Summary: Mounted Police Association of Ontario v Canada, 2015 SCC 1
This case is about how the constitutional right to freedom of association under section
2(d) of the Charter of Rights and Freedoms (“Charter”) protects the right to collective
bargaining. Two private associations of RCMP members brought a constitutional
challenge under section 2(d) against the non-unionized labour relations scheme that
RCMP members are legislated to follow. These associations have not been recognized by
RCMP management or by the federal government and therefore have not been permitted
to represent employees in a collective bargaining process or in consultations on
workplace issues.
There are two legislative provisions that the associations challenged. The first is
section 2(1) of the Public Service Labour Relations Act (“PSLRA”). This is the legislation
that governs labour relations for federal public servants. Under s.2(1), RCMP members
are excluded from collective bargaining. The second is s.96 of the Royal Canadian
Mounted Police Regulations (“RCMP Regulations”). In 2014, it was repealed and
replaced by s.56 of the Royal Canadian Mounted Police Regulations, however the
substance of the new regulation is similar to its predecessor. The regulation mandates a
Staff Relations Representative Program (“SSRP”) as the non-union labour relations
scheme that RCMP members must follow. Under this program, members elect
representatives who can raise labour relations issues (excluding wages) with
management. The aim of the program is for representatives and management to consult
on human resources issues and policies. However, management has the final decision on
issues.
At the Ontario Superior Court of Justice, Justice MacDonnell ruled that the current
scheme violated s.2(d). This decision was reversed by the Ontario Court of Appeal. On
appeal, the Supreme Court of Canada ruled that the scheme was unconstitutional and that
both s.96 of the RCMP Regulations and s.2(1) of PSLRA violate section 2(d) of the
Charter.
The Majority decision was written by Chief Justice McLachlin and Justice LeBel.
The Majority took a “purposive and generous” approach to interpreting the constitutional
right to freedom of association and held that section 2(d) 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. Using this
approach, the Majority held that section 2(d) protects against a “substantial interference”
with the right to a meaningful collective bargaining process.
The Majority applied its reasoning from Alberta (Information and Privacy
Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62 to
affirm the importance of the collective bargaining process. It stated that collective
bargaining associations help workers to meaningfully pursue their workplace goals by
reducing the power imbalance that may exist between workers individually and their
employer.
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The Majority went on to state that the essential features of a meaningful collective
bargaining process under section 2(d) are choice and independence. Choice allows
employees to have input into the selection of their collective goals. Independence allows
employees to control the activities of their association without the influence of
management. The Court emphasized that the nature of these features would vary based on
the context of the industry and workplace in question.
The Court ruled that both pieces of legislation that were challenged substantially
interfered with RCMP members’ section 2(d) rights under the Charter. Section 96 of the
RCMP Regulations violates section 2(d) because it requires members to be represented
by an organization that they did not choose and within a structure that is not independent
from management. As a result, RCMP members cannot advance their goals and interests
through a process that is not controlled by management. The Court also ruled that the
exclusion of RCMP members in section 2(1) of the PSLRA also violates section 2(d) of
the Charter because it excludes RCMP members from the federal labour relations regime
with the intent of denying members the ability to exercise their freedom of association.
The Court also held that neither provision could be upheld under section 1 of the Charter.
It found that the federal government’s goal of maintaining an independent and objective
police force was not rationally connected to its practice of excluding RCMP members
from meaningful collective bargaining. It also found that the Charter violation was not
minimally impairing because the federal government did not establish why this ban on
collective bargaining was necessary when other police forces have successfully
participated in collective bargaining regimes. The Court struck down these provisions but
suspended this declaration of invalidity for 12 months.
Justice Rothstein was the sole dissenting justice (out of seven). He would have found
that the non-unionized labour relations scheme did not violate section 2(d) of the Charter.
He took the position that section 2(d) protects the right of employees to associate to make
collective representations and to have their employer consider their representations in
good faith. He rejected the Majority’s ruling that choice and independence are
constitutionally protected requirements for meaningful collective bargaining. Justice
Rothstein also rejected the “substantial interference” standard that the majority adopted
for determining whether there was a violation to freedom of association. He took the
position that the standard was whether a scheme made collective bargaining “effectively
impossible.”
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