Fraser v. Ontario: Constitutional Right to Collective Bargaining Survives, Just Barely

The Supreme Court’s decision in Fraser v. Ontario was released this morning. Here it is.  I’ve only skimmed it since I was at a conference all morning, and now need to pump out a paper form my conference in Florence later this month (I know, whoa is me).
So while I would usually do a full breakdown of the decision, I won’t be able to right now. Instead, I will link to some other summaries of the decision already flowing out.  I note that the news headlines are saying “no right to unionize for farm workers”.  That’s not what the decision says, as I read it.  They have a right to unionize, as do all workers.  The Agricultural Employees Protection Act, which was upheld in the decision, gives them a right to unionize without retaliation from the employers.  The issue was whether they have a right to engage in collective bargaining and if so, what that means.
As it typical of this Court on Section 2(d) [freedom of association] matters, the Court is divide and the reasoning is often difficult to follow.  There are four different sets of reasons because the judges can’t see to agree on much in a nice lean decision with 369 paragraphs. O, brother.
The main majority decision is written by Chief Justice McLachlin and LeBel J. with three other judges agreeing with their reasons (Binnie, Fish, Cromwell).    They rule essentially that Section 2(d) does protect a limited right to collective bargaining, as found in B.C. Health Services.  It is a limited right for workers to come together and make collective representations to their employers, and to have their employer listen to their representations and discuss them in “good faith”.  Then the employer can say “go to hell”. That’s some serious right.  Insofar as laws substantially interfere with the employees’ ability to exercise that limited right, they run afoul of Section 2(d).   The majority ruled that the Agricultural Employees Protection Act does not violate Section 2(d), applying this test, and that Chief Justice Winkler of the Court of Appeal, a former employer-side labour lawyer, was wrong in ruling that Section 2(d) protects a right to majority representation, exclusive union representation, a duty to bargain in good faith, and some form of dispute resolution method.
Once again, Justice Abella, the judge probably most knowledgeable in labour law, dissents.  However, this time she is alone.  Justice LeBel, who is also a labour lawyer and who has sided with Abella before in efforts to expand the scope of freedom of association, sided with the majority.  Abella would have ruled that the AEPA violates Section 2(d) because it fails to protect a practical right of agricultural workers to engage in collective bargaining.
The other two judges, Rothstein and Charron, would have overruled B.C. Health Services altogether and found Section 2(d) does not protect a right to collective bargaining.  They rely heavily on critical writings by my academic colleagues, especially Brian Langille (U. of T.) and Eric Tucker (York), who criticized the analysis in B.C. Health Services for improperly interpreting labour history and international labour law.
So here are some same day commentaries from around the Internet.  I’ll add more later.  I will also post any comments sent to my blog about this case, so if you have a view on the decision, please send it along.
SLAW’s coverage
Globe and Mail story {Note that the headline “Agricultural Workers Have No Right to Unionize is not accurate. They do have a right to unionize, they just don’t have a right to insist on formal collective bargaining backed by some form of dispute resolution process]
The United Food and Commercial Workers take on the decision.