Name of Case: Fraser v. Ontario (Attorney General)

Status: Argued December 17, 2009. Judgment reserved.

Judgment under Appeal: Judgment of the Ontario Court of Appeal dated November 17, 2008

Facts: In response to the Supreme Court of Canada's decision in Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 (see Lancaster's Labour Law News, November/December, 2001), in which the Court struck down a 1995 law denying agricultural workers the right to unionize as contrary to the guarantee of freedom of association in s.2(d) of the Charter, Ontario's Conservative government enacted the Agricultural Employees Protection Act, 2002 (AEPA), extending limited protections to agricultural employees in the province. Under the AEPA, agricultural workers in Ontario were allowed to form "employee associations" through which they could "make representations to their employers ... respecting the terms and conditions of their employment." The Act, however, excluded agricultural workers from the protection of the Ontario Labour Relations Act. Moreover, the Act did not require employers to bargain with employee associations, although workers could complain to an appeal tribunal about infringements of their "right to protection against interference, coercion and discrimination in the exercise of their rights [under the AEPA]."

Case History: Following the enactment of the AEPA, three Ontario farm workers, supported by the United Food and Commercial Workers Union of Canada, applied to the Ontario Superior Court for a declaration that the Act infringed the Charter's guarantees of freedom of association (s.2(d)) and equality before the law (s.15(1)). The Ontario government, supported by the Ontario Federation of Agriculture (representing 38,000 farmers, farm organizations and farm operators), opposed the application, arguing that, while Dunmore affirmed agricultural workers' right to associate, it did not enable them to engage in collective bargaining.

On January 10, 2006, Justice James Farley dismissed the application, ruling that the AEPA "provides adequate (adequate in the sense of meeting minimum standards) protection" to farm workers' freedom of association. Rejecting the applicants' argument that collective bargaining rights are a necessary part of a "meaningful right to associate," Farley ruled that Dunmore did not require "as a function of the freedom of association that there be a full collective bargaining regime, nor the right to strike, nor that there be the possibility of what might be called 'full unionization.'" Even though the AEPA did not require employers to bargain with employee associations, Farley reasoned, the associations' right to "make representations to an employer concerning the terms and conditions of employment" imposed on employers an implied "duty to listen," including "comprehending and considering the representations." Furthermore, Farley ruled, the AEPA provided protection against association-busting tactics, with provisions which prohibited employers from discriminating against workers who joined employee associations (s.9(a)), imposing contract terms restraining workers from organizing (s.9(b)), threatening or penalizing workers for organizing (s.9(c)), and using "intimidation or coercion" to dissuade workers from becoming involved with an employee association (s.10).

In addition, Farley upheld the AEPA under s.15(1) of the Charter, ruling that it did not discriminate against farm workers on the basis of any prohibited or analogous ground, as required by the Supreme Court of Canada's decision in Law v. Canada, [1999] S.C.J. No. 12 (QL). While accepting that farm workers are members of "a disadvantaged group" in that they "are poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility," Farley ruled that "the 'category' of agricultural worker is an industry or sector classification but not a personal attribute." Accordingly, he concluded, the applicants could not establish a prima facie case of discrimination under s.15(1) of the Charter.

The union appealed Justice Farley's decision to the Ontario Court of Appeal.

On November 17, 2008 the Ontario Court of Appeal allowed the appeal and declared the AEPA unconstitutional, holding that it substantially impaired the right of agricultural workers to bargain collectively guaranteed by s.2(d) of the Charter. The Court, however, suspended its declaration of invalidity for 12 months in order to permit the government time to determine the method of statutorily protecting the rights of agricultural workers to engage in meaningful collective bargaining. The appeal with respect to s.15 equality rights was dismissed.

Writing for a unanimous Court of Appeal, Chief Justice Warren Winkler held that the combined effect of the Supreme Court of Canada's decisions in the Dunmore case and, more recently, the B.C. Health Services case, [2007] 2 S.C.R. 391 [reviewed in Lancaster's Human Rights and Workplace Privacy E-Bulletin, August 16, 2007, Issue No. 90], is to recognize that s.2(d) of the Charter protects the right of workers not only to organize, but also to engage in meaningful collective bargaining. Moreover, Winkler noted, the decisions also recognize that, in certain circumstances, s.2(d) may impose obligations on the government to enact legislation to protect the rights and freedoms of vulnerable groups.

In the Court's view, given the vulnerability of agricultural employees, it was incumbent on the government to provide minimum statutory protections for collective bargaining including: (1) a statutory duty to bargain in good faith; (2) statutory recognition of the principles of exclusivity and majoritarianism; and (3) a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements.

In its s.1 "reasonable limits" analysis, the Court held the restrictions in the AEPA did not constitute a reasonable limit on a Charter right because, although the objectives of the Act – to protect the family farm and farm production/viability – were pressing and substantial, "the wholesale exclusion of agricultural employees from a collective bargaining scheme is not adequately tailored to meet the objective of protecting the family farm." Contrary to s.1, the Act did not minimally impair the Charter right and, therefore, the means chosen by the legislature were not proportional to the Act's objectives.

Issue(s): The issues on appeal to the Supreme Court of Canada include: (i) whether the Agricultural Employees Protection Act, 2002 violates s.2(d) of the Charter by failing to provide agricultural workers in Ontario with sufficient statutory protections to enable them to exercise their right to organize and right to bargain collectively; and (ii) whether any violation of s.2(d) is saved as a reasonable limit under s.1 of the Charter.

Lancaster Reference: For analysis of the Court of Appeal's decision, see Lancaster's Headlines, November 26, 2008.

Court of Appeal Decision: http://onlinedb.lancasterhouse.com/images/up-OCA_Fraser.pdf