The Canadian Charter and the Law of Work: A Beginner's Guide

Electronic copy available at: http://ssrn.com/abstract=2150279

Professor David Doorey York University, 2012

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THE CHARTER AND THE LAW OF WORK: A BEGINNER'S GUIDE

DAVID J. DOOREY YORK UNIVERSITY

ABSTRACT: This essay explains how the Supreme Court of Canada has interpreted and applied the Charter of Rights and Freedoms to the law of work. It is intended as an introduction to this complex legal field for an audience unfamiliar with the Charter. Beginning with an overview of the Charter review process, the paper then examines the Court’s application to work law of Section 2(d) freedom of association, Section 2(b) freedom of expression, and Section 15 equality rights. The paper provides a snapshot of the state of the law as of summer 2012.

Outline

1. What is the Charter, and What Does it Govern? 2. The Two-Step Charter Analysis

A. Step One: Has Government Action Violated a Charter Right or Freedom? B. Step Two: Is that Infringement Justified in a Free and Democratic Society (the “Oakes”

Test)?

3. What Rights and Freedoms Found in the Charter Apply to the Employment Relationship?

A. Freedom of Association [Section 2(d)] B. Freedom of Expression [Section 2(b)] C. Equality Rights [Section 15]

Introduction “As this is a short book, it has taken a long time to write”. That great line opens Hugh Collins’ book, The Employment Contract (Collins, 2003, Preface). Professor Collins is commenting on the difficulty of expressing complex ideas in readable, precise, and short spaces. This paper is inspired by that sentiment. Its aim is to unpack the perplexing riddle of how the Canadian Charter of Rights and Freedoms (Charter) applies to the law of work. Some of the most fascinating debates in Canadian law have involved the Charter and work. The literature examining this law is as rich and thoughtful as it is expansive. However, most of this writing is also exceedingly legalistic, complex, and mysterious to those without legal training or expertise in constitutional law. My goal in this paper is simple. It is to demystify the Charter, and explain how it has influenced labour and employment law in Canada, assuming that the reader has no prior knowledge of the subject matter.

This is an important project, because the Charter plays an important role in shaping Canadian labour policy. It establishes the range of legislative options available to governments to regulate labour markets, and informs government employers of what they can and cannot do in their relationship with public sector employees and unions. This is also a particularly suitable moment to pause and take stock of where we stand. After a period of diapause, the Supreme Court of Canada (SCC) recently breathed new life into the Charter’s role in work law by revisiting and updating its approach to ‘freedom of association’, found in Section 2(d) of the Charter. The result is a highly complicated and still evolving balancing of interests, the end result of which remains far from

Electronic copy available at: http://ssrn.com/abstract=2150279


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certain. The Charter’s guarantees of ‘freedom of expression’ (Section 2(b)) and ‘equality rights’ (Section 15) have also influenced the law of work. This paper explains all three of these key Charter provisions.

As we will see, the path our judges have carved to date is complex and sometimes ambiguous. Even seasoned constitutional lawyers frequently disagree on what the courts are trying to say. This encourages more litigation, which only contributes to the layers of complexity. Therefore, trying to explain what the Charter means for labour and employment law to an audience with little or no background in the subject area is no easy task. But to cite another of my favorite lines, this time by Gaius Cassius, “in great attempts, it is glorious even to fail.” With that in mind, onward we push.

1. What Is the Charter, and What Does it Govern?

The Charter has been part of the Canadian Constitution since 1982, when it was introduced after much political debate and wrangling. Whether a Charter was a good idea, and what rights and freedoms should be included in it, were highly contested questions. What resulted was a compromise document, sparse in text, yet deceptively complex in its meaning and application. The Charter protects individuals against certain types of interference by governments, but also includes exceptions, when violations of fundamental freedoms are justified and allowed for the greater public good. How courts should perform this balancing is one of the most interesting, important, controversial, and complicated issues in all of Canadian law.

So the first important point to understand about the Charter is that it only applies to government action (Charter, s. 32).1 Its purpose is to regulate the relationship between governments and citizens, not the relationships between private citizens and private companies. The Charter defines what governments can and cannot do in the exercise of their powers. Governments act in two central ways:

(1) They enact and administer laws and regulations; and (2) They act in the capacity of employers of their own employees.

When the government acts in either of these two capacities, it must not do so in a manner that is inconsistent with any of the Charter’s guaranteed rights and freedoms. Most Charter cases are targeted at government legislation that is alleged to be inconsistent with the Charter. However, occasionally the complaint is that the government as employer has contravened the Charter in the manner in which it has treated its own employees.

The fact that the Charter applies directly to government employers but not private sector employers can be confusing. It means if my employer is the City of Toronto, Province of Ontario, or Government of Canada, then my employer and my employment contract must comply with the Charter. For example, if the City of Toronto had a policy of paying Christians more than Muslims, that policy could be directly challenged by employees as a violation of Section 15 of the Charter (equality rights), which prohibits governments from discriminating on the basis of religion. If my employer is the province of Nova Scotia, then I can file a Charter challenge against my employer if I am fired for organizing a union, since (as we see shortly), the Charter guarantees my right to join a union without being punished for doing so.2 However, if it is Wal-Mart, General Motors, or Tim

1 The leading case on what government action entails is RWDSU, Local 580 v. Dolphin Delivery, [1986] 2 S.C.R. 573, which will be discussed later in the paper. 2 Delisle v. Canada, [1999] 2 S.C.R. 989


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Hortons that has a discriminatory pay policy or that terminates my employment, the Charter would not apply. Employees of those non-government employers may have options to file complaints under provincial human rights or labour relations statutes, but the Charter would not help them. Often it is obvious whether an employer is “the government”, but not always. Occasionally, courts have been asked to decide whether an employer is “government” on the basis that it receives significant government funding, for example, or that the government has "effective control" over the employer. Colleges are an example. They are not ‘the government’ in an obvious sense, but because they receive a significant amount of public funding and are under significant control of the provincial governments, the SCC ruled that colleges are government actors for the purposes of the Charter.3 Therefore, in a case called Lavigne v. OPSEU, the SCC ruled that the Charter applied directly to a collective agreement between a union and a community college.4 However, universities are not government, because although universities also receive public funding, governments have far less direct control over universities than they do colleges.5

2. The Two-Step Charter Analysis Now that we know that the Charter regulates only government conduct, we can begin our exploration of the substance of that regulation. Firstly, it is useful to understand how the Charter operates in practice. There is a two-step process for considering whether government action contravenes the Charter. This process begins when an application is filed that alleges the government has violated the Charter. This is usually described as a “Charter challenge”.

a. Step One: Has Government Action Infringed a Charter Right or Freedom?

The first step when a Charter challenge is filed is to decide whether government action contravenes a protected right or freedom. If it does not, then the Charter does not apply, the case will be dismissed, and the government’s action confirmed as lawful. However, if the government’s actions do violate a Charter right or freedom, then it is necessary to move onto Step 2, which requires a decision on whether the violation is nevertheless permitted in order to protect some greater good.

Sometimes, it is obvious that the government has violated a Charter right. In that case, the real argument takes place at Step 2 of the process. For example, the Ontario Works Act, 1997 includes a section that prohibits certain people receiving government financial assistance from "joining a union".6 There can be no doubt that such a law violates the Charter’s protection of “freedom of association”, since the SCC recognized long ago that the right to belong to a union is guaranteed by the Charter.7 If a Charter challenge were made against such a law, the case would probably move directly to Step 2, which would focus on the government's reasons for restricting the freedom to associate.

However, often the question of whether or not government action has violated a Charter right or freedom is not at all clear. This is because the courts have filled in the vague meanings of the protections listed in the Charter on a case-by-case basis. Thus, as we will see, unions argued in the mid-1980s that Section 2(d) protection of “freedom of association” encompasses a right to

3 Lavigne v. OPSEU (1991), 2 S.C.R. 211. 4 Ibid. 5 McKinney v. University of Guelph [1990] 3 S.C.R. 229. 6 Ontario Works Act, 1997, S.O. 1997, Ch. 25, Sch. A, s. 73.1(2) 7 Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 [hereinafter Alberta Reference]


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collective bargaining and to strike. The courts then had to explore the scope of Section 2(d). Much litigation has occurred debating questions like this, as we will see in a moment.

b. Step Two: Is that Infringement Justified in a Free and Democratic Society (the “Oakes” Test)?

If the court finds that the government has interfered with a Charter right or freedom, then we move onto the second step of the analysis. That step is described in Section 1 of the Charter, which reads:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

This section explains that sometimes it is justifiable for a government to violate a Charter right or freedom. It requires a balancing of interests. Sometimes the cost to society associated with protecting Charter rights outweighs the benefit to any individual of having their Charter right affirmed. When that is the case, Section 1 of the Charter allows a court to uphold the Charter violation in order to protect the greater good. As you can see, the language in Section 1 is vague about how courts should undertake this balancing. Therefore, it confers on judges a lot of discretion. In one of the earliest cases after the Charter was enacted, the SCC created a Section 1 “test” that must be applied whenever this balancing of interests is performed. That test became known as the “Oakes Test” because the case in which it was explained was called R. v. Oakes.8 The test has evolved since then, and developed by many subsequent decisions that have applied it. However, the basic model remains as defined in Oakes. It is a “proportionality test”, meaning it guides judges in their assessment of whether the benefit to society of allowing the Charter violation outweighs the harm to the individual of having her Charter right violated. The Oakes test has two parts. Part 1 requires that the objective of, or reason for, the limitation on the Charter right, relate to “a pressing and substantial concern”. This means, essentially, that the Government must persuade the court that it is attempting to address a serious public concern. It cannot just infringe Charter rights because it feels like it, in other words, or out of spite against a political antagonist. Usually, the government passes Part 1 of the Oakes test without much difficulty. If the court accepts that the purpose of the government action is to address a pressing and substantial concern, then the court will move on to Part 2 of the Oakes test, which is known as the proportionality test. This is where a lot of Charter challenges are won and lost.

Here is how the SCC described the proportionality test in the Oakes decision [brackets added]:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. [the “Rational Connection” test]. Second, the means, even if rationally connected to the objective in this first sense, should impair "as little as possible" the right or freedom in question [the “minimal impairment test”]. Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance" [the “balance of harm” test].

8 R. v. Oakes, [1986] 1 S.C.R. 103. Oakes was not an employment law case, but the analysis applies to all Charter cases.


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There have been dozens of court cases in which a Charter right was infringed by the government, but nevertheless the government’s actions were “saved by Section 1”. Some of those cases have related to workplace law, as we will see below. When we say that the Charter infringement was “saved by section 1”, what we mean is that the infringing law or action of the government is lawful, and need not be changed.

3. What Rights and Freedoms Found in the Charter Apply to the Employment Relationship

The Charter ‘guarantees’ a set of fundamental rights and freedoms, some of which have

application to the world of work.9 These sections are attached as an appendix to this paper. We will deal first with the Section 2 “fundamental freedoms”, which include most notably for our purposes, “freedom of association” (Section 2(d)) and “freedom of expression” (section 2(b)). We will then turn our attention to Section 15 (equality rights), which despite some initial promise, has had relatively little impact on the law of work. Freedom of association is by far the most complicated section to understand because of the very strained and unpredictable path chosen by our courts in its interpretation of this section. It is also the section that has caused the most recent controversy, since the Supreme Court decided in 2001 to revisit its earlier interpretations. Therefore, we will begin there.

A. Freedom of Association (Section 2(d))

Take a deep breath; grab some coffee. This will be painful, I am afraid. Section 2(d) of the Charter says simply that everyone has “freedom of association”. What meaning to assign to those three words has proven to be one of the most mystifying Charter questions of all. Think about the possibilities. It could mean simply a freedom for employees to form and join employee associations, such as trade unions, like starting a golf club and encouraging people to join. That is a very narrow interpretation. Now, begin to expand wider. Does freedom of association (“FA”) also include a freedom to play golf, since why else would someone form and join a golf club if not to play golf? Does it include a freedom to make rules regulating golf? If FA protects the freedom to play golf, then a law banning golfing would violate Section 2(d). If it protects a freedom to set the rules of golf, then laws that prohibit golf associations from making rules, or that firmly fix golf rules, would similarly run into Charter restrictions.

Now bring our discussion back to the work context. Does FA include not only the freedom to form and join a union, but also the freedom to do the very things that unions do, such as engage in collective bargaining on behalf of workers, lobby governments for legal reforms helpful to workers, strike to win better conditions of work for employees? Imagine you have a basket that represents FA in the context of work. Now imagine there are sticks scattered around the yard that represent specific rights and freedoms. This stick represents the freedom to form a union; that stick is the freedom to join a union. That stick over there represents the freedom to engage in collective bargaining. Another stick is the freedom to strike. And so on. The debate has been about what bundle of those individual rights and freedoms should be placed into the FA basket, and which should remain in the yard to rot. If a stick is included in the FA basket, then the government may be restricted in its ability to regulate the activity the stick represents. However, the government is free to restrict, impede, or prohibit altogether activities not in the bucket.

9 For a review of the Charter’s application to work law as of 1990, see Weiler (1990).


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We can put the sticks representing the freedom to establish a union, organize a union, and belong to a union into our basket right away. That much was settled very early on in the days of the Charter.10 Consequently, laws that prohibit people from forming, joining, or belonging to unions violate Section 2(d), and would need to be justified by the government under Section 1 or be struck down as unlawful by a court. After that, things get more complicated. The main battle has been over attempts by unions to include in the FA basket the sticks that represent the freedoms to engage in collective bargaining and to strike. In relation to collective bargaining, this controversy is somewhat surprising, because during the debates leading up to the creation of the Charter, the government representative when questioned about whether the Charter should explicitly reference collective bargaining stated that the words “freedom of association” encompasses a “freedom to organize and bargain collectively”.11 Nevertheless, when the scope of FA reached the SCC for the first time, the judges rejected this position and found that FA includes neither the freedom to bargain collectively or to strike.

1. The Labour Trilogy (1987) and PIPSC (1990) The first set of cases to reach the SCC became known as the Labour Trilogy, because three decisions were released simultaneously in 1987.12 The key question in the Labour Trilogy cases was whether freedom of association protected a ‘right to strike’. If it did, then laws that impeded or prohibited outright the right of workers to strike would violate Section 2(d). We have many such laws. For example, just recently, the Ontario government passed a law banning any employee of the Toronto Transit Commission (TTC) from striking, and Canadian governments love ‘back-to-work’ legislation, which is a law that orders workers on strike to immediately return to work. Teachers, teaching assistants, garbage collectors, transit workers, airline ticket collectors, baggage handlers, and pilots, postal workers, and more, have all been legislatively prohibited from striking in Canada in recent years. If ‘freedom of association’ includes a freedom to strike, then our governments’ ability to ban strikes in these ways would be called into question.

However, the SCC ruled in the 1987 Labour Trilogy that FA does not include a right to strike. Several years later, in PIPSC v. NWT (Commissioner), the Court added that FA also does not include a right to collective bargaining.13 The SCC in these cases applied a very narrow definition of FA. The Court’s concern was that an expansive definition of FA could open the door to too large a range of constitutionally protected group activities. It would also drag the courts too deep into public policy making. Labour rights were perceived by the court to be a matter of complex policy choices and balancing of competing interests. According to the Court, elected officials ought to be given considerable deference in crafting policies that weigh all these interests (Alberta Reference, at 391-92).

The SCC ruled that the FA basket included a freedom to form, organize, and belong to associations, including but not limited to unions. It also included the freedom to do in an association those things that individuals are legally entitled to do. So, for example, there is no Charter right to play golf, and therefore governments could enact laws prohibiting golf altogether. However, since 1010 Alberta Reference, supra note 7; P.S.A.C. v. Canada, [1987] 1 S.C.R 424; R.W.D.S.U. v. Sask., [1987] 1 S.C.R. 460. 11 Robert Kaplin, the Acting Minister of Justice, said this: “Our position on the suggestion that there be specific reference to freedom to organize and bargain collectively is that it is already covered in the freedom of association already in.” See discussion in Pothier (2002) , 371-72. 12 Re Public Sector Service Employee Relations Act, [1987] 1 S.C.R. 313 [known as the Alberta Reference case]; P.S.A.C. v. Canada, [1987] 1 S.C.R 424; R.W.D.S.U. v. Sask., [1987] 1 S.C.R. 460. 13 [1990] S.C.R. 367


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individuals are in fact legally permitted to play golf in Canada, the government could not pass a law prohibiting people from playing golf in groups of two or more (Arthurs, 1988). To do so would be to restrict an activity purely due to its associational character. That would restrict the freedom to associate. What FA clearly did not protect, according to the SCC, were activities that by their nature are “collective” activities. Controversially, the SCC placed “collective bargaining” and “strikes” into this latter category.14

2. Dunmore (2001)

Since the Charter did not protect collective bargaining or strikes, governments were free to restrict or prohibit both. This was how the law stood under Section 2(d) for over a decade, and interest in Section 2(d) in the sphere of work waned. However, in 2001, the SCC unexpectedly decided to revisit the very narrow scope it had previously assigned to Section 2(d). In a case called Dunmore, the Court ruled that FA protects some activities that are inherently collective, including: making collective representations to employers, union joining with other unions into federations, and adopting political positions based on a majority opinion.15 The freedom to make collective representations to your employer entitled workers to join together and to approach their employers as a group to discuss conditions of work. It did not mean that the employer had to actually “negotiate” with the workers. However, it did mean that a government would run afoul of Section 2(d) if it passed a law that effectively prevented workers from making collective representations to their employer.

In Dunmore, agricultural workers had challenged their exclusion from the Ontario Labour Relations Act (OLRA), the general labour relations statute that protects most Ontario employees against dismissal or other reprisals for joining or supporting unions (unfair labour practice provisions), imposes on employers a duty to engage in collective bargaining with unions selected by a majority of their employees, and grants a limited protected right to strike. The SCC ruled that, in order for agricultural workers to be able to effectively exercise their Charter right to make collective representations to their employer, they needed the protections against unfair labour practices other workers enjoy, and required some form of legal compulsion that would require their employers to consider to their representations. Since the exclusion of agricultural workers from the OLRA left those workers without these protections, the government had violated Section 2(d).

Dunmore was a tricky case, because the government action necessary to activate the Charter was not obvious. The workers argued that, absent statutory protections, they were unable to associate and make collective representations to their employer. Why? Because their (private sector) employers might threaten or dismiss them if they try. Moreover, the employers could completely ignore any representation they make, since there is no legal duty imposed on agricultural employers to bargain and the workers have no right to strike. Note then that the argument in Dunmore was that the government action consisted of a failure of the government to act, or an “omission”. The workers argued that the government's laws were 'underinclusive', because they gave most workers a bundle of legal protections, but then denied those rights to agricultural workers.

The Charter usually tells governments what they cannot do; they cannot pass laws that infringe Charter rights and freedoms. However, in Dunmore, the Charter was used differently, so as to 14 This approach has been criticized by academics, especially Professor Brian Langille, who has long argued that workers do have an individual right to bargain with their employers, and an individual right not to come to work until an acceptable agreement is reached. According to Langille, therefore, it follows that they must have a collective right to bargain and to refuse to work on terms they do not accept (to strike), applying the SCC’s own logic in the Labour Trilogy: Langille (2009). 15 Dunmore v. Ontario (Attorney-General), [2001] 3 S.C.R. 1016


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require the government to do something—pass a law giving agricultural workers certain rights and protections. The SCC ruled that when a government creates a legal regime that protects workers’ efforts to make collective representations to their employer, like the one in the OLRA, it cannot then exclude some workers from those protections, if doing so “substantially interferes” with the ability of those workers to exercise the rights protected by freedom of association. So now we need to figure out when government inaction ‘substantially interferes” with the ability of workers to exercise their fundamental freedoms. How do we do that?

According to the SCC, the exclusion of agricultural workers from the OLRA ‘substantially interfered’ with the ability of those workers to form employee associations and to make collective representations to their employers through those associations. The evidence supporting this conclusion was that agricultural workers had never been able to engage in collective bargaining while excluded from the OLRA. Also, the exclusion of this small group of vulnerable workers from legislation that protects most other workers ‘delegitimized’ association by agricultural workers and ‘thereby ensures it ultimate failure” (Dunmore, para. 48). Therefore, in regards to agricultural workers at least, the exclusion from the protective regime under the OLRA ‘substantially interfered’ with their freedom to come together and make collective representations to their employers.

The SCC then considered whether this breach could be “saved” by Section 1, and ruled that it could not. The Ontario government argued that a total exclusion from protective labour legislation was necessary to protect the 'family farm', which according to the government, was unsuitable for collective bargaining. The Court accepted that protecting the family farm could be a pressing enough objective to meet the first part of the Oakes test. However, the SCC ruled that the complete exclusion of agricultural workers from any protective labour legislation failed the Oakes' proportionality test. Protecting the family farm did not require allowing employers to dismiss workers for forming employee associations, as explained by the Court:

It might be inferred that in order to protect the family farm and ensure the productivity of the farm economy, the legislature felt it necessary to discourage any form of union and to suffer that agricultural workers be exposed to a raft of unfair labour practices. Yet no policy could…be more repugnant to the principle of least intrusive means. If what is truly sought…is the protection of the family farm, the legislature should at the very least protect agricultural workers from the legal and economic consequences of forming an association.16

The remedy in Dunmore consisted of an order for the government to pass a law that protects agricultural workers’ right to form, join, and maintain employee associations, and to make “collective representations” to their employers, "free from interference, coercion, and discrimination" by their employers.

3. B.C. Health Services (2007)

Dunmore marked the start of a movement at the SCC level towards an interpretation of Section 2(d) that gave less deference to governments to set labour relations policy, and of a more expansive interpretation of FA than had been initially applied. The Ontario government responded to the Dunmore decision by passing a statute known as the Agricultural Employees Protection Act (AEPA).17 The AEPA granted agricultural workers a right to form and join ‘employee associations’, 16 Ibid. at para. 65. 17 2002, S.O. 2002, c. 16


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and made it unlawful for an employer to threaten or retaliate against workers who exercise these rights. It also said that workers have a right to make “collective representations” to their employers, but that the only obligation on the employer was to listen to oral representations, or read written ones. The AEPA did not include a “duty to bargain in good faith”, which was the requirement of employers covered by the OLRA, or a right to strike. The agricultural workers filed a new Charter challenge against the AEPA, a case known as Fraser v. Ontario. They argued that the AEPA still did not enable them to make collective representations to their employers; they claimed that the law needed at least to impose a duty on employers to bargain in good faith. That case reached the lower court of Ontario in 2005, and the judge ruled that the statute granted workers the very limited legal entitlements that the SCC ruled were necessary in Dunmore.18 The workers appealed to the Ontario Court of Appeal. Then something unexpected happened.

In 2007, the SCC released its decision in a case known as B.C. Health Services.19 To the surprise of the labour law community, the SCC overturned it’s 1990 PIPSC decision and tossed into our FA basket the stick representing the freedom to engage in collective bargaining. At issue in B.C. Health Services was a law that suspended collective bargaining in the health sector, unilaterally imposed new collective agreement terms and cancelled others, and prohibited the right of unions to bargain about some topics. This was all done, according to the government, in an effort to deal with a budgetary crisis facing the province. The affected unions challenged the law. Note that B.C. Health Services was a more typical Charter case than Dunmore and Fraser; it involved an allegation that the government had, by passing a law, directly infringed upon freedom of association.

The B.C. government no doubt felt it was on safe ground ripping up collective agreements and restricting collective bargaining, because the PIPSC decision had ruled that Section 2(d) did not protect collective bargaining. But in B.C. Health Services, the SCC ruled that it was time to recognize a new 'right to collective bargaining'. According to the Court, the Charter protects a ‘process’ through which workers can come together to "pursue the common goals of negotiating workplace conditions and terms of employment with their employer that we call collective bargaining" (BC Health, para. 92). It is a limited right that does not guarantee employees access to any particular model of collective bargaining, and it does not guarantee any particular outcome (like a collective agreement).

But the ‘right to collective bargaining’ imposed a legal duty on governments to "consult and negotiate in good faith" with worker representatives (B.C. Health, para. 97). This duty means, at least, meeting with the employee associations and engaging in “meaningful dialogue” about each side's proposals in an effort to arrive at an acceptable agreement about conditions of work. A government employer cannot just ignore employee representations. Employees of the government are entitled, through their collective voice, to have real participation in the setting of their working conditions. In this case, the B.C. government had violated Section 2(d) by ignoring collective agreements without consulting with the unions, and by prohibiting future collective bargaining over important subject areas. The laws made it impossible for the workers involved to exercise their fundamental freedom to make collective representations, and to have those representations considered by their employer in good faith. Moreover, its actions were not saved by Section 1. The government had failed to demonstrate that it was not possible to have reached its public health concerns through means that intruded upon the collective bargaining rights of public sector employees less than the approach taken. 18 [2006] 79 O.R. (3rd) 219 (Ont. Ct. Sup. Ct) 19 Health Services and Support – Facilities Subsector Bargaining Association v. B.C. [2007], 2 S.C.R. 391.


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4. Ontario v. Fraser (2011)

B.C. Health Services caused a big splash, resulting in considerable debate over what the introduction of the new Charter right to collective bargaining would mean going forward. Did it mean that all laws limiting the right of workers to engage in collective bargaining were now unconstitutional? Were laws conditioning access to collective bargaining on unions obtaining majority employee support now unlawful? What about a Charter right to strike? As one expert noted, "it follows as a matter of logic that if the [Labour] Trilogy was wrong about collective bargaining, it must also be wrong about the right to strike.” (Cameron, 2009-10, 303) Indeed, in 2012, a lower court in Saskatchewan ruled that a consequence of B.C. Health Services was that Section 2(d) now included a 'right to strike', with the result that all legislation banning strikes, or ordering strikes to come to an end ("back-to-work" legislation) would have to be justified under Section 1.20 That decision is presently working its way up the appeal ladder, and no doubt soon the SCC will be asked to decide whether the stick representing the freedom to strike should also be placed in our FA basket.

But now we need to return to Ontario v. Fraser, the case that considered whether the Ontario government's response to the Dunmore decision satisfied Section 2(d). Recall that the lower court had ruled that the AEPA did so. However, by the time the case reached the Ontario Court of Appeal, B.C. Health Services had been decided. That dramatically changed the legal landscape. Now there was a constitutional right to collective bargaining. The Court of Appeal took that ball and ran with it. It ruled that after B.C. Health, section 2(d) guaranteed essentially the whole gambit of legal rights found in the OLRA, including a duty for employers to bargain in good faith with a union chosen by a majority of employees, and some mechanism for resolving bargaining disputes, such as interest arbitration.21 Applying this expanded scope of 'freedom of association', the Court of Appeal easily ruled that the AEPA fell fall short of the mark.

Not surprisingly, that decision was appealed to the SCC. In 2011, the SCC issued its much-anticipated ruling. It reversed the Court of Appeal, ruling that the AEPA was not inconsistent with Section 2(d). Once again, the decision is sufficiently ambiguous that experts cannot agree on what it means for the future (Bogg & Ewing, 2012). This will no doubt ensure many more years of Section 2(d) litigation as we try to sort out the boundaries of FA. Recall what the AEPA does: it protects agricultural workers from reprisals by their employers for forming employee associations, and provides a mechanism to allow workers to file complaints if they believe they have suffered a reprisal; it requires agricultural employers to receive and listen to collective representations about working conditions made on behalf of employees; and it requires the employers to acknowledge that they have heard or read the representations. The legislation does not expressly require the employer to 'bargain' or 'negotiate' with the employees' representatives in good faith, and it provides no dispute resolution method (strike, lockout, or arbitration) for resolving disagreements.

The SCC began its decision in Fraser by affirming what was decided in B.C. Health Services decision: Section 2(d) protects a ‘right to collective bargaining’, which includes a duty on employers to engage in ‘meaningful dialogue’ and to ‘meet and bargain in good faith’ and engage in ‘meaningful negotiations on workplace matters” with employee representations (Fraser, paras. 40, 42). How does the SCC decide that the limited obligations imposed on employers in the AEPA satisfy these obligations? Firstly, the SCC says that the ‘right to collective bargaining’ is a “derivative right”. That means it is a supportive right that helps give effect to the fundamental freedom of workers to come together to achieve work-related objectives (Fraser, para. 46). Laws (or the absence of them) that 20 Saskatchewan Fed. of Labour v. Saskatchewan 2012 SKQB 62, appeal to Court of Appeal pending. 21 Fraser v. Ontario (A.G.), (2009) 92 O.R. (3d) 481 (C.A.)


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create derivative rights violate Section 2(d) only if they make it ‘impossible’ for workers to exercise their fundamental freedom to act collectively to achieve workplace goals (Fraser, para. 46, 47). Laws (or the absence of laws) that make it impossible to exercise freedom of association ‘substantially interfere’ with that freedom, and therefore violate Section 2(d).

Secondly, applying this reasoning, the SCC ruled that, “the AEPA has not yet been shown to be unconstitutional” (Fraser, para. 2). The Court ruled, in essence, that it is too soon to know if the model deployed in AEPA makes it ‘impossible’ for agricultural workers to come together, make collective representations to their employer, and have those representations considered in good faith. It was too soon, because the employees (and the union that represents them), had made no real effort to test the AEPA’s provisions. If agricultural employers, once presented with collective representations, do not respond to the employees’ liking, then the AEPA provides a mechanism that allows them to go to a tribunal, which has the authority to order the employer to ‘consider the employees’ representations in good faith’ (Fraser, paras. 107-113). What ‘good faith’ entails is up to the tribunal to decide, but the SCC notes that labour tribunals have in the past been able to read in considerable substance to vague terms like ‘good faith’. The workers should have tested those AEPA mechanisms before bringing a Charter challenge. In the end, then, the SCC ruled that workers had failed to establish that the AEPA violates Section 2(d).

5. Summary of the Mess that is Section 2(d) Freedom of Association So where are we now under Section 2(d)? Let’s recap. First, consider what sticks ended up in our proverbial freedom of association basket. This is depicted in Figure 1.

Figure 1: The Section 2(d) Freedom of Association Basket

Section 2(d) protects a right to establish, join, and belong to a union or other employee

association. Section 2(d) protects a limited “right to collective bargaining’, comprised of a right of

employees to come together for the purposes of achieving work-related objectives, to make collective representations to their employer, and to have those representations considered in good faith. This includes an obligation on employers to engage in meaningful dialogue with an employees’ association. It does not guarantee access to any particular model of collective

Freedom to establish, join, & belong to an employee association Right to collective bargaining (entails a right of employees to come together and make collective representations to employers, and an obligation for Employer to consider and engage in a meaningful dialogue about those representations.


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bargaining—rather, it protects a general right of workers to associate and make representations through some process.

There is no Charter right to strike. Yet.

Sorting out what these rights and freedoms mean in practice is far more complicated than simply stating them. It might be helpful to distinguish among a variety of situations: When the government is the Employer: The Charter applies directly to a government employer. This means that a government employer is required by the Charter to consult and ‘bargain’ with its employees as a collective, and to consider the employees’ representations ‘in good faith’, including engaging in meaningful dialogue with workers’ collective representatives. It means also that a public sector employer cannot interfere with its workers’ attempts to unionize, and if they do so, they would probably violate Section 2(d) of the Charter. In other words, the Charter now includes its own ‘unfair labour practice’ provisions, but only in relation to employees of the government itself. When the government passes laws that directly restrict freedom of association: The Charter applies directly to laws and regulations, so a direct frontal attack in legislation that limits freedom of association will violate Section 2(d). In B.C. Health, the laws prevented bargaining on important workplace issues and voided collective agreement terms. The full effect of this ruling remains to be seen. It suggests, for example, that legislative wage freezes, which have a long history in Canada, would today run afoul of Section 2(d) and would need to be justified under Section 1. However, the Ontario Court of Appeal ruled recently that the government’s Charter obligation to engage in meaningful dialogue with an employee association is not open-ended. In that case, it was exhausted once an impasse in bargaining had been reached. At that point, the government can pass a law fixing the terms of a collective agreement against the wishes of the employees and their association.22 That decision will no doubt be appealed to the SCC. When the government passes ‘derivative’ laws that protect or bolster the rights of some workers to exercise freedom of association, but not others: Dunmore and Fraser told us that the Charter does not require governments to pass laws to protect private sector employees’ ability to exercise their freedom of association. However, if a government does pass laws that protect and support the right of some private sector workers to unionize or engage in collective bargaining, it cannot then exclude some workers from those protections if doing so would “substantially interfere” with the ability of the excluded workers to form or join unions or make collective representations to their employer and have them considered ‘in good faith’. In Fraser, the SCC seemed to link ‘substantial interference’ with ‘impossibility’, such that an underinclusive law would only violate Section 2(d) if it makes it ‘impossible’ for workers to exercise their freedom. That will be a very high threshold for workers to meet if it stands in future cases.23 It is easy to see why academics and lawyers have criticized the courts for their piecemeal approach to developing freedom of association. 22 Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530 23 See Mounted Police Association of Ontario v. Canada (2012) ONCA 363, in which the Court of Appeal ruled that legislation that imposed a non-independent employee association and ordered the employer to deal with that association rather than a union chosen by the workers did not violate Section 2(d). The Court said the test after Fraser was whether the law made it ‘impossible’ for the workers to form an association and make collective representations to the employer. The legislation did not make it ‘impossible’ for the police to exercise these freedoms.


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6. The ‘Negative Right to Associate”

Before we leave Section 2(d), we should consider one last issue: the right not to associate. Two common practices in labour law have been challenged as amounting to “forced” association contrary to Section 2(d). The first was raised in a case called Lavigne v. OPSEU.24 It involved a college teacher (Lavigne) whose conditions of employment were determined by a collective agreement between his employer and a union. A term of the agreement, common in collective agreements, required Lavigne to pay union dues. Lavigne objected to use of his dues by the union to support various causes with which he did not agree, and he filed a Charter challenge. The SCC ruled that his employer was a government actor, and therefore the Charter applied directly to the employer’s deduction of the union dues from his paycheck.

The Supreme Court judges decided that the Charter is not violated when mandatory union dues are used to support causes with which the contributing employees disagreed. However, the judges disagreed on why. Some judges (four of them) ruled that the requirement for Lavigne to pay money towards causes he didn’t agree with did violate Section 2(d), but that the violation was “saved” by Section 1, because unions serve an important function in society by contributing to public debate. Another three judges ruled that Section 2(d) was not violated at all, since freedom of association does not include a freedom not to associate.

The second important case raising the issue of the freedom not to associate was R. v. Advanced Cutting and Coring Ltd.25 This case challenged Quebec legislation that required construction workers to join one of five unions. In other words, if you wanted to work in construction in Quebec, you needed to join a union. Did this “compulsory unionism” violate a freedom not to associate? The judges decided it did not, but as in Lavigne, there was not complete agreement on why. Eight of the nine Supreme Court judges ruled that Section 2(d) does include a right not to associate. Five of the nine judges ruled that that right was violated in this case, but by a score of 5 to 4, the Court ruled ultimately that the violation was saved by Section 1, on the basis that there were important characteristics of the Quebec construction industry that justified the infringement. How is that for confusing?

B. Freedom of Expression (Section 2(b))

Thankfully, the courts’ approach to freedom of expression is less convoluted. This is because, in contrast to the conservative approach to defining Section 2(d) ‘freedom of association’, courts have been prepared to give “freedom of expression” a broad reading. In essence, if something conveys meaning in a non-violent manner, it has usually been found to fall within the scope of protected expression in Section 2(b). Not surprisingly, therefore, many of the arguments involving freedom of expression take place under Section 1, as governments attempt to justify statutory limitations placed on expression.

The most important application of freedom of expression to work relates to picketing by workers, so we can begin there. In one of the earliest Charter cases, Dolphin Delivery decided in 1987, the SCC ruled that peaceful labour picketing is protected “expression” under Section 2(b) because it conveys meaning.26 Years later, in two decisions released in 1999, Kmart Canada and Allsco Building

24 Supra note 25 [2001] 3 S.C.R. 209 26 RWDSU, Local 580 v. Dolphin Delivery, [1986] 2 S.C.R. 573


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Products, the SCC added that informational leafleting by workers was also protected expression.27 Since picketing and informational leafleting by workers intended to advance their work-related objectives is protected expression, laws that restrict these activities have run into Section 2(b) problems.

For example, in Kmart Canada, B.C. labour legislation that banned informational picketing anywhere but at the employer engaged in the labour dispute violated Section 2(b) expression, and was not saved by Section 1. A complete ban on informational picketing was not necessary to address the government’s objective of protecting third parties from the effects of labour disputes. Therefore, the law failed the minimum impairment component of Oakes. The result was similar in a case challenging an Alberta law that banned picketing anywhere but at the struck employer. An Alberta court ruled that the law violated the expression rights of the workers, and could not be saved by Section 1.28

However, while Section 2(b) restricts the ability of governments to legislatively ban picketing and leafleting, these activities remained subject to broad restrictions until the 2002 decision of the SCC in Pepsi-Cola. To explain why, we need a brief history lesson. Canadian law historically distinguished between primary and secondary picketing. Picketing at or near the premises of the employer during a labour dispute was usually permissible in our legal model, as long as it was done in a manner that was not itself unlawful (not criminal and not a tort, like “obstruction”). Picketing at locations other than the employer that was directly involved in the labour dispute—such as at customers or suppliers of the employer—is known as secondary picketing. Courts and legislators have been less protective of this type of picketing, because they perceive it as interfering with the commercial interests of innocent third parties. As we have seen, the Charter restricts the right of governments to legislate complete bans on secondary picketing. The trouble for workers and unions was that the SCC ruled in Dolphin Delivery back in 1987 that the Charter does not apply to court-made rules. This meant that the court’s rules banning secondary picketing could not be challenged as a Charter violation.

In a famous (some say infamous) decision of the Ontario Court of Appeal in 1963 called Hersees of Woodstock v. Goldstein, the Court ruled that all secondary picketing was “illegal per se”, because the commercial interests of the third party business will always trump the expression rights of workers.29 That was twenty years before the Charter came into force. However, the ‘illegal per se’ rule prohibiting secondary picketing survived the enactment of the Charter thanks to Dolphin Delivery, allowing the courts to ban worker expression in situations where governments could not. Judges routinely issued ‘injunctions’ banning secondary picketing.

Then the SCC issued its unexpected decision in Pepsi-Cola Canada in 2002. It ruled that, even though the Charter does not apply directly to common law rules, common law rules should nevertheless develop in a manner consistent with “Charter values”.30 The absolute ban on secondary picketing was inconsistent with the value of freedom of expression. The case involved picketing by striking Pepsi workers at stores that sold Pepsi products. The SCC ruled that workers ought to be able to picket at Pepsi’s customers, as long as the picketing was conducted lawfully and peacefully. Pepsi-Cola Canada changed the old Hersees ‘illegal per se’ rule to the rule that all picketing is lawful per se, unless the manner in which it is done is illegal. The two most obvious ways that picketing would be conducted illegally is if it involved violence or threats of violence, or if the picketers commit a

27 Kmart v. UFCW, Local 1288P, [1999] 2 S.C.R. 1083; Allsco Building Products v. UFCW, Local 1288P [1999] 2 S.C.R. 1136 28 Alberta (A-G) v. Retail Wholesale Canada, Local 285 [2001], 6 W.W.R. 642 (Alba. Q.B.) 29 Hersees of Woodstock v. Goldstein, [1963] 2 O.R. 81 (C.A.) 30 Pepsi-Cola Canada v. RWDSU, Local 558, (2002) 208 D.L.R. (4th) 385 (S.C.C.)


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‘tort’ while picketing. Torts are legal wrongs recognized by judges that permit one person to recover damages against another person. Some examples that could apply to picketing include: obstruction (physically preventing someone from crossing a picket line); nuisance (unreasonable interference with the enjoyment of one’s property);; trespass (if picketers stand on private property);; interference with contractual relations (this can arise if picketers knowingly cause someone to breach an existing contract); and slander or libel (making harmful public statements that are not true) (Adell, 2003).

In the result, as we saw in our discussion of freedom of association, there has been a recent movement by the SCC toward recognizing broader worker rights. Governments can still place limitations on picketing expression, but those limitations must be justified under or “saved” by Section 1. For example, in BCGEU v. British Columbia, the Supreme Court ruled that a restriction on picketing in front of courts violated Section 2(b), but was saved by Section 1, because the need to ensure access to justice was pressing and substantial and justified a restriction on expression.31 However, more recently, the Alberta Court of Appeal ruled that privacy legislation that banned unions from taking images of workers who crossed picket lines for possible dissemination on the Internet violated Section 2(b).32 The Court ruled that the purpose of a picket line is to inform people and to dissuade them from crossing and doing business with a struck employer. Taking and distributing images of people crossing the picket line furthers both objectives, and has a protected ‘expressive purpose’. The restriction on the right of unions to engage in this expressive activity was not saved by Section 1, because it failed the proportionality component of the Oakes test. While protecting individual privacy may be a pressing objective of the government, the restrictions imposed on expression went further than necessary. The Court notes that “people do not have a right to keep secret everything they do in public, such as crossing picket lines… Holding people accountable for what they do or not do in public is a component of the right to free expression.” (UFCW v. Alberta, para. 87)

Picketing and leafleting are not the only situation that gives rise to expression interests in the world of work. In the Lavigne case mentioned above, Mr. Lavigne argued that mandatory union dues, some of which were being used to fund causes with which he disagreed, violated not only his freedom not to associate, but also his freedom of expression under Section 2(b). He lost that argument too. The Court ruled that mandatory union dues did not in any way limit Lavigne’s freedom of expression. He could still object to what the union was saying or doing.

Finally, on a number of occasions, employers have argued that laws limiting what they can say to workers during union organizing campaigns violate Section 2(b) (Doorey, 2007). The earliest such case challenged the requirement in federal labour law for employers to remain neutral during organizing campaigns and, in particular, the prohibition on employers holding ‘captive audience meetings’, in which all employees are ordered to attend a meeting to listen to the employer’s views on unionization.33 The federal labour Board ruled that the statutory restrictions on employer speech violated the employer’s section 2(b) freedom of expression. The B.C. Labour Board similarly ruled that legislative restrictions on the content of employer speech violated Section 2(b) in a more recent decision called Cardinal/Klassen.34 However, in both cases, the restrictions on employer speech were saved by Section 1. According to the labour boards, protecting ‘vulnerable workers’ from employer speech that can be coercive was a pressing policy objective, and the statutory limitations on employer speech were a proportional response.

31 [1988] 2 S.C.R. 214. 32 UFCW, Local 401 v. Alberta (2012), ABCA 130 33 Bank of Montreal (1985), Can. L.R.B.R (N.S.) 129 34 Cardinal/Klassen (1997), 34 Can. L.R.B. (2d) 1


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C. Equality Rights (Section 15)

The final Charter section worthy of note is the Section 15 equality section. Section 15 sets out fundamental equality rights. Look at what it says:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The words before the first comma [Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination] appear not to depend on what follows afterward. That is because the next phrase, “and, in particular”, suggests that the list of grounds that follow are just some examples of the sorts of discrimination that the Section prohibits. In other words, you could read Section 15 as guaranteeing that everyone has a “right to equal protection and equal benefit of the law without discrimination”, even if the basis for the discrimination is not one of those grounds in the list that follows. However, the courts have not interpreted Section 15 in that manner. Instead, they have taken a much more narrow view of equality rights. In general terms, the courts ask whether the state has differentiated among people on the basis of a protected ground in a manner that undermines human dignity.35 Protected grounds include both “enumerated” grounds (i.e. the grounds expressed in Section 15, such as race, colour, sex, et cetera), and “analogous grounds”. Analogous grounds are those that the court has added to the enumerated list over time on the basis that they reflect a characteristic of a person that is unchangeable (immutable), or at least extremely difficult to change. For example, the Supreme Court has added “sexual orientation”36 and “marital status”37 as analogous grounds, which has resulted in those grounds being added to the list of protected grounds in human rights codes across Canada.

1. Section 15 and Individual Employment Law

Section 15 has not had a significant impact on the individual employment relationship. Part of the reason is that the Charter does not apply directly to common law rules (recall Dolphin Delivery), and much of Canadian employment law is based in common law rules. So, for example, the Charter does not apply to the manner in which judges decide how much “reasonable notice” is required to dismiss an employee, or to a decision of a judge finding that an employer had “cause” to dismiss an employee without notice, or to a ruling that the employer has violated an employment contract in some other manner.

Occasionally, employment legislation has been challenged under Section 15. For example, the SCC ruled in a case called Vriend v. Alberta that the Alberta human rights legislation infringed Section 15 because it did not prohibit discrimination in employment on the basis of “sexual orientation”, an analogous ground guaranteed in Section 15.38 The remedy was to read ‘sexual orientation’ into the Alberta legislation. The rule permitting forced or “mandatory” retirement of employees 65 or older found in some Canadian human rights codes has also been challenged as a breach of the Section 15

35 Andrews v. Law Society of B.C. [1989] 1 S.C.R. 143. The “test” for Section 15 equality cases is described in the non-labour case Law v. Canada [1999] 1 S.C.R. 497. It is a complex test, and for our purposes here we do not need to analyze it in detail, since Section 15’s influence on labour law has been limited. 36 Vriend v. Alberta, [1998] 1 S.C.R. 493 37 Miron v. Trudel, [1995] 2 S.C.R. 418 38 [1998] 1 S.C.R. 493


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on the basis of “age”.39 In McKinney v. University of Guelph, the Court accepted that human rights laws that permit discrimination against workers 65 or older violated Section 15. However, that infringement was “saved” in that case by Section 1. The government’s objective was to strike a balance between the needs of older workers to adequate pensions and incomes against the pressing need to ensure job opportunities to young workers entering the workforce. Note that most Canadian governments have nevertheless moved away from mandatory retirement policies in their human rights legislation in response to an aging labour force and feared labour shortage.

2. Section 15 and Collective Labour Rights Section 15 has not proven to be terribly important to the area of collective employment relations. Unions have tried to argue that Section 15 equality rights should protect vulnerable workers who have been excluded from protective labour legislation. For example, it was argued in the Dunmore and Fraser cases that the exclusion of “agricultural workers” from the protections afforded most other workers in the Ontario Labour Relations Act violated Section 15 as well as Section 2(d) freedom of association. The argument was that “vulnerable workers” should be recognized as an analogous ground. If that were the case, then it would be a breach of Section 15 for a law to treat agricultural workers differently than everyone else. However, courts have consistently found that occupational status is not an analogous ground, and that Section 15 is concerned with laws that distinguish between groups on enumerated or analogous grounds and in ways that reinforce or perpetuate existing prejudices or negative stereotypes.40 In Fraser, the SCC said that there was no evidence to establish that that the AEPA perpetuated unfair stereotypes about agricultural workers. Notably, some leading Canadian labour law scholars have been highly critical of the courts’ position that Section 15 does not apply to laws that distinguish amongst occupations. For example, Brian Langille (2009) and Diane Pothier (2002) have argued that once a government elects to confer labour rights on some employees—like a right to collective bargaining or to strike—it should be considered a violation of Section 15 for the government to then exclude those same rights from other workers. In other words, they argue that labour law regimes are the mechanism through which freedom of association is brought into effect by governments, and that Section 15 requires that all workers have equal access to those protections, unless the government can justify under Section 1 why some workers do not deserve equal protection. But, to date, the courts have soundly rejected that approach to Section 15 equality. In Fraser, the SCC summarily dismissed the argument in three short paragraphs (Fraser, para. 114-116).

Conclusion Even this attempt to simplify the law has proven challenging. Hopefully, I have achieved my objective of demystifying the Charter’s impact on work law in some measure. If nothing else, it should be apparent that the Charter is a complex document notwithstanding the simple language it employs. It should also be evident that the Charter is not static. We saw examples of how the courts’ approaches to freedom of association, freedom of expression, and equality in application to

39 McKinney v. University of Guelph, [1990] 3 S.C.R. 229 40 Fraser, supra note at paras. 114-116; B.C. Health Services v. B.C. [2007], 2 S.C.R. 391; Reference re Workers’ Compensation Act, 1983 (Nfld.) [1989] 1 S.C.R. 922.


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work law have all evolved over time. This tells us that the situation as described in the paper is only a snapshot of a moment in time—summer 2012. It will take years of future litigation to sort out what Fraser and B.C. Health Services mean for the future of the work law. Important cases are already working their way up to the SCC, including a series of cases that question whether Section 2(d) freedom of association protects a right to strike or guarantees a right to some form of neutral arbitration process when strikes are prohibited. This paper was intended to provide a foundation upon which people new to the field can enter the discussion and possible participate in future debates. References Adell, B., “Secondary Picketing after Pepsi-Cola: What’s Clear and What Isn’t?” (2003), 10 Can. L.E.L.J. 135 Arthurs, H., "The Right to Golf: Reflections on the Future of Workers, Unions, and the Rest of Us Under the Charter" (1988), 13 Queens L.J. 217 Bogg, A. & K. Ewing, "A (Muted) Voice at Work?: Collective Bargaining in the Supreme Court of Canada" (2012), 33 Comp. Labor L. & Pol. J. 379 Cameron, J., “The Labour Trilogy’s Last Rites: B.C. Health and a Constitutional Right to Strike”, (2009-10), 15 CLELJ 298 Collins, H., The Employment Contract (Oxford U. Press, 2003) Doorey, D., “The Medium and the Anti-Union Message: Forced Listening and Captive Audience Meetings” (2007), 29 Comp. Labor L. Pol. J. 79 Langille, B. “The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It”, (2009) 54 McGill L. J. 177 Pothier, D. “Twenty Years of Labour Law and the Charter” (2002), 40 Osgoode Hall L.J. 369 Weiler, P., “The Charter at Work: Reflections on the Constitutionalizing of Labour and Employment Law”, (1990), 40 U. Toronto L.J. 117

Appendix: Charter of Rights and Freedoms, Relevant Sections

Rights and freedoms in Canada

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Fundamental freedoms

2. Everyone has the following fundamental freedoms:


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(a) freedom of conscience and religion;

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

(c) freedom of peaceful assembly; and

(d) freedom of association.

Equality before and under law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Canadian Charter and the Law of Work: A Beginner's Guide

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