It enacted s. 3(b.1) of the LRA which again excludes agricultural workers from coverage under that statute. Section 3(b.1) provides that the LRA does not apply to "an employee within the meaning of the AEPA."

It enacted the AEPA which came into effect on 17 June 2003. Under the AEPA, agricultural workers are segregated under a separate statutory regime that gives them fewer rights than other workers in the province. In particular, the Applicants note that the AEPA does not protect the rights to unionize or engage in collective bargaining.

The impugned statutes substantially impede the right of agricultural workers to organize and their ability to form and maintain employee associations by

failing to protect their right to unionize;

failing to protect democratic choice of association by employees;

failing to provide a mechanism to verify the legitimacy of an employee association; and

failing to provide adequate protection from employer influence over employee associations.

The impugned statutes also substantially impede the ability of agricultural workers to maintain employee associations and exercise the "collective dimension" of freedom of association by failing to protect their right to engage in collective bargaining. Instead the Applicants submit they create an illusory right of representation which invites employer actions to ignore or subvert the free exercise of association by employees.

To the extent they substantially impede the effective exercise of the freedom of association, both the LRESLAA and s. 3(b) of the LRA must be declared contrary to the Charter. Given the nature of these enactments, however, determining the appropriate remedy is not without difficulty. First, the respondents point out that the precise effect of striking down the LRESLAA would be to re-enact the statute it repealed, namely, the ALRA. As this Court is not in a position to enact such detailed legislation, nor to confer constitutional status on a particular statutory regime, I prefer to strike down the LRESLAA to the extent that it gives effect to the exclusion clause of the LRA. The precise effect of this remedy is to strike down that exclusion clause, which is the alternate remedy sought by the appellants. This remedy presents its own problems, as it obliges the legislature to extend the full panoply of collective bargaining rights in the LRA to agricultural workers. As such action is not necessarily mandated by the principles of this case, I would suspend the declarations of invalidity for 18 months, allowing amending legislation to be passed if the legislature sees fit to do so. (emphasis in original)

This remedy presents its own problems, as it obliges the legislature to extend the full panoply of collective bargaining rights in the LRA to agricultural workers. As such action is not necessarily mandated by the principles of this case, ... (emphasis added)

In Lavigne, Wilson J. (writing for three of seven judges on this point) conducted an extensive review of this Court's s. 2(d) jurisprudence, concluding that "this Court has been unanimous in finding on more than one occasion and in a variety of contexts that the purpose which s. 2(d) is meant to advance is the collective action of individuals in pursuit of their common goals" (p. 253).

As these dicta illustrate, the purpose of s. 2(d) commands a single inquiry: has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals? In my view, while the four-part test for freedom of association sheds light on this concept, it does not capture the full range of activities protected by s. 2(d). In particular, there will be occasions where a given activity does not fall within the third and fourth rules set forth by Sopinka J. in PIPSC, [1990] 2 S.C.R. 367, supra, but where the state has nevertheless prohibited that activity solely because of its associational nature. These occasions will involve activities which (1) are not protected under any other constitutional freedom, and (2) cannot, for one reason or another, be understood as the lawful activities of individuals. As discussed by Dickson C.J. in the Alberta Reference, supra, such activities may be collective in nature, in that they cannot be performed by individuals acting alone. The prohibition of such activities must surely, in some cases, be a violation of s. 2(d) (at p. 367):

There will, however, be occasions when no analogy involving individuals can be found for associational activity, or when a comparison between groups and individuals fails to capture the essence of a possible violation of associational rights. ... The overarching consideration remains whether a legislative enactment or administrative action interferes with the freedom of persons to join and act with others in common pursuits. The legislative purpose which will render legislation invalid is the attempt to preclude associational conduct because of its concerted or associational nature. [Emphasis added.]

This passage, which was not explicitly rejected by the majority in the Alberta Reference or in PIPSC, recognizes that the collective is "qualitatively" distinct from the individual: individuals associate not simply because there is strength in numbers, but because communities can embody objectives that individuals cannot. For example, a "majority view" cannot be expressed by a lone individual, but a group of individuals can form a constituency and distill their views into a single platform. Indeed, this is the essential purpose of joining a political party, participating in a class action or certifying a trade union. To limit s. 2(d) to activities that are performable by individuals would, in my view, render futile these fundamental initiatives. ...

As I see it, the very notion of "association" recognizes the qualitative differences between individuals and collectivities. It recognizes that the press differs qualitatively from the journalist, the language community from the language speaker, the union from the worker. In all cases, the community assumes a life of its own and develops needs and priorities that differ from those of its individual members. Thus, for example, a language community cannot be nurtured if the law protects only the individual's right to speak (see R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 20). Similar reasoning applies, albeit in a limited fashion, to the freedom to organize: because trade unions develop needs and priorities that are distinct from those of their members individually, they cannot function if the law protects exclusively what might be "the lawful activities of individuals". Rather, the law must recognize that certain union activities - making collective representations to an employer, adopting a majority political platform, federating with other unions - may be central to freedom of association even though they are inconceivable on the individual level. This is not to say that all such activities are protected by s. 2(d), nor that all collectivities are worthy of constitutional protection; indeed, this Court has repeatedly excluded the right to strike and collectively bargain from the protected ambit of s. 2(d) (see Alberta Reference, supra, per Le Dain J., at p. 390 (excluding the right to strike and collectively bargain), per McIntyre J., at pp. 409-10 (excluding the right to strike); PIPSC, supra, per Dickson C.J., at pp. 373-74 (excluding the right to collectively bargain), per La Forest J., at p. 390 (concurring with Sopinka J.), per L'Heureux-Dubé J., at p. 392 (excluding both the right to strike and collectively bargain), per Sopinka J. at p. 404 (excluding both the right to strike and collectively bargain)). It is to say, simply, that certain collective activities must be recognized if the freedom to form and maintain an association is to have any meaning.

However, history has shown, and Canada's legislatures have uniformly recognized, that a posture of government restraint in the area of labour relations will expose most workers not only to a range of unfair labour practices, but potentially to legal liability under common law inhibitions on combinations and restraints of trade. Knowing this would foreclose the effective exercise of the freedom to organize, Ontario has provided a statutory freedom to organize in its LRA (s. 5), as well as protections against denial of access to property (s. 13), employer interference with trade union activity (s. 70), discrimination against trade unionists (s. 72), intimidation and coercion (s. 76), alteration of working conditions during the certification process (s. 86), coercion of witnesses (s. 87), and removal of Board notices (s. 88). In this context, it must be asked whether, in order to make the freedom to organize meaningful, s. 2(d) of the Charter imposes a positive obligation on the state to extend protective legislation to unprotected groups. More broadly, it may be asked whether the distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime substantially contributes to the violation of protected freedoms.

The purpose of this Act is to protect the rights of agricultural employees while having regard to the unique characteristics of agriculture, including, but not limited to, its seasonal nature, its sensitivity to time and climate, the perishability of agricultural products and the need to protect animal and plant life.

The following are the rights of agricultural employees referred to in subsection (1):

The right to form or join an employees' association.

The right to participate in the lawful activities of an employees' association.

The right to assemble.

The right to make representations to their employers, through an employees' association, respecting the terms and conditions of their employment.

The right to protection against interference, coercion and discrimination in the exercise of their rights.

statutory power to organize: s. 5 of LRA; see s. 1(2).1 of AEPA

protection against denial of access to property:

s. 13 LRA; see s. 7 of AEPA

protection against employer interference with trade union activity: s. 70 LRA; see s. 8 of AEPA

protection against discrimination against trade unionists: s. 72 LRA; see s. 9 of AEPA

protection against intimidation and coercion: s. 76 LRA; see s. 10 of AEPA

protection against alteration of working conditions during certification process: s. 86 LRA; see ss. 9 and 10 of AEPA

protection against coercion of witnesses: s. 87 LRA; see s. 10 of AEPA

removal of Board notices: s. 88 LRA; see s. 10 of AEPA.

... Insofar as the appellants seek to establish and maintain an association of employees, there can be no question that their claim falls within the protected ambit of s. 2(d) of the Charter. Moreover, the effective exercise of these freedoms may require not only the exercise in association of the constitutional rights and freedoms (such as freedom of assembly) and lawful rights of individuals, but the exercise of certain collective activities, such as making majority representations to one's employer. These activities are guaranteed by the purpose of s. 2(d), which is to promote the realization of individual potential through relations with others, and by international labour jurisprudence, which recognizes the inevitably collective nature of the freedom to organize.

... the notion that minimum legislative protection cannot be extended to agricultural workers without extending full collective bargaining rights is misguided.

... The most poignant chapter in this legislative history, but by no means the decisive one, is the LRESLAA. Through this enactment, the Ontario government not only renewed its commitment to preventing agricultural unions from collective bargaining, but prohibited even the voluntary recognition of agricultural associations, whatever their attributes might be. At the same time, it must be presumed that the legislature understood the history of labour relations and remained of the view that a protective regime was essential to the exercise of freedom of association in this area. The most palpable effect of the LRESLAA and the LRA is, in my view, to place a chilling effect on non-statutory union activity. By extending statutory protection to just about every class of worker in Ontario, the legislature has essentially discredited the organizing efforts of agricultural workers. ... By contrast, it is hard to imagine a more discouraging legislative provision than s. 3(b) of the LRA. The evidence is that the ability of agricultural workers to associate is only as great as their access to legal protection, and such protection exists neither in statutory nor constitutional form. Moreover, agricultural workers already possess a limited sense of entitlement as a result of their exclusion from other protective legislation related to employment standards and occupational health and safety (see Employment Standards Act Regulations, R.R.O. 1990, Reg. 325, s. 3(1)(i), excluding most agricultural workers from Parts IV-VIII of the Employment Standards Act, R.S.O. 1990, c. E.14; Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 3(2)). In this context, the effect of s. 3(b) of the LRA is not simply to perpetuate an existing inability to organize, but to exert the precise chilling effect I declined to recognize in Delisle. Conversely, the didactic effects of labour relations legislation on employers must not be underestimated. It is widely accepted that labour relations laws function not only to provide a forum for airing specific grievances, but for fostering dialogue in an otherwise adversarial workplace. As P. Weiler has written, unionization introduces a form of political democracy into the workplace, subjecting employer and employee alike to the "rule of law" (see Reconcilable Differences: New Directions in Canadian Labour Law (1980), at pp. 31-32). In this context, the wholesale exclusion of agricultural workers from a labour relations regime can only be viewed as a stimulus to interfere with organizing activity. The exclusion suggests that workplace democracy has no place in the agricultural sector and, moreover, that agricultural workers' efforts to associate are illegitimate. As surely as LRA protection would foster the "rule of law" in a unionized workplace, exclusion from that protection privileges the will of management over that of the worker. Again, a contrast to Delisle, supra, is apposite: a government employer is less likely than a private employer to take exclusion from protective legislation as a green light to commit unfair labour practices, as its employees have direct recourse to the Charter.

... For their part, the appellants [those representing the agricultural workers] maintain that the family farm no longer typifies Ontario agriculture and that the vulnerability of the agricultural production process, assuming it exists, does not militate against legislated collective bargaining. This discussion is however somewhat irrelevant in that the breach of the right of association does not extend to collective bargaining. What the government of Ontario must justify with regard to this appeal is its substantial interference with the right to form agricultural associations.

Judging from the parties' evidence, I am satisfied both that many farms in Ontario are family-owned and -operated, and that the protection of the family farm is a pressing enough objective to warrant the infringement of s. 2(d) of the Charter. The fact that Ontario is moving increasingly towards corporate farming and agribusiness does not, in my view, diminish the importance of protecting the unique characteristics of the family farm; on the contrary, it may even augment it. Perhaps more importantly, the appellants do not deny that the protection of the family farm is, at least in theory, an admirable objective.

Turning to the Ontario legislation, my view is that the s. 1 justification suffers, first, from the lack of a recognition of the evolving nature of Ontario agriculture. To the extent the term "family farm" refers to a unique management style characterized by significant family involvement, it may indeed continue to describe the vast majority of farms in Ontario and across Canada. However, to the extent that it treats farm workers as members of that family rather than typical employees, it ignores an increasing trend in Canada towards corporate farming and complex agribusiness. On this point, the Attorney General's expert himself concedes that "[t]he modern viable family farm no longer consists of 20 acres and a few cows, but typically represents a sophisticated business unit with a minimum capital value of $500,000 to $1,000,000, depending on the commodity and type of operation". If this is the case, it is not only over-inclusive to perpetuate a pastoral image of the "family farm", but it may be that certain if not all "family farms" would not be affected negatively by the creation of agricultural associations.

More importantly, the Attorney General offers no justification for excluding agricultural workers from all aspects of unionization, specially those protections that are necessary for the effective formation and maintenance of employee associations. It might be inferred that in order to protect the family farm and ensure the productivity of the farm economy, the legislature felt it necessary to discourage any form of union and to suffer that agricultural workers be exposed to a raft of unfair labour practices. Yet no policy could, in my view, be more repugnant to the principle of least intrusive means. If what is truly sought by s. 3(b) of the LRA is the protection of the family farm, the legislature should at the very least protect agricultural workers from the legal and economic consequences of forming an association. There is nothing in the record to suggest that such protection would pose a threat to the family farm structure, and if demonstrated that it would in some cases, the legislature could create the appropriate exceptions. I am of the view that the wholesale exclusion of agricultural workers from the LRA is not a reasonable limit on freedom of association and that it is not necessary to balance the effects of this exclusion against its stated purpose.

This raises the question of whether s. 2(d) requires that a minimum level of LRA protection be extended to agricultural workers. As implied by Rodriguez, [1993] 3 S.C.R. 519, supra, the Charter only obliges the legislature to provide a statutory framework that is consistent with the principles established in this case, including both the s. 2(d) and s. 1 analysis. In my view, these principles require at a minimum a regime that provides agricultural workers with the protection necessary for them to exercise their constitutional freedom to form and maintain associations. The record shows that the ability to establish, join and maintain an agricultural employee association is substantially impeded in the absence of such statutory protection and that this impediment is substantially attributable to the exclusion itself, rather than to private action exclusively. Moreover, the freedom to establish, join and maintain an agricultural employee association lies at the core of s. 2(d) of the Charter; the appellants' claim is ultimately grounded in this non-statutory freedom. For these reasons, I conclude that at minimum the statutory freedom to organize in s. 5 of the LRA ought to be extended to agricultural workers, along with protections judged essential to its meaningful exercise, such as freedom to assemble, to participate in the lawful activities of the association and to make representations, and the right to be free from interference, coercion and discrimination in the exercise of these freedoms.

In choosing the above remedy, I neither require nor forbid the inclusion of agricultural workers in a full collective bargaining regime, whether it be the LRA or a special regime applicable only to agricultural workers such as the ALRA. For example, the question of whether agricultural workers have the right to strike is one better left to the legislature, especially given that this right was withheld in the ALRA (s. 10).

Should a claim for inclusion arise in the future, the threshold question will be whether the provision relates to an activity falling within the framework established by the labour trilogy or that otherwise furthers the purpose of s. 2(d) of the Charter. If this threshold is crossed, the question becomes whether excluding agricultural workers from the provision in question substantially impedes this activity either in purpose or effect. If the effect of the exclusion is impugned, the claimant's position should be assessed in light of the considerations discussed above.

failing to protect agricultural workers' democratic choice of representative;

enabling employers to subvert agricultural workers' majority democratic choice by recognizing multiple employee associations without regard for majority support; and

failing to protect against employer influence over the right to organize.

8  No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall interfere with the formation, selection or administration of an employees' association, the representation of employees by an employees' association or the lawful activities of an employees' association, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of an employees' association or was or is exercising any other right under this Act;

shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of an employees' association or exercising any other right under this Act; or

shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of an employees' association or to cease to exercise any other right under this Act.

No person, employees' association, employers' organization or other entity shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of an employees' association or of an employers' organization or to refrain from exercising any right under this Act or from performing any obligations under this Act.

The amendment that was proposed in the legislative hearings to which the Court refers was that s. 2(d) be amended to add the words "including the freedom to organize and bargain collectively." The intention was to protect both those aspects of collection action but not the right to strike. The amendment as a whole was opposed on the following grounds:

"Our position on the suggestion that there be specific reference to freedom to organize and bargain collectively is that that is already covered in the freedom of association that is provided already ... in the Charter.

...

"...this new language adds nothing which is not already provided in the right of association".

Minutes of Proceedings of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Issue No. 43, 22 January 1981, at 69-70 [emphasis added]

cf. Alberta Labour Reference, supra at 231-232, per McIntyre J.

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

We agree with the judgment of Sharpe J., both with the result at which he arrived and his reasons. We did not call on counsel for the respondents because the submissions of counsel for the appellants, able as they were, did not create any doubts in our minds about the correctness of the judgment in appeal. The appeal is dismissed. This is not a case for costs.

... The current state of the law and the debate between various members of the court was summarized by La Forest J. in Eldridge v. British Columbia (Attorney General), October 9, 1997 [now reported 46 C.R.R. (2d) 189 at p. 218, 151 D.L.R. (4th) 577]:

While this court has not adopted a uniform approach to s. 15(1), there is broad agreement on the general analytic framework: see Eaton v. Brant County Board of Education (1997), 41 C.R.R. (2d) 241 at p. 258, [1997] 1 S.C.R. 241 at p. 270; Miron, [1995] 2 S.C.R. 418, supra; and Egan, [1995] 2 S.C.R. 513, supra. A person claiming a violation of s. 15(1) must first establish that, because of a distinction drawn between the claimant and others, the claimant has been denied "equal protection" or "equal benefit" of the law. Secondly, the claimant must show that the denial constitutes discrimination on the basis of one of the enumerated grounds listed in s. 15(1) or one analogous thereto. Before concluding that a distinction is discriminatory, some members of this court have held that it must be shown to be based on an irrelevant personal characteristic: see Miron, supra, per Gonthier J., and Egan, supra, per La Forest J. Under this view, s. 15(1) will not be infringed unless the distinguished personal characteristic is irrelevant to the functional values underlying the law, provided that those values are not themselves discriminatory. Others have suggested that relevance is only one factor to be considered in determining whether a distinction based on an enumerated or analogous ground is discriminatory: see Miron, supra, per McLachlin J., and Thibaudeau v. Canada (1995), 29 C.R.R. (2d) 1, [1995] 2 S.C.R. 627, per Cory and Iacobucci JJ.

Accordingly, if the applicants are unable to demonstrate that they have been denied equal protection or equal benefit of the law on the basis of discrimination on an analogous ground, it becomes unnecessary to consider how the case falls to be decided under these competing approaches to equality.

This review of the cases dealing with the analogous grounds element in the s. 15(1) analysis indicates that while there is no precise test to determine what constitutes an analogous ground, there are certain principles which are to guide courts in this area. The first principle underlying the analogous grounds requirement is that s. 15 does not permit courts to review all legislative distinctions, nor does it confer on courts a mandate to remedy all forms of perceived injustice in our society. While the Supreme Court has insisted upon a contextual approach which has reference to the social and economic realities, it is equally clear from these pronouncements that the court does not see s. 15(1) as a guarantee against all forms of social and economic disadvantage, whatever their cause. The second and related principle is that the focus of s. 15(1) is upon discrimination that denies human dignity by granting or withholding benefits based upon certain personal traits or characteristics, either listed in s. 15(1) or identified by their similarity to those listed. Traits and characteristics that fall into this category may be identified in a number of ways, but broadly tend to be matters that history and experience show to have been the subject of stereotypical application of presumed group characteristics that deny individual human dignity.

The applicants have led evidence to the effect that agricultural workers have historically occupied a disadvantaged place in Canadian society and that they continue to do so today. For the purposes of the s. 15 analysis, I have no hesitation in finding on the evidence that agricultural workers are a disadvantaged group. They are poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility. However, with reference to identifying personal characteristics, the evidence before me indicates that agricultural workers are a disparate and heterogeneous group. There is nothing in the evidence to indicate that they are identified as a group by any personal trait or characteristic other than that they work in the agricultural sector. The evidence indicates that farm owners and operators also suffer from low wages, and that many have low education levels. The low status and prestige of farm workers is similar to that of other manual labourers. In my view, the evidence shows that the legislative decision to exclude agricultural workers from the collective bargaining regime does not reflect stereotypical assumptions about the personal characteristics of agricultural workers, either individually or as a class. Rather, it is based upon the policy-maker's perception of the characteristics and circumstances of the agricultural industry. The effects of the legislative exclusion impact the diverse group of individuals who work in that sector of the economy and who are not otherwise identifiable as a group.

...

In light of this factual record, in the end, the applicants' case must turn on whether the economic disadvantage of a group of workers, identified as a group only by the fact that they work in a particular sector of the economy, constitutes an analogous ground within the meaning of s. 15(1). I hardly need state that the wisdom, or lack thereof, from the perspective of labour relations policy, of the decision to exclude agricultural workers from collective bargaining has no bearing on this question.

In my view, the disadvantaged position occupied by agricultural workers is not sufficient to constitute the legislative classification "agricultural workers" as an analogous ground for the purposes of s. 15. Economic disadvantage is often the product of discrimination on an analogous ground, and hence serves as a marker that may indicate the presence of such discrimination. There are, however, many causes of economic disadvantage that do not attract the scrutiny of s. 15, and a showing of economic disadvantage does not, by itself, establish discrimination on an analogous ground within the meaning of s. 15. In my view, the absence of evidence of any traits or characteristics analogous to those enumerated in s. 15 which serve to identify those who make up the group of agricultural workers is fatal to their s. 15 claim.

There are many forms of injustice in our society, particularly those resulting from uneven distribution of wealth, that cannot be remedied by the courts through interpretation of the Charter and that must be remedied through the legislative process. The flaw in the applicants' argument is that it focuses upon disadvantage alone whereas a s. 15(1) analysis requires evidence that the disadvantage point to a particular cause, namely discrimination on "stereotypical attribution of group characteristics".

...

As I have already noted, there is no evidence before me to indicate that agricultural workers as a group can be identified by any combination of the grounds enumerated in s. 15(1), or by any personal characteristic analogous thereto.