endorsed the majority’s interpretation of Health Services as simply elaborating on what constitutes a meaningful process, building on Dunmore. Despite this formal endorsement, her opinion evidenced some back and forth on what, exactly, Health Services mandates. For example, implicit in her endorsement is the notion that the term “collective bargaining” in Health Services refers merely to a duty to engage in a meaningful collective process, as held by the majority. It is therefore difficult to account for her differentiation between “collective bargaining” and “a duty to engage in meaningful and good faith efforts to arrive at a collective agreement,” rather than use the terms interchangeably as the majority does.

Irrespective of the degree to which Justice Abella’s reasons actually support her endorsement of the majority interpretation of Health Services, she unambiguously rejected the majority’s finding of an implied duty to negotiate in good faith in AEPA. To accept such an implication, argued Abella, would involve “stretching the interpretive process in a way that converts clear statutory language and express legislative intention into a completely different scheme.” In this regard, Justice Abella rejected the finding of an implied duty on three grounds. First, the explicit lack of Health Service buzzwords like “neogtiate,” “good faith,” or “bargain” in s. 5 of thr AEPA stands in contrast to such an implication. Second, a plain and literal reading of the Minister of Agriculture and Food’s statement that the AEPA created no right to collective bargaining. Third, AEPA was enacted in response to Dunmore, passed before the SCC’s verdict in Health Services, and thus only instituted the lesser obligations regarding the ability to organize flowing from Dunmore.

In addition to lacking an implied duty to negotiate in good faith, Justice Abella would have overturned AEPA as a result of two other shortcomings: labour legislation requires a statutory enforcement mechanism and an endorsement of majoritarian exclusivity to avoid violating s. 2(d). These additional obligations flow from Abella’s contention that “Health Services recognized that 2(d) obliged the state, either as employer or as legislator, to protect the process of collective bargaining. The content of that protection will of course mean different things in different contexts. The determinative question will inevitably be… what protections are “essential” to the “meaningful exercise” of the right.” In this case, Abella argued it was essential to have an enforcement mechanism to resolve bargaining disputes and ensure compliance where a bargain is made. While AEPA actually empowers such a Tribunal, Abella found that because there is no obligation for employers to negotiate in good faith in the legislation, the Tribunal lacks the power to enforce such obligations. Likewise, with regard to the endorsement of majoritarian exclusivity, Abella justifies such a requirement by examining the divide and conquer strategies utilized by employers in jurisdictions without the policy to argue that, without endorsing the principle, the right cannot be meaningfully protected.


While it is not clear that Justice Abella’s interpretation of Health Services coincides exactly with that of the majority, they are in agreement on the major point that the freedom of association places a positive obligation on employers to negotiate in good faith with employee associations. In light of this duty, Abella’s interpretation of AEPA as containing no such duty, which coincides with the concurring judgments of Rothstein and Charron JJ., provides arguably the most compelling analysis of the legislation. In taking a plain and literal approach to the language of the Act and the context in which it was instituted, the dissent effectively calls out the majority on the interpretive two-step they took to uphold the legislation.

Justice Abella goes further, however, presenting the most progressive interpretation of the scope of obligations flowing from the freedom of association of any judge on the Court. In all fairness, she provides a thorough account of the practical importance of a statutory enforcement mechanism and the endorsement of majoritarian exclusivity. That said, such obligations seem to this observer to fall far from the core of an individual’s freedom to associate. In this regard, while presented under the pretext of what is necessary to ensure that the right is meaningfully exercised, her justifications seem to relate more to what would make the best policy than the minimal safeguards governments must institute to avoid violating the right.

Take Aways

Overall, Fraser both confuses and clarifies s. 2(d) jurisprudence. On the one hand, the Court is clearly divided on the precise meaning of Health Services. No doubt, future cases will advance our understanding as the Court uses each occasion to elucidate what is and is not necessary to institute a “meaningful” process. Conversely, it is clear that Health Services does not have the broad and progressive meaning previously attributed to it by commentators. In the labour context, freedom of association demands a legislative scheme that ensures a meaningful process. While legislation need not institute an overarching or specific labour model, such as the U.S. Wagner model to be meaningful, s. 2(d) does, in fact, oblige employers to negotiate in good faith with employee associations.

Fraser also likely speaks to the reality of legislative sequels. While we can’t know for sure, given the extent to which the majority avoided plain and literal interpretations of both the legislative text at issue, the relevant Hansard debates, and the context in which the legislation was passed, it seems reasonable to suggest that there was no appetite to overturn the Ontario government’s second attempt at agricultural employee regulation since excluding them from the province’s Labour Relations Act, 1995, SO, 1995, c 1, Sched A. Such restraint arguably makes sense given that to go further would largely undermine the pre-eminent place of the legislature in the field of labour regulation.

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