Fraser v. Ontario: Court Finds Ontario Violated Charter Right to Collective Bargaining

Years after being voted out of power, the Mike Harris/Ernie Eaves Conservative Government’s attacks on labour rights continue to be chastised by the Courts.   This time, the Ontario Court of Appeal has ruled the Tories’ Agricultural Employees Protection Act, 2002  (AEPA) violates the Section 2(d) right of agricultural workers (AW) to engage in collective bargaining with their employers.  The long-awaited decision in Fraser v. Ontario (A-G) was released this week.  Back in July, I posted the pleadings filed in this case.
The AEPA was the Tory government’s response to the the SCC decision in Dunmore v. Ontario, in which the Court struck down the exclusion of agricultural workers from the Labour Relations Act.   I have briefly described the circumstances leading up to this new decision before, and it is set out nicely by Justice Winkler at the outset of the Fraser decision. 
Writing for a unanimous Court, Winkler (who was a prominent employer-side labour lawyer before joining the Bench) found that the AEPA violated the AW’s right to collective bargaining, and that the violation was not saved by Section 1.  That right to collective bargaining was recognized by the SCC last year in the landmark Health Services decision.  The employer in Fraser was a large mushroom operation employing nearly 300 employees, a significant majority (70%) of whom had joined the UFCW.  However, the employer had refused the UFCW’s offer to bargain collectively.   The employer could do this because there was no obligation on employer’s to bargain with unions in the AEPA.  As it turned out, the ability of the employer to refuse to bargain with a union that had the overwhelming support of the employees became strong evidence in the case that the AEPA (and its exclusion of AW from the LRA) ‘substantially interferes’ the right of the AW to collective bargaining. 
In light of Health Services, the outcome in Fraser is not particularly surprising.   Winkler J. applied the tests set out by the SCC in the recent decision of Baier v. Alberta, where the Court considered the circumstances in which exclusion from a particular statutory model could amount to a violation of Section 2 of the Charter.  Winkler ruled that the AW’s claim is that they are being denied their Constitutional right to enage in meaningful collective bargaining, it was not that they are simply being denied access the the particular model of labour relations created in the LRA.
He then ruled that AEPA ‘substantially interferes’ with the AW’s right to collective bargaining.  He accepted essentially the same evidence as the SCC in Dunmore, which demostrated that absent access to statutory machinery, including the legal duty to bargain, AWs have never been able to engage in effective collective bargaining in Canada:  “Without a statutory duty to bargain in good faith, there can be no meaningful collective bargaining process (p. 81)”.  Winkler noted also that the protection of collective bargaining in the Charter must “also provide a mechanism for rsolving bargaining disputes” (82).   He is careful not to equate this with a right to strike, but he clearly does believe that Section 2(d) includes a right to some form of dispute resolution process, such as interest arbitration, for example.  That is an important ruling.
Another interesting part of the decision is Winkler’s discussion of the ‘exclusivity’ model in Canadian labour law.  That is the idea that a union’s right to bargain on behalf of employees be linked to its ability to gather the support of a majority of the workers.   The AEPA did not give any particular preference to the majoritism principle.  While acknowledging the government’s point that this model is not common outside North America, he ruled that it is intricately tied to Canadian labour relations, going as far as to note that ‘majoritarian exclusivity is essential to ensure’ the balance of power between workers and employers.  That is a debatable conclusion.   It also appears to read into Section 2(d) a particular model of labour relations–the Wagner Act model–even though the SCC was clear in Health Services and Dunmore that Section 2(d) does not protect any particular type of labour relations model. 
In finding that the violation of Section 2(d) was not saved by Section 1, Winkler J. noted that there are less intrusive ways to ‘protect the family farm’ that an outright effective ban on all AW from engaging in collective bargaining.  He suggested, for example, that legislation might exclude farms with fewer than some specified number of employees.  Given that the Court gave the government one year to figure out how to bring the law into accordance with the decision, is it now possible we are looking at legislation that excludes ‘small farms’ but not larger industrial operations? 
I have always been suspicious of the collective-bargaining-is-not-conducive-to-the-family-farm argument.  It assumes that a family-owned workplace can only operate efficiently if the employees are subserviant to the employer’s wishes and lack any power to resist the employer’s demands.  This seems to me to be a highly dubious assertion.   But we shall have to wait and see what will be the next Chapter in this ongoing sage.