The Power of Perspectives

The Canadian Bar Association

Yves Faguy

The right to bargain collectively

January 19 2015 19 January 2015

In Mounted Police Association of Ontario v. Canada, the Supreme Court of Canada ruled that members of the RCMP have the right to bargain collectively under Section 2(d) of the Charter, though that doesn’t necessarily give them the right to unionize. David Doorey explains…

The SCC concludes that a meaningful process of collective bargaining “is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them.”  Employee choice includes the right to form, join, direct, and dissolve their associations and choose their representatives.  Independence means a process that is not dominated by management.  A process in which workers have only the ability to choose among options put to them by their employer is not one with independence.  

… and then wonders where the Court is headed with its line of reasoning:

An intriguing part of the majority decision is the extent to which the Court refers positively to Chief Justice Dickson’s dissent in the Alberta Reference (see especially para. 51-66).  Labour law students will recall that decision was part of the ‘Labour Trilogy’ and concluded that there was no Charter protected right to strike.  Dickson wrote a strong dissent and would have found a right to strike.  The ghost of Dickson looms heavy over the MPAO decision.  The majority actually adopts his theoretical approach to Section 2(d) when it endorses his “purposive” approach to interpreting Section 2(d).  That approach protects “collective activity that enables those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”.  Those are Dickson’s words which are adopted by the SCC in MPAO.

What’s intriguing about this is that Dickson built on that reasoning to find a Charter protected right to strike.  It just so happens that the Supreme Court is at this very moment in the process of revisiting Alberta Reference and whether there is a constitutional right to strike.  Does the Court’s positive, obvious, and deliberate endorsement of Dickson’s approach in Alberta Reference hint at what might be coming down the road in the Saskatchewan strike case?

Omar Ha Redeye comments on the obvious trouble the Court has had, over the years, with Section 2(d) analysis, starting with what was appeared to be a recognized right to collectively bargain in the 2007 B.C. Health decision, before pulling back in its 2011 decision in Fraser:

The upside is that the majority’s analysis of s. 2(d) in Mounted Police is far clearer and comprehensible than B.C. Health and Fraser. The decision actually seems to make sense as a comprehensive inquiry into the content of s. 2(d), even if Justice Rothstein’s critique of creative reasoning to explain the backdrop of the case law is not entirely without merit. Labour law students will look at these earlier decisions as a necessary pre-requisite to understanding the purposive development of s. 2(d), but for practical applications will hopefully have the luxury of largely ignoring it.

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