Written by Alison Braley-Rattai, Brock University
On June 17th, the Ontario Agricultural, Farming and Rural Affairs Appeal Tribunal (the Tribunal) quietly released a decision with potentially big implications.
The complaint brought by United Food and Commercial Workers was against MedReleaf Corp. and pertained to the constitutionality of the Agricultural Employees Protection Act [AEPA]. Readers are likely familiar with the fact that the Supreme Court of Canada (SCC) addressed this very question in a 2011 case called Ontario v. Fraser. The Tribunal was asked to revisit the constitutionality of the AEPA on the basis that the jurisprudence had changed sufficiently since 2011 such that Fraser was no longer ‘good law’, and that in Fraser the SCC had not considered the right to strike, which was given constitutional ‘benediction’ in 2015, in a cased called Saskatchewan Federation of Labour v. Saskatchewan.
The AEPA contains no provision for undertaking lawful strikes. Despite this, the Tribunal determined that the AEPA passed constitutional muster. This determination contravenes the commonplace view within sections of the labour relations community, that the AEPA, despite having survived a constitutional challenge in 2011, would not meet the bar set in 2015. Professor David Doorey, for example, has said that “it is difficult to see how models such as the AEPA which do not protect a right to strike can survive.”[1] The reason for which, he opines, is “the absence of any statutory protections against reprisals for collective withdrawals of their labour” which is “a glaring hole in Canadian labour law.”
Indeed, whether the AEPA is Charter-compliant has everything to do with whether protection against reprisals is or is not to be annexed to the definition of a strike, as a matter of constitutional law. However one wishes to answer this question, the Tribunal’s reasoning reflects the SCC’s own failure in SFL to address, head-on, the endemic tension between striking as a ‘fundamental freedom’ and striking as a statutory grant.[2]
How We Got Here
In 2001, the exclusion of agricultural workers from the Ontario Labour Relations Act was challenged as unconstitutional, in a case called Dunmore v. Ontario.[3] There, the SCC concluded that some statutory framework was required to ensure that ‘vulnerable’ workers attempting to form unions could do so free from reprisal; however, this framework need not mirror the more generous Wagner-style provisions found within the OLRA, and its language around collectively bargaining and striking. In 2001 there was no constitutional protection for collective bargaining or striking anyway.
The Ontario government, in response to Dunmore, passed the AEPA, which provided that agriculture workers have the following rights: to “form or join” unions and “participate in their lawful activities”, “assemble”, make “representations” to their employer, and, most notably, “to protection against interference, coercion and discrimination” when exercising these rights.[4] When the SCC recognized the right to collectively bargain in 2007, in the B.C. Health Services decision, the AEPA was challenged as falling short of the new mark. While the AEPA recognized the right of agricultural workers to ‘make representations’ to their employers, it did not require that employers meaningfully engage in negotiations with these employees. The resulting constitutional challenge was the basis for Fraser, in 2011.
In Fraser, the SCC determined that the AEPA did indeed pass constitutional muster, concluding that the right to make representations, and the requirement that such representations be considered “in good faith” – which, notably, the SCC “read-in” – met the minimal constitutional requirement regarding collective bargaining. Fraser was heavily criticized for resiling[5] from the more robust understanding of “negotiation” that the term collective bargaining entails in the labour relations context, including in Justice Abella’s scathing dissent.[6] Nevertheless, once a right to strike was proclaimed in 2015, many observers felt that it was time to revisit the constitutionality of the AEPA on the basis that, with its failure to make provision for when and under what circumstances agricultural workers may legally withdraw their labour, it could not meet the standard given by SFL. The Tribunal has dealt a first blow to that perspective.
Tribunal Decision Reflects SCC’s Own Foot-Shuffling
The basic common law proposition that one may ‘down one’s tools’ without inherent illegality, is sometimes captured by the term “freedom” to strike.[7] This freedom, widespread throughout the first half of the 20th century, was supplanted by the highly juridical scheme of reciprocal rights/duties contemplated within Wagner-style statutes. Among the most notable of such rights/duties is job protection for those ‘downing their tools’ with the corresponding temporal restriction that workers may not avail themselves of this right during the life of a collective agreement.
Associational freedom jurisprudence reveals a consistent befuddlement regarding the relationship between any ‘fundamental freedom’ to strike, and its statutory instantiation. After all, the notion that striking was merely a creature of statute had been one of the main obstacles to holding that there was a constitutional right to strike in the SCC’s early jurisprudence.[8] It was reasonable, therefore, to expect that in overturning its precedent in SFL, the SCC would have spent considerable time disentangling the ‘constitutional’ from the ‘statutory’. Instead, concerned to articulate the link between striking and meaningful collective bargaining consistent with Health Services, it ignored the elephant in the room, namely: what were to be the parameters of constitutionalized strike activity against which existing statutory entanglements could be evaluated? As a result, the Court appeared to work back-to-front rather than front-to-back, i.e., reading-into the very conception of strike activity Wagner-style entanglements without being explicit about – perhaps even aware of – doing so, rather than explicating which, if any, statutory provisions were annexed to a constitutional right to strike, and which were available to be defended on a section 1 analysis.[9]
In its recent decision, the Tribunal merely harnesses the SCC’s lacuna in this regard when, in response to UFCW’s submission that absent job protection any withdrawal of services amounts to a “collective quit”, it concludes that it is for the SCC, and not the Tribunal, to say whether “statutory job protections are a constitutional right”.[10] Within Wagner-model statutes, wherein the right to strike is explicitly embedded within a web of reciprocity,[11] an alteration of one thread of the web may upset the framework, requiring some remedy. Notably, the AEPA is not so embedded, but is silent altogether about the right to strike. The Tribunal interpreted that silence as meaning that the collective withdrawal of labour falls outside the Wagner-style web of reciprocity, not that it is impermissible.
The test for a violation of associational freedom is whether the impugned action “in a particular case amounts to a substantial interference with collective bargaining.”[12] Such interference is understood by reference to whether the “balance between employees and employer” has been disrupted.[13] The Tribunal’s decision raises further complicated questions, which cannot be addressed here, related to the role of ‘replacement workers’ and citizenship status in the evolving analysis regarding the parties’ relative power.
As the Tribunal asserts, the AEPA is a “labour relations regime unique to the Ontario agricultural sector.”[14] Yet, the implications of this decision and its underlying rationale, may reach far beyond the particularities of either MedReleaf or the agricultural sector. Whether one believes that the Wagner-style statutes provide necessary ‘trade offs’ to the general benefit of workers, or undermine worker action by narrowly channeling it, it isn’t obvious what purchase a constitutional right to strike will have should legislatures choose to systematically undo Wagner’s web.
Alison Braley-Rattai, “Breaking free from Wagner’s Web? Tribunal upholds Constitutionality of AEPA” Canadian Law of Work Forum (July 2 2020): https://lawofwork.ca/?p=12804
[1] David Doorey, “David Beatty’s Redemption (And Other Thoughts on the Future of Labour Law)” 2020 University of Toronto Law Journal (Forthcoming)
[2] Alison Braley-Rattai, ‘Freedom of Association and the Right to Strike,’ (unpublished LLM thesis, Osgoode Hall Law School, 2015), p. 80-86.
[3] 2001 SCC 94
[4] Supra note 2 at s. 1(2) 1-5.
[5] See, for e.g., Judy Fudge, “Constitutional Rights, Collective Bargaining and the Supreme Court of Canada: Retreat and Reversal in the Fraser Case” Industrial Law Journal, Volume 41, Issue 1, March 2012, 1–29
[6] Supra note 3, at 326-368
[7] See, for e.g., Eric Tucker, and Judy Fudge, The Freedom to Strike in Canada: A Brief Legal History (February 25, 2010). (2010), 15:2 Canadian Labour and Employment Law Journal, 333-53. Available at SSRN: https://ssrn.com/abstract=1567449
[8] Reference Re Public Service Employee Relations Act (Alta.), 1987 CanLII 88 (SCC), [1987] 1 SCR 313
[9] Supra note 8
[10] Supra note 1 at 97
[11] Supra note 13 at p. 21
[12] SFL, supra note 5 at 78
[13] Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (CanLII), [2015] 1 SCR 3, at 72 [MPAO]
[14] Supra note 1 at 35
