Fraser v Ontario: Positive State Obligations under s. 2(d) in the Labour Relations Context

On December 17, the Supreme Court of Canada (“SCC”) heard Fraser v Ontario (Attorney General), 2008 ONCA 760 [Fraser], which tests the constitutional right to collective bargaining under the Charter‘s s. 2(d) freedom of association in the case of farm workers. Coming off of a recent Labour and Employment Law exam and having an affirmed interest in this field, I decided to spend a good five hours of my Winter break listening to the packed hearing to gain a better understanding of the complicated legal issues at play in the case. Having done so — that is, mainly, having been exposed to the arguments of Ontario and associated intervenors — my initial unquestioned agreement with Winkler C.J.O’.s unanimous decision at the Ontario Court of Appeal dissipated. Although, to be honest, I am not entirely sure whether this was due to a gaining of broader understanding or to an increased sense of confusion.

The gravity of this appeal is attested to by the extensive coverage it has received at see the commentaries of Kevin Tilley upon release of the Court of Appeal’s decision and of Julian Ho upon granting of leave to appeal by the SCC. Mine is then an addition to this series, which ultimately awaits the full analysis to come upon release of the SCC’s final decision.

With the details of this case aptly described within the above two links, what follows is a point-form recap of the relevant legal history and context:

A majority of the SCC holds in Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313, as part of its “labour trilogy,” that there are no constitutionally protected rights under s. 2(d) to collectively bargain and to strike. McIntyre J. finds that the freedom of association strictly consists of the freedom to associate for the purposes of activities which are lawful when performed alone.

The court in Dunmore v Ontario (Attorney General), [2001] 3 SCR 1016 [Dunmore], finds that excluding agricultural workers from a statutory labour relations regime, without expressly or intentionally prohibiting association, infringes s. 2(d).

The Agricultural Employees Protection Act, 2002, SO 2002, c 16 [AEPA], is enacted, facilitating worker organization in a manner consistent with Dunmore and its order. The legislation, however, does not provide for collective bargaining. A Charter challenge is made.

The application judge (Fraser v Ontario (Attorney General), [2006] OJ No 45 (ONSC)) dismisses the challenge, holding that the legislation meets the minimum constitutional requirements set out in Dunmore, which did not include protections for collective bargaining.

In the meanwhile, reversing in part the labour trilogy and thus altering the legal landscape, the SCC in Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 [BC Health Services], holds that s. 2(d) does indeed include the right to collectively bargain.

In light of the SCC’s landmark ruling in BC Health Services, and its combined effect with Dunmore, the Ontario Court of Appeal allows the appeal in this Charter challenge, finding unconstitutional the AEPA‘s underinclusivity with regard to collective bargaining.

At its heart, the appeal in Fraser engages a positive rights question. While the fundamental freedoms in s. 2 of the Charter may have traditionally been understood as negative freedoms, the Court in Dunmore recognized that positive state obligations may flow from s. 2(d). As I understand it, the general argument is that, in the context of labour relations, a solely negative protection of the freedom of association, and thus any strict distinction between it and a positive state obligation, are essentially hollow. While in the cases of  ss. 2(a) and (b) the state will not at all need to facilitatively fold the hands of its citizens in prayer or open their mouths to speak, the state in the case of s. 2(d) may need to enact facilitative legislation in order to make meaningful the freedom of association, as, in the context of labour relations, the real-world exercise of the freedom may be nigh impossible because it requires the cooperation of an essentially antagonistic party, the employer (unlike the comparatively individualistic exercises of expression and religion). In the words of Bastarache J., writing for the majority in Dunmore,

[I]n order to make the freedom to organize meaningful, s. 2(d) of the Charter imposes a positive obligation on the state to extend protective legislation to unprotected groups…[T]he distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime substantially contributes to the violation of protected freedoms.

It is worth noting that this ruling ran contrary to Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989 [Delisle]. Decided just two years earlier on considerably similar facts (the exclusion of federally employed Mounties from a statutory labour relations regime), and with the majority opinion also written by Bastarache J., Delisle had affirmed the conception of s. 2 of the Charter as bearing only negative rights. Now, however, s. 2(d) may impose a positive obligation on legislatures to enact legislation facilitating associational activities, such as the right of farm workers to organize. Assuming a broader perspective, the Court in Dunmore held that a legislature may be obliged to oblige a private actor to allow for the exercise of a s. 2 fundamental freedom, namely, the s. 2(d) freedom of association.

The landmark ruling in BC Health Services (analyzed at by Professor Judy Fudge) expanded s. 2(d) to include the right to collectively bargain, beyond the right to organize, as in Dunmore. BC Health Services itself was but a negative rights situation involving active interference/prohibition: the government voided collective agreement provisions. Thus, what Fraser et al. argued and Chief Justice Winkler accepted was that combining Dunmore and BC Health Services would naturally see a corresponding positive right to collective bargaining as well.

The three Dunmore factors prerequisite to a finding of a positive s. 2(d) duty, which Chief Justice Winkler found to be satisfied in this instance, are outlined in Fraser as follows:

[1]. Are the claims grounded in a fundamental freedom protected by s. 2(d), rather than in access to a particular statutory regime?
[2]. Have the appellants demonstrated that exclusion from a statutory regime has the purpose or effect of substantially interfering with the freedom to organize or the right to bargain collectively?
[3]. Is the government responsible for the inability to exercise the fundamental freedom?

At paragraph 80, Chief Justice Winkler concluded that,

[i]f legislation is to provide for meaningful collective bargaining, it must go further than simply stating the principle and must include provisions that ensure that the right can be realized. At a minimum, the following statutory protections are required 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.

If, as Ontario (A.G.) et al. argued, this three-part model is the “Wagner Act model” — the parts of which are “simply … feature[s] of certain statutory regimes, such as the [Labour Relations Act], and are not typically found in the labour legsialtion of most European countries” — then, contrary to Chief Justice Winkler’s holding, the first Dunmore step would not be met. To accept otherwise would result in the constitutionalization of a statutory regime, a constitutionally calamitous result that should be avoided at great cost. Through paragraphs 87-93 of his judgment, Chief Justice Winkler defends the feature of majoritarian exclusivity against this by making out its historical rootedness, its consistency with Charter values, its equitability, its essentialness, its effectiveness — all in all, its substantive “goodness.” With respect, I do not see how this dislodges the argument that it remains part of a particular statutory regime.

As for the third stage of the Dunmore test, I must admit that I cannot understand it, at least on its face. In a positive rights situation, who else but the employer, as well as what else but the nature of the work, would be responsible for an “inability to exercise the fundamental freedom?” The same, not the government, are responsible for the “vulnerability” of the farm workers, a ground upon which the Court in Dunmore distinguished Delisle and its federally employed and seemingly more organizationally capable Mounties. Dunmore, however, does answer this. In it was recognized a so-called “chilling effect”, incidental to underinclusive legislation, that serves to “discredit” and “delegitimize” organizing efforts; in this way, a government could be so held responsible.

In the end, the real point behind all of this is that, whatever may be said about Dunmore, from the coherency of its finer details, to the general idea of positive rights, to the roundabout constitutional compulsion on private employers to provide for employees’ freedom of association, it worked for the SCC and so is settled law. The legal formula ultimately is as the Ontario Court of Appeal described it: Dunmore plus BC Health Services. As discussed, the Court may stop short of specifically constitutionally enshrining the full Wagner Act model of good faith bargaining, majoritarian exclusivity, and arbitrability. However, I do not see how the Court may potentially find that a positive right to collectively bargain does not exist other than by reconsidering and refining its own jurisprudence. After all, this right seems to be the natural result of what the SCC decided in Dunmore and BC Health Services — although, we patiently await its final word on the issue.

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