Thursday, March 13, 2014

Labour Law and the Charter

This is a topic that frequently arises in labour law:  What, precisely, is the impact of s.2(d) of the Charter of Rights and Freedoms - that is, the freedom of association - on union activities?

Not only does the question keep getting asked, but the answer keeps changing.  Initially, the Supreme Court rejected union claims that their activities were Charter-protected.  But they've changed their minds about that, and the question is still burning:  How far does s.2(d) go?

There's a brief history to go through here, followed by a question up for consideration in the short term:  Does the constitution protect a right to strike?

The Labour Trilogy - 1987

In 1987, the Supreme Court of Canada delivered a series of reasons, the most detailed of which was the Alberta Reference.  A "reference" case occurs when the government asks the courts proactively for an answer to a legal question - in this case, the Province of Alberta asked its Court of Appeal (and the query was subsequent appealed to the SCC) whether or not 'no strike' provisions for certain public servants were inconsistent with the Charter, and also whether or not legislative limitations on collective agreement arbitration (basically, statutes telling an arbitrator what's on the table) were inconsistent with the Charter.

The answer - though it was far from unanimous - was No on both counts:  The Charter did not guarantee a right to strike, nor a right to collective bargaining.

The 'right to strike' has always been pretty contentious.  Though the right to collectively bargain was a closer battle, and rightly so.  Think about it:  The government and the union can't agree to terms.  The union can't strike, and instead can only bring the matter to arbitration.  And then the government gets to legislate the rules for the arbitrator, effectively telling the arbitrator what to decide.  It's like going to a court where the judge reports to your opponent.  Pretty unfair.

At the same time, bear in mind that the Charter was relatively new, and historically the government had held basically unrestricted power (subject to jurisdictional matters) - before 1982, if the government decided that it wanted to legislate something within its jurisdictional sphere, the courts had little to say about it.

Lavigne - 1991

Merv Lavigne, a teacher affiliated with the Liberal Party, objected to mandatory union dues, as the union proceeded to donate to the NDP.

Basically, Lavigne argued that the freedom of association included a right not to associate - to opt out from having his money contribute to a rival political party.

As background, it's worth noting that much of Canadian labour law turns on what we call the "Rand formula" - in essence, for most bargaining units outside of the construction industry, you don't need to join the union in order to work in the bargaining unit; you just need to pay dues.  The logic is that, while requiring employees to join the union may be somewhat heavy-handed, there's a recognition that there can be value provided by the union, in its obligation to represent the interests of all bargaining unit members:  Mandatory dues are simply a matter of the union insisting on compensation for the service it provides.  In theory, at least.

There was a seven-judge panel in Lavigne, and while all rejected Lavigne's argument, they had different reasons for doing so.  There was a threshold issue - whether the union's expenditure of dues was capable of attracting Charter scrutiny.  Five of the seven judges agreed that it did - Justice Wilson and Justice L'Heureux-Dube argued otherwise.  The next question is whether the s.2(d) protected against compulsory union dues.  On this question, there was a split court, with four answering "no".  However, the other three - though finding that s.2(d) was infringed - concluded that it was a justifiable infringement, under s.1 of the Charter.

So up to this point, the Supreme Court had found, basically across the board, that s.2(d) did not provide a constitutional basis for judicial intervention in labour relations matters.  But, unbeknownst to anyone at the time, the board was already being set for a rematch.

Dunmore - 2001

The more recent chapters of this saga turn on agricultural workers in Ontario, who have historically been excluded from labour relations statutes - the logic being, largely, to protect the "family farm", a major part of Ontario's economy and infrastructure.

In 1990, an NDP government was elected in Ontario under Bob Rae.  They made a number of sweeping changes across the Province, including a 1994 statute called the Agricultural Labour Relations Act, which had the effect of extending union and collective bargaining rights to agricultural workers.

Then, in 1995, the pendulum swung all the way back again, and the Rae government was defeated by Mike Harris' Progressive Conservative government, which immediately set about reversing the changes brought about by the NDP.  In November 1995, Harris passed the Labour Relations and Employment Statute Law Amendment Act, 1995, (the "LRESLAA"), which repealed the ALRA, and effectively reimplemented the exclusion on agricultural workers from labour relations protections, including terminating any agreements or bargaining rights certified under the ALRA.

In the mean time, the UFCW became the certified bargaining agent for employees of a mushroom farm in Leamington, and started a certification drive at a mushroom farm in Kingsville (and at a hatchery in Beamsville).  These activities were completely shut down by operation of the LRESLAA.

Suffice it to say that the UFCW was not pleased by the development, and immediately brought an application arguing that the LRESLAA infringed s.2(d) of the Charter.

I mentioned above that there's a threshold issue for applying the Charter - the Charter only restrains 'state action', being acts by or attributable to the government.  The freedom of expression doesn't guarantee everyone a soapbox, nor does it prevent me from censoring comments on this blog; it merely limits the ability of government to restrict expression.  Traditionally, the Charter also only restricts government action, and provides very minimalistic positive obligations - so it doesn't say that the government has to enact laws to protect freedom of speech; just that it can't enact laws restricting it.

What we're talking about here is a statute governing relationships between private parties, and the UFCW arguing that "you have to protect these parties too".  Their primary argument, therefore, was that the LRESLAA was in and of itself 'state action'.  This argument did not hold the day - it would have had the effect of immunizing a great many statutes from repeal, saying to the government "You weren't constitutionally obligated to do this in the first place, but now that you've done it, you are constitutionally prohibited from going back."

However, Dunmore became a major precedent in terms of the scope of 'state action', in that it was held that the exclusion of a specific group created a "chilling effect", tacitly encouraging employers and others to treat bargaining efforts by agricultural workers as illegitimate.

The Supreme Court concluded that, in fact, s.2(d) does protect the right to join a union, and the LRESLAA had a chilling effect on the ability of agricultural workers to join and maintain associations, and therefore was unconstitutional.  It's all a very soundly-reasoned argument, and not directly inconsistent with prior case law (though expanding on some doctrines significantly), and importantly expressly declined to opine about the full extent of the collective protections the government needed to extend to agricultural workers:  The necessary protections included the freedom to organize, freedom to assemble, freedom to participate in the lawful activities of the association and to make representations, and the right to be free from interference, coercion, or discrimination in exercise of those freedoms.  But beyond that, the court took a 'wait and see' approach.

It was a decision calling for a sequel.  And the Ontario government didn't disappoint, enacting the Agricultural Employees Protection Act, 2002, which basically extended precisely the minimum protections that majority of the Supreme Court said it had to, predictably resulting in the Fraser case being brought before the courts.  But before the Fraser case was concluded, there was an important intervening decision dealing the B.C.

B.C. Health Services - 2007

British Columbia was trying to address certain challenges facing its health care system, and passed a sweeping law with no meaningful consultations with the union beforehand.  It changed several matters relevant to labour relations, including transfers and assignment rights, contracting out, job security programs, layoffs, and others.

The problem, of course, is that many of these issues are addressed in collective agreements, so to change them unilaterally, the statute also had to override collective agreements.

There was no real question here about whether or not the B.C. government's actions constituted 'state action' capable of attracting scrutiny under the Charter:  The real question was whether or not the Supreme Court was now prepared to reverse its position in the Trilogy, and recognize that the Charter protected collective bargaining.  And they did.

So with Dunmore, we saw the Charter protect the right to organize (and other activities essential thereto); B.C. Health Services stands for the proposition that the Charter protects the right to good faith collective bargaining.  It was a gradual expansion.

There is some awkwardness in the B.C. Health Services decision, however:  The Supreme Court dealt in great detail with the employer's duty to bargain in good faith, as content of the right to collectively bargain.  In some phrasings, it seemed to suggest that the Charter directly imposed an obligation on employers to bargain in good faith.  On a careful reading of the decision, bearing in mind an understanding of the Charter, the decision is better understood as imposing a requirement that labour relations regimes preserve the process of good faith consultation and bargaining.

Still, it left some uncertainty in terms of the scope of government's obligations in regulating the private sector:  Many read Dunmore as creating a situation in which 'positive state action' can be required by the Charter; my interpretation of Dunmore, by contrast, is that it turns a statutory exclusion which, for narrow factual reasons, constituted prohibited state action.  (Thus, I read it as being in line with existing Charter jurisprudence; others read it as being an exception to the traditional analysis.  At most, however, that exception is extraordinarily narrow.)  B.C. Health Services seemed to create a positive obligation on government to impose a duty to bargain in good faith upon all employers.  Which would indeed be a significant break from traditional Charter case law.

Fraser v. Ontario - 2011

After the Supreme Court struck down the LRESLAA in Dunmore and the Ontario government responded in 2002 by enacting the minimalistic AEPA, the UFCW still wasn't happy.  Agricultural workers now had the right to form and maintain an association and to "make representations" on a collective basis, but - unlike the general labour relations regime - there were no clear obligations on the employer to come to the table with the union.

In 2006, Justice Farley of the Superior Court of Justice dismissed the UFCW's application.  It was pretty clear-cut, after all:  In Dunmore, the Supreme Court told Ontario to do, at minimum, x, and Ontario responded by doing exactly that.  They followed the SCC's instructions to the letter, so until and unless the SCC further expands s.2(d), that should be fine.  The UFCW appealed to the Ontario Court of Appeal.

With B.C. Health Services going to the Supreme Court, however, the Fraser case was put on hold.  After all, that decision could change the terrain.  And, of course, it did.

I've posted about the Fraser case before - see my detailed analysis here.  There was a widespread consensus that, following B.C. Health Services, Ontario's response to Dunmore could no longer be considered constitutionally adequate.  The Court of Appeal found that, not surprisingly.  (Personally, I argued in a moot on the point that the 'state action' threshold wasn't met, that neither Dunmore nor B.C. Health Services had expanded the doctrine to the point that positive state action could be required absent evidence of a 'chilling effect', and that nothing in either case suggested that an exclusion would automatically generate a chilling effect sufficient for Charter scrutiny.  Essentially, I argued that there wasn't the factual foundation necessary to establish the inadequacy of the AEPA.)

The Supreme Court was mixed.  In my commentary before, I highlighted that the decision involved fifteen interveners, 33 lawyers, and 9 judges releasing four sets of reasons with an aggregate 369 paragraphs.

Justice Abella alone agreed with the Ontario Court of Appeal, concluding that the AEPA was unconstitutional.  Justice Deschamps argued that B.C. Health Services should be interpreted narrowly, and that we still need to be careful about imposing positive government action.  To that point, the argument was not altogether different from the argument I had made, but Justice Deschamps went on to argue that it rose issues of economic equality, and that s.15 of the Charter (the anti-discrimination provision) should be interpreted as including economic status.  Justice Rothstein and Justice Charron argued that Dunmore and B.C. Health Services were wrongly decided and unworkable.

A slim majority of the court, however, addressed the question creatively, interpreting the AEPA in such a way as to bring it within the B.C. Health Services framework.  It required some logical gymnastics and suspension of disbelief, but the effect of the decision was to impose on agricultural employers the obligation to bargain with unions in good faith.

This wasn't exactly a loss for the union, but it wasn't exactly a win either:  They wanted a full-blown "Wagner model" labour relations regime, and what they got wasn't even close.

For the fall-out from Fraser, have a look at this entry, where I discussed Ontario's Bill 115, designed to impose collective agreements on teachers, after a minimalistic consultation process which the Ontario Court of Appeal had recently upheld in the AJC decision, following Fraser.  (AJC did not receive leave to appeal to the Supreme Court of Canada.)

Upcoming Question #1:  The Right to Strike?

In two months, the Supreme Court will hear the appeal of a case out of Saskatchewan, in which Saskatchewan public sector employees are arguing for the right to strike.  They succeeded at the Court of Queen's Bench (following which I posted this entry), but were unsuccessful at the Saskatchewan Court of Appeal.

The Saskatchewan Court of Appeal was unambitious in its reasoning, relying on the Labour Trilogy and the fact that the Supreme Court has not yet expressly overturned its pronouncements therein that s.2(d) does not protect a right to strike.  Essentially, it was an invitation to the Supreme Court to settle the debate, and the Supreme Court accepted the invitation by granting leave to appeal.

There's plenty of reason to think that the Supreme Court no longer regards the principles underlying the Labour Trilogy as good law, so I'm inclined to think that the reticence by the Saskatchewan Court of Appeal in part arises from the way that the Supreme Court dealt with Fraser:  Look, the Ontario Court of Appeal tried to interpret B.C. Health Services, and did so in a way that made a lot of sense on its face, but the Supreme Court came in and did its own thing entirely.  They're being unpredictable on these issues, so let's just toss the ball to them and see how they handle it.

That being said, the Saskatchewan Court of Appeal did imply that they would have ruled that way anyways:  While Fraser suggests that some mechanism of resolving bargaining impasses may be required, there is no constitutional requirement that this mechanism be the opportunity to strike.  As well, the role of a strike, as fundamental to labour relations as it may have been a hundred years ago, has changed significantly over time.

I doubt that the Supreme Court will conclude that there is a right to strike, but the Saskatchewan Court of Appeal is right that it's time the SCC dealt with the issue again.  While Dunmore and B.C. Health Services both expanded s.2(d) significantly, I have argued that Fraser indicated the apex of the pendulum, with three judges arguing against adopting an expansive approach to B.C. Health Services, and another five also limiting its impact.

Upcoming Question #2:  What is the Full Impact of Fraser?

I've posted a few times about the MPAO case, with the Mounties trying to unionize.  The Court of Appeal shut down the attempt, based largely on a factual finding that the consultation system currently in place satisfies the requirements of the Fraser decision.  But the Supreme Court recently granted leave to appeal, so more will be said on the subject.

If the Supreme Court allows the appeal, that may amount to a significant expansion of the content of the right to collectively bargain - precisely what they refused to do in Fraser.  But it's also an opportunity to clarify the scope of the government's obligations under the Charter, which is important at this point.  On the one hand, the existing system gives the workers the right to form and maintain associations, and to make representations on a collective basis, which factually appear to be dealt with in good faith.  It's a fact pattern which definitely seems to lack the characteristic element of the Dunmore-type cases, which dealt with the effective impossibility of associational activities.

On the other hand, the reality remains this:  If the employer and workers (collectively) can't agree on terms, the employer unilaterally has the final say.

If it's correct to say that some mechanism for resolving bargaining impasses is constitutionally necessary (as opposed to the Ontario Court of Appeal's interpretation that, once good faith bargaining has been attempted, the government's Charter obligations are satisfied), then one might anticipate the Supreme Court partially allowing the appeal in MPAO and requiring the RCMP to implement such a mechanism.

But if the Supreme Court were particularly troubled by the Ontario Court of Appeal's interpretation of Fraser, then AJC would have been the much better case for strengthening s.2(d) - asking whether or not the government can resolve good faith bargaining impasses by legislative fiat.


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.

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