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

Date of Decision: April 29, 2011

Supreme Court Panel: Chief Justice Beverley McLachlin, Justices Ian Binnie, Louis LeBel, Morris Fish, and Thomas Cromwell (concurring); Louise Charron and Marshall Rothstein (concurring in the result, separate reasons); Marie Deschamps (concurring in the result, separate reasons); Rosalie Abella (dissenting)

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 AEPA, however, excluded agricultural workers from the protection of the Ontario Labour Relations Act. Moreover, the AEPA 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 Act]."

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 of Justice 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.

Ontario's Superior Court of Justice dismisses workers' application, rules Charter guarantee of free association does not require "full collective bargaining regime"

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" of 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)), from imposing contract terms restraining workers from organizing (s.9(b)), from threatening or penalizing workers for organizing (s.9(c)), and from 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.

Ontario Court of Appeal allows appeal, rules Charter right to freedom of association includes right to engage in "meaningful" collective bargaining

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 eNewsletter, 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. These elements are part of the so-called Wagner Act model of collective bargaining (so-called because it is based on the U.S. National Labor Relations Act of 1935 sponsored by Senator Robert Wagner), the model on which the labour relations system in Canada is based.

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.

The Court dismissed the union's s.15(1) equality rights claim, holding that, while the AEPA perpetuates and reinforces the pre-existing disadvantage of agricultural workers, the Act's distinctions were not based on an enumerated or analogous ground. Thus, there was no infringement of the equality guarantee in s.15(1) of the Charter.

The Ontario government subsequently applied for leave to appeal the Court of Appeal's decision to the Supreme Court of Canada. The Supreme Court granted leave on April 2, 2009.

Issue(s): The issues on appeal to the Supreme Court of Canada included: (i) whether the AEPA 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; (ii) whether the AEPA infringes the equality guarantee in s.15(1) of the Charter; and (iii) whether any violation of s.2(d) and/or s.15(1) is saved as a reasonable limit under s.1 of the Charter.

Supreme Court's Decision: The government's appeal was allowed (8-1). The majority expressly rejected any Charter right to collective bargaining based on the Wagner Act model, ruling that s.2(d) of the Charter does not protect any particular type of collective bargaining. The Court unanimously dismissed the union's appeal with respect to s.15(1) of the Charter, holding that, on the evidentiary record before the Court, it had not been established that the special labour regime created by the AEPA substantively discriminated against agricultural workers.

Reasons:

The majority's reasons

In a decision written by Chief Justice Beverley McLachlin and Justice Louis LeBel, and joined in by Justices Ian Binnie, Thomas Cromwell and Morris Fish, the Court declared that "Health Services does not support the view of the Ontario Court of Appeal," concluding: "What is protected is associational activity, not a particular process or result."

McLachlin and LeBel stated that "the logic of Dunmore and Health Services is at odds with the view that s.2(d) protects a particular kind of collective bargaining…. [W]hat s.2(d) protects is the right to associate to achieve collective goals. Laws or government action that make it impossible to achieve collective goals have the effect of limiting freedom of association, by making it pointless. It is in this derivative sense that s.2(d) protects a right to collective bargaining…. However, no particular type of bargaining is protected. In every case, the question is whether the impugned law or state action has the effect of making it impossible to act collectively to achieve workplace goals." [emphasis in original]

The majority quoted from Health Services as follows:

Thus the employees' right to collective bargaining imposes corresponding duties on the employer. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation.
...
Section 2(d) requires the parties to meet and engage in meaningful dialogue. They must avoid unnecessary delays and make a reasonable effort to arrive at an acceptable contract…; Section 2(d) does not impose a particular process. Different situations may demand different processes and timelines…; Section 2(d) does not require the parties to conclude an agreement or accept any particular terms and does not guarantee a legislated dispute resolution mechanism in the case of an impasse…; Section 2(d) protects only "the right ... to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method"….

The majority continued:

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.
...
It is difficult to imagine a meaningful collective process in pursuit of workplace aims that does not involve the employer at least considering, in good faith, employee representations. The protection for collective bargaining in the sense affirmed in Health Services is quite simply a necessary condition of meaningful association in the workplace context.

Applying these principles to the instant case, the majority found that "Sections 5(6) and (7) [of the AEPA] are critical. They provide that the employer shall listen to oral representations, and read written representations, and acknowledge having read them. They do not expressly refer to a requirement that the employer consider employee representations in good faith. Nor do they rule it out. By implication, they include such a requirement…. [A]ny ambiguity in ss. 5(6) and (7) should be resolved by interpreting them as imposing a duty on agricultural employers to consider employee representations in good faith."

McLachlin and LeBel acknowledged that "[i]t is argued that the record thus far under the AEPA gives little reason to think that the AEPA process will in fact lead to good faith consideration by employers. The evidence shows that the respondents attempted to engage employers in collective bargaining activities on a few occasions. On each occasion the employer ignored or rebuffed further engagement. The employers have refused to recognize their association and have either refused to meet and bargain with it or have not responded to the demands of the respondents."

However, the majority concluded that the farmworkers' challenge was premature. "This history, scant as it is, does not establish that the AEPA violates s.2(d). Indeed, the union has not made a significant attempt to make it work…. [P]roperly interpreted, it does not violate s.2(d). Moreover, the process has not been fully explored and tested. The AEPA, as [the Superior Court judge] noted, contemplates a meaningful exercise of the right of association, and provides a tribunal for the resolution of disputes." In the majority's view, the Tribunal should be given an opportunity "to interpret its powers, in accordance with its mandate, purposively, in an effective and meaningful way."

As for the union's reliance on equality rights, under s.15 of the Charter, this claim was summarily dismissed on the ground that "[w]hat s.15 contemplates is substantive discrimination, that impacts on individuals stereotypically or in ways that reinforce existing prejudice and disadvantage…. The AEPA provides a special labour regime for agricultural workers. However, on the record before us, it has not been established that the regime utilizes unfair stereotypes or perpetuates existing prejudice and disadvantage. Until the regime established by the AEPA is tested, it cannot be known whether it inappropriately disadvantages farm workers."

Allowing the Ontario government's appeal and overturning the Ontario Court of Appeal's decision, Chief Justice McLachlin and Justice LeBel held: "The decision that we render today is another step in the resolution of the issues surrounding the organizational challenges faced by farm workers in Ontario. We hope that all concerned proceed on the basis that s.2(d) of the Charter confirms a right to collective bargaining, defined as 'a process of collective action to achieve workplace goals,' requiring engagement by both parties. Like all Charter rights, this right must be interpreted generously and purposively. The bottom line may be simply stated: Farm workers in Ontario are entitled to meaningful processes by which they can pursue workplace goals."

The reasons of Justices Rothstein and Charron, concurring in the result

While concurring in the majority decision to reject the farm workers' Charter challenge, Justices Marshall Rothstein and Louise Charron expressed the view that B.C. Health Services was incorrectly decided and should be reversed. Writing on behalf of himself and Justice Charron, Justice Rothstein stated that "s.2(d) protects the liberty of individuals to associate and engage in associational activities. Therefore, s.2(d) protects the freedom of workers to form self-directed employee associations in an attempt to improve wages and working conditions. What s.2(d) does not do, however, is impose duties on others, such as the duty to bargain in good faith on employers." Rothstein opined that "recognizing a constitutional right to collective bargaining, as did Health Services, represents an imprudent departure from the course of judicial deference."

The reasons of Justice Deschamps, concurring in the result

In another concurring opinion, Justice Marie Deschamps stopped short of calling for Health Services to be overturned, but held that it did "not have the broad scope being attributed to it by the majority in the case at bar." Justice Deschamps wrote that "the effect of Health Services is that freedom of association includes the freedom to engage in associational activities and the ability of employees to act in common to reach shared goals related to workplace issues and terms of employment…. To answer the question in the case at bar, there is no need to import a duty to bargain in good faith."

The dissenting reasons of Justice Abella

The lone dissenter, Justice Rosalie Abella, stated in a strongly worded opinion that: "In addition to finding a violation of s.2(d) based on the explicit failure, by text and by design, to include even a hint of a process of collective bargaining, let alone a duty to engage in meaningful and good faith efforts to arrive at a collective agreement, I also agree with [Ontario Chief Justice Winkler] that for agricultural workers, the absence of a statutory enforcement mechanism and of majoritarian exclusivity is an infringement of s.2(d)."

Lancaster Reference: For analysis of the Supreme Court of Canada's decision, see Lancaster's Headlines, May 25, 2011.