The unions’ renewed swagger – giving teeth to freedom of association

Wikipedia – Winnipeg General Strike 1919

In 1987, a majority of the Supreme Court of Canada held that “the constitutional guarantee of freedom of association in s. 2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike”: Reference Re Public Service Employee Relations Act (Alta), [1987] 1 SCR 313, per Le Dain J. Then, after testing the waters in some earlier cases, the Supreme Court of Canada reversed this ruling in 2007 in Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, at para. 86:

“We conclude that the protection of collective bargaining under s. 2(d) of the Charter is consistent with and supportive of the values underlying the Charter and the purposes of the Charter as a whole. Recognizing that workers have the right to bargain collectively as part of their freedom to associate reaffirms the values of dignity, personal autonomy, equality and democracy that are inherent in the Charter.”

While the constitutional status of the right to strike is now in doubt, there is no doubt that the courts, with the Supreme Court of Canada leading the way, are resetting the constitutional balance of power between trade unions on one hand and employer (and especially public sector employers) on the other.

In 2011, the Supreme Court continued the discussion and the reinforcement of its 2007 Health Services break from then twenty year old 1987 precedents. In Ontario (Attorney General) v. Fraser, 2011 SCC 20, the Court clarified that s. 2(d) of the Charter did not require a certain model for collective bargaining but that the labour relations legislation had to allow for a meaningful dialogue between the employer and trade union on the working conditions of the employees (at para. 42):

” The Court in Health Services emphasized that s. 2(d) does not require a particular model of bargaining, nor a particular outcome. What s. 2(d) guarantees in the labour relations context is a meaningful process. A process which permits an employer not even to consider employee representations is not a meaningful process. To use the language of Dunmore, it is among those “collective activities [that] must be recognized if the freedom to form and maintain an association is to have any meaning” (para. 17).”

While the Court, in that case, did not find the Ontario legislation to be constitutionally invalid, the process by which it arrived at its conclusion affirmed the departure from the 1987 freedom of association trilogy.

More recently, in Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, the Supreme Court held that Alberta’s Personal Information Protection Act went too far in limiting a striking union’s rights to photograph and videotape persons who were crossing the picketline and to post those photos on a website. The union’s collective right to freedom of expression had been unduly limited and picketing was a particularly important form of expression (see my earlier post on this case)

A month ago, in Bernard v. Canada (Attorney General), 2014 SCC 13, the Court confirmed that the union was entitled to obtain the address and telephone number of an employee who was not a member of the union but covered by its collective agreement. The Court noted that the Privacy Act did not require that this information be withheld and that the employee’s rights under s. 2(d) were not infringed. Justice Abella and Cromwell for the majority noted that “s. 2(d) is not a constitutional right to isolation” (para. 38).

Most recently, in British Columbia, Madam Justice Griffin of the Supreme Court of British Columbia has wrestled with the issue of just what s. 2(d) now protects in terms of collective bargaining and, in particular, collective bargaining in respect of working conditions (like maximum class sizes): British Columbia Teachers’ Federation v. British Columbia, 2014 BCSC 121. In order to stave off the economic realities that her order would direct, the British Columbia government appealed and, as of today, obtained a stay of that aspect of her order. See British Columbia Teachers’ Federation v. British Columbia, 2014 BCCA 75.  This simply underscores and illustrates the increasing potency of trade unionism.

What is clear is that the courts are deliberately rejigging the balance of power between unions and employers. There seems to be a clear objective of reinforcing the collective rights of employees as exercised in trade unions or labour associations. In the distant past, when the legal obstacles to trade unions were removed, they became central to the movement to rectifying dangerous or improper working conditions. Over the last number of decades, however, unions have waned in terms of their influence in society and in the national economy. With the courts seemingly rearming the unions with strong constitutional protections, I question whether we will see a resurgence of trade union movements in Canada.

I remain…

Constitutionally yours

Arthur Grant

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