The Supreme Court of Canada has finally released its decision in Ontario (A.G.) v. Fraser affecting the working lives of agricultural workers in Ontario. The decision demonstrates just how divided opinions are on the question of limiting workers’ freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms, particularly restricting unionization and collective bargaining. Ultimately, the majority wrote a reserved judgment, limiting the scope of section 2(d) of the Charter and upholding the constitutionality of the Agricultural Employees Protection Act (AEPA).
The majority confirmed that section 2(d) protects workers’ right to associate to achieve collective goals. This requires a process of engagement that permits employee associations to make representations to employers. It clarified as well that the AEPA requires, by implication, that employers consider and discuss the employee representations in good faith. This means that the section requires employers and employees to meet and bargain in the pursuit of a common goal of peaceful and productive accommodation, by way of “meaningful” dialogue.
However, the majority found that section 2(d) does not impose a particular process for the parties to reach an agreement or accept any particular terms, and it does not guarantee a legislated dispute resolution mechanism in the case of an impasse. The Charter’s protection has to do with a meaningful process of collective bargaining, not with a particular model of labour relations or a specific bargaining method. This was where the Court of Appeal overstated the scope of the Charter right to freedom of association. In fact, the affirmation of the right to collective bargaining is not the same thing as an affirmation of a particular type of collective bargaining, such as the model under the Labour Relations Act.
As a result, laws or state actions that “substantially interfere” with the ability to achieve workplace goals through collective actions have the effect of negating the right of freedom of association and constitute a limit on section 2(d) of the Charter, causing the law or action to be unconstitutional unless justified under section 1 of the Charter.
The Supreme Court concluded that, in this case, the AEPA does not violate section 2(d) of the Charter because the AEPA contains the essential components protected by section 2(d) of the Charter.
Further, the AEPA does not violate section 15(1) of the Charter involving equality rights. Even though the AEPA does not provide agricultural workers all of the protections that are afforded to other workers under the Labour Relations Act, the distinction does not lead to a finding of discrimination. There simply was no substantive discrimination that impacted on individuals stereotypically or in ways that reinforced existing prejudice and disadvantage.
Thus, the Court found the AEPA to be constitutional.
The majority clarified that the AEPA, without expressly stating so, requires employers to meet and to bargain in good faith with employees in the pursuit of a common goal of peaceful and productive accommodation. Hopefully this clarification requiring meaningful dialogue will assist workers and prevent employers from ignoring them.
At the same time, the majority left the door open to future complaints about the tribunal established in the AEPA and any potential complaints under section 15(1) of the Charter. It suggested that complaints about these things right now are premature, but they could be launched at a later time once the regime has been used and tested.
However, Justice Abella offered important dissenting comments. Abella clearly felt that the AEPA violates section 2(d) of the Charter. She argued that the AEPA contains no language whatsoever that protects the process of collective bargaining; it only requires the employer to “listen to” or “acknowledge” employee representations. Thus, two provisions should be added to the AEPA in order to protect workers’ labour rights: a statutory enforcement mechanism with a mandate to resolve bargaining disputes, and a requirement that the employer bargain only with the representative selected by a majority of the employees in the bargaining unit (majoritarian exclusivity). According to Justice Abella, these important elements of the labour relations regime cannot be overlooked.
Abella noted that the majority decided the way it did because it was not assessing the AEPA using the new constitutional standard set out in its own 2007 decision in BC Health Services. That decision expanded the scope of section 2(d) of the Charter to include protection for a process of collective bargaining as we know it under the Labour Relations Act, including the duty to consult and negotiate in good faith.
Abella concluded that a complete exclusion of all agricultural workers from labour relations protections is severely restrictive, especially since other jurisdictions provide for collective bargaining protections, and these protections do not show evidence of harm to family farms. The restrictions simply could not be justified under section 1 of the Charter. The main reasons why the workers were deprived of any labour protections included “protecting the family farm” and “farm production/viability”; these factors are important, but the complete absence of any statutory protection for a process of collective bargaining in the AEPA cannot be said to be minimally impairing of the section 2(d) rights of the workers. The limitation was not even remotely tailored to either government objective; in fact, it was not tailored at all. This was a story of complete harm, not minimal harm.
The majority’s decision was surprising for many, given that it was widely expected that the Supreme Court would uphold the Court of Appeal’s decision. We were expecting that things would be different for agricultural workers now that the SCC had taken on a more remedial role using the Charter only a few years ago. I think this door will reopen in the future through a section 15(1) claim under the Charter, and I think agricultural workers will be able to win their case after the AEPA has been used and tested more thoroughly.
Something tells me this is not the end of the debate…
First Reference Human Resources and Compliance Editor