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Leave Granted in Fraser v. Ontario

The Supreme Court has agreed to here the appeal from the Ontario Court of Appeal in Fraser v. Ontario (A.G.).  This should make for an interesting decision given Justice Winkler’s rather unexpected interpretation of Section 2(d) of the Charter in the Court of Appeal decision.  Will the Supreme Court address Winkler’s claim that Section 2(d) protects a right to some form of mandatory bargaining dispute resolution method? How about his ruling that ‘majoritarian exclusivity is essential to ensure’ the balance of power between workers and employers?  

Brian Langille (U of T Law School), one of Canada’s leading labour law scholars, had predicted before Winkler’s decision that the Supreme Court’s recent decisions (in Dunmore and B.C. Health Services) had set the courts down a road towards writing a new labour code, piece by piece, a task for which he argued the courts are ill-suited.  In an article to be published soon (“The Freedom of Association Mess: How we got into It and how we can get out of It”  (2009), 54 McGill Law Journal),  he argues that the Court should abandon that project and embark on a different course.  His argument is that labour legislation is the means by which governments bring Section 2(d) [freedom of association] into effect.  That being the case,  he asserts that denying some employees access to that legislation is denying them equality of treatment under the Charter.

In other words, Langille argues that the Supreme Court could have avoided many of the recent battles under Section 2(d), and some rather perplexing instances of legal reasoning, by treating exclusions from labour legislation as an equality issue:  once the state confers labour rights on some employees, it cannot then pick and choose which employees have access to those rights.   This argument would require a fundamental rethinking of how courts have treated equality rights.

Might the Supreme Court use Fraser as the spring through which to revisit and simplify its recent attempts to expand the scope of Section 2(d)?

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