Published January 16, 2015
A couple of big Supreme Court of Canada decisions on freedom of association were released today. In the first, Mounted Police Association of Ontario v. Canada, the Court found a legislative scheme that excludes the police from collective bargaining through an association of their own choosing violated Section 2(d) of the Charter. That law was struck down as unconstitutional. In the second case, Meredith v. Canada, the court ruled that it was not a violation of Section 2(d) for the federal Treasury Board to unilaterally reduce a promised raise in response to economic challenges facing the government.
Looks like it is time to update my Beginner’s Guide to the Charter and the Law of Work. Sigh.
An Early Summary of Mounted Police Association of Ontario
I want to review the first decision (MPAO) in this post. This was an appeal from the Ontario Court of Appeal decision I
SCC: Feds Violated RCMP officer’s freedom of association
summarized a couple of years ago. The basic facts are recounted in that earlier post. At that time, I expressed the view that the Court of Appeal had got the decision wrong, and that freedom of association includes the right not only to form and join an association of your own choosing, but also the right to make collective representations through that independently chosen association. The Supreme Court agreed with that approach in MPAO. The problem with the law in this case is that it prohibited RCMP officers from choosing their own representatives to advocate for them in bargaining with the employer. Instead, the law created an association for the officers that was not independent of the employer and then required the employer to deal only with that non-independent association. That regime substantially interfered with the ability of the police to engage in protected collective bargaining.
Here’s a quick synopsis of the main points in the decision.
The Legal Test: Substantial Interference Not Effective Impossibility
The test for deciding if a law violates Section 2(d) of the Charter is “substantial interference” with the ability of workers to engage collectively in a meaningful dialogue with the employer over work-related issues. That was the test used in the SCC’s decisions in B.C. Health Services Fraser. It is not, as found by the Ontario Court of Appeal, whether the law renders it “effective impossible” to exercise collective bargaining. References to “effective impossibility” in those earlier decisions described the actual effect of the laws being examined in the cases, it was not a statement of the Section 2(d) test. Therefore, after some uncertainty, we appear to have settled on a test. Workers challenging a law as interfering with their Charter protected freedom of association must show that the law “substantially interferes” with the ability to engage in collective bargaining. That is a lower threshold than “effective impossibility”, which employers and governments had advocated.
The “Derivative Right” Approach Appears to be Dead
Some courts had begun to describe the right to collective bargaining under the Charter as a ‘derivative right’, which they concluded meant it was deserving somehow of lesser protection than other ‘non-derivative’ Charter rights. For example, the Ontario Court of Appeal had ruled that because the right to collective bargaining was a ‘derivative right’, it was protected only if government action made it “effectively impossible” for workers to associate. This was a confusing legal device. The Supreme Court rejects that line of reasoning in MPAO:
“To the extent the term “derivative right” suggests that the right to a meaningful process of collective bargaining only applies where the guarantee under s. 2 (d) is otherwise frustrated, use of that term should be avoided. Furthermore, any suggestion that an aspect of a Charter right may somehow be secondary or subservient to other aspects of that right is out of keeping with the purposive approach to s. 2 (d).”
A Purposive Approach to Section 2(d) is Required
A lengthy segment of the majority’s decision is devoted to explaining how freedom of association must be given a purposive reading. This part draws heavily on the dissent of Chief Justice Dickson in the Alberta Reference (1987), which is intriguing for reasons I discuss below. There are some nice little tidbits in this section that no doubt will be widely quoted in years to come. Essentially, the Court reiterates what it has said many times before. Protecting a broad freedom to associate is fundamental to democracy and to enable individuals to respond to more powerful actors in society, including governments and employers. My colleagues Alan Bogg (Oxford) and Cindy Estlund (NYU) would say that freedom of association is necessary to enable to individual workers to stand eye to eye with their more employer and to be free from the employer’s domination. The SCC appears to agree with that conceptual approach to freedom of association in MPAO.
Here are some noteworthy quotes from the decision:
49. [Freedom of association] stands as an independent right with independent content, essential to the development and maintenance of the vibrant civil society upon which our democracy rests.
58. The guarantee functions to protect individuals against more powerful entities. By banding together in the pursuit of common goals, individuals are able to prevent more powerful entities from thwarting their legitimate goals and desires. In this way, the guarantee of freedom of association empowers vulnerable groups and helps them work to right imbalances in society. It protects marginalized groups and makes possible a more equal society.
59 The flip side of the purposive approach to freedom of association under s. 2 (d) is that the guarantee will not necessarily protect all associational activity. Section 2 (d) of the Charter is aimed at reducing social imbalances, not enhancing them.
62 Section 2 (d).. protects associational activity for the purpose of securing the individual against state-enforced isolation and empowering individuals to achieve collectively what they could not achieve individually. It follows that the associational rights protected by s. 2 (d) are not merely a bundle of individual rights, but collective rights that inhere in associations.
66. Section 2 (d), viewed purposively, protects three classes of activities: (1) the right to join with others and form associations; (2) the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.
68. Just as a ban on employee association impairs freedom of association, so does a labour relations process that substantially interferes with the possibility of having meaningful collective negotiations on workplace matters. Without the right to pursue workplace goals collectively, workers may be left essentially powerless in dealing with their employer or influencing their employment conditions.
70 Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals. [Watch for this quote to be heavily circulated by the labour movement!]
Freedom of Association Requires Employees Choice and Independence from Management
The SCC concludes that a meaningful process of collective bargaining “is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them.” Employee choice includes the right to form, join, direct, and dissolve their associations and choose their representatives. Independence means a process that is not dominated by management. A process in which workers have only the ability to choose among options put to them by their employer is not one with independence. This reasoning would seem to have important relevance to some other campaigns underway, including the efforts of legal aid lawyers, who are excluded from collective bargaining statutes in Ontario, to get their employer (Legal Aid Ontario) to speak to them through their chosen association.
No Particular Labour Relations Model is Required, Just One that Does not Substantially Interfere with Collective Bargaining
The Court repeats it’s line that no one particular model of collective bargaining is required by the Charter. The Court notes the ongoing debates in the academic community about different models of collective bargaining, and even cites my recent article about the possibility of the co-existence of different collective bargaining models:
Labour schemes are responsive to the interests of the parties involved and the particular workplace context. Different models have emerged to meet the specific needs of diverse industries and workplaces. The result has been ongoing debate on the desirability of various forms of workplace representation and cooperation and on their coexistence: D. J. Doorey, “Graduated Freedom of Association: Worker Voice Beyond the Wagner Model” (2013), 38 Queen’s L.J. 511
The Charter Analysis
The Court ruled that both the purpose and the effect of the legal regime at issue was to prevent the police from exercising their freedom to associate through an independent association. Therefore, the law violated Section 2(d). The court nicely captures the essence of the law in this passage:
Simply put, in our view, the SRRP is not an association in any meaningful sense, nor a form of exercise of the right to freedom of association. It is simply an internal human relations scheme imposed on RCMP members by management. Accordingly, the element of employee choice is almost entirely missing under the present scheme.
Also, the Court revisits its earlier decision in Delisle, and rules that the exclusion of RCMP officers from the Public Sector Staff Relations Act violates Section 2(d), bringing Dunmore (exclusion of agricultural workers from the Labour Relations Act) and MPAO in line (and even better, allowing law profs to quickly pass over Delisle in labour law class!]. Delisle was decided before the SCC had recognized a Charter right to collective bargaining, but now that it does, it was clear to the Court that the bald exclusion of the police from collective bargaining legislation, without replacing it with another valid collective bargaining scheme, violated Section 2(d).
Violation Not Saved by Section 1
The government argued that excluding RCMP from collective bargaining legislation and setting up the alternative, non-independent scheme, was necessary to ensure that police remained independent, neutral, and objective. This was a pressing objective. However, the laws failed both the Rational Connection Test and the Minimal Impairment Test elements of the Oakes Test. There was no evidence that permitting meaningful collective bargaining would disrupt the stability or neutrality of the police, and in fact the research suggesting the opposite was true. And the fact that every other police force in Canada has some right to collective bargaining demonstrates that the federal laws in question did not satisfy the minimum impairment test.
Remedy
The Court struck down the offending legislation, but gave the government a 12 month window to draft new compliant legislation. A likely outcome of this case will be new legislation specifically tailored to grant the RCMP the very minimal the Court finds is necessary to meet the Section 2(d) threshold. Look for something similar to Ontario’s Agricultural Employees Protection Act, for example, which was the end result of the Dunmore and Fraser Charter decisions. Of course, we are headed into election period, so this reform might have to wait until post election.
Random Concluding Thoughts
It will take some time to think through the possible implications of the decision. I welcome your comments (by leaving a post on using
The Ghost of Chief Justice Dickson Looms Large
the Comment feature on this entry). As I noted, there are some campaigns by workers excluded from the main Wagner style legislation floating around across Canada, and this decision could help those groups insofar as it concludes that a legal model that leaves workers unable to have any collective voice with their employer is constitutionally suspect.
An intriguing part of the majority decision is the extent to which the Court refers positively to Chief Justice Dickson’s dissent in the Alberta Reference (see especially para. 51-66). Labour law students will recall that decision was part of the ‘Labour Trilogy’ and concluded that there was no Charter protected right to strike. Dickson wrote a strong dissent and would have found a right to strike. The ghost of Dickson looms heavy over the MPAO decision. The majority actually adopts his theoretical approach to Section 2(d) when it endorses his “purposive” approach to interpreting Section 2(d). That approach protects “collective activity that enables those who would otherwise be vulnerable and ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict”. Those are Dickson’s words which are adopted by the SCC in MPAO.
What’s intriguing about this is that Dickson built on that reasoning to find a Charter protected right to strike. It just so happens that the Supreme Court is at this very moment in the process of revisiting Alberta Reference and whether there is a constitutional right to strike. Does the Court’s positive, obvious, and deliberate endorsement of Dickson’s approach in Alberta Reference hint at what might be coming down the road in the Saskatchewan strike case? That is, how can the Court accept Dickson’s theory and model but then reject his conclusion that flowed from that theory and model: that Section 2(d) protects a right to strike in some form.
Very interesting, indeed. Stay tuned…