The British Columbia Court of Appeal puts the brakes on freedom of association – BCTF v. BC, 2015 BCCA 184

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After the Supreme Court of Canada made a number of decisions enlarging the scope of the fundamental freedom of association in the field of labour relations, in British Columbia Teachers Federation v. British Columbia, 2015 BCCA 184, the British Columbia Court of Appeal has slowed its growth and given some considered discussion of the Supreme Court’s recent pronouncements in the field. A majority of four of a five member panel led by Chief Justice Bauman and Mr. Justice Harris reviewed the law respecting freedom of association, including the recent decisions of the Supreme Court in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (“MPAO“)and Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4 (“SFL“). Their comments provide penetrating insights as to one approach to understand the newly reconstructed freedom of association.

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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.
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