May 27, 2011

On Friday April 29, the Supreme Court of Canada issued its long-awaited decision in Ontario (Attorney General) v. Fraser concerning the protection of the right to collective bargaining under the Charter of Rights. The five-member majority of the Court upheld its earlier ground-breaking B.C. Health Services decision, which provides that a process of collective bargaining is protected by the guarantee of freedom of association in s. 2(d) of the Charter. However, the majority refused to uphold the Ontario Court of Appeal’s ruling in Fraser that agricultural workers are entitled to a process of collective bargaining that includes a statutory dispute-resolution process and legislative protection of a union’s right to exclusive representation based on majority support.

On Friday, May 27 Lancaster House brings together a panel of experts, including prominent academics and leading counsel involved in arguing Fraser and B.C. Health Services, in order to provide an explanation of what the decision says and to analyze its implications for the future. Issues to be discussed include:

  • The Court of Appeal had ruled that s.2(d) requires legislative protection not only for good faith bargaining but also for exclusivity and majoritarianism, and for statutory dispute-resolution mechanisms. Are these features of Canadian collective bargaining systems now unprotected by the Charter?
  • What does this decision say about the scope of Charter protection for collective bargaining in Canada? If good faith bargaining is required, what does that mean? Is it co-extensive with the duty to bargain under labour relations legislation?
  • What will the decision mean for restrictions on the right to strike, statutory limits on the scope of collective bargaining and government-imposed wage controls?
  • What does Fraser mean for the future of interest arbitration and essential service legislation?
  • Does this decision retreat from the protection of collective rights under s.2(d) first extended by the Court in Dunmore and then expanded in B.C. Health Services?
  • What does it mean for agricultural workers in Canada, and other groups of workers who are excluded from collective bargaining legislation?
  • Will this decision lead to the recognition of minority unions in Canada?
  • What does it mean for bargaining unit or bargaining rights restructuring?
  • What does the decision say about the role of international law and its impact on freedom of association rights under the Charter?
  • The decision’s four sets of reasons seem to reveal a deeply divided court. What will this mean for judicial protection of collective bargaining rights? Are we entering a new period of judicial deference to legislative choices?

This session, moderated by Pamela Chapman, of the University of Ottawa, Faculty of Law, will feature counsel who appeared in the case and leading labour law academics cited by the judges in their reasons:

  • Steven Barrett, counsel for the Canadian Labour Congress
  • Jodi Gallagher Healy, Counsel for the Ontario Federation of Agriculture
  • Brian Etherington, Professor of Law, University of Windsor, cited by Justice Rothstein
  • Brian Langille, Professor of Law, University of Toronto, cited by Justices Rothstein and Deschamps

This decision will be of great interest to anyone involved in labour relations in Canada, not only for its analysis of the scope of Charter protection of collective bargaining, but also because of what it reveals about the meaning and impact of B.C. Health Services. The complexity of the decision and the degree of dissent mean that issues decided in the wake of B.C. Health Services may undergo re-examination and that future cases considering the scope of workers’ rights under the Charter may be substantially affected.

Sign up now for this opportunity to hear a detailed review of the ruling in Fraser and a discussion of its potential effect on collective bargaining across Canada.