Attorney General of Ontario Appellant v. Michael J. Fraser on his own behalf and on behalf of the, 2011 SCC 20

SUPREME COURT OF CANADA Citation: Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3 Date: 20110429 Docket: 32968 Between: Attorney General of Ontario Appellant and Michael J.

Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, Xin Yuan Liu, Julia McGorman and Billie-Jo Church Respondents - and - Attorney General of Canada, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of British Columbia, Attorney General of Alberta, Ontario Federation of Agriculture, Federally Regulated Employers — Transportation and Communications, Conseil du patronat du Québec Inc., Mounted Police Members’ Legal Fund, Canadian Employers Council, Coalition of BC Businesses, British Columbia Agriculture Council, Justicia for Migrant Workers, Industrial Accident Victims Group of Ontario, Canadian Labour Congress, Canadian Police Association and Canadian Civil Liberties Association Interveners Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for judgment: (paras. 1 to 118): Reasons concurring in the result (paras. 119 to 296): Reasons concurring in the result (paras. 297 to 320): Dissenting reasons (paras. 321 to 369): McLachlin C.J. and LeBel J. (Binnie, Fish and Cromwell JJ. concurring) Rothstein J. (Charron J. concurring) Deschamps J. Abella J. Ontario ( Attorney General) v. Fraser , 2011 SCC 20, [2011] 2 S.C.R. 3 Attorney General of Ontario Appellant v. Michael J.

Fraser on his own behalf and on behalf of the United Food and Commercial Workers Union Canada, Xin Yuan Liu, Julia McGorman and Billie-Jo Church Respondents and Attorney General of Canada, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of British Columbia, Attorney General of Alberta, Ontario Federation of Agriculture, Federally Regulated Employers — Transportation and Communications, Conseil du patronat du Québec Inc., Mounted Police Members’ Legal Fund, Canadian Employers Council, Coalition of BC Businesses, British Columbia Agriculture Council, Justicia for Migrant Workers, Industrial Accident Victims Group of Ontario, Canadian Labour Congress, Canadian Police Association and

Canadian Civil Liberties Association Interveners Indexed as: Ontario ( Attorney General) v. Fraser 2011 SCC 20 File No.: 32968. 2009: December 17; 2011: April 29. Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ. on appeal from the court of appeal for ontario Constitutional law — Charter of Rights — Freedom of association — Collective bargaining rights — Separate labour relations legislation governing agricultural workers in Ontario — Whether s. 2(

d) requires legislature to provide a particular form of collective bargaining rights to agricultural workers, in order to secure effective exercise of associational rights — If so, whether legislation infringes freedom of association by failing to safeguard the exercise of collective bargaining rights — Whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 2(d) — Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 — Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 3 (b.1).

Constitutional law — Charter of Rights — Equality rights — Separate labour relations legislation governing agricultural workers in Ontario — Whether the Agricultural Employees Protection Act, 2002 violates workers’ right to equality under s. 15 of the Charter by excluding workers from the protections accorded to workers in other sectors — If so, whether infringement justifiable — Canadian Charter of Rights and Freedoms, ss. 1 , 15 — Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16 — Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 3 (b.1).

In 2002, the Ontario legislature enacted the Agricultural Employees Protection Act, 2002 (“ AEPA ”) which excluded farm workers from the Labour Relations Act (“ LRA ”), but crafted a separate labour relations regime for farm workers. The AEPA was a response to Dunmore v. Ontario (Attorney General) , 2001 SCC 94 , [2001] 3 S.C.R. 1016, which found that the previous legislative scheme violated s. 2(

d) of the Canadian Charter of Rights and Freedoms and declared it constitutionally invalid. It grants farm workers the rights to form and join an employees’ association, to participate in its activities, to assemble, to make representations to their employers through their association on their terms and conditions of employment, and the right to be protected against interference, coercion and discrimination in the exercise of their rights.

The employer must give an association the opportunity to make representations respecting terms and conditions of employment, and it must listen to those representations or read them. The AEPA tasks a tribunal with hearing and deciding disputes about the application of the Act. After limited efforts to use the new protections under the AEPA , a constitutional challenge was mounted on the basis the Act infringed farm workers’ rights under ss. 2(

d) and 15 of the Charter by failing to provide effective protection for the right to organize and bargain collectively and by excluding farm workers from the protections accorded to workers in other sectors. In 2006, the Ontario Superior Court dismissed the application. The Court of Appeal allowed the appeal and declared the AEPA to be constitutionally invalid. It rendered its decision after the release of Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia , 2007 SCC 27 , [2007] 2 S.C.R. 391. Held ( Abella J. dissenting): The appeal should be allowed and the action dismissed. Per McLachlin C.J. and LeBel, Binnie, Fish and Cromwell JJ.:

Section 2(

d) of the Charter protects the right to associate to achieve collective goals. This requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith. 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 free association and therefore constitute a limit on the s. 2 (

d) right of free association, which renders the law or action unconstitutional unless justified under s. 1 of the Charter . B argaining activities protected by s. 2 (

d) in the labour relations context include good faith bargaining on important workplace issues. It requires both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful and productive accommodation. Good faith negotiation under s. 2 (

d) requires the parties to meet and engage in meaningful dialogue; it does not impose a particular process; it does not require the parties to conclude an agreement or accept any particular terms; it does not guarantee a legislated dispute resolution mechanism in the case of an impasse; and it protects only the right to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method. What s. 2(

d) guarantees in the labour relations context is a meaningful process. The decision in Health Services follows directly from the principles enunciated in Dunmore .

Section 2( d ), interpreted purposively and in light of Canada’s values and commitments, protects associational collective activity in furtherance of workplace

goals. The right is not merely a paper right, but a right to a process that permits meaningful pursuit of those goals. The principles within Dunmore and Health Services represent good law, should not be overturned and provide resolution in this appeal. The seriousness of overturning recent precedents of this Court, representing the considered views of firm majorities, cannot be overstated.

T he arguments advance d in favour of overturning Health Services do not meet the high threshold for reversing a precedent of this Court as it is grounded in precedent, consistent with Canadian values, consistent with Canada’s international commitments and consistent with this Court’s purposive and generous

interpretation of other Charter guarantees. Health Services was consistent with previous cases on the issue of individual and collective rights. It recognized, as did previous jurisprudence, that s. 2(

d) is an individual right. It also recognized, as did previous cases, that to meaningfully uphold this individual right, s. 2(

d) may properly require legislative protection of group or collective activities. The approach to deference to Parliament and legislatures advanced in Health Services is also consistent with this Court’s general jurisprudence. Deference should inform the determination of whether a legislative scheme satisfies the requirements of the Charter , as articulated by the courts. The unworkability of Health Services has not been established. T here is no concrete evidence that the principles enunciated in Dunmore and Health Services are unworkable or have led to intolerable results.

I t is premature to argue that the holding in Health Services , rendered four years ago, is unworkable in practice. Th e Ontario legislature is not required to provide a particular form of collective bargaining rights to agricultural workers, in order to secure the effective exercise of their associational rights. In this case, the Court of Appeal has overstated the ambit of the s. 2(

d) right. The affirmation of the right to collective bargaining is not an affirmation of a particular type of collective bargaining, such as the Wagner model which is dominant in Canada. W hat s. 2(

d) protects is the right to associate to achieve collective goals. Laws or government action that substantially interfere with the ability to achieve collective goals have the effect of limiting freedom of association, by making it pointless. It is in this derivative sense that s. 2 (

d) protects a right to collective bargaining. Legislatures are not constitutionally required, in all cases and for all industries, to enact laws that set up a uniform model of labour relations imposing a statutory duty to bargain in good faith, statutory recognition of the principles of exclusive majority representation and a statutory mechanism for resolving bargaining impasses and disputes regarding the

interpretation or administration of collective agreements. What is protected is associational activity, not a particular process or result. Farm workers in Ontario are entitled to meaningful processes by which they can pursue workplace goals. The right of an employees’ association to make representations to the employer and have its views considered in good faith is a derivative right under s. 2(

d) of the Charter , necessary to meaningful exercise of the right to free association. The AEPA provides a process that satisfies this constitutional requirement. Under the AEPA , the right of employees’ associations to make representations to their employers is set out in s. 5 and provides that the employer shall listen to oral representations, and read written representations, and acknowledge having read them. The AEPA does not expressly refer to a requirement that the employer consider employee representations in good faith; however, by implication, it includes such a requirement.

A ny ambiguity in s. 5 should be resolved by interpreting it as imposing a duty on agricultural employers to consider employee representations in good faith, as a statute should be interpreted in a way that gives meaning and purpose to its provisions and Parliament and legislatures are presumed to intend to comply with the Charter . There can only be one purpose for requiring the employer to listen to or read employee representations — to assure that the employer will in fact consider the employee representation s . No labour relations purpose is served merely by pro forma listening or reading.

To fulfill the purpose of reading or listening, the employer must consider the submission. Moreover, the employer must do so in good faith: consideration with a closed mind would render listening or reading the submission pointless.

Comments made in the legislature during the debate on this legislation that the AEPA was not intended to extend collective bargaining to agricultural workers may be understood as an affirmation that the Act did not institute the dominant Wagner model of collective bargaining, or bring agricultural workers within the ambit of the LRA , not that the AEPA intended to deprive farm workers of the protections of collective bargaining that s. 2(

d) grants. The AEPA does not breach s. 2(

d) of the Charter .

Section 5 of the AEPA , correctly interpreted, protects not only the right of employees to make submissions to employers on workplace matters, but also the right to have those submissions considered in good faith by the employer. It follows that s. 5 of the AEPA does not violate s. 2(

d) of the Charter . The AEPA contemplates a meaningful exercise of the right of association, and provides a tribunal for the resolution of disputes.

Section 11 of the AEPA specifically empowers the Agriculture, Food and Rural Affairs Appeal Tribunal to make a determination that there has been a contravention of the Act, and to grant an order or remedy with respect to that contravention. The Tribunal may be expected to interpret its powers , in accordance with its mandate, purposively, in an effective and meaningful way. Labour tribunals enjoy substantial latitude when applying their constituent statutes to the facts of a given case. It is unnecessary to consider the s. 1 arguments. The s. 15 discrimination claim, like the s. 2(

d) claim, cannot succeed. It is clear that the regime established by the AEPA does not provide all the protections that the LRA extends to many other workers. However, a formal legislative distinction does not establish discrimination under s. 15 . What s. 15 contemplates is substantive discrimination that impacts on individuals stereotypically or in ways that reinforce existing prejudice and disadvantage. The AEPA provides a special labour regime for agricultural workers.

However, on the record, it has not been established that the regime utilizes unfair stereotypes or perpetuates existing prejudice and disadvantage. Until the regime established by the AEPA is tested, it cannot be known whether it inappropriately disadvantages farm workers. The claim is premature. Per Charron and Rothstein JJ.:

Section 2(

d) protects the liberty of individuals to associate and engage in associational activities. It protects the freedom of workers to come together, to form a bargaining position and to present a common and united front to their employers. It does not protect a right to collective bargaining nor does it impose duties on others, such as the duty to bargain in good faith on employers. To the extent that Health Services constitutionalized collective bargaining, it was not correctly decided. It should be overturned thus disposing of the constitutional challenge in this case.

This Court may overrule its own precedents, but it should only do so where there are compelling reasons. The question in every case involves a balancing: Do the reasons in favour of following a precedent ― such as certainty, consistency, predictability and institutional legitimacy ― outweigh the need to overturn a precedent that is sufficiently wrong?

In this case, compelling reasons exist for overturning Health Services : the error in Health Services concerns a question of constitutional law and is not susceptible to being corrected in a lasting way by the legislative branch; Health Services strayed significantly from other sound precedents, including

Dunmore , with respect to the purpose of Charter protection for freedom of association; the constitutionalization of collective bargaining, as envisaged in Health Services , is not workable without other elements of modern labour legislation in place; and there has been intense academic criticism of Health Services . Health Services was an express break with prior decisions of this Court on s. 2( d ), including Dunmore . This break came when the majority of the Court found that s. 2(

d) required that government legislate to facilitate collective goals which an association was formed to pursue, rather than protecting the freedom of association itself. In Dunmore , the requirement that government provide legislation to protect workers was anchored in the proposition that certain workers could not associate without government intervention. The majority in Health Services focussed on the goals of an association and the enhancement of those goals, rather than the ability of the claimants to associate (which they already had done).

An application of the actual holding in Dunmore would have asked only if the government substantially interfered with the ability to associate. Health Services erred in concluding that s. 2(

d) protects collective bargaining and obliges parties to bargain in good faith for five reasons. First, Health Services departed from sound principles established in this Court’s precedents on the nature and scope of s. 2( d ). The purpose of s. 2(

d) is to protect individuals rather than groups per se . Health Services reinterpreted an individual freedom as giving rise to collective rights with no individual rights foundation . This reinterpretation of the scope of s. 2(

d) was a departure from previous jurisprudence that is not justified by the purpose of the Charter guarantee. Second, s. 2(

d) protects freedoms not rights. According to Health Services , if s. 2(

d) protected only the ability of workers to make collective representations and did not impose a duty on the employer to bargain in good faith, it would fail to protect the right to collective bargaining. This proposition transformed s. 2(

d) from a freedom into a positive right by imposing an obligation to act on third parties (i.e. the employer). A right to collective bargaining is also not derivative of a freedom ― it is a standalone right created by the Court, not by the Charter . A derivative right is one that is necessary to allow individuals to exercise a fundamental freedom. No individual employee has a right to require an employer to meet and make a reasonable effort to arrive at an acceptable employment contract. To grant a right to collective bargaining under s. 2(

d) purportedly as derivative of the freedom of association is not consistent with the approach taken by this Court in its derivative rights jurisprudence in relation to the Charter . Third, s. 2(

d) does not empower the Court to privilege certain associations over others. The Court’s earlier cases did exhibit a content-neutral approach to freedom of association in the sense that they did not claim to privilege particular associations. Health Services erred in saying that the se approaches were not purposive. Health Services suggested that a “generic” approach to defining freedom of association is inappropriate because different groups must have different freedoms. However, the context that is relevant to a purposive

interpretation of Charter freedoms is not the context of the individuals who happen to be exercising that freedom in a given case. Rather, a purposive

interpretation of s. 2(

d) requires that one place freedom of association in its linguistic, philosophic and historical contexts. The origins of the concept, the words used to describe it, and the philosophical principles on which it relies will define the scope of s. 2(

d) protection. The extent of that protection should not change depending on who is exercising their s. 2(

d) rights. The protection of fundamental freedoms should not involve the Court adjudicating the relative values of the way in which individuals exercise those freedoms. Just as this Court has not adjudicated the relative value of a religion or its tenets under s. 2(

a) or assessed the relative value or content of a given exercise of freedom of expression under s. 2( b ), so too should this Court not privilege some associations over others under s. 2( d ). Fourth, s. 2(

d) does not afford constitutional protection to contracts. Although Health Services purported to constitutionalize the process of collective bargaining rather than its fruits, it in fact granted constitutional protection to the collective agreements on the basis that they were the fruits of that process. Fifth, s. 2(

d) should be interpreted in such a way as to afford deference to the legislative branch in the field of labour relations. Health Services erred in removing decision-making power on this question from Parliament and the provincial legislatures. While the courts are responsible for safeguarding the ability of individuals to do collectively that which they have the right to do as individuals, the judiciary is ill-equipped to engage in fine adjustments to the balance of power between labour and management in the labour relations context.

Moreover, the reasons advanced in Health Services for extending protection to collective bargaining under s. 2( d ) ― Canadian labour history, Canada’s international obligations, and Charter values ― do not support conferring a constitutional right to collective bargaining and imposing a duty on employers to engage in collective bargaining.

The argument that a right to collective bargaining which includes a duty on employers to bargain in good faith is a pre-statutory feature of Canadian labour law, made in Health Services , contradicts established accounts of the history of labour relations in Canada and has recently been the subject of intense academic criticism.

While the duty to bargain in good faith may be a fundamental precept of the Wagner model of collective bargaining, it is not a fundamental precept of collective bargaining as it was understood before the introduction of the Wagner Act or as it is still understood today in many parts of the world. Nor does international law support constitutionalizing collective bargaining rights. In Health Services , the majority relied on the proposition that collective bargaining is an integral component of the freedom of association under international law. The majority relied in particular on ILO Convention No. 87.

In doing so, it committed two errors. While Canada has ratified ILO Convention No. 87, that Convention deals only with freedom of association and does not at any point specifically discuss collective bargaining. The majority also conflated two distinct ILO Conventions by citing Convention No. 87 but using words from Convention No. 98. Canada has not ratified Convention No. 98 and has no obligations under that Convention.

Even if Convention No. 98 were applicable to Canada, Health Services would still have erred in relying on that Convention to constitutionalize a version of collective bargaining that includes a duty to bargain in good faith. While Convention No. 98 provides protection for a process of collective bargaining, it conceives of collective bargaining as being a process of “voluntary negotiation” that is fundamentally distinct from the model of collective bargaining incorporated in the Wagner model. Convention No. 98 does not contemplate the imposition of a duty on parties to bargain in good faith.

Nor did invoking Charter values in Health Services support constitutionalizing collective bargaining rights. Health Services maintained that the recognition of a good faith collective bargaining right is consistent with and promotes other Charter rights, freedoms

and values: namely, human dignity, equality, liberty, respect for the autonomy of the person and the enhancement of democracy. A duty to bargain in good faith may achieve those ends. However, either the Charter requires something or it does not. The role of the Court is to determine what the Charter requires and what it does not and then apply the requirements it finds to the case before it. It is not to simply promote, as much as possible, values that some subjectively think underpin the Charter in a general sense. As s. 2(

d) is silent on questions of economic and social policy, this Court may not intervene on such matters in the absence of a legislative or constitutional grant of authority. Finally, the majority’s approach to collective bargaining in particular and s. 2(

d) in general articulated in Health Services is unworkable. It extends constitutional protection to the duty to bargain in good faith without importing other aspects of the Wagner framework and by purporting to protect the process of collective bargaining without also protecting its fruits, neither of which is tenable. For a duty to bargain in good faith not to be an illusory benefit, there must be both a way of dealing with bargaining impasses as well as an effective remedy for persistent breaches of a duty to bargain in good faith.

The first requires that there be some default mechanism for resolving the dispute in case an impasse is reached — such as striking or binding arbitration — while the second may require, in extreme circumstances, the imposition by an arbitrator of particular terms of a collective agreement. Each of these goes well beyond protection of a mere process and results in the protection of a particular substantive outcome.

The majority’s inability to separate substance and process, and the consequent constitutionalization of collective bargaining terms demonstrates the unworkability of the distinction between substance and process asserted in Health Services . T he AEPA does not violate s. 2(

d) of the Charter . By enacting the AEPA , the legislature precisely addressed this Court’s ruling in Dunmore . The text, context and purpose of the AEPA clearly demonstrate that the legislature intentionally opted not to include a duty on employers to engage in collective bargaining with employee associations .

Section 5 of the AEPA cannot be read as imposing a duty to bargain in good faith. The words of s. 5 are unambiguous: they provide employee associations the opportunity to make representations to an employer. The only obligation on an employer is to provide the employee association with the opportunity to make representations and to listen if they are oral or read and acknowledge them if they are written. To find otherwise, would be to ignore the grammatical and ordinary meaning of the words, and the purpose of the AEPA , and would create ambiguity where none exists.

Moreover, nothing in the explicit purpose in s. 1 of the AEPA or the clear words of the Minister who introduced the AEPA support the view that agricultural employees have a right to require agricultural employers to engage in collective bargaining. As for the issues under s. 15, the category of agricultural worker does not rise to the level of an immutable (or constructively immutable) personal characteristic of the sort that would merit protection against discrimination under s. 15.

Per Deschamps J.: The holding in Health Services does not have the broad scope being attributed to it by the majority in the case at bar. The issue here is not, whether the AEPA provides a process that satisfies the right of an employees’ association to make representations to the employer and have its views considered in good faith. The duty to act in good faith is part and parcel of a web of statutory components. It should not be found to be a constitutional requirement in the instant case.

The expanded definition of freedom of association that resulted from Health Services has no bearing on the protection the Ontario legislature must provide to agricultural workers. The effect of Health Services is that freedom of association includes the freedom to engage in associational activities and the ability of employees to act in common to reach shared goals related to workplace issues and terms of employment. This delineation of the scope of freedom of association does not entail a more expansive protection than the legislative framework mandated by Dunmore for the agricultural workers.

The AEPA complies with this Court’s conclusion in Dunmore and it complies with the Charter . Even though labour law provides tools that help reduce economic inequality, not all aspects of labour law are protected by the Charter . Economic equality is not an “equality right” for the purposes of s. 15 of the Charter . Dunmore was based on the notion that the Charter does not ordinarily oblige the government to take action to facilitate the exercise of a fundamental freedom. Recognition was given to the dichotomy between positive and negative rights.

To get around the general rule, a framework was established for cases in which the vulnerability of a group justified resorting to government support. To redress economic inequality, it would be more faithful to the design of the Charter to open the door to the recognition of more analogous grounds under s. 15. Each Charter protection should not be interpreted in a formalistic manner.

Rather, if the law needs to move away from Dunmore ’s distinction between positive and negative rights, this should not be accomplished by conflating freedom of association with the right to equality or any other Charter right that may be asserted by a litigant. An analysis based on principles grounding the protection of rights and freedoms offers a better prospect of judicial consistency than one based on the more amorphous notion of “Canadian values”. Per Abella J. (dissenting): The AEPA violates s. 2(

d) of the Charter because it does not protect, and was never intended to protect, collective bargaining rights. The AEPA , enacted in 2002, was the government’s good faith implementation of this Court’s 2001 decision in Dunmore , which defined the scope of s. 2(

d) as being the right to organize and make representations. Health Services , decided in 2007, expanded that scope to include protection for a process of collective bargaining, including the duty to consult and negotiate in good faith. The applicable legal principles are therefore those set out in Health Services and the AEPA must be assessed against the revised constitutional standard. The AEPA has virtually no language that indicates protection for a process of collective bargaining.

It requires only that an employer “listen” if representations are made orally, or, if made in writing, “acknowledge” that the representations have been read. No response, discussions, or negotiations are required. Moreover, when the legislation was introduced, the government’s intention to exclude any protection for collective bargaining rights from the legislation was unequivocally expressed by the Minister of Agriculture and Food. This clarity of statutory language and legislative intent cannot be converted by the interpretive process into a completely different scheme.

For agricultural workers, the meaningful exercise of the right to collective bargaining requires two additional components. The first is a statutory enforcement mechanism with a mandate to resolve bargaining disputes. Since it is not a contravention of the AEPA to refuse to engage in a good faith process to make reasonable efforts to arrive at a collective agreement, the Tribunal is without

jurisdiction to grant a remedy for any violations of s. 2(

d) rights. The second essential element is a requirement that the employerbargain only with the representative selected by a majority of the employees in the bargaining unit. This concept, known as majoritarianexclusivity, has been a central and defining principle of labour relations in Canada since 1944. Given the singular employmentdisadvantage of agricultural workers, the absence of statutory protection for exclusivity effectively nullifies the ability of agriculturalworkers to have a unified and therefore more cogent voice in attempting to mitigate and ameliorate their working conditions.

The absence of these statutory protections cannot be justified under s. 1 of the Charter. The objectives of the rightslimitation — the failure to provide agricultural workers with the necessary statutory protections to exercise the right to bargaincollectively — were to protect the family farm and farm production/viability. The minimal impairment branch of the Oakes test isdeterminative in this case. The complete absence of any statutory protection for a process of collective bargaining in the AEPA cannotbe said to be minimally impairing of the s. 2(

d) right. The rights limitation is not even remotely tailored to either government objective;it is, in fact, not tailored at all. Preventing all agricultural workers from access to a process of collective bargaining in order to protectfamily farms, no matter their size or nature of the agricultural enterprise, harms the s. 2(

d) right in its entirety, not minimally. It is worthnoting too that all provinces except Alberta give agricultural workers the same collective bargaining rights as other employees. There isno evidence that this has harmed the economic viability of farming in those provinces, or that the nature of farming in Ontario uniquelyjustifies a severely restrictive rights approach. Cases Cited By McLachlin C.J. and LeBel J. Applied: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Health Services and Support —Facilities Subsector Bargaining Assn. v.

British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; referred to: Reference re Public ServiceEmployee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; PSAC v. Canada, (SCC), [1987] 1 S.C.R.424; RWDSU v. Saskatchewan, (SCC), [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815; R. v. Henry, 2005 SCC 76,[2005] 3 S.C.R. 609; Haig v. Canada, (SCC), [1993] 2 S.C.R. 995; R. v. Big M Drug Mart Ltd., (SCC), ;Nova Scotia (Workers’ Compensation Board) v.

Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; R. v. Advance Cutting & Coring Ltd., 2001SCC 70, [2001] 3 S.C.R. 209; R. v. Mannion, (SCC), [1986] 2 S.C.R. 272; Slaight Communications Inc. v. Davidson,(SCC), [1989] 1 S.C.R. 1038; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Adams Mine, Cliffs of Canada Ltd. v.United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384; Andrews v. Law Society of British Columbia, (SCC),[1989] 1 S.C.R. 143; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483. By Rothstein J. Applied: Dunmore v.

Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; not followed: Health Services andSupport — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; referred to: R. v. Bernard, [1991] 3 S.C.R. 654; Hamstra (Guardian ad litem of) v. British Columbia Rugby Union, (SCC), [1997] 1 S.C.R. 1092;R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; Queensland v. Commonwealth (1977), 139 C.L.R. 585; Planned Parenthood ofSoutheastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Adarand Constructors, Inc. v.

Pena, 515 U.S. 200 (1995); Reference rePublic Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; PSAC v. Canada, (SCC),[1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, (SCC), [1987] 1 S.C.R. 460; Professional Institute of the Public Serviceof Canada v. Northwest Territories (Commissioner), (SCC), [1990] 2 S.C.R. 367; Canadian Egg Marketing Agency v.Richardson, (SCC), [1998] 3 S.C.R. 157; Delisle v. Canada (Deputy Attorney General), (SCC),[1999] 2 S.C.R. 989; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; R. v.

Powley, 2003SCC 43, [2003] 2 S.C.R. 207; Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R.815; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480; R. v. NationalPost, 2010 SCC 16, [2010] 1 S.C.R. 477; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Hunter v. SouthamInc., (SCC), [1984] 2 S.C.R. 145; Law Society of Upper Canada v. Skapinker, (SCC), [1984] 1 S.C.R.357; Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; R. v.

Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3S.C.R. 209; Reference re ss. 193 and 195.1(1)(

c) of the Criminal Code (Man.), (SCC), [1990] 1 S.C.R. 1123; Lavignev. Ontario Public Service Employees Union, (SCC), [1991] 2 S.C.R. 211; Bell ExpressVu Limited Partnership v. Rex,2002 SCC 42, [2002] 2 S.C.R. 559; Royal Oak Mines Inc. v. Canada (Labour Relations Board), (SCC), [1996] 1S.C.R. 369; Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27. By Deschamps J. Applied: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; discussed: Health Services andSupport — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; referred to: R. v.

AdvanceCutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; Delisle v. Canada (Deputy Attorney General), (SCC),[1999] 2 S.C.R. 989; Vriend v. Alberta, (SCC), [1998] 1 S.C.R. 493; Greater Vancouver Transportation Authority v.Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295. By Abella J. (dissenting) Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R.391; Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; PSAC v. Canada, 1987

89 (SCC), [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, (SCC), [1987] 1 S.C.R. 460; Dunmore v. Ontario(Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Professional Institute of the Public Service of Canada v. Northwest Territories 2009 SCC 37, [2009] 2 S.C.R. 567; Wellington Mushroom Farm, [1980] O.L.R.B. Rep. 813. Statutes and Regulations Cited Act respecting labour relations, vocational training and workforce management in the construction industry, R.S.Q., c. R-20. Agricultural Employees Protection Act, 2002, S.O. 2002, c. 16, ss. 1, 2, 5, 7-11. Agricultural Labour Relations Act, 1994, S.O. 1994, c. 6 [rep. 1995, c. 1, s. 80],

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Labour Relations Code, R.S.A. 2000, c. L-1, s. 4(2)(e). Labour Relations Code, R.S.B.C. 1996, c. 244, s. 1. National Labor Relations Act, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§151-169). Trade Union Act, R.S.N.S. 1989, c. 475, s. 2(1). Trade Union Act, R.S.S. 1978, c. T-17, s. 2. Treaties and Other International Instruments Constitution of the International Labour Organisation, 15 U.N.T.S. 40, Art. 19(5)(e). Convention (No. 87) concerning freedom of association and protection of the right to organise, 68 U.N.T.S. 17.

Convention (No. 98) concerning the application of the principles of the right to organise and to bargain collectively, 96 U.N.T.S. 257,Art. 4. International Covenant on Civil and Political Rights, 999 U.N.T.S. 171. International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3. Authors Cited Adams, George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law Book, 1993 (loose-leaf updated December 2010, release37). Adams, Roy J. “Prospects for Labour’s Right to Bargain Collectively After B.C. Health Services” (2009), 59 U.N.B.L.J. 85.

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Ontario. Legislative Assembly. Official Report of Debates (Hansard), No. 46A, 3rd Sess., 37th Parl., October 22, 2002, pp. 2339-40. Ontario. Task Force on Agricultural Labour Relations. Report to the Minister of Labour. Toronto: The Task Force, 1992. Ontario. Task Force on Agricultural Labour Relations. Second Report to the Minister of Labour. Toronto: The Task Force, 1992. Parkes, Debra. “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2006), 32 Man. L.J. 135. Rayner, Wesley B. Canadian Collective Bargaining Law, 2nd ed. Markham, Ont.: LexisNexis, 2007. Sharpe, Robert J., and Kent Roach.

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APPEAL from a judgment of the Ontario Court of Appeal (Winkler C.J.O. and Cronk and Watt JJ.A.), 2008 ONCA 760, 92O.R. (3d) 481, 301 D.L.R. (4th) 335, 182 C.R.R. (2d) 109, 242 O.A.C. 252, 2009 CLLC ¶220-001, [2008] O.J. No. 4543 (QL), 2008CarswellOnt 6726, setting aside a decision of Farley J. (2006), (ON SC), 79 O.R. (3d) 219, 263 D.L.R. (4th) 425, 137C.R.R. (2d) 123, 2006 CLLC ¶220-009, [2006] O.J. No. 45 (QL), 2006 CarswellOnt 55. Appeal allowed and action dismissed, Abella J.dissenting. Robin K. Basu and Shannon M. Chace, for the appellant. Paul J. J. Cavalluzzo and Fay C. Faraday, for the respondents.

Anne M. Turley, for the intervener the Attorney General of Canada. Michel Déom and Geneviève Lessard, for the intervener the Attorney General of Quebec. Gaétan Migneault and Michelle Brun-Coughlan, for the intervener the Attorney General of New Brunswick. Neena Sharma, for the intervener the Attorney General of British Columbia. Roderick S. Wiltshire, for the intervener the Attorney General of Alberta. John D. R. Craig and Jodi Gallagher, for the intervener the Ontario Federation of Agriculture. Roy L.

Heenan and Thomas Brady, for the intervener the Federally Regulated Employers — Transportation andCommunications. Robert Dupont, Pascale Gauthier and Jean H. Lafleur, for the intervener Conseil du patronat du Québec Inc. Brad Elberg and Kelly Henriques, for the intervener the Mounted Police Members’ Legal Fund. Augustus G. Lilly, Q.C., and Stephen F. Penney, for the intervener the Canadian Employers Council. Peter A. Gall, Q.C., Donald R. Munroe, Q.C., and Andrea L. Zwack, for the interveners the Coalition of BC Businesses andthe British Columbia Agriculture Council. Selwyn A. Pieters and Adrian A.

Smith, for the interveners Justicia for Migrant Workers and the Industrial Accident VictimsGroup of Ontario. Steven Barrett and Ethan Poskanzer, for the intervener the Canadian Labour Congress. Ian J. Roland and Michael Fenrick, for the intervener the Canadian Police Association. Joshua S. Phillips and Antony Singleton, for the intervener the Canadian Civil Liberties Association. TABLE OF CONTENTS Paragraph Reasons of McLachlin C.J. and LeBel J........................................ 1

I. Introduction............................................................................... 1II. Background............................................................................... 5A. The Exclusion of the Farming Sector From the LRA and the Impact ofDunmore.................................................................... 5B. The Constitutional Challenge to the AEPA................................ 7 III. Judicial History........................................................................ 13A.

Ontario Superior Court of Justice (2006), (ON SC), 79 O.R. (3d)219 (the Applications Judge)................................................................. 13B. Ontario Court of Appeal, 2008 ONCA 760, 92 O.R. (3d) 481 (Winkler C.J.O. andCronk and Watt JJ.A.)............................ 15IV. Analysis................................................................................... 17A. Issues: Does the AEPA Violate Sections 2(

d) and 15 of theCharter?.................................................................................. 17B. Freedom of Association (Section 2(d))..................................... 18

(1) Freedom of Association in the Labour Context: The JurisprudentialBackground............................................... 19 (

a) The Early Cases........................................................... 19 (

b) Dunmore...................................................................... 26 (

c) Health Services: Its Impact.......................................... 34 (

d) The Issue on This Appeal............................................. 44 (

e) Response to Justice Deschamps................................... 49 (

f) Response to Justice Rothstein...................................... 52 (

i) The Caution Required in Overturning Precedent 56 (ii) The Arguments on Jurisprudence....................... 61 (iii) Purpose of

Section 2(d): Individual Versus CollectiveRights................................................ 63 (iv) The Argument That

Section 2(

d) Is a Freedom, Not aRight......................................................... 67 (

v) The Argument That Health Services Privileges ParticularAssociations....................................... 74 (vi) The Argument That Health Services Gives Contracts Priority OverStatutes........................ 76 (vii) The Argument That Health Services Removes Judicial Deference tothe Legislation................. 77 (viii) The Argument of Unworkability........................ 82 (ix) The Argument on Academic Criticism............... 86 (

x) The Argument on Canadian Labour History...... 89 (xi) The Argument on International Law.................. 91 (xii) The Argument on Charter Values...................... 96 (xiii) Conclusion.......................................................... 97

(2) Application: Have the Respondents Established a Breach of Section2(d)?................................................................. 98C.

Section 15 of the Charter.............................................................................. 114V. Conclusion.................................................................................................... 117Reasons of Rothstein J........................................................................................ 119I. Introduction........................................................................... 119II. When Should Precedent be Overturned?.............................. 129III. The Explicit Break With Precedent in Health Services......... 152A.

Introduction........................................................................... 152B. The Jurisprudential Background Prior to Health Services.... 157C. An Express Break With Precedent in Health Services........... 166IV.

Section 2(

d) of the Charter Does Not Protect CollectiveBargaining............................................................................. 172A. The Collective Bargaining Right Recognized in Health Services Is InconsistentWith the Purpose of

Section 2(d).................... 177

(1) Section 2(

d) Protects Individual Interests, Not GroupInterests........................................................................... 178 (

a) Individual Freedoms Versus Collective Rights.......... 178 (

b) Qualitative Differences Between Individuals and Associations Do NotChange the Individual Nature of Freedom of Association.............................................181

(2) Section 2(

d) Protects Freedoms Rather Than Rights...... 188

(3) Section 2(

d) Does Not Privilege Some Associations OverOthers.............................................................................. 203

(4) Section 2(

d) Does Not Give Constitutional Status toContracts......................................................................... 216

(5) Courts Have Afforded the Legislature Significant Deference in theApplication of

Section 2(

d) to the Field of LabourRelations............................................................. 219

B. The Reasons Advanced in Health Services Do Not Support Constitutionalizing Collective Bargaining Under

Section 2(

d) of the Charter ............................................................................. 231

(1) The Continuing Validity of Past Precedents on the Scope of

Section 2( d ) ................................................................. 233

(2) Canadian Labour History Does Not Support Constitutionalizing Collective Bargaining Rights ........... 234

(3) International Law Does Not Support Constitutionalizing Collective Bargaining Rights ........................................... 247

(4) Charter Values Cannot Be Invoked to Support Constitutionalizing Collective Bargaining Rights ........... 251 C. The Approach in Health Services Is Unworkable .................. 256

(1) The Problem of Constitutionalizing One Part of the Wagner Model .............................................................................. 257

(2) The Untenable Distinction Between Substance and Process 263 V. The Charter Protects a Voluntary Association of Workers Whose Objectives Are to Improve Wages and Working Conditions ............................................................................. 270 VI.

Summary ................................................................................ 275 VII. Application to the Present Case ............................................ 276 VIII. Conclusion ............................................................................. 296 Reasons of Deschamps J. ............................................................. 297 I. Interpreting Health Services ......................................................................... 298 II.

Approach From Dunmore ............................................................................ 313 Reasons of Abella J. ............................................................................................ 321 Background........................................................................................................... 323 Analysis................................................................................................................. 326 The judgment of McLachlin C.J. and Binnie, LeBel, Fish and Cromwell JJ. was delivered by The Chief Justice and LeBel J. — I.

Introduction [ 1 ] This appeal raises anew the issue of the constitutionality of the labour relations regime that applies to farm workers in Ontario. Most Canadian provinces have brought the farming sector under their general labour relations laws, with some exceptions and restrictions. Except for a very short period of time, Ontario has always excluded farms and farm workers from the application of its Labour Relations Act (currently Labour Relations Act, 1995 , S.O. 1995, c. 1, Sch. A) (“ LRA ”).

In the present appeal, our Court must determine whether Ontario’s latest attempt to frame a separate labour relations regime for the farming sector respects the constitutional guarantee of freedom of association, or violates it by failing to safeguard the exercise of collective bargaining rights. The Agricultural Employees Protection Act, 2002 , S.O. 2002, c. 16 (“ AEPA ” or “Act”) , was a response to this Court’s decision in Dunmore v. Ontario (Attorney General) , 2001 SCC 94 , [2001] 3 S.C.R. 1016, which found that the previous legislative scheme violated s. 2(

d) of the Canadian Charter of Rights and Freedoms . [ 2 ] We are of the view that the AEPA has not been shown to be unconstitutional.

Section 2(

d) of the Charter protects the right to associate to achieve collective goals. 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 free association and therefore constitute a limit on the s. 2 (

d) right of free association, which renders the law or action unconstitutional unless it is justified under s. 1 of the Charter . This requires a process of engagement that permits employee associations to make representations to employers, which employers must consider and discuss in good faith. [ 3 ] The law here at issue, the AEPA , properly interpreted, meets these requirements, and is not unconstitutional.

We would therefore allow the appeal. [ 4 ] Before moving to the analysis of the issues raised by the appeal, it will be useful to review the factual background and the jurisprudential developments that gave rise to this case. II. Background A. The Exclusion of the Farming Sector From the LRA and the Impact of Dunmore [ 5 ] Prior to 1994, indeed since 1943, farm workers had been excluded from the general labour relations regime established by the LRA .

In 1994, the Ontario legislature enacted the Agricultural Labour Relations Act, 1994 , S.O. 1994, c. 6 (“ ALRA ”), which extended trade union and collective bargaining rights to agricultural workers. A year later, the legislature repealed the ALRA in its entirety and again excluded farm workers from the labour relations regime set out in the ALRA ( Labour Relations and Employment Statute Law Amendment Act, 1995 , S.O. 1995, c. 1 (“ LRESLAA ”)) . The LRESLAA was challenged on the basis that it infringed the guarantees of freedom of association under s. 2 (

d) and equality under s. 15 of the Charter . In Dunmore , a majority of this Court found a breach of s. 2 ( d ). It held that the claimants were substantially unable to organize without protective legislation, and declared the law to be

unconstitutional. This had the effect of nullifying the exclusion of farm workers from the LRA, but this Court suspended the declarationof invalidity for 18 months. The majority concluded it was not necessary to deal with the s. 15 challenge. [6] In response, the Ontario legislature enacted the AEPA in 2002, which came into force on June 17, 2003. In brief,the AEPA excluded farm workers once again from the LRA, but crafted a labour relations regime for farm workers in Ontario.

It grantedthem the rights to form and join an employees’ association, to participate in its activities, to assemble, to make representations to theiremployers through their association on their terms and conditions of employment, and the right to be protected against interference,coercion and discrimination in the exercise of their rights (s. 1(2)). The employer must give an association the opportunity to makerepresentations respecting terms and conditions of employment, and it must listen to those representations or read them (s. 5).

TheAEPA tasks a tribunal, the Agriculture, Food and Rural Affairs Appeal Tribunal, with hearing and deciding disputes about theapplication of the Act (ss. 2 and 11). After limited efforts to use the new protections of the AEPA, the respondents mounted aconstitutional challenge to its validity. B. The Constitutional Challenge to the AEPA [7] The respondents argue that three more protections are required to meet the requirements of s. 2(

d) of the Charter: (1) statutory protection for majoritarian exclusivity, meaning that each bargaining unit is represented by a single bargaining agent; (2) anLRA-type statutory mechanism to resolve bargaining impasses and interpret collective agreements; and (3) a statutory duty to bargain ingood faith. The respondents argue that the Court’s recent decision in Health Services and Support — Facilities Subsector BargainingAssn. v.

British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, entitles them to laws offering these protections. [8] The four individual farm workers in this case (three of them respondents and an affiant) worked at Rol-Land FarmsLtd., a large industrial-type mushroom farm in Kingsville, Ontario. In 2002, after this Court’s decision in Dunmore, Xin Yuan Liu andother workers at Rol-Land approached the United Food and Commercial Workers Union Canada (“UFCW”) to represent them andbargain on their behalf.

By the spring of 2003, 70 percent of the workers at Rol-Land had joined the union. [9] Rol-Land refused to recognize the UFCW as the employees’ representative. The UFCW then filed an applicationfor certification with the Ontario Labour Relations Board, under the LRA. In the ensuing vote, the workers voted 132 to 45 in favour ofcertification. The resolution of the application has been kept on hold, pending the outcome of this appeal. After the vote, the UFCWwrote to Rol-Land requesting a meeting to commence negotiations toward a contract for the workers. Rol-Land did not respond to theletter.

The respondents assert that the owner of Rol-Land told a meeting of workers that the union would never be recognized (R.F., atpara. 58). [10] The UFCW also attempted to bargain collectively on behalf of employees at Platinum Produce, an industrialgreenhouse operating in Chatham, Ontario. While the employer expressed doubt that the UFCW could be an employees’ associationunder the AEPA, it gave the union an opportunity to make brief presentations. The meeting lasted approximately 15 minutes.

Theemployer’s position was that the company was not required to bargain with the union and the meeting was not to be considered collectivebargaining towards a collective agreement. [11] The UFCW subsequently presented Platinum Produce’s counsel with a draft collective agreement setting outproposed terms. That meeting lasted approximately five minutes. The employer has not responded to the proposals or to other proposedmeeting dates. There have been no further meetings or communications about terms and conditions of work. [12] The respondents did not attempt to pursue remedies under the AEPA.

Specifically, no recourse was made to theTribunal set up under the Act to deal with complaints. Rather, the respondents sought a declaration that s. 3(b.1) of the LRA, whichprovides that the LRA does not apply to farm workers, and that the AEPA as a whole were unconstitutional. In brief, they submitted thatthese laws breached s. 2(

d) of the Charter by failing to provide effective protection for the right to organize and bargain collectively andviolated s. 15 by excluding farm workers from the protections accorded to workers in other sectors. III. Judicial History A. Ontario Superior Court of Justice (2006), (ON SC), 79 O.R. (3d) 219 (the Applications Judge) [13] The chambers judge, Farley J., heard the application before the judgment of this Court in Health Services. Heproceeded on the assumption that s. 2(

d) did not protect collective bargaining. He dismissed the application on the ground that the AEPAmet the minimum constitutional requirements necessary to protect the freedom to organize. He began by adopting the comments madeby Sharpe J. at the trial level of Dunmore and finding that agricultural workers “are ‘poorly paid, face difficult working conditions, havelow levels of skills and education, low status and limited employment mobility’” (paras. 23 and 33). But he was of the view that theAEPA did not prevent them from attempting to form employees’ associations.

He stated: There is nothing in the AEPA which would prevent the UFCW or any other union from attempting to organize agricultural workers intoan employees’ association, recognizing that such an employees’ association would not thereby automatically have the right to strike northe right to bargain collectively. See discussion in Peter W. Hogg, Constitutional Law of Canada, looseleaf, vol. 2 (Toronto: Carswell,1997) at p. 41-5/6 (2002). The AEPA provides that the employees’ association may make representations to an employer concerning theterms and conditions of employment (s. 5 AEPA).

These representations may be made by someone who is not a member of theassociation (s. 5(2)) so that a “union staffer” could perform that function. The representation may be made orally or in writing (s. 5(5)). One must read s. 5(6) and (7) in a purposive way in context.

Thus while the employer need only give the association a writtenacknowledgment that the employer has read the written representations (s. 5(7)), it is implicit in the making of an oral representation thatthe recipient is hearing the oral representations as the employer has a duty to listen and the association speaker will have the opportunitythen and there to enquire whether the recipient has heard the representations. As well the concept of listening and reading respectivelyinvolves the aspect of comprehending and considering the representations.

Perhaps unfortunately there is no specific requirement thatthe employer respond to the substance of the representations; however, it should be noted that this would then involve the parties in aform of collective bargaining. [para. 19]

[14] With respect to the particular statutory protections in the AEPA, Farley J. found that they met the minimum requiredstandards. He found that they confer the power to organize (s. 1); protection against denial of access to property (s. 7); protection againstemployer interference with trade union activity (s. 8); protection against discrimination (s. 9); protection against intimidation andcoercion (s. 10); protection against alteration of working conditions during the certification process (ss. 9-10); protection againstcoercion of witnesses (s. 10); and removal of Board notices (s. 10).

He allowed that it would have been preferable to have mirrored theprovisions of the LRA more precisely “to eliminate possible fears” that employers might alter working conditions to hinder associationalactivities (para. 18). However, he felt that the answer to these concerns lay with the Tribunal, which had not been asked to deal with theworkers’ complaints.

He stated: If the Tribunal felt that it was for some jurisdictional reason constrained from negatively sanctioning such activity, then one wouldpresume that the applicants or others of a like mind together with the UFCW would have a strong case to bring back in this regard. Onewould think it better to see how the Tribunal operates in fact before condemning it as powerless to deal with such abuses. This wait andsee pragmatic approach is desirable with respect to possible concerns about lack of labour relations expertise/experience on the part ofthe specified panel roster of the Tribunal.

There has been no use of the mechanics of the AEPA as to bringing a case before the Tribunal;the applicants stated that it would be fruitless to bring a useless application before a useless Tribunal. I am of the view that thiscondemnation is premature. A successful application would do one of several things: be effective positively as to action; or morally givethe wrongdoing employer a “bloody nose”; or if truly an empty process, it would demonstrate the need for strengthening by legislativeamendment. See also Danson v.

Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086, . . . at p. 1099 . . . whereSopinka J. for the court stated: “This Court has been vigilant to ensure that a proper factual foundation exists before measuringlegislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack.”[para. 18] Farley J. also dismissed the discrimination claim brought under s. 15 of the Charter. B.

Ontario Court of Appeal, 2008 ONCA 760, 92 O.R. (3d) 481 (Winkler C.J.O. and Cronk and Watt JJ.A.) [15] The Court of Appeal allowed the appeal and declared the AEPA to be constitutionally invalid. It rendered its decisionafter the judgment of our Court in Health Services. Winkler C.J.O., for the court, held that the AEPA substantially impaired the ability ofagricultural workers to meaningfully exercise the right to bargain collectively, which was protected by s. 2(

d) of the Charter. The Actprotected the right to organize, and it was premature to conclude that the statutory protections against employer intimidation wereinadequate. However, it did not provide the “minimum” statutory protections required to enable agricultural workers to exercise theirright to bargain collectively in a meaningful way, namely: “(1) a statutory duty to bargain in good faith; (2) statutory recognition of theprinciples of exclusivity and majoritarianism; and (3) a statutory mechanism for resolving bargaining impasses and disputes regardingthe

interpretation or administration of collective agreements” (para. 80). The court noted that the “primary difficulty has been that theunion has been unsuccessful in engaging employers, who have no statutory duty to bargain in good faith” (para. 98). Having found thatthe AEPA infringes s. 2(

d) of the Charter, the Court of Appeal considered whether the infringement could be saved as “reasonable anddemonstrably justified” under s. 1 of the Charter, and found it could not. The legislation impaired the right more than necessary, despitethe challenges facing legislators in the agricultural domain, which is a complex mix of family farms and larger industrial operations.

Itconcluded that “the wholesale exclusion of agricultural employees from a collective bargaining scheme is not adequately tailored to meetthe objective of protecting the family farm” (para. 129). [16] The Court of Appeal ordered the government “to provide agricultural workers with sufficient protections to enablethem to exercise their right to bargain collectively, in accordance with these reasons” (para. 138). It suspended this order for 12 monthsto give the legislature an opportunity to respond. The Court of Appeal dismissed the claim under s. 15 of the Charter. Its judgment wasappealed to this Court. IV.

Analysis A. Issues: Does the AEPA Violate Sections 2(

d) and 15 of the Charter? [17] The issue is whether the failure of the Ontario government to enact a positive statutory framework for agriculturalworkers modelled after the Ontario LRA violates s. 2(

d) of the Charter in a manner that cannot be justified by s. 1. If so, the AEPA isinvalid under s. 52 of the Constitution Act, 1982, and the Ontario legislature is obliged to bring the Act into harmony with the Charter.The respondents have also raised the issue of whether the AEPA violates their right to equality under s. 15 of the Charter. As the mainquestion in this appeal remains the

interpretation and application of s. 2(d), we will first consider this issue and then turn to s. 15. B. Freedom of Association (Section 2(d)) [18] In view of the conflicting approaches to the guarantee of freedom of association in the labour context put before us, itmay be useful to canvas the jurisprudence and set out the principles that guide the analysis of s. 2(d). The respondents’ claim largelyturns on the

interpretation of our Court’s judgments in Dunmore and Health Services. The ultimate question is whether s. 2(d), properlyunderstood and applied, requires the Ontario legislature to provide a particular form of collective bargaining rights to agriculturalworkers, in order to secure the effective exercise of their associational rights. To resolve this question, we will first consider thedevelopment of this Court’s jurisprudence in this area of the law.

(1) Freedom of Association in the Labour Context: The Jurisprudential Background (

a) The Early Cases [19] The first set of cases to consider s. 2(

d) of the Charter, known as the Trilogy, were Reference re Public Service that s. 2(

d) did not protect the right to strike, the issue in the cases. In arriving at this conclusion, members expressed a number of viewson the guarantee of freedom of association.

[20] McIntyre J. stated that “like most other fundamental rights”, the right to freedom of association has no singlepurpose or value. Rather, reflecting the social nature of human beings, it protected the right to associate with others “both to satisfy[their] desire for social intercourse and to realize common purposes” (Alberta Reference, at p. 395).

In the same case, Dickson C.J.(dissenting) stated: “What freedom of association seeks to protect is not associational activities qua particular activities, but the freedomof individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage”(p. 366). [21] Three of the six Justices sitting on the Trilogy opined in obiter that s. 2(

d) does not protect collective bargaining(Alberta Reference, at p. 390, per Le Dain J.; PSAC, at p. 453, per McIntyre J.). The reasons given included that collective bargaining isa “modern right”, that its recognition would go against the principle of judicial restraint, that s. 2(

d) protects only individual rights, andthat s. 2(

d) was not intended to protect the goals or objects of organizations (Alberta Reference, at p. 391, per Le Dain J.; pp. 397 and407, per McIntyre J.). [22] The Trilogy was endorsed in Professional Institute of the Public Service of Canada v. Northwest Territories(Commissioner), (SCC), [1990] 2 S.C.R. 367 (“PIPSC”). Sopinka J., stated in his reasons which appeared to beaccepted by the other judges on this point: (1) “s. 2(

d) protects the freedom to establish, belong to and maintain an association”; (2) “s.2(

d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association”; (3) “s. 2(d)protects the exercise in association of the constitutional rights and freedoms of individuals”; and (4) “s. 2(

d) protects the exercise inassociation of the lawful rights of individuals” (p. 402). [23] Nine years later, in Delisle v. Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R. 989, theCourt once again revisited s. 2(d). The issue was whether exclusion of RCMP members from public bargaining associations, as opposedto their own association, violated s. 2(d). The majority of the Court, per Bastarache J., held it did not, on the ground that s. 2(

d) does notgive the right to belong to a particular group. Bastarache J. added that there is no general obligation for the government to provide aparticular legislative framework for employees to exercise their collective rights, i.e. a different framework than already provided forRCMP members. [24] In dissent, Cory and Iacobucci JJ. pointed out that the appeal was not concerned with the right to strike or to bargaincollectively (Delisle, at para. 51). The only issue was whether the statutory framework interfered with the right to associate with otherpublic servants in pursuance of their mutual interests. They were of the view that s. 2(

d) was violated because the impugned laws inpurpose and effect interfered with the formation of employee associations. They noted that employees are a vulnerable group in oursociety, and their ability to form and join an employee association is crucially linked to their economic and social well-being (paras. 67-68). [25] In

summary, the early cases affirmed that the core protection of s. 2(

d) focusses on the right of individuals to act inassociation with others to pursue common objectives and goals. There was some suggestion (Sopinka J.’s fourth point in PIPSC) thatonly individual goals were protected. (This proposition, as we shall see, was rejected in Dunmore.) While three judges in the Trilogyexpressed the view that s. 2(

d) did not protect collective bargaining, the only question at issue in those cases was whether individuals hada right to strike, and the question of collective bargaining was not conclusively resolved by a majority of the Court. (

b) Dunmore [26] This Court’s decision in Dunmore marked a new stage in the development of s. 2(

d) jurisprudence in the field oflabour relations. It raised the question of whether s. 2(

d) requires the government to provide a legislative framework which enablesemployees to associate to obtain workplace goals in a meaningful process. [27] The Ontario legislature had repealed legislation which gave farm workers a measure of protection, leaving thementirely outside the Province’s labour relations scheme. The evidence established that attempts to organize were persistently frustratedby employers. The farm workers came to court seeking protection of their basic right to associate. They sought the right to organize intoemployee associations.

For this, they contended, they needed legislation that endorsed their constitutional right to associate and protectedthem from employer interference. [28] Bastarache J., for the majority of the Court, began the analysis in Dunmore by emphasizing the need for a purposiveapproach to s. 2(d) — “one which aims to protect the full range of associational activity contemplated by the Charter and to honourCanada’s obligations under international human rights law” (para. 13).

After a full review of the jurisprudence, he stated: . . . the activities for which the appellants seek protection [association for the purposes of achieving workplace goals in the labourrelations context] fall squarely within the freedom to organize, that is, the freedom to collectively embody the interests of individualworkers. [para. 30] [29] Bastarache J. went on to hold that in order to realize the purposes of s. 2(d), the right to organize must extend to “theexercise of certain collective activities, such as making majority representations to one’s employer”.

He explained: These activities are guaranteed by the purpose of s. 2(d), which is to promote the realization of individual potential through relations withothers, and by international labour jurisprudence, which recognizes the inevitably collective nature of the freedom to organize. [para. 30] [30] The affirmation that s. 2(

d) protection extends to collective activities that only a group can carry out, requiredrejection of Sopinka J.’s fourth proposition in PIPSC, which suggested that s. 2(

d) only protected the right to further individual goals. Bastarache J. pointed out that certain activities are,

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