Constitutionality of the Agricultural Employees Protection Act: Round Two

INTRODUCTION

The Supreme Court of Canada in Fraser concluded that, with the minor adjustment of reading in an additional provision, the Ontario Agricultural Employees Protection Act (“AEPA”) is constitutional. In UFCW v. MedReleaf Corp. Phase 2 (“MedReleaf”), the Ontario Agricultural, Food and Rural Affairs Tribunal (“the Tribunal”) concluded that the caselaw since then does not warrant a different outcome. The recent Divisional Court decision in United Food and Commercial Workers International Union v. Aurora Cannabis Enterprises Inc. (“Aurora”) upheld the Tribunal’s decision.

The United Farm and Commercial Workers International Union (“UFCW”) had also brought complaints about MedReleaf’s conduct during the UFCW’s unionization drive. The Tribunal dismissed these complaints in United Food and Commercial Workers International Union v MedReleaf Corp., a decision the Divisional Court upheld in Aurora. I consider the decisions about the allegations under the AEPA in my next post.

THE FRASER DECISION

In the 2011 decision in Fraser, McLachlin CJC and LeBel J. wrote for themselves and three other judges (Binnie, Fish and Cromwell JJ.) and Deschamps J. and Rothstein J. (Charron J. concurring) each wrote their own judgement. Although all these judges found the AEPA to be constitutional, they did so for different reasons. Justice Abella, dissenting, found it to be unconstitutional, in particular because it does not include a right to strike or exclusive majoritarian representation.

In their decision, the (then) Chief Justice and LeBel J. provide a sparse definition of what is required to satisfy the guarantee of freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms (“the Charter“) in the context of labour relations:

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. (Fraser, para. 2)

The majority in Fraser held that the AEPA meets these criteria.

In Fraser, the UFCW maintained that to pass constitutional muster, the AEPA required three additional provisions or protections: “(1) statutory protection for majoritarian exclusivity, meaning that each bargaining unit is represented by a single bargaining agent; (2) an L[abour]R[elationsA[ct]-type statutory mechanism to resolve bargaining impasses and interpret collective agreements; and (3) a statutory duty to bargain in good faith.” (Fraser, para. 7)

In effect, UFCW sought to bring the AEPA in line with the collective bargaining regime under the LRA as much as possible. Dunmore had confirmed that agricultural workers were entitled to some degree of ability to pursue collective and not merely individual goals and that the process for doing so must be meaningful. Health Services “affirmed that bargaining activities protected by s. 2(d) in the labour relations context include good faith bargaining on important workplace issues” (Fraser, para. 40). However, this does not not mean a particular model of labour relations.

The essential question to be decided is whether the model that the AEPA provides

makes meaningful association to achieve workplace goals effectively impossible, as was the case in Dunmore. If [so] … then the exercise of the right to meaningful association guaranteed by s. 2(d) of the Charter will have been limited, and the law found to be unconstitutional in the absence of justification under s. 1 of the Charter. The onus is on the farm workers to establish that the AEPA interferes with their s. 2(d) right to associate in this way. (Fraser, para. 98)

The provisions under section 5 of the AEPA allowing the employees’ associations to make representations and imposing a duty on the employer to listen to or read them and to give a written acknowledgement of having read them satisfy the section 2(d) requirements. But this is the case only because the majority read into these provisions the obligation to “consider the employee representations in good faith”, as required by implication stemming from Health Services (Fraser, paras. 101-102). Among other reasons for this conclusion, McLachlin CJC and LeBel J. note, “The government must, on the words of its Minister, have intended the legislation to achieve whatever is required to ensure meaningful exercise of freedom of association.” (Fraser, para. 106)

Justice Abella’s dissent was premised on the change in the scope of section 2(d) of the Charter occasioned by Health Services, which, she maintained introduced the concept of good faith collective bargaining into the requirements of section 2(d). The AEPA does not explicitly require good faith collective bargaining, but as Abella J. says, it merely imposes on the employer the obligation “to listen, to read, and to acknowledge receipt. No response is required.”(Fraser, para. 329). As she says, this was all it was intended to do.

There is one other aspect of the LRA regime that Abella J. would import into the AEPA under section 2(d): majoritarian exclusive representation. That is, the union chosen by the majority of employees is the only body that can represent the employees in the workplace (as defined by the bargaining unit) and in return, the union must represent all those employees whether they supported the union or not. (Fraser, para. 343ff.)

THE TRIBUNAL’S MEDRELEAF DECISION

And so to MedReleaf. The Tribunal quickly excluded from their consideration certain of the characteristics of farm workers and of farms that have led to constitutional protection for representation of farm workers. Unlike these workers, MedReleaf workers are “skilled, trained, received good wages, benefits, shares in the corporation and worked in a highly regulated and inspected facility involving the continuous growing and harvesting of medical marijuana” (MedReleaf Phase 2, para. 25). The Tribunal later describes the MedReleaf operation as “a non-traditional agricultural enterprise[] …, operating within a factory like building in an industrial/commercial neighborhood” (para. 107).

(One might wonder why the MedReleaf workers are agricultural workers. The answer is, as the Tribunal explains, that the AEPA defines agriculture broadly as “the growing and cultivating of agricultural commodities”. The AEPA specifies that “tobacco” is an “agricultural commodity” and thus so is cannabis, the growing of which was not licensed when the legislature enacted the AEPA (AEPA, s.2(1)(a). Ironically, perhaps, the workers in Fraser were also employed in a factory-like setting, in that case a mushroom “farm”.)

A witness for the UFCW about the working conditions of migrant farm workers merely reinforced the Tribunal’s view that “regarding farm workers generally and migrant farm workers, the foundational legislative and social facts have not changed significantly” (para. 74). MedReleaf did not employ migrant workers.

The Tribunal also admitted evidence in support of the Attorney General’s position about the problems facing owners of other farming operations that would be further exacerbated if farm workers were allowed to strike. It indicated this evidence provided “some useful real-world context within which we consider the UFCW’s arguments that the AEPA ought to have greater statutory protections for agricultural workers to be constitutionally valid” (para. 89). It similarly admitted evidence from an expert the AG called about “labour shortages caused by increasing demands in the province for labour in the agricultural sector and the decreasing supply of labour in that same sector” (para. 90).

The Tribunal summarized the scope of its constitutional analysis as follows:

We do not have jurisdiction over farm workers as there are no farm workers before the Tribunal; nor over those working under the TFWP or the SAWP [temporary foreign worker programs] as no such workers are before the Tribunal; nor over family farms because no such farms are before the Tribunal; nor regarding unsuccessful representation campaigns at other agricultural operations in Ontario, as no complaint about those campaigns are before the Tribunal. As a result, we accept and agree with the MedReleaf submission that the UFCW Charter challenge is limited “temporally and geographically” to the experience at MedReleaf as discussed. (para. 30)

In addition, the Tribunal noted, “at least regarding the authority of Fraser, we begin at a position that the AEPA is presumptively valid and the Tribunal is bound by the precedent established in Fraser under the doctrine of stare decisis” (para. 46).

In Comeau, the Court stressed the importance of “vertical stare decisis” — lower courts must follow the decisions of superior courts — to avoid the impact of “shifting judicial whims or the introduction of new esoteric evidence by litigants dissatisfied by the status quo” (Comeau, para. 26). Only where there is a “fundamental shift” in, for example, the legislative and social facts relevant to considering the issues before the court should lower courts depart from vertical stare decisis.

The Tribunal concluded that the Comeau decision means that “[f]or the Tribunal to deviate from the controlling authority of Fraser that the AEPA is constitutionally valid, the UFCW must convince us there has been some seismic shift in the law creating new legal issues or new evidence that alters how decision-makers understand the legal issues” (para. 65).

Reviewing the post-Fraser jurisprudence, the Tribunal found that these cases were merely “affirmations” of Fraser.

In Mounted Police, the Court confirmed that the interference in collective bargaining had to be “substantial”; in that case it was, because of the employees lacked independence in choosing their representational agent, among other reasons. Even so, the labour relations model Parliament developed for the RCMP could be different from that enjoyed by other public sector employees.

Saskatchewan Federation of Labour dealt with a prohibition against striking by essential employees. The majority of the Court held that the ability to withdraw collective services is a fundamental aspect of collective bargaining and without an adequate alternative method of dealing with disputes, the failure to provide for it will be unconstitutional.

The Supreme Court of Canada’s British Columbia Teachers’ Federation (“BC Teachers’ Federation”) decision relied on both the majority and dissenting decisions at the Court of Appeal. The majority of the SCC adopted Donald J.’s dissenting reasons. In this context, legislation determined the terms of employment, not a collective agreement.

Justice Donald stated that pre-legislative consultation, if done in good faith, satisfied Fraser. He was critical of the majority judgement because it relied on a traditional collective bargaining regime that Fraser made clear was not required for a constitutionally valid model. He also stated, however, that a scheme that denied associational rights, even with consultation, would be unconstitutional: By definition, an express legislative negation of associational rights makes associational activities effectively pointless; “giving a union the opportunity to make its voice heard ‘one last time’ would not change that fact” (BC Teachers’ Federation, CA, para. 296).

The AEPA, the Tribunal finds, does allow for a form of collective bargaining because association of employees are able to make representations to the employer.

The AEPA does not ban strikes; yet this does not contravene Saskatchewan Federation of Labour. After all, it is in fact silent on strikes. Thus employees are free to exercise their “common law right to collectively withdraw services from their employer in pursuit of negotiating employment terms and conditions” (para. 134). The UFCW characterized this as “the right to collectively quit their employment since the AEPA contains no statutory job protection for striking employees akin to that of the LRA” (para. 96). As far as the Tribunal is concerned, this is not a problem because the jurisprudence since Fraser has not required such protections.

Furthermore, the Tribunal heard about the need for specially trained employees to handle the sensitive aspects of growing the marijuana and the detrimental effects if employees withdrew their labour. Accordingly,

MedReleaf employees, through the threat of or actual withdrawal of services, have significant economic leverage with their employer arising from that agricultural crop and the limited availability of a pool of readily trained replacement employees that could be hired in a timely fashion. We draw that inference and note that economic leverage exists absent any express statutory right of reinstatement following the withdrawal of services (we have intentionally used the word “express” at this time). (para. 100)

To determine whether the AEPA scheme provides a meaningful opportunity for collective bargaining, the Tribunal considered the following factors based on the jurisprudence: “employee choice and independence of representation/collectivism; good faith duties; and employee power in dealing with the employer or influencing employment conditions” (para. 115).

The AEPA provides for a “broad degree of representational choice”, since it imposes no limits on size, structure or composition. There can be more than one association of employees (since the AEPA does not require exclusive majoritarian representation). The statute also provides for independence of the association(s) from the employer. There was no evidence of lack of independence.

As indicated above, Fraser imported into the AEPA a requirement of “good faith” bargaining. The Tribunal defined “good faith” as follows: that the “’parties meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other; an employer must consider the association’s representations with an open mind.’” (para. 125, quoting from its earlier decision on the merits of the complaints). It needs to be noted, although the Tribunal does not do so, that in the AEPA there is no explicit “good faith” requirement. And neither here nor in Fraser does the judicial reading in of “good faith” require a meaningful response to the other party’s representations, that is, more than a notification that the employer has heard or read the representations.

The lack of sufficient evidence about whether the AEPA process has resulted in collective agreements does not mean that the AEPA process is at fault. In this case, the Tribunal is blunt: the reason is the UFCW’s intransigence. Indeed, the Tribunal is heartened by an “anecdote” that in the United Stated parties reached a collective agreement covering 8,500 migrant workers across 1,000 farms, without statutory processes protecting collective bargaining.

Regardless of these reasons about why the AEPA is constitutional, the Tribunal also concluded that the UFCW had not given the AEPA a chance to be effective (the majority also made this point in Fraser).

The AEPA is, concluded the Tribunal, constitutional.

THE DIVISIONAL COURT’S DECISION

In reviewing the Tribunal’s decision, Swinton J., for the Divisional Court, noted the Tribunal’s limited jurisdiction. It could not make a declaration and thus had to limit its analysis to the facts applicable to MedReleaf (now Aurora Cannabis Enterprises Limited [“Aurora”]). The Tribunal correctly applied the jurisprudence to these facts.

The Divisional Court treated the UFCW’s claim that the AEPA does not protect employees who withdraw their services (“strike”, in the Court’s word) as a claim that the AEPA is underinclusive. Dunmore held that underinclusiveness might result in a finding of unconstitutionality. As the Tribunal showed, however, “Aurora’s employees have significant economic leverage against their employer because of the nature of their work and the limited pool of replacement employees (at para. 100).” The Court stated, because it is a finding of fact and not a constitutional issue, “That finding is deserving of deference in this Court.” (Divisional Court, para. 73)

Furthermore, section 11 of the AEPA provides some protection through a complaint to the Tribunal, “an avenue that remains untested” (Divisional Court, para. 76).

The Divisional Court concluded, “The onus was on UFCW to show that the AEPA violates s. 2(d) because ss. 2 and 5 substantially interfere with meaningful collective bargaining by Aurora’s employees …. UFCW has not provided a proper factual context to show this to be the case, and so the Tribunal correctly concluded that the constitutional challenge must fail.” (para. 79)

CONCLUSION

The statutory recognition of the right to strike is part of the evolution of labour rights. Trade unions were illegal as being in restraint of trade and workers were liable in criminal law for concerted action in withdrawing their labour until the passage of the federal Trade Unions Act in 1872. These rights developed through statute and have finally been given greater and more “permanent” protection through the granting of constitutional status.

In Dunmore, Bastarache J., speaking for the majority, did not specify exactly what a constitutional regime of labour relations for agricultural workers would look like. Rather, he identified the general provisions any regime should include:

at minimum the statutory freedom to organize [under] the LRA ought to be extended to agricultural workers, along with protections judged essential to its meaningful exercise, such as freedom to assemble, to participate in the lawful activities of the association and to make representations, and the right to be free from interference, coercion and discrimination in the exercise of these freedoms. (Dunmore, para. 67)

He went on,

I neither require nor forbid the inclusion of agricultural workers in a full collective bargaining regime, whether it be the LRA or a special regime applicable only to agricultural workers such as the ALRA. For example, the question of whether agricultural workers have the right to strike is one better left to the legislature, especially given that this right was withheld in the ALRA…. (Dunmore, para. 68)

(Ontario enacted the Agriculture Labour Relations Act in 1994. A subsequent government repealed it. The issue in Dunmore was a constitutional challenge to the repeal of the ALRA and to the exclusion of agricultural workers under the LRA. Section 10 of the ALRA prohibited strikes.)

When the Supreme Court of Canada decided Dunmore and Fraser, it had not identified the right to strike as a protected activity under section 2(d) of the Charter. Now it has. In essence, this recognition acknowledges that the “freedom” of employees take economic action against their employer is limited without the protections given striking.

Under the AEPA, while the Tribunal is correct in saying that the employees can collectively walk off the job, the UFCW is also correct in identifying such activity as vulnerable to retribution. The Tribunal dealt with all this under the section 2(d) analysis. A different approach would see the absence of the right to strike as a contravention of section 2(d) requiring justification by the Ontario government under section 1.

The significance of the right to strike — or an adequate substitute — is particularly important for vulnerable workers. The Tribunal explained its limited jurisdiction; it could deal only with the workers before it. They are not recognized as vulnerable. This is not necessarily the case when a superior court considers a constitutional challenge.

The lack of exclusive majoritarian representation weakens the capacity of any organization to represent the employees effectively; however, it is also the case, that minority unions expand the choice of employees for how they want to be represented and by whom. A serious assessment of this particular aspect of employee representation requires a complete analysis within a framework of the purpose of union representation and the power relations between employees and the employer.

With MedReleaf, the AEPA is the status quo. Certainly, the legislature is not required to implement a particular form of labour relations for agricultural workers, but the development of the case law requires a more thorough analysis of whether it does, indeed, meet the requirements of section 2(d).