The Right to Strike

The lines are drawn for the next great battle of contemporary labour law.

For all of the issues that have arisen in recent labour disputes in Ontario and in the Federal sphere, including the Province designating the TTC as an essential service and the Feds legislatively interfering labour disputes involving Air Canada and Canada Post, this case has arisen in Saskatchewan, and has provided - at the trial level - an answer to a question whose spectre was raised 11 years ago by the Supreme Court in the Dunmore decision:  Does s.2(d) of the Charter of Rights and Freedoms guarantee a right to strike?

The History

In the early Charter jurisprudence, the Supreme Court pretty thoroughly rejected the notion that s.2(d) (freedom of association) protected union-related rights.  However, in Dunmore the Supreme Court overturned those earlier cases, accepting that the freedom of association included the freedom to join unions.

Dunmore was important for a few reasons.  It also has become a precedent for the Charter requiring what is characterized as 'positive government action'.  Traditionally, Charter rights only restricted what a government could do.  Freedom of expression prevents someone from being silenced, but does not require anyone to provide a soapbox.  It means that the government can't force my blog to be shut down (without good reasons), but doesn't require the government to provide hosting for my blog, or to force Blogger to continue to host it.

So how does that apply to a right to join a trade union?  Under a traditional Charter analysis, it would mean that the government can't make it illegal for a group to join a union.  Early in the labour movement, but in days long past, this was the case.  But with most groups these days have statutory rights to join unions, the question took on different dimensions:  Dunmore was about the exclusion of agricultural workers from the labour relations regime, about saying to society at large, "Everyone can join unions...except these guys."  The Court in Dunmore concluded that this had a chilling effect, that the exclusion of one group in itself sent a message to employers that agricultural unionization efforts would be illegitimate, and by doing so the government was interfering with such unionization efforts.  In response, the legislature enacted a law, the AEPA, giving agricultural workers the right to join unions and make representations to employers.  We'll come back to that in a minute.

The next question was what was included with this right to join a union.  Can the employer proceed to ignore  the union anyways, in the absence of a statutory regime telling them otherwise?  Does s.2(d) include not just a right to join a union, but also a right to collective bargaining?  And if so, does that impose a positive obligation on government to protect such a right?

The second case was B.C. Health Services in 2007, and the answer to the question was Yes.  The British Columbia government had legislatively overridden several public sector collective agreements, and the Supreme Court found that this interfered with the associational rights of the individuals involved - a meaningful right to associate means protection of the objectives for which people associate, including collective bargaining.  The case reinforced Dunmore and referenced the discussion from that case of 'underinclusive legislation'.  I've tended to argue that the discussion of positive government action in B.C. Health Services is somewhat misplaced, since we are talking about a case involving the government actually legislatively undermining collective agreements, but I (though I'm probably alone in this) really don't read Health Services as meaningfully expanding the "positive obligations" scope from the extremely limited doctrine set forth in Dunmore.

Then, there was the third case, Fraser, dealing with the AEPA in Ontario.  The objection was that the AEPA didn't obligate employers to actually negotiate in good faith when receiving representations from the union.  The Supreme Court's response, in a remarkable feat of legislative interpretation (see my commentary here), was "Yes it does", finding that good faith obligations could be read into the statute, and that s.2(d) may guarantee a meaningful right of collective bargaining but does not guarantee any particular mode or structure for that collective bargaining.

I am somewhat disturbed by how far Fraser comes from Dunmore's 'the government can't substantially interfere with the right to organize' to 'the government is obligated to enact statutes imposing good faith obligations on employers'.  But that's not for today.

What Now?


Yesterday, the Saskatchewan Court of Queen's Bench released a decision finding that s.2(d) constitutionally guarantees the right to strike.  The facts involve a statute enacted which essentially imposes a wide-spread 'essential service' model, stripping public sector employees of the right to strike.

The Court noted the role of the strike in labour relations.  In the private sector, a strike imposes economic pressure on both sides - the employees aren't making money, but the employer isn't getting labour.  In the public sector, the pressure on the employer is different, usually being political in nature.

It's a lengthy decision, but I will deal with it in very brief terms for now, at the risk of oversimplifying:  The Court views the strike as being a keystone of collective action - without the right to strike, to exert collective pressure against the employer, the right to collectively bargain is meaningless.  Thus, s.2(d) must extend to the right to strike.

Further, Canada's international obligations and participation in ILO conventions tend toward the recognition of a right to strike.

My Thoughts

I'm not an expert in international law.  There are people far smarter than me who have argued either way on this point in the wake of B.C. Health Services, but I dislike the invocation of international law in this context.  It is difficult to accept that an international treaty, which governments can enter into or rescind, can inform the interpretation of the Canadian constitution.

In any event, even if my distaste for the Supreme Court's approach in Health Services is unsubstantiated, the Court in this case takes it further.  You see, the right to strike is not expressly set out in the applicable ILO convention, but rather has been read in by the ILO over time.  Namely, in 1971, the ILO appointed a Committee to inquire into a complaint against Greece, which concluded that the right to strike was implicitly protected by convention 87.  The Saskatchewan Court here pointed out that Canada ratified the treaty in 1972, after that decision made it clear that the Committee on Freedom of Association was taking that position, and therefore it informs the contents of our international obligations, which in turn (following B.C. Health Services) inform the content of our Charter rights.

Okay, let's parse this for a second:  We have freedom of association.  Because, in 1972, we ratified a convention agreeing to protect collective bargaining, that gets lumped in with freedom of association.  And because, in 1971, an international organization concluded that the right to strike was implicitly protected by a right to collectively bargain, that means our constitution must therefore guarantee a right to strike.  Even if I were to put aside the heavy deference on an international organization's interpretation which was not at all informed by Canadian legal principles, this is starting to get a little disturbing for other reasons, but I'll get to that in a second.

The Court also refers to the presumption of conformity with international law, which is a principle of statutory interpretation suggesting that, in the absence of an irresistably clear intention not to comply with international obligations, a law should be read as being consistent with international obligations.

This is true.  I'm quite fond of that principle, actually.  I like international cooperation and multi-lateralism, and I'm fond of the fact that a government is unable to subtly legislate around its international obligations - it can do so, and should be able to do so, but has to admit openly that that's what it is doing.

But it's a rebuttable presumption, premised on the notion that "If the government really wanted to ignore its international obligations, it could have said so expressly."  Moreover, if that's really what the government wanted to do, they can just go and amend the law to do so.  When we're talking about Charter interpretation, that notion no longer exists.  The Charter is there.  It has been there since 1982, and it's nigh-impossible to amend.  If we were talking about international obligations that post-date the Charter, I'd be deeply worried about the Court saying "Well, if they didn't want us to interpret the Charter to include this international obligation, they should have put that in the fine print of the Charter."  Such a conclusion would be absurd.

In this case, of course, the international obligations predate the Charter, but if that's the deciding factor then that worries me for different reasons:  Unlike that of our southern neighbours, the Canadian constitution is a "living tree".  It grows and changes as the society it protects grows and changes.  The intended meaning upon drafting isn't completely irrelevant, but nor is it determinative.  American constitutional interpretation today is rather muddied by the fact that they feel beholden to the ideals, values, and intentions of those who drafted the document, well over two centuries ago.  Two hundred years from now, when our society (and economy and workforce) has grown and evolved in ways that we can't necessarily imagine now, are we going to have to interpret our ongoing constitutional rights and obligations based on what a group of non-Canadians said about a conflict in Greece in 1971?

The answer, almost certainly, is No.  That would be anathema to the entire history of Canadian constitutional jurisprudence.  We leave it to our Courts to interpret and determine the contents of the Charter, and we trust them to consider these questions in meaningful and thoughtful ways.  They cannot defer on questions of constitutional interpretation, and even if you grant that Canada's role in the international community may have some interpretive value, it simply cannot be the case that the Courts' hands can or will be tied in context of constitutional interpretation by the conclusions of an international organization.  Canada can decide for itself whether or not meaningful freedom of association requires a right to strike.  If our Courts find that it does not, that will not abrogate from the government's international obligations to recognize a right to strike anyways...but that's kind of my whole point:  It is an *international* obligation, one that we have taken on and which is subject to our own sovereign statehood.  That alone ought not to make it a constitutional obligation.

Furthermore, I'm not certain that I agree with the conclusion that a strike is necessary for meaningful collective bargaining.  There are alternative models, including interest arbitration, for resolving irreconcilable disputes in bargaining.

There are problems with such arbitration, of course.  Firstly, defining the mandate of the arbitrator can be difficult, directing them in what factors they should consider in coming to a decision.  Secondly, widespread arbitration can result in a disconnect from free market pressures and bargaining power, resulting in wages which are either inordinately high or low with regard to market conditions, because arbitrated results tend to focus strongly on "What are other people getting?".  (That being said, negotiated results often have that dimension, too.)  Arbitration also tends to resist innovation - an arbitrator doesn't want to adjudicate something new between the parties that doesn't exist elsewhere.

Yet I'm not sure that any of these problems are such that they can be said to interfere with meaningful association by definition.  While a statute that puts economic concerns of the employer at the forefront of an arbitrator's mandate would likely do so, a balanced formulation of the mandate is not impossible.  As for the prospect of a break from market conditions, this could be built into the mandate to some extent.  Not a perfect solution, but it's hard to imagine wages skyrocketing out of control, or unionized employees suddenly becoming drastically underpaid.  And the issue of stagnation is troubling, but nor is it one-sided.  If a party wants something new and different, they can still bargain for it, and bargaining may require compromise, on both sides.  A no-strike model would likely have prevented Ford from bullying CUPE into compromising its job security provisions.

In light of Fraser, noting that no specific labour relations model is necessary, I think that the existence of no-strike alternative models which have been effectively used in some contexts will make it difficult for this decision to survive its appeals.

What next?

This will be appealed, likely all the way to the Supreme Court in time.  If it holds up, the consequences will be widespread.  Many of the current Federal government's actions will be seen as ultra vires (outside of their power), interfering with collective bargaining processes.  Back-to-work legislation in general will become presumptively unconstitutional, unless it can be justified under section 1 of the Charter.  Essential services legislation will be the same - most likely, the TTC's essential services designation will be done away with.

I don't like the approach taken by the Federal government to labour issues.  I do think that, where the government is going to step in, a fair alternative is necessary, and that has not been happening.  But, with fair alternatives available, I dislike the notion of an outright prohibition of government interference in labour disputes.  Labour disruptions can and often do have major impacts on the public interest, and I'm not laissez-faire enough to say that we should always just leave it to market pressures to decide who's right.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The Future of Unions?

The Star ran a story today indicating that the CAW and CEP are trying to figure out ways to rejuvenate the relevance of unions in the 21st century, lest they slowly perish.  They're talking about a re-branding, trying to change their image.

The article notes a perception "that unions are primarily self-interested and outdated".

I think that's a fair criticism, and calls for a very deep change to not only how unions advocate, but what they advocate and why.

Unions are dealing with two major problems in terms of public perception.

Do Unionized Employees Have Unrealistic Expectations?

Firstly, there's some criticism that unions and their members are too greedy, pushing too hard and disrupting production for perks and benefits that non-union workers could never expect.  Is this jealousy?  Maybe.  But it goes beyond that, especially in the present economy - job security is something for which bargaining unit members have always been envied, but even they don't have much of it today.  Layoffs are a reality.  Unemployment is a reality.  It's true that it still isn't easy to fire a bargaining unit member for an unsatisfactory performance, but that's not why most people are losing their jobs these days.  Employers are struggling.  Consumer confidence is down, sales are down, revenues are down, and so many employers simply cannot afford to continue to pay the generous wages bargaining unit members receive.

But a union still presses for gains, wage increases, better benefits, etc., which would force layoffs.  So the most senior among the workforce may be better positioned, assuming the employer doesn't go under entirely, but this compounds the unemployment problem.

Of course, not all employers seeking concessions are in financial difficulty.  There's the Caterpillar lockout, and public sector entities looking to shave their budgets.

A colleague of mine from law school argues that the Caterpillar lockout, with a U.S. corporation in good financial shape buying a Canadian company and demanding massive wage concessions, is a symptom of the corporate greed that motivates the Occupy movement.  Perhaps.  But it's also an illustration of the effects of recession:  With higher unemployment, the value of labour goes down in most sectors.  If you won't do the job for x, I'm sure that I can find somebody who will.  The kneejerk "Be happy you have a job" reaction isn't just coming from the public, but also from employers.  Those who press for wage gains in a recessionary economy are often overvaluing themselves, and this is going to inevitably result in job losses.

If I'm employing one person for $60,000, when there are two qualified people on OW who would happily do the same job for $30,000 each, I think that there's a good argument to be made that the better social good is achieved by getting rid of my existing employee and hiring the other two instead.  Labour protections, however, make it very difficult for unionized employers to do that.  Indeed, only a company in a solid financial position like Caterpillar is able to take a hard stand against the union.  Other companies will just...fail.

Are Unions Protecting Their Members?

The second problem the unions are facing in their perception is something of an inversion of the first problem:  They are not seen as doing enough to protect their members.  They're happy as long as they're getting their union dues, and the less that they can do to earn their dues, the better.  It's more important to them that they convince the bargaining unit to ratify the collective agreement, rather than making sure that the bargaining unit is getting the best deal possible, because a collective agreement gives them protection against decertification.  I can't tell you how many employees I've seen with serious (and in many cases legitimate) gripes against the employer that the unions decline to address.

But the law holds unions to a very low standard in assessing their duty of fair representation, which means there are very few remedies against the union, and almost all of a bargaining unit member's remedies against the employer lie through the union, which means that if the union doesn't go to bat for the member, the member is essentially out of luck.

In many cases, it can be more of a 'tyranny of the majority' type of thing.  As long as they're maintaining majority support among the bargaining unit members, they're fine, and don't need to worry about a few disgruntled individuals.  But this causes a lot of animosity, though, because it isn't just a failure to pursue the individual's remedies; rather, the existence of the union is actually removing from the individual the remedies he would otherwise have.

And here's a fun point:  The collective agreement displaces the common law implied term that an employee will get reasonable notice of termination.  Accordingly, when layoffs do happen in a union context, unless there are negotiated terms of notice in the collective agreement, a laid off worker has very limited entitlements.  (Note:  A union has very little incentive to negotiate such terms into a collective agreement.  It essentially means that, when there's limited cash to go around, the employer has to pay more to the people leaving the bargaining unit, which leaves less for the people who are still going to be paying union dues and who can vote the union out if they want to.)

How to Reconcile and Address these Criticisms?


While the two criticisms may seem to be essentially opposites - unions aren't pressing hard enough, but they're pressing too hard at the same time? - there is a logical thread running through both.

Unions are, by their very nature, most concerned with those who are and who will continue to be members of the bargaining unit.  Layoffs are unpleasant for unions because it means fewer people paying dues, but pay cuts are more unpleasant for the union because it means an equal number of people to represent with smaller dues.  So if people are getting laid off, the union will usually be okay with that.  Security against layoffs is not high on the agenda for unions themselves.  Bargaining unit growth is not necessarily something that the unions are highly motivated towards, either.

The 'jealousy' phenomenon is actually something that unions want.  They want non-unionized people looking at unionized people and saying "My job's not that different from yours; why are you paid so much more?"  Whereupon someone from the union hands over a business card.

The result is that the union would rather have a prosperous environment for those who remain in bargaining units, to show others just how nice it is to be in a union, despite the fact that others have paid a steep price for that prosperity.

There's no easy answer.  I consider myself a centrist in terms of the "labour" debate.  I recognize that unions have a place, especially in times of economic growth, but I don't believe that they are assisting employees generally as it is, and in fact I think they're compounding the recessionary pressures.  But can a 'rebranding' work?

Maybe.  Unions need to change their purpose.  Traditionally, they've justified themselves as 'raising the bar', pushing hard for benefits for their members, as a way of pushing the envelope on how workers everywhere should be treated, so that everyone gets more from their employers.  (Is it just me, or does this sound a little bit like the capitalist mantra of the trickle-down effect?  A little strange to hear it from labour.)

The Occupy movement seems almost like an extension of the labour movement, but the facts underpinning the Occupy movement one thing extremely clear:

Labour Has Failed.

Yes, that's right.  The point of Labour is a redistribution of wealth from those who own the capital to those who produce the capital.  The growth of the income gap and the shrinking of the middle class was going on long before the current economic crisis - this is just increasing our awareness of the injustice.

So how did this happen?  How did we get into a situation where employees are being laid off or having compensation reduced everywhere around us while executives are still getting bonuses in the hundreds of thousands of dollars or more?

In terms of lobbying power and capital, the Labour movement is on nearly equal footing to Corporate interests.  Perhaps more importantly, the Labour movement in large measure owns the large corporations.  Union-administered pension plans have absolutely massive holdings in equity markets, and unionized employees often have quite significant stock portfolios as well.

So while executive compensation has been increasingly running off the rails, where have the unions been?  Why haven't the unions taken an active hand, as lobbyists and as shareholders, in bringing to bear massive pressure for greater corporate responsibility?  Perhaps it's because the unions regard capitalism and corporatism as being offensive to their labour sensibilities.  They don't want to be involved in corporate governance.  That's the realm of capitalists, about labour supporters are unwelcome.  Therefore, we end up in a situation where anyone sympathetic to the plight of employees quite willingly stays completely out of the running of corporations.  (Consider, then, who is left to run corporations.)

What have unions been up to, in the mean time?  Instead of pressing for greater accountability in corporate governance, what legislative reforms have they achieved?

They've been working almost exclusively on their own regulation, trying to protect and improve the existence of the labour movement itself, through amendments to statutes like the Labour Relations Act.  They got the McGuinty government to bring back "remedial certification", making it easier for them to get new bargaining units in the face of "anti-union animus" by employers.  So employers (including large unionized employers) are paying their executives ridiculous wages at the expense of employees and shareholders (read: employee pension plans), and the unions' biggest concern is that some small mom-and-pop employers are disrespecting unions.

What to do, then?


The labour movement needs to rise above this small-minded thinking, and address realities that they've tried to ignore as a matter of ideology:  They need to get out in front of the Occupy movement in a sustained way, using their clout to demand transparency and accountability from corporate executives.  They need to stop being victims, anti-capitalists living in a capitalist world, trying to achieve measly protections from the evil capitalists, and rise to a different level entirely, facing the "1%" on their own playing field.

They need to make economic prosperity and job growth their priority.  The goal of the labour movement has always been to earn the employees a place at the table, to become a partner in running the workplace; to truly earn that place, unions need to show that they can think bigger.

To get to this point, we need to re-evaluate our view of our entire labour relations model, which is built on a fundamentally adversarial relationship between unions and employers.  When unions start getting involved in proxy circulars, their representational role of employees in that adversarial relationship will be compromised.

We need to start recognizing that the needs of the business are not necessarily at odds with the interests of employees as a whole.  Employees should, by all rights, share in the successes and failures of the business; they are major stakeholders in the business.  There are certainly interests to be balanced between employees and shareholders as groups, but at the end of the day they are on the same side, with similar goals.

More to the point, the collective interests to be balanced between groups and the individual rights of specific employees are not the same thing.  This stands out particularly if you imagine a union that truly is a partner in running a workplace - sometimes, the best interests of the company and the bargaining unit as a whole will mean taking actions which are adverse to specific employees.  An enlightened union will know this, and will therefore be incentivized to bargain away the rights and remedies of these employees, and this creates immense unfairness.

Thus, unions need to change the way the see their role, and we need to change the way that their role is legislated.  Unions should be taking an interest in corporate governance, from a general policy viewpoint, and taking a greater interest in the operational success of the employers whose employees they represent, and to do so they will need to sacrifice the sanctity of the collective agreement as completely displacing the individual contract of employment.

Discharged Richmond Hill bargaining unit member can't sue in wrongful dismissal

I've mentioned this before:  Members of bargaining units cannot sue their employers in Court for matters related to their employment.  This is a rule that is very firmly entrenched in the law, and there has been no sign of budging, yet we keep seeing cases crashing against this wall.

In the recent case of Doobay v. Town of Richmond Hill, Cyril Doobay became the most recent plaintiff whose case fell on jurisdictional bases, suing his employer for firing him in 2003 because he was drunk on the job.

He grieved the termination, and CUPE argued that the penalty should be reduced to accommodate his disability - alcoholism.  The arbitrator dismissed the grievance on August 24, 2004.  The arbitrator acknowledged the alcoholism as an issue (as well as the fact that the grievor had sought treatment), but found that reinstatement was impossible without the grievor taking full responsibility for his misconduct, which he had not.

Then, more recently, on November 4, 2010, he issued a statement of claim.

There are a lot of big problems here.

Firstly, there's the problem of delay.  For claims discovered before January 1, 2004, there was a six year limitations period.  For claims discovered since then, we have had a 2 year limitations period.  Disability issues (probably including alcoholism) can, in some circumstances, push back limitations periods...but in this case, that wouldn't really help Mr. Doobay, because if the claim was discoverable in 2003, then he had until 2009 to bring an action (which he did not), whereas if the discoverability date was pushed to 2004, that would only give him to 2006 anyways.  Limitations periods are fairly difficult to get around, in most cases.  The logic is that the limitations periods usually give a person *lots* of time to initiate a legal action, so if someone misses the deadline, there had better be a really good reason for it.  So this wall is pretty tough to get over.  If you can't do it, the action gets dismissed.

The second problem is what we call "res judicata" - the issue has been decided before, by the arbitrator.  Justice Lauwers found that this issue was res judicata (which in almost all cases results in dismissal of the action), but this wall was perhaps not so high, for a couple of reasons:

1. Mr. Doobay's lawyer was arguing that the arbitration process was tainted by a lack of appreciation of the nature of the disability and the availability of accommodation programs in the Town.  Now, I'm not sure that this argument rightly could have succeeded, because it doesn't really address the test for res judicata, and moreover it asks the Court to evaluate the results of the arbitration process...which might not be so bad, but for a couple of problems:This was an action, not a judicial review application; and Mr. Doobay probably wouldn't have had standing to seek judicial review.  (The judge notes that Mr. Doobay did not seek judicial review, which is "the customary way in which such decisions are challenged".  This may gloss over the fact that it is the union, not the grievor, with standing to seek judicial review, which fact the judge does not appear to bear in mind.) So the fact that this isn't a judicial review application isn't just a wrong choice of venue; Mr. Doobay probably could not have chosen a different venue, outside of asking CUPE to do so.
2. All that being said, the finding that this is res judicata is, strictly speaking, wrong.  One of the essential elements of the test of res judicata is that the parties involved must be the same.  The reason Mr. Doobay would not have had standing to apply for judicial review is that he was not a party to the proceeding, in the strictest sense.  Not being a party, the doctrine of res judicata could not block him from seeking remedies elsewhere.  Of course, other doctrines would block just about every other type of remedy conceivable based on facts that had formed the subject matter of an unsuccessful grievance arbitration.

The third problem, and the highest wall of all, is what I noted above, that a bargaining unit member cannot sue his employer in Court.  This is a jurisdictional point - the Courts have absolutely no discretion to relieve against the rule.  For that reason alone, this action was pretty much dead in the water from the outset.

But what becomes more interesting is the costs analysis.  You see, counsel for the Town sent a detailed letter to Mr. Doobay's lawyer explaining why the action was doomed to fail, and tried to use that letter to justify seeking substantial indemnity costs - i.e. costs on an elevated scale - in the amount of nearly $15,000.  There was some discussion as to whether the letter constituted an offer to settle; the judge found that it did not, as there was no real offer to compromise, and in any event the rules regarding offers to settle (Rule 49) don't really speak to outright dismissals of actions in any event, and don't entitle a successful defendant to substantial indemnity costs.

So Rule 49 really wasn't the way to go on that.  But the Court retains discretion to award substantial indemnity costs in any event, so one might have thought that the judge would have appreciated the fact that the defendant had tried to avoid the necessity of a motion by pointing out to the plaintiff the incontrovertible case law that would certainly lead to the dismissal of the action.  I don't know what led to the issuance of a statement of claim in the face of that doctrine, and I'm not going to speculate, but there doesn't seem to be any reason why the plaintiff should have forced the Town to incur the legal fees of bringing the motion, once it had full particulars of the Town's position.

No such luck - ultimately, the judge fixed costs at $3500, in the event that Richmond Hill demands them.

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This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

How to Get Rid of a Union in Ontario

I recently involved myself in a debate on Professor David Doorey's blog about 'democracy' in labour relations.  I've followed his blog for some time, and I respect (though I often disagree with) his views, which are typically 'pro-union'.  My own view on unions is quite nuanced:  Unlike many lawyers who represent management, I don't oppose unions on principle.  I've seen employers who remind me of the reason why unions exist.  But I have had many occasions to question the activities of specific unions in specific contexts.

I believe that there are major problems with the current structure of our labour relations regime in Ontario, mainly because I believe that "labour" itself has become an entity with its own interests, and a powerful one at that.  Rather than, as I believe should be the case, an advocacy mechanism for workers.  The end result is that there are times when a union puts its own interests above those of individuals it represents, or even above entire bargaining units under its care.

So we frequently see cases in the jurisprudence involving employees trying to sidestep the union to deal with their employer (almost always unsuccessful, except in the Human Rights arena, where it *can* work), or taking on the union directly in a Duty of Fair Representation application (almost always unsuccessful, because there's a high threshold for it), and I have had plenty of employees call me directly because they aren't happy with the way that their unions are representing their interests.  (Think about how big a deal that is:  You've already paid union dues.  You're not getting them back.  Included in union dues is representation as against your employer.  How dissatisfied would you have to be before you would hire your own lawyer at your own expense, paying hundreds of dollars per hour, to do something you've already paid somebody else to do?)  The trouble is that there is seldom much to be done; under the statute, the union has the exclusive mandate to represent them, and they can't opt out of this.

Professor Doorey sees it thus:  The bargaining unit, if displeased with the union, can get rid of the union.  This is true.  But it seldom happens, because bargaining unit members usually don't have the sophistication or resources to successfully decertify a union, and any employer involvement or assistance will usually be fatal to the effort.  The rules governing decertification are actually fairly complicated.

So, for those employees who want to decertify a union, here's a general guide as to how.  Remember that every case is unique in its own way, and the best way to move forward, if you can afford to, is to hire a qualified lawyer to assist you.  The below is not legal advice, and does not cover every scenario.  Especially note that the process is different for construction industry matters.

Step 1:  Determine if you can bring the Application

The general rule is that you have to be a member of the bargaining unit in order to apply for termination of bargaining rights, and that any member of the bargaining unit can do so.  However, the application can't be tainted by management influence, and there have been cases in which unions have argued that the person making the application was too closely connected to the managerial team.

Step 2:  Find the Window

The Labour Relations Act sets out a variety of different circumstances in which you cannot make an application to terminate your union's bargaining rights.

The Application can be made under the following circumstances:

1. If more than a year has passed since the union was certified, and no collective agreement has been reached;
2. If a collective agreement exists and has a term of three years or less, then after the start of the last three months of its operation (and before a new collective agreement commences or a renewal of the agreement is effective);
3. If a collective agreement exists and has a term of more than three years, then between the start of the 34th month and the start of the 37th month of its operation, then for the last three months of each year of its operation thereafter (and for the last three months of its operation before it expires).

It really looks more complex than it is.  Let's use a few examples.

Let's say that my union and employer commenced a collective agreement with a 24-month term, starting May 1st 2011 and ending April 30th 2013.  If I want to decertify the union, the window opens on February 1st, 2013 (three months before the end), and closes when a new collective agreement becomes effective.  So if the employer and union are able to negotiate a new agreement to start for May 1st, 2013, I need to have my application in before then.

Or suppose my union and employer negotiate a long-term collective agreement, going from September 1st 2011 to August 31st 2016 (five years).  I would then have three month windows at the end of the third, fourth, and fifth years of operation.  (Window from June 1st to August 31st of 2014 and 2015, and then a window opening June 1st 2016 that ends when a new collective agreement becomes effective.)

One of many important things to remember is that, if the bargaining unit ratifies a new collective agreement, you're probably s.o.l. for a long time if you want to get the union out.  When most employees treat a new collective agreement as being inevitable, and a question of how long it will take and what actions (i.e. strikes) may be required to get a better deal, that's a problem; people are likely to vote in favour of a tentative agreement so long as it is tolerable, and this is especially true of those who would rather be without a union in any event.

But there are also bars to initiating an application, even within those windows.  There's a conciliation process available to the parties:  The union or the employer can ask the Minister to appoint a conciliation officer or mediator, which triggers a bar for a period which essentially allows that process to run its course.  In practice, this ends up being a way for the union to extend its protection.  So it has one year to get a first collective agreement, and if it fails to do so, it asks the Minister to appoint a conciliation officer or mediator.  Then, once that process runs its course, the bar is extended for a certain period of time beyond.  Similar principles apply when subsequently renegotiating expiring collective agreements - conciliation bars an application after the expiration of the existing collective agreement.

If a strike or lock-out begins, that also creates a bar - essentially, if the bargaining unit gives the union the go-ahead for a strike, they have to give the union at least 6 months to try to accomplish its objectives.

One of the major practical challenges for an employee trying to decertify a union surrounds the whole 'conciliation' concept.  How do you find out if the union has sought conciliation without asking questions that would tip off the union to your impending application?  Ultimately, the best bet for decertifying unions is by making sure the application gets started within those three-month windows, and not waiting for existing collective agreements to expire.

Step 3:  Get your "Evidence" together

In order to make an application to terminate bargaining rights, there are going to be two substantive requirements.  First, you're going to have to show 'evidence' that at least 40% of the bargaining unit no longer wants to be represented by a union, and then later when a vote occurs at least 50% plus one of the bargaining unit has to vote on your side.

But first things first, so let's look at the evidence.  It's best to think of it like a petition.  Every page has to show what they're signing, and each name should have the printed name, signature, and date of signature.  You also need to provide the OLRB with an alphabetical list of employees corresponding with the evidence filed, and a declaration verifying the evidence (OLRB Form A-80).

Step 4:  Serve the Union and Employer and File the Application

Well, first you need to complete all the below documents.  That's a given.  After you find them all on the OLRB website.  Which isn't quite as simple as it should be, but I've tried to simplify it with links to the PDF versions of everything.  There are Word versions available, too.

You need to serve a termination package on the union, including the following:

1. OLRB Form C-3, completed with the union's name and the date in the appropriate fields (the full name of the form is Notice to Union of Application for Termination of Bargaining Rights Under Section 63 of the Act...don't you love pithy names?);
2. A completed copy of Form A-6 (Application for Termination of Bargaining Rights Under Section 63 of the  Act);
3. A blank copy of Form A-7 (Response to Application for Termination of Bargaining Rights Under Section 63 of the Act);
4. A copy of Information Bulletin 2 (which is where this list is found, incidentally);
5. A copy of Information Bulletin 3;
6. A copy of Information Bulletin 5; and
7. A copy of Part III of the Board's Rules of Procedure.

And, on the employer, the following:

1. Form C-4;
2. The same Form A-6 as above;
3. A blank Form A-8;
4. A blank Schedule C (List of Employees)
5. A copy of Information Bulletin 2 (which is where this list is found, incidentally);
6. A copy of Information Bulletin 3;
7. A copy of Information Bulletin 5; and
8. A copy of Part III of the Board's Rules of Procedure.

Then, within two days, you need to file (by any means except email, fax, or registered mail) with the OLRB the following:

1. A signed original and a completed copy of Form A-6;
2. The evidence that the employees don't wish to be represented by a union;
3. The above-noted list of employees corresponding with the evidence;
4. Form A-80

See?  Couldn't be simpler.

Step 5:  Win the Vote

There are limits to what you are allowed to do in campaigning.  Threatening, intimidation, etc., these tactics aren't kosher.  But as a member of the bargaining unit, your speech isn't nearly as restricted as the employer's speech in terms of trying to persuade your fellow workers that the union isn't in their best interests.  Remember that this is your campaign; the employer is barely more than a bystander, and can't do much to help you.  And if they offer assistance, you should say no, or risk compromising the application.

*****

This blog is not intended to and does not provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

The author is a lawyer practicing in Newmarket, primarily in the areas of labour and employment law and civil litigation.  If you need legal assistance, please contact him for information on available services and billing.

Unions can be certified as bargaining agent even without majority support

One of the amendments made to the Labour Relations Act by the McGuinty government is the restoration of what is commonly referred to as the "remedial certification" clause: Where the employer has engaged in unfair labour practices that interfere with a union organizing campaign, it is possible for the union to apply for certification even notwithstanding that the members of the bargaining don't want to unionize.

There are a few different structures for union certification. The most general one is that, if the union can show that it has the support of at least 40% of the bargaining unit (i.e. the group of employees whom it would represent), the matter can be put to a vote. If the union gets 50% plus one support, it becomes the certified bargaining agent. The 40% support is usually shown through signed union cards. (In the construction industry, it is even possible that, if the majority of the employees have signed union cards, the union can be certified without a vote. This is called "card-based certification")

Many employers do not want to have to deal with unions, yet the Labour Relations Act prohibits employers from taking certain actions which would interfere with unions or the exercise of rights under the Act - "unfair labour practices". If the employer engages in unfair labour practices and this interferes with an organizing campaign, there are a number of remedies available to the union, such as holding a new representation vote and providing them with whatever access they need to the employees prior to the same...or, if these remedies would not suffice, remedial certification is now available.

The logic is this: The employer has a great deal of power over employees. If the employer actively takes steps to frighten or intimidate employees to oppose the union, then it may be impossible for any attempts at persuasion by the union to overcome the employer's intimidation. In such cases, the only way to get past the employer's intimidation is to certify the union even notwithstanding that it does not have the support of the members of the bargaining unit.

The most recent such decision out of the Ontario Labour Relations Board was in LIUNA v. 1652472 Ontario Inc. That case involved a pretty typical dispute about the termination of a union supporter.

Organizing campaigns often begin when the employer hires a new employee with union connections. Of course, the employer doesn't know about this, and it is in fact illegal to refuse to hire somebody because they have union connections. But the new employee goes to great lengths to keep this secret, and quietly begins discussing the union with co-workers to try to gain support.

The trouble - for the employer, as it turns out - is that union insiders often quickly develop adversarial relationships with management for reasons other than their union organizing efforts. Whether the union supporter is a new employee (whose priorities are obviously something other than demonstrating exemplary dedication and professional competence) or an existing employee (who would usually support the union because of an existing acrimonious relationship with management), it is neither unusual nor surprising that management frequently ends up disciplining and/or terminating union supporters in organizing campaigns. Then, the union simply has to allege that the employee was terminated because of their involvement with the union, and the employer bears the onus of proving that, in fact, union involvement had no bearing on the termination.

In most cases, as in this one, the fight on the facts becomes whether or not the employer knew or suspected that the employee was involved with the union.

(I've seen cases, however, in which there was reason to question whether or not a disciplined employee even was involved with the union prior to the discipline, where it looks like even the employee didn't know about the organizing efforts until approached after the discipline, and then alleging that the discipline was motivated by anti-union animus.)

In this LIUNA case, the foreman insisted that he had no knowledge of the employee's union involvement: The employee was fired for performance issues, and because the other guys on the team didn't like working with him. The Board didn't believe him...well, the Board accepted that he wasn't popular, and that the other guys didn't like him, but nonetheless the Board found it unlikely that he was fired when he was without his union involvement being a motivating factor.

That, alone, will usually be enough for remedial certification. But that wasn't everything. In addition, there was a confrontation between a union organizer and the foreman on the construction site, which the Board found was an effort to alienate the union. And then there was a letter which the employer read aloud to most of the employees to express their feelings about the union.

What an employer can and can't say to employees is the subject of much jurisprudence. An employer is allowed to say that it opposes unionization. It is allowed to educate employees about the process for unionization (i.e. to ensure that they know about the potential for card-based certification, that they may not in fact get a subsequent chance to vote aye or nay if they sign enough cards). But it cannot make or imply any threat to job security. This prohibition stands even if the 'threats' are nothing more than objectively true and verifiable facts - employers have been found to have breached the Act simply by walking through the numbers and showing why the additional costs of doing business with a union (and there are additional costs) would prevent the facility from continuing to be economically viable. There is also case law finding that an employer, when asked by employees whether or not job security would be endangered, breached the Act by refusing to answer.

The letter in this case contained the following sentence:

From my perspective, there are a lot of down-sides to unionization. We will have less flexibility in terms of where we work, the work that we do, how we structure our days and how we price projects so that we are the successful contractor.

The Board interpreted this as a threat to job security. Given all the factors, the Board found that the Act had been breached, and granted remedial certification.

Food for Thought

There are obvious policy concerns with remedial certification. While it can and has been argued that this is a way to ensure that employers "don't get away with" their unfair labour practices, thus discouraging unfair labour practices, that casts the certification itself as a punitive action. If punishment is appropriate in a given case, the ordinary sphere of quasi-criminal punishment should suffice: Hoisting a bargaining agent upon workers who don't want it is not an appropriate way of punishing the employer.

No, the real objective must be compensatory. Yet who are we concerned about compensating? The workers? Perhaps, but there is something patronizing and unsettling about saying to workers, "Because you're being kept from choosing what's best, we're taking the choice away from you." Perhaps more concerning is that remedial certification is automatic. The union need not show that it would have won the vote but for the employer's unfair labour practice. If you look at it as a way of compensating the workers, then you have to presuppose that workers, acting without coercion, will *always* want a union. And that is simply and obviously not true. In this case, on the facts as found by the Board it seems like a fairly safe bet that LIUNA was going to have a hard time winning a certification vote: Their insider was not well liked at all in the bargaining unit.

So it strikes me that the real objective of remedial certification is to compensate the union itself. Which concerns me: When the union's interests are put ahead of the interests of the employees, it seems to be a perversion of the very purposes of the Labour Relations Act.

Add to this the 'entrapment' potential for a union quietly engaging in an organizing campaign, and there are real policy concerns.

*****

This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Unionized Employees: Court isn't for you

This isn't new, but every so often a new case pops up - and is dealt with quite quickly - involving a unionized employee (the technical term is "bargaining unit member") trying to sue his employer.

Under most circumstances, that's impossible. Collective agreements must provide for a grievance process, and for grievance arbitration. So if somebody who is a member of a bargaining unit gets terminated, then he has to go to his union rep to file a grievance; you can't go retain a lawyer to try to sidestep the union and sue the employer directly.

The underlying principle is that, once a group of employees forms a bargaining unit, that group of employees no longer has a direct relationship with the employer. Rather, they have a relationship with the union; the union has the relationship with the employer.

Nor can such an employee sue his union if he isn't happy with the job it has done representing his interests, generally speaking. Under the Labour Relations Act, the Ontario Labour Relations Board has exclusive jurisdiction over most such issues. There is a select number of issues that an employee can raise directly with his employer at the OLRB, but most issues must go through the grievance process, and an employee displeased with the Union must bring a "DFR" (Duty of Fair Representation) application against the Union. The trouble with DFRs is that the Union has a very wide latitude in deciding how best to represent the interests of the bargaining unit on the whole. If it decides that the bargaining unit can best be served on the whole by refusing to advance your overtime grievance in order to not taint the next round of bargaining, then you're pretty much stuck unless you can establish that the Union's actions were "arbitrary, discriminatory, or in bad faith". The exception is with discharge grievances: A Union generally can't refuse to grieve a discharge grievance, because the consequence of that refusal is that the employee is no longer part of the bargaining unit and - following the above example - won't have any of the benefits that may be obtained in the next round of bargaining.

In law, however, every rule has its exceptions. The OLRB's jurisdiction specifically excludes certain types of employee associations, such as fire associations. I have had occasion to opine that a Court proceeding might be instituted by a firefighter against the fire association, under the right circumstances, in a similar fashion to a DFR application. As far as I can tell, however, that hasn't happened. It's peripheral, in any event.

Moving along, consider the recent Paonessa v. Lifemark Health Management Inc. case. Health management companies are essentially external human resources departments working with disabled employees to assist in assessing them and facilitating an accelerated return to work. (Essentially, they track disabled employees, determine the length of treatment, limitations, and accommodations which might be made to phase them back into the workplace asap.)

The Facts

The employee was off work, receiving disability benefits, for three and a half years. At that point, the employer retained Lifemark to conduct a Functional Abilities Evaluation (FAE). The assessor concluded that the employee was not capable of returning to work, and the employer proceeded to discharge the employee.

The employee grieved the discharge, settled it on terms involving a return to work, then was discharged again following an alleged failure on her part to comply with the terms of the settlement. She grieved the second discharge, and settled again with the employer.

Then she proceeded to sue Lifemark, alleging interference with economic relations. Lifemark turned around and claimed for indemnification against the employer.

The Issues

The biggest and most obvious problem with suing Lifemark is this: Any settlement she would have agreed to with the employer would almost certainly have included the execution of a "Full and Final Release" including a clause preventing the employee from initiating proceedings against the employer or any other person who might seek indemnification from the employer.

When I explain these clauses to my clients, I put it this way: Suppose I hire a general contractor to renovate my home, and he subcontracts to an electrician, who performs his work in a negligent manner, causing me damages. Now suppose I sue the electrician for his negligence, and reach a settlement with him.

After settling with the electrician, imagine that I proceed to sue the general contractor in breach of contract, because he didn't provide the renovations I bought in a good and workmanlike manner. What is he going to do? Well, he'll issue a Third Party Claim against the electrician, saying "It's his fault, so he should have to pay me back for anything I'm required to pay." The electrician, already having settled this matter directly with me, won't be pleased with this turn of events...and would point to the release and say, "Sorry, the statement of claim has to be struck because the plaintiff already has his settlement for anything for which I might be responsible." Ultimately, in this case, the judge similarly finds that the plaintiff had her remedy through the grievance process, so the litigation is an abuse of process.

The other issue in whether or not the action is barred because of the fact that she's a bargaining unit employee. The judge's answer is that the subject matter of this law suit (namely, the conduct of the FAE) is squarely the subject matter of the collective agreement, and therefore the action is barred by the Labour Relations Act.

Thoughts

I don't doubt the correctness of this decision, I think the justice of it is in the right place, and I'm impressed by the judge's clarity in explaining his reasoning...but I'm still left with some nagging concerns: In any other circumstance, there would be the potential for a freestanding action against the organization that administered the FAE, and in the occasional circumstance there might be good reason to sue that organization in addition to the employer. That's not possible for bargaining unit members. So what happens if the organization carrying out the FAE does something beyond what the employer could reasonably be held responsible for in the grievance process?

I think the answer to that question is likely that such a scenario can't be permitted to occur. It cements the agency relationship. If an action against the assessor is statute-barred, then this must have the result that everything the assessor does in carrying out the FAE must be considered actions of the employer, for which the employer may be liable. (Of course, there's nothing stopping the employer from suing the assessor, in the right case.)

*****

This blog is not intended to, and does not, provide legal advice to any person in respect of any particular legal issue, and does not create a solicitor-client relationship with any readers, but rather provides general legal information. If you have a legal issue or possible legal issue, contact a lawyer.

Fraser v. Ontario - Is the pendulum about to swing back?

The Supreme Court of Canada last week released its decision in Fraser v. Ontario, which has been long-awaited in labour law circles, on the question of the extent of the Charter right to collective bargaining.

To highlight the importance of this decision, note that the decision involved fifteen interveners, 33 lawyers, and 9 judges releasing 4 sets of reasons in 369 paragraphs.

There is much to be said about this decision. Many of the debates raised could be parsed in detail; I could write a full-length paper on the nuances of the distinction between ‘freedoms’ and ‘rights’ that Rothstein and Charron attempt to raise and the majority dismisses. But in this entry I will focus on the broad strokes of the decision.

A Brief History of Labour Relations under the Charter

Traditionally, the ‘standard’ labour relations regime follows what we call the ‘Wagner’ model: If the majority of employees in a bargaining unit support a union, that union gets the exclusive right to represent all employees in the bargaining unit in negotiations with the employer. There are certain exclusions from the Wagner model, including a traditional exclusion for agricultural workers in Ontario.

There were a series of early Charter cases where the Unions tried to raise “freedom of association” (s.2(d)) to challenge limitations on labour relations regimes. The Courts rejected these arguments: Freedom of association had nothing to do with forming unions.

Then the facts changed. In the 1990’s, Ontario’s Rae government removed the exclusion for agricultural workers. This was short-lived, and was reinstated by the subsequent Harris government. This was challenged in a case referred to as Dunmore, and the Supreme Court overturned its own prior jurisprudence, finding that s.2(d) of the Charter did, in fact, protect against government interference with people’s formations of employee associations and unions.

Remember: The Charter of Rights and Freedoms is a constitutional document which limits the powers of government. All the jurisdiction before Dunmore was clear that it could not be used to compel positive government action. Freedom of speech doesn't obligate the government to provide me with a soapbox; it just means that the government can't shut down my blog without good reason. Dunmore expressly maintained that proposition. However, the Supreme Court decided – rightly or wrongly – that the exclusion of agricultural workers in fact created a ‘chilling effect’, delegitimizing attempts by agricultural workers to organize into unions, making it harder for them to do so than if there was no labour relations protection at all. Accordingly, the exclusion was unconstitutional.

So the Ontario government enacted the Agricultural Employees Protection Act (“AEPA”), which gave employees the right to form associations and make representations to the employer. The employer is obligated to listen to and acknowledge receipt of those representations. That’s it.

So when a group of mushroom farm employees in Leamington were thoroughly ignored by their employer, Rol-Land Farms, they brought a constitutional challenge to the AEPA, saying it still didn’t give them a meaningful right to organize. This was the Fraser case. It went before Justice Farley, who held that there was no constitutionally protected right to collective bargaining in good faith, and that the AEPA had been enacted in accordance with the Supreme Court’s requirements in Dunmore.

Fraser appealed to the Ontario Court of Appeal. But before it was heard, things got interesting.

The appeal was delayed pending disposition of the Health Services case from B.C. at the Supreme Court: The government of British Columbia had legislated around and over the terms of various health care sector collective agreements, and the question became whether or not this violated s.2(d). The Supreme Court found that it did, and that there was a right to collectively bargain in good faith.

If that sounds weird, it should. I have the freedom of speech. That doesn’t compel others to listen. I have freedom of religion. That doesn’t compel you to provide me with a church. Yet saying that there’s a ‘right’ to have good faith collective bargaining suggests that the Charter itself requires employers to bargain in good faith with me. But, generally, it doesn’t: The Charter doesn’t affect private actors.

It makes some sense that the B.C. government might not be able to legislate over existing collective agreements. It kind of undermines the purpose and function of the employee association, and is clearly positive governmental action subject to Charter scrutiny.

But to go a step further and say that the Charter actually requires governments to legislate an obligation for employers to bargain in good faith…well, that is something different. And that is what the Fraser case became about: Basically a question of “Is that really what the Supreme Court said in Health Services?”

My Two Cents: The 2008 Hicks Morley Moot

It was around this time, in my third year of law school, that I participated in the Hicks Morley moot at Queen’s. Frequently, a moot involves addressing an issue answered by the Court of Appeal with a strong dissent. The appellant has to distill and argue the dissenting judge’s argument, and the respondent has to distill and argue the majority argument. This moot was more interesting, however, as the moot was of the appeal from Justice Farley’s decision, post-Health Services. A shift in the law meant that the moot was treading entirely new ground, that Justice Farley's conclusions of law were outdated and that we were looking at a fully novel legal question.

I was happily arguing the government side, and dealing with the s.2(d) issue. The structure of my argument was essentially this: The suggestion of a carte blanche proposition that everyone is entitled under the Charter to a Wagner-esque labour relations scheme is simply wrong, and is a misstatement of Dunmore and Health Services.

Quite the contrary; Dunmore was clearly a very narrow decision, expressly decided on the very unique factual situation where the existing legislation was shown to actually, in fact, have a chilling effect on organizing campaigns. Quite expressly, Dunmore would have permitted the legislature to scrap labour relations protections altogether. (Political suicide, certainly, but well within their constitutional powers.) The Supreme Court in Health Services referred to Dunmore as supporting the proposition that affirmative state action could be required in narrow circumstances where there was an evidentiary foundation to support the proposition that the government’s actions themselves were responsible for the impossibility of meaningful association.

Health Services should be interpreted similarly narrowly. “The Charter applies only to state action. One form of state action is the passage of legislation. In this case, the legislature of British Columbia has passed legislation applying to relations between health care sector employers and the unions accredited to those employers.” (Paragraph 88.) Health Services does not purport to reverse or modify the general rule that the Charter cannot force positive government action, but adopts the general rule subject to the narrow nuanced exception in Dunmore.

Read in that context, the Court’s more sweeping statements regarding the contents of the right to collectively bargain (such as “The parties have a duty to engage in meaningful dialogue and they must be willing to exchange and explain their positions. They must make a reasonable effort to arrive at an acceptable contract” at paragraph 101) must be read simply as explaining the content of meaningful association and simply cannot be read as imposing large-scale affirmative obligations on government (or private actors) to ensure widespread meaningful association.

So the only question is whether or not the AEPA creates the same chilling effect as the statute in Dunmore did, and I argued that there was not (or, at least, was not yet) the evidentiary foundation to support the existence of such a chill. Justice Farley had not made the factual findings necessary to ground such a claim, and had in fact noted that it was too soon to tell what the effects of the AEPA were.

Eventually, the Ontario Court of Appeal essentially found that Dunmore plus Health Services equals an affirmative obligation for legislatures to enact comprehensive labour protections for all, subject to s.1 of the Charter, and accordingly the AEPA was unconstitutional.

The SCC Decision

The Court was divided here: Of nine judges, there was a majority decision by five of them, two sets of concurring reasons (sort of…really dissenting) by three of them, and a lone dissent from Justice Abella. Justice Abella was the only one arguing that the appeal should be dismissed and the AEPA found unconstitutional…but the other 8 essentially had a very important 5-3 split.

Let’s start with the concurring reasons. Justice Deschamps argued that Health Services should be interpreted narrowly, and that it is difficult to begin imposing affirmative obligations on government on the basis of the Dunmore analysis; these cases are about economic inequality, but the courts have always refused to recognize economic inequality as a s.15 (anti-discrimination) ground, and the Dunmore analysis was a convoluted sidestep to allow that continued refusal. Justice Deschamps would prefer to open up the s.15 analysis and resort to the ‘omission’ analysis in Vriend v. Alberta. (Alberta couldn't exclude sexual orientation as a ground of protection in its Human Rights legislation.)

Justices Rothstein and Charron argued that Dunmore and Health Services were wrongly decided, that they broke with established jurisprudence and are unworkable and undesirable and should be reversed.

The majority, however, rejected these arguments. Health Services is still good law, did not constitute a break from existing jurisprudence, and should not be overturned without good reason. It is too soon to tell if it is, indeed, unworkable.

The majority essentially said that a full-blown Wagner model is not necessary, but the legislative regime is required to give all necessary protections to ensure a meaningful right to collective bargaining. They looked at the AEPA and decided to read in an obligation on the employer to consider proposals in good faith.

Sections 5(6) and (7) are critical. They provide that the employer shall listen to oral representations, and read written representations, and acknowledge having read them. They do not expressly refer to a requirement that the employer consider employee representations in good faith. Nor do they rule it out. By implication, they include such a requirement.

The argument for such an interpretation is three-fold: (1) A statute should be interpreted in such a way as to give effect to its purposes, and there’s not much purpose in telling an employer to listen to a proposal if they aren’t being required to consider it; (2) a statute is presumed to intend to comply with the Charter; and (3) the Minister said that the government of Ontario intends to meet its obligations to grant meaningful freedom of association.

If I may comment personally, I find this argument to be disingenuous. Firstly, the majority is picking and choosing its principles of statutory interpretation. The legislature’s word choice is important, and had they intended to impose good faith obligations such as in the Labour Relations Act, they would have used similar language. The fact that the legislature only requires the employer to “acknowledge” the representations has meaning, which the majority is ignoring. In fact, it seems that the majority is finding ambiguity where none exists: The language simply does not bear the interpretation given to it by the majority. No reasonable person would look at the language and suggest that it actually creates an obligation on the employer to bargain in good faith. Rather, the obligations it places on the employer are quite explicit, unambiguous, and minimal.

Further, the ‘obligations’ the Minister promised to meet were the ones set out in Dunmore – his language is quite express – and this predated Health Services. It cannot be the case that this rather puffed up statement of intention to comply with the Charter gives the Courts carte blanche to read in whatever remedial language they like.

The Minister also said that the AEPA was not intended to “extend collective bargaining to agricultural workers”, but the majority chose to interpret their way around that.

According to the majority, ultimately, the AEPA (“correctly interpreted”) protects the right to have employee submissions considered in good faith, and therefore is constitutional. The majority further notes, as I argued, that the AEPA has not been fully tested to see if the protection it gives to freedom of association is ‘meaningful’.

My Analysis

I smell change on the wind again. Ten years after Dunmore, the pendulum has just hit its apex on the swing towards labour. This is a weak majority decision by the Supreme Court, with certain irrationalities in the decision that makes the whole thing smell a little of horsetrading (and makes the whole thing rather bad law), and the next few judges to retire will have their replacements appointed by Mr. Harper, meaning that they likely won’t be labour-friendly, for better or for worse.

I mentioned irrationalities: The suggestion that Health Services does not break from established jurisprudence is revisionist. It is said to hold true to Dunmore (which was, itself, a massive break from established jurisprudence), but in fact was a significant expansion from Dunmore. Indeed, this decision interprets Health Services quite broadly, finding that there is a carte blanche obligation on governments to impose labour relations regimes which protect good faith bargaining.

I would also object to the fact that the majority seems to presuppose, without the necessary analysis, the unconstitutionality of the AEPA in the absence of the language being read in.

No, seriously, step back and look at the second rationale for reading in a good faith obligation: Legislation should be presumed to be intended to comply with the Charter. Therefore, we will interpret the language in such a way as to comply with s.2(d), rendering it unnecessary to proceed with a s.1 analysis.

But without a s.1 analysis, how can you say that the alternative interpretation would be unconstitutional? In fairness, of course, the s.1 analysis wouldn't have saved the alternate interpretation.

Yet the decision isn’t fully labour-friendly. Ultimately, the UFCW lost. They were going for a full-blown Wagner scheme, and they didn’t get it. They now get to go the employer and say “See, you have to consider these representations in good faith”…then when the employer comes back and says “Okay, we’ve considered them carefully, and decided that we are not prepared to agree to them; now go away”, their only recourse is to a novel and untested administrative tribunal process. The Court is not prepared to dictate how the substantive s.2(d) rights must be addressed, which gives the government some flexibility.

So this decision is an expansion on labour rights, but a tempered one, like when Vikings Rage pauses near the top of its highest swing before coming back crashing down the other way.

Also, the expansion itself may carry the Dunmore doctrine beyond the weight it can reasonably support. It goes from the Court telling the government “You can’t legislate contrary to the Charter” to the Court dictating public policy. This is so deeply at odds with the history of Charter jurisprudence that it cannot hold. Particularly in light of the door being left open for future arguments about ‘unworkability’, I think we will see those arguments being made into the future, and I think the Courts will scale the doctrine back over time.

Any thoughts from readers? Where will s.2(d) go next?

And a further question: I would invite perspectives on whether or not the expansion of s.2(d) opens up the door to challenges to the Rand formula.

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