Workplace Wire

It has now been six weeks since the release of the Supreme Court’s long awaited decision in Ontario (Attorney General) v. Fraser. The Court’s ruling that upheld Ontario’s Agricultural Employees Protection Act (“AEPA”) was the focus of the early reactions from commentators and the media, as well as our firm. As the days and weeks have passed, the focus has shifted to the broader implications of the decision for labour and constitutional law. There is certainly a lot to think about – here are some of my reflections on the so-called “bigger picture”.

I am certainly no fan of BC Health Services, the 2007 decision of the Supreme Court of Canada that was the subject of much criticism and discussion in Fraser. Leaving aside that BC Health Services may well be a classic example of ‘bad facts making bad law’ (kudos to Justice Rothstein’s Fraser opinion for delivering a catalogue of good reasons to question the principles underlying BC Health Services), it was plainly a muddled and flawed decision.

It was, first and foremost, carelessly drafted. For example, the words “negotiation” and “consultation” are used interchangeably even though they have very different meanings in the labour law context.

The decision also suffered from a severe case of jurisprudential schizophrenia. On the one hand, the Court went on for pages about how fundamentally important collective bargaining has been to Canadian society and at international law. On the other hand, the Court included numerous cautionary words about the limited, procedural nature of Charter protection for collective bargaining, suggesting that collective bargaining should not be considered so fundamental after all.

Nevertheless, I do think that the Fraser decision ultimately flows comfortably from the principles set out in BC Health Services. To the extent that some were disappointed, or even surprised, by Fraser, I would say that this was the result of either refusing to believe the Supreme Court’s cautionary words in BC Health Services, or allowing personal enthusiasm for the so-called “right” of collective bargaining to obscure what the Court actually wrote. Let me offer three brief points from Fraser to demonstrate that the Supreme Court meant what it said in BC Health Services, and that no one should really be surprised that the AEPA survived constitutional scrutiny so easily.

Point #1: The Supreme Court did not create a “constitutional right of collective bargaining”

The Supreme Court held in BC Health Services that the activity of collective bargaining finds limited protection under the constitutional freedom of association, just like other associational activities earlier found protection in the 2001 Dunmore decision (e.g. the freedom to organize; the freedom to make representations). The Supreme Court did not create a constitutional right of collective bargaining, nor would the Supreme Court have the power to do so.

It is true that the Court referred in a few places to a “right” of collective bargaining (evidence of the poor drafting at work in BC Health Services – a matter picked up in Justice Rothstein’s opinion in Fraser at paragraphs 237-239). Nevertheless, BC Health Services did not create a constitutional right of collective bargaining that would be a platform for constitutionalizing the core elements of the Wagner Model. Even judicial activism has its limits!

A basic misunderstanding of BC Health Services led the Ontario Court of Appeal (egged on by many commentators) to read much more into the constitutional status of collective bargaining than was intended by the Supreme Court.

As a result, they asked the wrong legal question in Fraser. In assessing the constitutionality of the AEPA, they essentially asked: “Does the AEPA make it impossible to exercise the right collective bargaining?”. The Court of Appeal should have asked a very different question: “Does the AEPA make it impossible to exercise freedom of association?”

The Supreme Court goes to great lengths in Fraser to emphasize that the constitutional right is “freedom of association”, and that collective bargaining finds limited protection within section 2(d) because of its nature as an associational activity [see paragraphs 38, 43 and 46 in particular: collective bargaining is protected by section 2(d) in a “derivative sense”]. At paragraph 48, the Supreme Court correctly states the constitutional test: “Does the legislative scheme (the AEPA) render association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(d) associational right?”

With the question framed in this manner, the Respondents had little hope of succeeding since there was ample reason to think that the AEPA would reasonably support meaningful associational activity in pursuit of workplace goals even if it did not provide a statutory platform for Wagner-style collective bargaining.

Point #2: The Supreme Court meant it when it said that no particular model of labour relations was constitutionalized under section 2(d)

To me, the Court of Appeal’s decision in Fraser was clearly wrong for another reason: it flew in the face of an express caution issued by the Supreme Court in BC Health Services against the constitutional adoption of a particular model of labour relations.

The Court of Appeal accepted the argument that the right of collective bargaining can only be meaningfully exercised if it is underpinned by a statutory regime that includes the key features of the Wagner Model. At best, this reflected a lack of imagination; at worst it demonstrated troubling parochialism.

In any event, the Court of Appeal’s analysis meant that the AEPA was measured against the Wagner Model, when it should have been assessed in its own right under the applicable constitutional standard of freedom of association.

Point #3: The Supreme Court intended the constitutional protection afforded to collective bargaining to be limited and procedural in nature

In BC Health Services, the Supreme Court told us that collective bargaining was to be afforded limited, procedural protection only. The Supreme Court plainly did not wish to get into the business of writing and re-writing labour laws or of managing labour relations issues (although, ironically, the Supreme Court basically wrote the AEPA in its 2001 Dunmore decision). The Court of Appeal effectively sidestepped this crucial point by taking on the role of champion of the Wagner Model (see Point #2 above), yet such a role simply cannot be reconciled with the limited protection afforded to collective bargaining in BC Health Services.

What Does Fraser Mean for the Future of Canadian Labour Law?

Following Fraser, there can be no doubt that the Wagner Model enjoys no special place in the Canadian constitutional regime. Section 2(d) of the Charter may sometimes protect certain associational activities like organizing a union/employee association, making representations about working terms and conditions, and engaging collectively in negotiations, but it does not require that these activities be protected in any particular way or through any particular model.

At the very core of the argument advanced in Fraser in support of the AEPA was the proposition that the unique features of certain sectors and/or occupations justify different legislative treatment in respect of labour relations. The basic premise, then, was that the Wagner Model was developed principally to balance the interests of workers and employers in the industrial setting. It would not necessarily be appropriate in other contexts like agriculture because of the defining features of agricultural production – time and weather sensitivity, the perishable nature of the product, and persistent economic fragility. Fraser vindicates this basic premise and sends the signal that alternative labour relations models are permissible.

The reality is that the Wagner Model is hardly a panacea. Only about 30% of Canadian workers are unionized under the Model – under 20% in the private sector – which is a sign that it may not be capable of achieving broad application. The Wagner Model promotes an “us versus them” mentality that can lead to unnecessary conflict and wasted resources. Moreover, it arguably results too often in the subordination of individual interests to the collective good. The Wagner Model also does not sit comfortably within the individual rights framework of the Charter, as is evidenced by the fact that the Court of Appeal in Fraser was ready to constitutionalize majority exclusivity. This is a feature of the Wagner Model that results in a single union securing exclusive bargaining rights over all employees once a majority of these employees (or, in many cases, a majority of those employees who choose to vote) select the union. This feature, quite foreign in most countries, actually prevents individuals from freely associating within, and expressing their interests through, minority unions.

I do not see the Fraser decision as directly undermining the Wagner Model or bringing its features into question. If anything, Fraser applies such a low standard for the protection of collective bargaining under section 2(d) that the Wagner Model is probably quite safe. Still, Fraser confirms that the legislatures should have significant latitude to design schemes for labour relations and, in appropriate cases, to provide no scheme at all. I would be surprised if this resulted in newfound legislative/policy interest in alternative labour relations schemes, but at least Fraser does not stand in the way of developing such schemes.

Most importantly, the Fraser decision rejects adopting a role for the courts that would have judges determining the substantive content of labour laws under section 2(d) of the Charter. This is a good thing – BC Health Services surely confirms the view that judges and labour laws do not mix well. In fact, the inherently political nature of industrial relations should have judges running for the hills, not rushing to develop a catalogue of Wagner Model elements to be constitutionalized!

If BC Health Services still has some meaningful force (and this is an open question after Fraser), it is surely limited to egregious circumstances where legislative interference in collective bargaining and/or collective agreements has the effect of significantly undermining the ability of affected workers to engage in freedom of association. In most other labour cases, it is hard to see a future role for section 2(d) of the Charter.