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The Courts Should Not Be Writing Labour Legislation – The Supreme Court of Canada Limits The Charter’s Freedom Of Association

In what is being hailed as one of the most important constitutional decisions in Canadian labour law, the Supreme Court of Canada has overturned the Ontario Court of Appeal’s controversial decision in Ontario (Attorney General) v. Fraser.   The Court of Appeal had held that the exclusion of agricultural workers from the Ontario Labour Relations Act (“LRA”) and the inclusion of these workers in a separate statutory scheme that did not offer the same rights and protection to collectively bargain as the LRA was unconstitutional and offended s. 2(d) of the Charter.    Particularly noteworthy is that the majority of the Supreme Court held that while the freedom of association does protect the process of collective bargaining, it does not protect or require any particular model of collective bargaining.  In doing so, the Supreme Court rejected the Court of Appeal’s finding that the protection of the collective bargaining process necessitates access to the traditional model of collective bargaining reflected in most labour legislation across the country.  In terms of protecting the freedom of association, the Court states that the appropriate labour relations regime and corresponding scope of the collective bargaining process should be left for the legislatures to determine – provided the process is “meaningful”.  It can be expected that over the weeks, months and years to come, commentators and academics will have much to say about this landmark ruling and its implications for collective bargaining and labour relations across the country.   Stay tuned!!

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