SCC Decision in Fraser v. Ontario

The Supreme Court of Canada released the much anticipated decision in Ontario (Attorney General) v. Fraser this morning.

The majority held that the Agricultural Employees Protection Act, 2002, (“AEPA”) which excluded agricultural workers from the Labour Relations Act (“LRA”) following Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016 did not violate s. 2(d) of the Charter.

Justice Abella was the sole dissent deciding that the AEPA did not meet the standards enunciated in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, released after the AEPA was drafted. In assessing the minimal impairment of the AEPA under s. 1, she noted that a less harmful outcome could be achieved by considering the size of the farm involved (paras. 355-358).

The majority, written by Chief Justice McLachlin and Justice LeBel, held the AEPA did not violate s. 2(d) because it provided a meaningful exercise of the right of association and a tribunal for dispute resolution. They also held that the s. 15 claim was premature because it was still too early to assess whether the AEPA inappropriately disadvantaged farm workers.

A concurring decision by Rothstein J. held that s. 2(d) should not be interpreted as constitutionalizing collective bargaining as applied in B.C. Health, because:

  1. s. 2 protects individuals and not groups
  2. s. 2protects freedoms not rights
  3. a content neutral approach to freedom of association does not privilege certain associations over others
  4. s. 2 does not afford constitutional protection to contracts
  5. s. 2 should interpretation should defer to the legislature

Rothstein J. argued that B.C. Health should be overturned. One of the other interesting approaches in B.C. Health was the use of international law to give meaning to association through ILO Convention No. 87 (para. 77). Rothstein J. held this to be an error because Convention 87 does not specifically discuss collective bargaining. This is actually found in ILO Convention No. 88, which Canada has not ratified.

Deschamps J also distinguished B.C. Health in her concurring decision, stating that it did not have the scope that the Ontario Court of Appeal applied.

Chief Justice McLachlin and Justice LeBel did not however go as far as reversing B.C. Health,

[49] Justice Deschamps adopts a narrow interpretation of the majority reasons in Health Services, stating that they merely recognized “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” (para. 308)…

[51] In our view, the majority decision in Health Services should be interpreted as holding what it repeatedly states: that workers have a constitutional right to make collective representations and to have their collective representations considered in good faith.

They also rejected that B.C. Health should be overturned,

[62] … Dunmore, as discussed above, established the proposition that legislative regimes that make meaningful pursuit of workplace goals impossible significantly impair the exercise of the s. 2(d) right to free expression and constitute a limit on the right which is unconstitutional unless justified by the state under s. 1. Health Services, far from being an “express break” with prior jurisprudence, is grounded in the principles earlier enunciated in Dunmore.

Justice Rothstein’s objection to ILO Conventions were also addressed,

[93] …The fundamental question from the perspective of s. 2(d) is whether Canada’s international obligations support the view that collective bargaining is constitutionally protected in the minimal sense discussed in Health Services….

[95] …The 1994 Report of the Committee of Experts discussed the domestic schemes that compelled employers to bargain with unions, listing Canada, and approvingly stated that such schemes illustrated “the principle that employers and trade unions should negotiate in good faith and endeavour to reach an agreement” (Committee of Experts on the Application of Conventions and Recommendations,Freedom of Association and Collective Bargaining (1994), at para. 243). This is precisely the general principle that Health Services endorses.

It’s a lengthy decision, and one we will certainly here much more about in the future given the various positions expressed.


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