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The Charter – the Scope of Freedom of Association
Not one of our usual subjects, but because it’s going to be a hot topic – this just from the SCC
“Freedom of association guaranteed by s. 2(d) of the Charter includes a procedural right to collective bargaining. The grounds advanced in the earlier decisions of this Court for the exclusion of collective bargaining from the s. 2(d)’s protection do not withstand principled scrutiny and should be rejected.”
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27
It looks like the Court has constitutionalized the labour law duty of good faith bargaining, and applied it to the enactment of legislation. I’d also argue that para. 113 means that both security and freedom of contract are now constitutional rights. Shades of Lochner.
Are you referring to Lochner because it dealt with employers powers or because of Substantive due process? I haven’t yet had a chance to read the full Health Services reasons. I just searched for the phrase or the due process phrase – nothing. Shouldn’t the SCC have mentioned the Authorson discussion of substantive due process if that’s where it was going. Or are you saying it missed that consequence?