I. Introduction to the Field of Labour and Employment Law
What are the underlying objectives of labour law? What are the three regimes identified to meet those objectives during the
fordist era? Why is Canadian labour law primarily regulated at the provincial level? Is current labour regulation in Canada insync with contemporary labour market challenges?
We will consider interface between human rights norms and collective representation.
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The Rand Decision comes at the end of a period in Cdn history of massive strikes, deeply politicised, sometimes quite violent.
 The Rand formula (also referred to as automatic check-off) is a workplace situation where the payment of trade union dues
is mandatory regardless of the worker's union status. This formula is designed to ensure that no employee will opt out of the
union simply to avoid dues yet reap the benefits of the union's accomplishments (such as ensuring higher wages, better job
security or other benefits).
The Rand Decision (1946), [1996] 1 C.L.L.R. 1356
Facts
Issues
Holding
Reasoning
There was a strike of the Ford Motor Company in 1945 in Windsor Ontario. The union accepted a joint plan of
settlement of the Dominion and Ontario governments. The plan called for arbitration by a judge of the Supreme Court
of Canada on points that could not be settled by collective bargaining negotiations. Justice Rand was named arbitrator,
and delivered his decision January 29, 1946
Can the union have union shop with check-off?
No union shop – no obligatory membership – but yes check-off to support the union.
Rand J: This is a contest of extra-legal relations which must be resolved by the force of ethical and economic factors
resting ultimately on the exercise of economic power
Background: The Need for Security and Stability
 Any change in the relations between these parties (capital vs. labour) must be made in the framework of a society
whose economic life has private enterprise as its dynamic.
 The social desirability of the organization of workers and collective bargaining has been written into laws.
 Labour unions should therefore be strong in order to carry out the functions for which they are intended; to secure
industrial civilization within a framework of a labour-employer constitutional law based on a rational economic and
social doctrine
 Industry is so interrelated with economic and social harmony that any disturbance affects many interests. The
economic life and fortunes of men become hostages to the assumption of industry’s continuance, which in turn takes
its place as part of the general security.
 As in the public political sphere, the economic sphere requires counterchecks between power and individual
opinion. Viewed in social terms, the control or use is permitted to the individual until the general interest requires its
modification.
 Organized labour is necessary to redress the balance of social justice; however organized labour itself develops and
depends upon power, which in turn must be met with balancing control in relation to individual workers over whom it
may exercised, as well as to industry and public
 The organization of labour must be elaborated and strengthened in a civilized manner for its essential function in a
private economy. There must be a balancing of interests on all ends. Not every loss must end in a labour strike.
Historic Moment of this Case: The “Immature” Union
 The root of the conflict between Ford Motor and its employees is the absolutist conception of property. Management
kept employees at an arm’s length, and hostility and tension was inevitable. Given the psychological effects of
working in repetitive operations, the employees required sympathetic handling.
 There was exasperation and provocation, and these actions seem to indicate the intensity of conviction on the part
of the man the fair demands were being met only by stolid negativism
 While the abuse of striking power cannot be excused, much less justified, we cannot disregard the complex of
hostile attitudes and resulting exasperations from which that abuse in fact arose.
 There is no doubt that the union’s dominating interest is the workers and their object is to attain for those employees
and their families a secure and self-respecting living, which seems to be the object of most Canadians
 There must be growth within unions through experience to bring about maturity of judgment & conduct. It has been
suggested that the union leaders are only concerned with maintaining their own positions of seniority – the only
remedy for this abuse is greater democratization of the union.
The Issue of Union Security
 Union security is the maintenance of the strength and integrity of the union.
 The union wanted a “union shop” with a check-off where an employer can hire who they want but must dismiss them
after a certain time if the employee doesn’t join the union (as opposed to “closed shop” where only a union member
can be employed in the first place).
 The check-off means union dues are subtracted directly from wages.
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 I cannot award a union shop. It would deny the Canadian to seek out work and work independently of any organized
group. It would also expose him even in a generally disciplined organization to the danger of arbitrary action of
individuals and place his economic life at the mercy of the union
 The employer can, if he chooses, subject his employees to the full force of unionism.
 On the other hand we don’t want employees becoming the beneficiaries of union action and receiving the protection
of organization without contributing. It would not be inequitable to require all employees to pay a contribution
towards the administration of the law of their employment. They must take the burden along with the benefit.
 The obligation to pay dues may induce membership, and this will serve the wider interest. The union will have to
keep justifying itself to the majority.
 It is not unfair that an employee has to contribute to funds when he has no control over their expenditure. The dues
are only those which members are satisfied to pay for substantially the same benefits, ad as any employee can join
the union and still retain his independence in employment.
 Whether the constitution of the union is sufficiently democratic in securing the powers of the members or such
money power is dangerous are matters which concern the members and the public. The remedy lies essentially in
the greater effectiveness of control in the members; but outside interference with that internal management is
obviously matter of policy for the legislature.
Terms of Award
 A check-off compulsory upon all employees who come within the unit to which the agreement applies.
 The amount to be deducted shall be the sum as may from time to time be assessed by the union; no entrance fee
 The assessment affects only the employees; the employer is concerned only in the expense of the check-off and the
strength which it may give to the union. The expense is the employer’s contribution toward making the union
through its greater independence more effective in its disciplinary pressure upon its members.
 No strike shall be called by the union before a vote by secret ballot.
 The union shall repudiate any strike that has not been called by the union after being so authorized.
 Should the union violate this provision for union security, it shall be liable to the penalty of a suspension of the
check-off
 Any employee shall have the right to become a member of the union by paying the entrance fee and complying with
the constitution and by-laws of the union
 If an agreement on employee penalties cannot be reached, the matter shall be submitted to a grievance umpire. If
the penalty has been found to be in bad faith, the employer will be reprimanded
 If an employee be transferred from one department to another, there will be no loss of seniority
 The parties declare the desirability of a group medical, hospital and life insurance scheme for the benefit of the
employees
Fudge & Tucker on Industrial Legality
Three periods of industrial legality.
1. Liberal voluntarism (Prior to 1900): the core of the regime was the individual contract operating within a system that left most
terms and condition to be determined according to the labour market;
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employers could refuse to hire union members and could fire those who became union members after taking up membership
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The Second Industrial Revolution precipitated a change in the quality & quantity of legal intervention; employment relations
became a magnet for legal regulation because it was through these relations that most families obtained access to the means
necessary for survival, and their conflictual character threatened to disrupt the social order
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Employers turned to courts to resist collective demands, and they received a sympathetic response by fashioning new theories of
liability and made injunctions readily available
2. Industrial voluntarism. From 1900, state institutions played an increasingly important role in regulating industrial conflict.
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Although state institutions were directly involved in the resolution of industrial conflict, there is a great deal of continuity with the
earlier regime; neither legislators nor judges imposed a general legal obligation on employers to recognize trade unions
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Freedom of association remained a legal privilege, rather than a right enforced by the Canadian state
3. Industrial Pluralism. This period was put in place near the end of the war in 1944. Unions were granted a distinctive legal
status. Employers were legally required to recognise and negotiate with unions; freedom of association for the purpose of
collective bargaining became an enforceable legal right; and unions, in effect, were recognised as the “junior partners” of
business enterprise. In return for this legal status, unions and their leaders were required to control unruly members
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The key contradictions the state is called upon to mediate arise from the oppositions of the atomistic completion of the
capitalist economy and the necessity of solidarity for the reproduction of social life
In the private realm of economy, workers are bearers of a commodity, labour power, whose price is determined by supply and
demand in the labour market. However, labour is a ‘fictitious’ commodity; it is neither produced as a commodity, nor is its
production governed by an assessment of its realization on the market
Human beings have the capacity to act individually, and collectively resist the dull compulsion of supply and demand
The hallmarks of the liberal state is rule by law; workers must advance their interests within a political and legal order
Groundings its authority to govern in the idea of consent and avowing its commitment to liberty, equality and the rule of law, the
liberal state is impelled to respond to the demands of its propertyless subjects
But, the emergence of the liberal state not only signalled the dominance of political democracy but the hegemony of private
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property as the means of organizing economic activity. The liberal state is the guarantor of individual property rights and provides
owners with a system of law in which their claims are both vindicated and enforced. Inherent contradiction!
The challenge for the liberal state is how to give a unitary and unifying expression to the experience of groups within a society
whose reality is systematically unequal since it is structured along lines of class. Gender, ethnicity, rage, age, occupation etc.
At one extreme, the state is involved in a totalizing project, identifying people as formally equal before the law. On the other, state
apparatuses distinguish and individualize people in even more definite and specific ways.
These totalizing and individualizing projects involve forms of regulation and modes of disciple through which capitalist social
relations are organized and individuals come to identify themselves. Just as workers resist their commodification, their
consciousness cannot be moulded and shaped conveniently so that they automatically accept their own subordination.
A liberal state must develop a means of institutionalizing conflict between workers and employers, but that any particular regime
is subject to both change and contestation. This regime will predominantly be articulated through a variety of legal means. This is
due to the nature of the liberal state, which seeks to justify and legitimatize its action through a framework of legality.
Private property is the defining relation of capitalist social formations, but the concept of private property contains a contradiction;
the majority of workers enjoy citizenship rights that could be exercised to limit the prerogatives of capitalist property workers
Within capitalist sates, numerous safeguards have been constructed to protect private property, and these are reinforced by
powerful ideologies that extol the virtues of the private over the public. The legal system is a site that historically has played an
important role in protecting the prerogatives of property against workers’ claims.
Markets are not only realms of private/voluntary activity, but are also publicly constructed institutions liable to be regulated for
purposes other than the promotion of efficient exchange. The commodification of labour power characterized by radical inequality
creates conditions under which workers may resist their commodification and pressure the state to substitute non-market
mechanisms for determining employment conditions
While the constitution delineates the boundaries between federal and provincial powers, its language is subject to interpretation
by the courts and leaves ample room for the federal government to expand its authority in a variety of circumstances.
To avoid common law’s traditional bias in favour of employers’ private rights, new administrative apparatuses were established
and a new labour relations professionals were educated by industrial pluralists to be sympathetic to modern collective bargaining
legislation
Grievance arbitration provided unions with a legal mechanism for enforcing their collective agreement rights and protecting their
members from arbitrary employer behaviour. But while grievance arbitration brought the rule of law to the workplace it also
centralized dispute resolution in the union hierarchy, at the expense of the work group, by providing the institutional framework for
the bureaucratization and routinization of dispute resolution
Strike prohibition during the collective agreement entailed that the union had a responsibility to use every reasonable means to
ensure that conflicts were resolved through the grievance process rather by recourse to industrial action; Rand’s agreement
made the union’s right to financial security dependent on its willingness to enforce its collective agreement against its members
Industrial citizenship, which comprised the freedom of association, the right to representation, and the rule of law, was the
crowning achievement of industrial pluralism. The union accepted the integrity of the collective agreement and would make all
reasonable efforts to prevent wildcat strikes
Employers were still free to exercise their property rights and freedom to contract, and to seek to enforce them in courts. Nor did
the legislation impose a collective agreement in order to resolve a dispute. The privilege to resort to industrial sanctions
continued to determine the contents of collective agreements
Employers could still use old-style coercion to enforce their traditional common-law rights. The willingness of courts to issue
injunctions to restrict workers’ collective action threatened the legitimacy of the industrial pluralist regime. The principles of natural
justice and jurisdictional control were invoked by employers to limit the authority of labour relations boards
Collective bargaining legislation took the distinctive element of industrial voluntarism- compulsory conciliation- and extended it
beyond disputes that threatened the public interest to any dispute whatsoever
Business unionism predominated, as unions saw their role as obtaining the best deal for their specific constituencies rather than
as leading a broader social movement to obtain greater economic equality for working people as a whole.
The constitutional division of powers, in which primary responsibility for labour relations is provincial, has contributed to the
regional nature of labour markets and collective bargaining across Canada
Bargaining-unit determination policies adopted and administered by labour relations boards reflected and reinforced
fragmentation. Plant-by-plant bargaining became the norm; ‘instead of working towards the generalization and equalization of
power and wage rates, it has accentuated the differentials of powers and anomalies of disparate wage rates’.
The systemic segmentation of the labour market enabled leading firms to concede higher wages to some organized workers in
the core sectors, but at the same time a large category of unorganized workers would remain available thereby helping to lower
aggregate labour costs.
The composition of the secondary workforce was sufficiently distinct form that of the primary sector that different working
conditions, wages, standards, and the absence of union representation were considered natural, or at least, uncontroversial
ILO Declaration of Fundamental Principles and Rights at Work – Key Highlights
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Whereas the ILO was founded in the conviction that social justice is essential to universal and lasting peace
Whereas economic growth is essential but not sufficient to ensure equity
Economic and social policies are mutually reinforcing components in order to create broad-based sustainable development
Whereas the ILO should give special attention to the problems of persons with special social needs
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 To maintain the link between social progress and economic growth, the guarantee of fundamental principles and rights at work is of
particular significance…to claim freely their fair share of the wealth
 Declares that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact
of membership to respect, to promote and to realize, in good faith: Freedom of association and the right to collective bargaining; the
elimination of all forms of forced or compulsory labour; the effective abolition of child labour; the elimination of discrimination in
respect of employment and occupation
 Stresses that labour standards should not be used for protectionist trade purposes
Northern Telecom Ltd. v. Communications Workers, [1980] 1 SCR 115
Facts
Canada Labour Relations Board (the "Board") certified a union as the bargaining agent for 148 employees of Telecom.
Telecom opposed application, stating supervisors of installers performed management functions and were not
"employees" within the meaning of the CLC.
The Board found that the supervisors were employees within the meaning of the CLC, that the proposed unit was
appropriate for collective bargaining and that the majority of the employees wished to have the Union represent them
as their bargaining agent. The Union was certified as bargaining agent.
Issues
Reasoning
Holding
The Federal Court of Appeal denied the appeal on the basis of judicial review. It cannot be used by this Court, as a
reviewing court, to make findings of fact on the jurisdictional question.
1) Did the Federal Court of Appeal err in holding that the Canadian Labour Relations Board had jurisdiction to deal
with an application as to whether they are employed upon or in connection with the operation of any federal work?
To determine jurisdiction, one must look at the provisions of the Canadian Labour Code
S. 108: This Part applies in respect of employees who are employed upon or in connection with the operation of any
federal work, undertaking or business…
S.2: “Federal work, undertaking or business” means any work that is within the legislative authority of the Parliament of
Canada… b) a railway, canal, telegraph or other work or undertaking connecting any province with any other or others
of the provinces, or extending beyond the limits of a province.
 Clause b) is merely a restatement of a portion of s.92(10)(a) of the BNA Act.
 Ignoring the constitutional issue, the general subject-matter of the dispute lies at the very heart of a labour board’s
administrative law jurisdiction
 This appeal is not concerned with the principles of judicial review of an administrative tribunal decision, but rather
the principles governing the constitutional division of authority over labour relations
 To determine constitutional jurisdiction in labour matters,
1. Determine whether a core federal undertaking is present and the extent of that core undertaking
2. Operation – one must look at the normal or habitual activities of the business as those of a ”going concern”
3. Arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary
relationship being variously characterized as "vital", "essential” or "integral".
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To determine the constitutional issues, therefore, it is clear that certain kinds of 'constitutional facts' are required:
1) The general nature of Telecom’s operation as a going concern and the role of the installation department
within that operation
2) the nature of the corporate relationship between Telecom and the companies that it serves, notably Bell
Canada;
3) the importance of the work done by the installation department of Telecom for Bell Canada as compared with
other customers;
4) the physical and operational connection between the installation department of Telecom and the core federal
undertaking within the telephone system.
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An important factor in relating the undertakings is the physical and operational connection between them. There
is a need to look to continuity and regularity of the connection and not be influenced by exceptional or casual
factors. As one moves away from direct involvement in the operation of the work or undertaking at the core, the
demand for greater interdependence becomes more critical
As it was Telecom who effectively deprived a reviewing court of the necessary constitutional facts upon which to reach
any valid conclusion on the constitutional issue, the matter will not be referred back to the Board to hear evidence. It
would work a grave injustice on the employees if it was the employer’s negligence which caused the decertification.
Federal Labour Standards Review Commission, Fairness at Work: Federal Labour Standards for the 21 st
Century
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In enacting Part III (Standard Hours, Wages, Vacations and Holidays) of the CLC, the federal government has exercised its
constitutional jurisdiction to establish labour standards for workers in federally regulated private sector industries, and in First
Nations governments;
The federal government lacks jurisdiction to regulate labour standards in most ordinary enterprises; they are provincial jurisdiction
feds have no power to enact labour standards legislation outside its own limited domain; this constitutional reality has diminished
the overall influence of international labour norms in Canada
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This constitutional arrangement complicates the enforcement of labour standard legislation; the federal government must deploy
its small labour inspectorate across a huge country
The constitutional parameters of labour jurisdiction have resulted in a constituency of federally regulated employers and workers
whose profile differs in many significant ways from that of its provincially regulated counterparts
Canadian notables: Employment is highly concentrated in large enterprises in most federally regulated sectors
Federal workers enjoy higher working conditions than the national norm
Rate of unionization in the federal jurisdiction tend to be higher than the national average for the private sector
Federal jurisdiction industries tend to be older and male dominated
Federal labour standards do not protect all workers, only those legally defined as employers, not contractors or autonomous
workers
McIntyre c. I.A.M. & A. W. 2007 QCCA 1178 (41)
 Originally an employee of Air Canada, McIntyre has worked for the union for the past 17 years
 While he worked for the union, McIntyre benefited from all the social service advantages granted to Air Canada workers, and he
always conserved the possibility to return to his post at Air Canada
 McIntyre was suspended by his functions, but later returned to Air Canada with no loss to his salary
 Issue: Was he a union employee or an Air Canada employee? This determines which court has jurisdiction, provincial or federal!
 Reviews 91/92 constitutional division of power scheme
 The unions themselves are not federal enterprises, however the CLC governs these unions actions against their employees.
 The CLC created the CCRI, an autonomous and specialized labour tribunal with broad powers and competencies to deal with
labour relation issues.
 The CCRI, in defining themselves, stated that they are not a tribunal meant to investigate union disciplinary cases. It simply has the
task to assure that the disciplinary norms do not contain discriminatory practices. The use of such discriminatory measures would
constitute a failure in a union’s duty of just representation
 The issue in this case is determining whether the CCRI or an s.96 court has jurisdiction. One must look at the employment
relationship. There are 3 types: a) Employees employed directly by the union with no link to the federal enterprise; b) Employees
who have no employment link to the union; c) Employees in the intermediary zone who, like in this case, could have been initially
hired by the federal enterprise and was later on elected to a paid union position.
 McIntyre alleges that he is a union employee; he receives his pay cheque from the union. He was fired solely at the union’s
discretion. His union is recognized as a provincial negotiation agent by the Quebec Labour Code.
 In contrast, McIntyre was originally an Air Canada employee, and, after he left, he always retained the ability to return to Air Canada
which he did after being fired from the union
 The employment link can remain even in the absence of remuneration and performance of work
 The contract was not necessarily broken by the simple fact that one of the objects was not filled temporarily. An example is
maternity or sick leave, the employment link still remains. You still have access to employee benefits
 If he held an elected position with the union, he must be part of the bargaining unit in the federal enterprise. While he was
on an authorized leave of absence, he still maintained all employer benefits. He maintained the employment link with Air
Canada
 Holding: Federal employee = CCRI has exclusive jurisdiction over the Quebec Superior Courts. The CCRI is a specialized tribunal
with expertise dealing with discrimination, and has the necessary competencies to deal with McIntyre’s claim.
CAW – Canada, Local 444 v. Great Blue Heron Gaming, 2007 ONCA 814 (49)
 Anishnaabeg runs day-to-day business of a casino in Aboriginal lands, employs 1000 workers
 Although the appellant had publicly opposed unionization, it did not intervene in the LRA certification proceedings nor did it make
known its intention to enact its own Code
 The appellant enacted its own comprehensive modern-day labour relations code, modelled on Canada Labour Code but with
significant differences: strikes and lockouts are banned; a union must pay $3000 and obtain permission from the Dbaaknigewin
(labour relations tribunal) to speak to workers; and workers must pay $12,000 to file an unfair labour practice complaint.
 The Code was passed at an informal Band meeting of the Band Chief and two Band Councillors
 The First Nations assert it has the right to enact the Code and displace the LRA under its aboriginal and treaty rights, as recognized
and affirmed by s.35 of the Constitution Act 1982.
 OLRB held that it had jurisdiction and would hear constitutional question
 The appellant presented evidence of ancestral customs, practices and traditions focused on ancestral customs and
practices of decision-making relating to “work-related activities” and “territorial access”.
1. Whether the First Nations have the legal right to enact its own code of labour law to govern collective bargaining in relation to a
commercial undertaking that operates on reserve lands
 S. 35 of the Constitution Act 1982 recognizes and affirms existing aboriginal and treaty rights of aboriginal peoples. It gave legal
effect to the aboriginal people to maintain the distinctive traditional and customary practices of pre-contact aboriginal societies that
are not inconsistent with Crown sovereignty or basic common law principles and do not strain Canada’s constitutional structure
 Provincial laws of general application apply ex proprio vigore to aboriginal persons, provided they do not touch on the “core of
Indianness” and provided they do not violate an existing aboriginal or treaty right protected by the Constitution Act 1982
 Applicable legal standard for determining aboriginal rights is via the R v Vanderpreet test. Three-step test with the burden of proof
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on the applicant
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1) Characterize the right claimed. It must be characterized in context and with sufficient specificity to “identify a practice that
helps to define the way of life or distinctiveness”
 Three factors shape the characterization of the right claimed: a) the nature of the action that is claimed to have been carried out
pursuant to an aboriginal right; b) the nature of the government regulation, statute or action being impugned; c) the practice,
custom, tradition relied upon to establish the right
 The characterized claim must satisfy the 3 elements: i) the existence of an aboriginal practice, custom or tradition that supports the
right; ii) that this practice, custom or tradition was integral to the distinctive culture of the claimant group’s pre-contact society; iii)
reasonable continuity between the pre-contract practice, custom or tradition and the contemporary claim
 Appellant say they are regulating work activities. Court says they are regulating labour relations
 “Neither the CLC nor the appellant’s Code regulate work activities: under both regimes, that is left for negotiation and
contract between the union and the workers pursuant to the collective bargaining process”
 All the conflicting provisions between the Code and the CLC indicate the true intent of the Code is the regulation of labour relations
 As such, the appellants fail to satisfy the 3 elements needed to show an aboriginal right. The defining features of aboriginal custom
and practice are fundamentally at odds with the Code: market-based, hierarchical in structure, an adversarial dispute resolution
process
 Furthermore, there is no evidence that there was a practice of organized relationships delineating responsibilities and obligations as
between those who would perform labour and those who would have labour performed
 As with the argument based upon inherent aboriginal rights, to accept the treaty argument would be to accept an aboriginal right of
self-government on reserve lands of virtually unlimited breadth and amplitude
Holding: The First Nation did not have the authority to create its own Labour Code to the derogation of the CLC. Native reserves and
“Indianness” are of federal jurisdiction, and as such, the Canadian Labour Code has precedence!
Slaight Communications Inc. v Davidson SCC 1989 (On appeal from the Federal Court of Appeal)
Facts:
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Slaight is a radio company that dismissed Davidson after 3 ½ years on grounds that performance was inadequate.
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Adjudicator for Canada Labour Code held that he had been unjustly dismissed and demanded that Slaight give the respondent a
letter of recommendation. A second order prohibited Slaight from answering a request for information about Davidson except by
sending the letter of recommendation.
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Labour Code is a decision maker that had delegated power: Adjudicator is exercising delegated power.
Issue:Does the CLC authorize an adjudicator to make such orders and did the orders infringe the appellant’s freedom of expression
guaranteed by the charter?
Reasoning:
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Standard of review: An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not
to be unreasonable
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The Charter applies to orders made by the adjudicator as the adjudicator is a creature of statute; he is appointed pursuant to a
legislative provision and derives all his powers from statute
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It is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless it can be justified
under s. 1 of the Charter. When discretion is given, it is assumed that it must follow the Charter
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Court finds that the two orders infringed s.2(b) of the Charter but was justified under s. 1 of the Charter
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1) The objective was of sufficient importance to warrant overriding appellant’s freedom of expression (Attempt to counteract the
unjust dismissal by enhancing ability of the employee to seek new employment), 2) Means chosen were reasonable (No less
intrusive measure could have been taken and still achieved objective), 3) The measure’s effects were not so deleterious as to
outweigh the objective of the measures
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For the proportionality inquiry, the fact that a value has the status of an international human right to which Canada is a State
Party, should be indicative of a high degree of importance attached to that objective
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Monetary compensation would not have been an acceptable substitute because it would only have been compensation for the
economic, not the personal, effects of unemployment. Labour should not be treated as a commodity and every day without work
as exhaustively reducible to some pecuniary value
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The identity aspect of employment is increasingly seen to serve deep psychological needs. Employment is seen as providing
recognition of the individual’s being engaged in something worthwhile…an opportunity to realize some sense of identity and
meaning, some sense of worth in the community
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The commitment to fair labour practices is an underlying value essential to our free and democratic society as it promotes the
“inherent dignity of the human person” and “commitment to social justice and equality”
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Dissent Lamer: The purpose of the adjudicator’s order is clearly, as required by the CLC, to counteract the consequences of
the unjust dismissal. Such an objective is sufficiently important to warrant a limitation on freedom of expression. It is essential for
the legislator to provide mechanisms to restore equilibrium in employer/employee relations so the employee will not be subject to
arbitrary action by the employer
Held: The orders infringe s.2(b) of the Charter but are justifiable under s.1.
Rule: Non-monetary damages may be awarded in labour relation cases as labour cannot be treated simply as a commodity.
Restoring the employer/employee power imbalance is of sufficient importance to violate fundamental freedoms
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II. Collective Bargaining Policy & Industrial Legality
Why does the law recognize collective labour relations? How are trade unions recognized? What is meant by industrial
legality? Who does industrial legality exclude? What is the case for and against a proactive, protective state in the new
economy?
Quebec Labour Code
Article 3 QLC
Every employee has the right to belong to the association of employees of his choice, and to participate in the formation, activities and
management of such association
Article 12 QLC
No employer, or person acting for an employer or an association of employers, shall in any manner seek to dominate, hinder
or finance the formation or the activities of any association of employees, or to participate therein.
No association of employees, or person acting on behalf of any such organization, shall belong to an association of
employers or seek to dominate, hinder or finance the formation or activities of any such association, or to participate therein.
Parallel provisions in Canada Labour Code (We’ll be focusing on Part I):
Article 8. (1) CLC
Every employee is free to join the trade union of their choice and to participate in its lawful activities.
Article 25. (1) CLC
Notwithstanding anything in this Part, where the Board is satisfied that a trade union is so dominated or influenced by an
employer that the fitness of the trade union to represent employees of the employer for the purpose of collective bargaining
is impaired, the Board shall not certify the trade union as the bargaining agent for any unit comprised of employees of the
employer and any collective agreement between the trade union and the employer that applies to any such employees shall
be deemed not to be a collective agreement for the purposes of this Part.
These pieces of legislation are exclusive. They exclude workers that do not readily fit the paradigm of employees. But they also exclude
workers that have no problem being considered employees under traditional tests.
Committee on Freedom of Association Report Canada (Case No. 1900), Report #308 (1997)
Facts
Canadian Labour Congress (CLC) submitted a complaint of violations of freedom of association against the Ontario
Government. Under Bill 7, agricultural workers, domestic workers and certain specified professionals are denied
access to collective bargaining and the right to strike. The existing organizing rights of these workers were terminated,
their current collective agreements were nullified and measures of protection against anti-union discrimination were
removed. The workers have no right to strike, and there has been no creation of an adequate or impartial alternative
mechanism such as arbitration. Furthermore, successorship protection to a particular workplace has been eliminated,
thereby eliminating union security if the employer changes or work is contracted out..
Employees not covered by the Labour Relations Act are excluded from the protection of collective bargaining and are
instead governed by the hostile common law. Employers are under no legal obligation to bargain with employees over
terms and conditions of employment, and workers are vulnerable to penalties if they chose to strike. As a result, to be
denied access to statutory regimes is to be denied access to collective bargaining in any meaningful sense.
Excluding agricultural/domestic workers constitutes discrimination against these employees on the basis of
occupation.
Issues
Reasoning
The Government, in its reply, notes that a challenge has been brought in the Ontario courts and that examination of
this complaint should be postponed until the outcome of the case. The Government also provides rationales for Bill 7
in that that agriculture in Ontario is overwhelmingly dominated by family farms. The sector is thus characterized by
extremely low profit margins and unstructured, highly personal working relationships which make a statutory labour
relations regime inappropriate.
The Government indicates its view that labour laws originally enacted with industrial settings in mind are not always
suitable for non-industrial workplaces, such as private homes and professional offices, where occupational duties and
professional obligations may not be compatible with the highly formalized terms and conditions of employment and at
least somewhat adversarial nature of relationships typical of a unionized environment
Re: Legislative repeal of statutory access to collective bargaining, termination of existing organizing rights and
nullification of collective agreements
The Committee:

Article 2 of Convention No. 87 (ratified by Canada) is designed to give expression to the principle of nondiscrimination in trade union matters; "without distinction whatsoever" means that freedom of association should
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







be guaranteed without discrimination of any kind based on occupation, etc.
ALL workers - with the sole exception of members of the armed forces and police - should have the right to
establish and to join organizations of their own choosing.
The Committee has always recognized the right to strike by workers and their organizations as a legitimate
means of defending their economic and social interests
This may be restricted only to public servants exercising State authority and essential services in the strictest
sense of the term. These restrictions must be accompanied by adequate impartial dispute resolution programs
Gov should take the necessary measures to ensure that all can establish and join organizations of their own
choosing, and to ensure the right to strike is not denied
Convention #87 indicates that the main object of the freedom of association guarantee is to enable employers
and workers to form organizations independent of the public authorities and capable of determining wages and
other conditions of work by means of freely concluded collective agreements
The absence of statute, thereby falling back onto the common law constitutes an impediment to Convention #87
The suspension of collective agreements violates the principle of free and voluntary collective bargaining
No successorship protection will give rise to serious instability in labour relations
Committee on Freedom of Association Report Canada (Case No. 1900), Report #330 (2003)
Facts:
Following the Dunmore case where the SCC found that the exclusion of agricultural workers from the right of freedom of association
was unconstitutional, the CLC wrote to the Minister of Labour requesting that the exclusion of agricultural workers be repealed
The government replied that, while the Supreme Court decision in Dunmore mandates the extension of some legislative protections to
agricultural workers to ensure they have the right to form associations, it does not require their inclusion in a full statutory bargaining
regime. The Government adds that this decision concerns only agricultural workers, and that it does not plan any legislative
amendments as regards the other categories of workers
The Committee:
While the Government of Ontario introduced Bill No. 187 which gives agricultural employees the right to form or join an employees’
association; it does not give agricultural workers the right to establish and join trade unions and to bargain collectively
Committee reiterates its stance that all workers, with the sole possible exception of armed forces and police, should have the right to
organize.
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, from Ontario
Facts
Issues
Holding
Reasoning
Agricultural workers had always been excluded from Ontario’s labour relations regime until 1994 when the Ontario
legislature enacted the Agricultural Labour Relations Act, 1994 (“ALRA”), which extended trade union and collective
bargaining rights to agricultural workers. A year later, by virtue of s. 80 of the Labour Relations and Employment
Statute Law Amendment Act, 1995 (“LRESLAA”), the legislature repealed the ALRA in its entirety, in effect subjecting
agricultural workers to s. 3(b) of the Labour Relations Act, 1995 (“LRA”), which excluded them from the labour
relations regime set out in the LRA. Section 80 also terminated any certification rights of trade unions, and any
collective agreements certified, under the ALRA.
Is the exclusion of agricultural workers from the Labour Relations Act unconstitutional under s.2(d) and 15(1) of the
Charter? Can excluding agricultural workers from a statutory labour relations regime, without expressly or
intentionally prohibiting association, constitute a substantial interference with freedom of association?
Majority holds that the total exclusion of agricultural workers from the LRA violates s.2(d), therefore it is not necessary
to consider the s.15(1) of the Charter
Bastarache J (+ McLachlin, Gonthier, Iacobucci, Binnie, Arbour and LeBel)

Union activities relate to workers’ “empowerment and participation in both the workplace and society at large”,
include promoting workplace democracy, protecting employees from abuses of managerial power, pooling
resources, and expressing the views of workers “cogently and forcefully”. Unions give workers access to courts,
bringing constitutional challenges on behalf of works and engaging in political education and action.

Historical background on SCC decisions on freedom of association, referred as the “trilogy” (Alberta Reference,
PSAC v Canada, Locals v Saskatchewan)

In Alberta Reference, the court stressed the double-edged nature of freedom of association, and that while it
advances many group interests and cannot be exercised alone, it is nonetheless a freedom belonging to the
individual and not to the group formed through its exercise.

The court confined s.2(d) to three elements: 1) the freedom to join with others in lawful, common pursuits and to
establish and maintain organizations and associations; 2) the freedom to engage collectively in those activities
which are constitutionally protected for each individual; 3) the freedom to pursue with others whatever action an
individual can lawfully pursue as an individual

The courts affirm that s.2(d) does not guarantee access to a particular labour relations regime where the
claimants are able to exercise their s.2(d) rights independently

The purpose of s. 2(d) of the Charter is to allow the achievement of individual potential through interpersonal
relationships and collective action. This purpose commands a single inquiry: has the state precluded activity
because of its concerted or associational nature, thereby discouraging the collective pursuit of common
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goals?
However, in some cases s. 2(d) should be extended to protect activities that are inherently collective in
nature, in that they cannot be performed by individuals acting alone. Certain union activities may be central
to freedom of association.

The law must recognize that certain union activities may be central to freedom of association even though they
are inconceivable on the individual level. Certain collective activities must be recognized if the freedom to form
and maintain an association is to have any meaning

In sum, a purposive approach to s.2(d) demands that we “distinguish between the associational aspect of the
activity and the activity itself”
State Responsibility under Section 2(d)

History has shown that a posture of government restraint in the area of labour relations will expose most workers
not only to a range of unfair labour practices, but potentially to legal liability under common law inhibitions

Trouble in this case is the applicability of the Charter as there exists no Charter protection against employer
interference where the employer does not form part of the government.

Can the state be liable for private interference? Yes! The Court has repeatedly held that the contribution of
private actors to a violation of fundamental freedoms does not immunize the state from Charter review

Demonstrated that the selective exclusion of a group of workers from statutory unfair labour practice protections
has the purpose or effect of encouraging private employers to interfere with employee associations.

In order to make the freedom to organize meaningful, s. 2(d) of the Charter may impose a positive obligation
on the state to extend protective legislation to unprotected groups.

To make a fundamental freedom meaningful, a posture of restraint is not enough, and positive government action
is required!

The distinction between positive and negative state obligations: excluding agricultural workers from a protective
regime contributes substantially to the violation of protected freedoms.

The claimants are not trying to claim a constitutional right to inclusion in the LRA, but simply the freedom to
create a trade association. This freedom to organize exists independently of any statutory enactment, although its
effective exercise may require legislative protection in some cases

A proper evidentiary foundation of substantial interference with the exercise of protected s. 2(d) activity
must be provided before creating a positive obligation under the Charter.

A failure to include someone in a protective regime may affirmatively permit restraints on the activity the regime is
designed to protect. Underinclusive state action falls into suspicion not simply to the extent it discriminates
against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation
of fundamental freedoms.

ILO convention provisions confirm that discriminatory treatment implicates not only an excluded group’s
dignity interest, but also its basic freedom of association. Thus while inclusion in legislation designed to
protect such freedoms will normally be the province of s. 15(1) of the Charter, claims for inclusion may, in
rare cases, be cognizable under the fundamental freedoms.

Although provincial jurisdiction has prevented Canada from ILO Conventions, together these conventions provide
a normative foundation for prohibiting any form of discrimination in the protection of trade union freedoms

This cases opens the door for exclusion issues to be brought under the fundamental freedoms section,
not just s.15. However, these cases will continue to be rare due to s.32 requirements of a minimum state action

The difference between s.2(d) and s.15(1) claims are that the latter focuses on the effects of under-inclusion on
human dignity , whereas the former focuses on the effects of under-inclusion on the ability to exercise a
fundamental freedom

In sum, the effective exercise of these fundamental freedoms may require not only the exercise in
association of the constitutional rights and freedoms and lawful rights of individuals, but the exercise of
certain collective activities.
Application in this Case:

Conflicting claims make it impossible to conclude that purpose of the exclusion of agricultural workers from the
LRA was intended to infringe their freedom to organize, but the effect of the exclusion in s. 3(b) of the LRA is to
infringe their right to freedom of association

Trade union freedoms lie at the core of the Charter, and in turn that legislation instantiating those freedoms ought
not be selectively withheld where it is most needed

The inability of agricultural workers to organize can be linked to state action. The exclusion of agricultural
workers from the LRA functions not simply to permit private interferences with their fundamental freedoms, but to
substantially reinforce such interferences.

The workers have no realistic chance of associating without the protection of the LRA from common law
inhibitions. Legislative protection is a necessary precondition for collective bargaining.

Agricultural workers have no recourse to protect their interests aside from the right to quit. Distinguishing features
of agricultural workers are their political impotence, their lack of resources to associate without state protection
and their vulnerability to reprisal by their employers. They are poorly paid, face difficult working conditions, have
low levels of skill and education , low status and limited employment mobility.

Equally important is the message sent by the exclusion of agricultural workers from the LRA, which delegitimizes
their associational activity and thereby contributes to its ultimate failure. The most palpable effect of the
LRESLAA and the LRA is, therefore, to place a chilling effect on non-statutory union activity.

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
SECTION 1: Satisfies the sufficiently importance objective standard. The protection of the family farm is a
pressing enough objective. “The freedom of those who choose to experience their lives in such non-commercial,
self-sustaining ways justify restraining the freedom of others who would wish to associate with them in a way
which would threaten or deny them the opportunity to realize their choice.”

Furthermore, agriculture occupies a volatile and highly competitive part of the private sector economy, that it
experiences disproportionately thin profit margins and that its seasonal character makes it particularly vulnerable
to strikes and lockouts.

Fails on minimal impairment test: The categorical exclusion of all agricultural workers is unjustified where no
satisfactory effort has been made to protect their basic right to form associations.

There is no distinction between the different type of agricultural workers. The exclusion is overly broad as it
denies the right of association to every sector of agriculture without distinction.

The reliance on the “save the family farm” justification ignores an increasing trend in Canada towards corporate
farming and complex agribusiness.

no justification is offered for excluding agricultural workers from all aspects of unionization, in particular those
protections that are necessary for the effective formation and maintenance of employee associations.

S.2(b) reflects the nature and importance of labour associations as institutions that work for the betterment of
working conditions and the protection of the dignity and collective interests of workers in a fundamental aspect of
their lives. Work is one of the most fundamental aspects in a person’s life, providing the individual with a means
of financial support and a contributory role in society

unions advocate on behalf of disadvantaged groups and present views on fair industrial policy. These functions
affect all levels of society and constitute “an important subsystem in a democratic market-economy system”
L’H-D (concurring in result):

The evidence demonstrates that legislature’s purpose in enacting the exclusion was to ensure that persons
employed in agriculture remained vulnerable to management interference with their associational activities, in
order to prevent the undesirable consequences which it had feared would result from agricultural workers’ labour
associations.

On s.15. The occupational status of agricultural workers constitutes an “analogous ground” for the purposes of an
analysis under s. 15(1). Agricultural workers generally suffer from disadvantage and the effect of the distinction
made by their exclusion from the LRA is to devalue and marginalize them within Canadian society.
Comments
Major J (dissenting):

The appellants failed to demonstrate that the impugned legislation has, either in purpose or effect, infringed
activities protected by s. 2(d) of the Charter. In particular, s. 2(d) does not impose a positive obligation of
protection or inclusion on the state in this case.

Prior to the enactment of the LRA, agricultural workers had historically faced significant difficulties organizing and
the appellants did not establish that the state is causally responsible for the inability of agricultural workers to
exercise a fundamental freedom.
 case marks a major change in direction. He held that freedom of association imposes a positive obligation on the
government to protect the rights of vulnerable workers to join and participate in unions and to make collective
representations to their employer.
 freedom of association protected in the Charter has a collective dimension, referring to both Dickson C.J.'s
dissent in the Alberta Reference and the ILO's jurisprudence as support.
 Nevertheless, he was careful to limit the extent of positive obligations on the state, and reiterated that the
freedom of association does not include collective bargaining and the right to strike.
In Quebec
QLC – s. 21.5 on Farm Employees
Persons employed in the operation of a farm shall not be deemed to be employees for the purposes of this division unless at least
three of such persons are ordinarily and continuously so employed.
Travailleurs et travailleuses unis de l'alimentation et du commerce, section locale 501 v. L'Écuyer, 2010 QCCRT 191
Jurisdiction
Facts
Commission des relations du travail; this is an administrative tribunal, not a s.96 court
Union requests certification of a particular bargaining unit of employees at the Ecuyer farm
Employer contests certification because there are not at least three of such persons ordinarily and continuously
employed at the Ecuyer farm, as per s.21.5 of the Quebec Labour Code.
Union contests the constitutional validity of s.21.5 of the Quebec Labour Code because it violates s.2(d) of the
Canadian Charter and article 3 of the Quebec Charter.
The union highlights that the workers in question are migrant workers from Mexico who constitute a particular
vulnerable group in respect to the exercise of their rights. The union also brings a s.15 claim that migrant workers can
be a group of analogous grounds. This exclusion constitutes a disadvantage and distinction that has the effect of
devaluing and marginalizing vulnerable workers.
Particular facts of the labour relations at the Ecuyer farm: Farming season begins in February where only the two
owners work. 8 Mexican migrant workers arrive in March and work on the farm till the end of October. The work is
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hard, physical labour for long periods of time 6-7 days a week. During the period of November-February, there are less
than 3 workers employed at the farm. There is documentation of verbal and physical abuse of the workers by the
owner.
Particular facts concerning the agriculture industry in Quebec: The expert testimonials from both parties lead to
diametrically opposing conclusion using the same statistical data. The A-G justifies s.21.5 by virtue of the fragile and
vulnerable industry and the appeal to the family farm model. The AG points to the fact that governmental aid has
doubled in the last twenty years as indicative of the fragile economy. The union rebuts the data because it includes
farms that have no commercial purpose; the farms are meant to solely support the individual family. The union further
claims that there is no evidence of a negative link between unionization and the profitability and productivity of an
enterprise. The commission finds that the evidence does not support the conclusion that the enterprises
envisioned by s.21.5 face a particularly precarious and fragile economic situation.
Numerous factors have led to an increasing labour shortage on the farm. Provincial and Federal government action
sought to counter these effects by creating migrant worker programs. As a result, 60% of farm employees are migrant
workers. Employers can also request certain migrant workers to the farm, usually for returning workers. PTAS, the
federal program stipulates that migrant workers must be given lodging, and they must be treated the same way as
Canadian workers, conforming to Canadian legislation.
Expert testimony describes that the commonalities between migrant workers are job insecurity, language and
cultural differences, dependence on the employer for basic living conditions. The obligation to live on the farm isolates
the workers and reduces social interaction. The employer retains important documents relating to the employment and
legal status of the worker. The seasonal worker receives a work visa directly linked to employment. Loss of
employment will result in automatic deportation back to the country with no right to appeal. Coupled with the next-year
returning policy, migrant workers become extremely dependent on the employer and are very hesitant to speak out for
risk of losing employment and being deported back to Mexico. Lack of citizenship and French comprehension reduces
access to justice and the exercise of their rights.
Issues
Holding
Reasoning
This question relates back to the positive obligation of the State to protect freedom of association rights. Government
action brought the right to unionize to the agricultural industry, but they limited it to workplaces with regularly &
continually employ at least three workers.
Does s.21.5 of the Quebec Labour Code violate either s.2(d) or s.15 of the Canadian Charter
It violates s.2(d). The union can certify!

The commission begins by granting the presentation of a wide range of evidence: Where the Labour Code
constitutionality is attacked, a wide range of expert and testimonials must be presented to extrapolate the
situations to the much larger group of migrant workers which will have common characteristics pertinent to the
examination of the parties’ arguments.

different sources of international law, even those not ratified by Canada can be invoked and used to resolve
cases; analysing international obligations can be a useful tool to interpreting domestic law requirements.

Convention 87, ratified by Canada in 1972, stipulates that all workers, without distinction, have the right to
associate with organizations of their choosing.

Refers back to the original Labour trilogy where the SCC limited constitutional protection to the ability to associate,
not the guarantee of collective bargaining nor the choice of choosing a bargaining agent

The Deslisle case stood for the principle that s.2(d) protected the freedom of association from all state
interference, but it did not impose a positive obligation to help particular vulnerable groups to associate

Dunmore changed everything. It recognized that the exercise of s.2(d) rights protected not only individual rights
being expressed in a collective manner, but it also extended to solely collective rights with no analogy to individual
rights. This was needed to ensure that s.2(d) was not simply a formalistic guarantee The SCC found a positive
obligation for the state to step in where their legislative scheme was not inclusive enough.

Health Services abolished the trilogy cases. It found that s.2(d) guarantees the right to participate in collective
bargaining. S.2(d) does not protect a union’s objectives but it protects the process. The Charter only
protects against serious and substantial interference of associational activity.

The protection of the collective bargaining process is compatible with the fundamental values of the
Charter, such as human dignity, equality, liberty, the autonomy of workers and democracy.

In later cases, the SCC found that pre-determined bargaining units constituted a serious interference on the part
of the State.

Two-step test to determine if the interference is substantial: 1) the importance of the aspect affected to the
collective bargaining process; 2) The impact on the aspect affected on the collective right to consultation and
bargaining in good faith

The Fraser case was the result of the Ontario government’s legislation to comply with Dunmore. The ONCA
rejected the legislation because it formalistically guaranteed the freedom to associate without any provisions
protecting its actual exercise. A debate a formal v substantive rights

The ONCA Fraser demands that the regime must have a statutory duty to bargain in good faith, it must provide a
mechanism for resolving bargaining impasses, and there must be a statutory mechanism to resolve disputes
relating to the interpretation and administration of the agreement
Applying law to the case:
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

The AG, argued that there was no legislation preventing associational rights. The tribunal rejects this argument.
This case can be distinguished from Dunmore and Health Services because there has been no extinguishing of
previously-granted rights

Using Health Services as a guide, the tribunal finds a s.2(d) violation. The exclusion of a large group of migrant
workers to a labour relations regime in the Code constitutes a significant obstacle to engage in the collective
bargaining process protected under s.2(d). There is no organization negotiating for the migrant worker’s interests.

The bottom line is that no employer has the legal obligation to recognize an association that purports to represent
migrant workers nor to even enter negotiations in good faith with them

The fact that a public-interest body is financing this litigation, and the farm owners guild (CATAM) is vehemently
attacking this union certification indicates that there could never be good faith negotiations in this labour field

Three-step test to determine if a court should impose a positive obligation to act: 1) the claim must be for access
to a s.2(d) right, and not a particular labour regime; 2) demonstration that the exclusion was a serious interference
on s.2(d) rights; 3) the State is responsible for the incapacity to exercise s.2(d) rights

This case is not about access to a particular labour relations regime, but access to any collective bargaining
regime.

The interference is characterized as substantial! The exclusion from the code has led to a total deprivation from
legitimate associational activities. Following Big M, the legislation has as purpose and effect to violate s. 2(d).

The fact that the legislator chose to extend union rights to the agricultural industry to then deprive this right from
migrant workers has had a significant “chilling effect”. The message sent by the legislator to the employer is that it
is perfectly reasonable to impede associational activity. The State is liable!
Onto the s.15 claim

The claimant must prove that there was discriminatory treatment based on innumerated or analogous grounds.

The s.15 claim fails because the legal distinction in treatment has nothing to do with the fact that they are migrant
workers. It is linked solely to the fact that less than 3 workers are there seasonally. There are other migrant
workers who have been able to unionize because the workplace satisfies s.21.5
Oakes test

AG uses same argument as Dunmore to convince the tribunal of a pressing concern

Tribunal finds no rational connection. The Code allows for unionization no matter the size (after 2 workers) and
financial sate of the farm. If you were worried about the financial stability of a small, family farm, you would have
determined unionization based on those characteristics

It fails minimal impairment as well being that a total exclusion could never be characterized as minimal.

As for the remedy, the tribunal has no powers to rule legislation as unconstitutional, and the decision only impacts
the litigating parties. Therefore there is no need to suspend the court order. The union is allowed to be certified!
III. Relationship between Freedom of Association & Collective Bargaining Policy
(I) THE LABOUR TRILOGY: NO RIGHT TO COLLECTIVE BARGAINING OR STRIKE
How has constitutional interpretation and reinterpretation affected the scope of freedom of association? Does the Canadian Charter
protect the right to bargain collectively? Is the ‘constitutionalization’ of collective bargaining a good idea? What is the role if international
law in defining the scope of labour rights?
Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313
Facts
Several public sector unions challenged a bundle of Alberta statutes that placed restrictions on collective bargaining by
provincial government employees, firefighters, police, and hospital workers by prohibiting strikes, restricting the scope
of bargaining, and imposing compulsory arbitration.
Alberta referred to the Alberta Court of Appeal several constitutional questions which raised two main issues:
(1) whether the provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police
Officers Collective Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve
impasses in collective bargaining, were inconsistent with the Canadian Charter of Rights and Freedoms; and
(2) whether the provisions of the Acts relating to the conduct of the arbitration and which limit the arbitrability of certain
items and require the arbitration board to consider certain factors in making the arbitration award were inconsistent
with the Charter. The first Act applied to public service employees, the second to firefighters and hospital employees
and the third to police officers.
Issue
Holding
Reasoning
The majority of the Court of Appeal of Alberta answered the first issue in the negative and declined to answer the
second issue.
Does the Alberta legislation violate the guarantee of freedom of association in s. 2(d) of the Charter and, if so, whether
such violation can be justified under s. 1?
No, appeal dismissed. There is no guaranteed right to bargain collectively or strike
Le Dain (+ Beetz and La Forest JJ) (majority):

The constitutional guarantee of freedom of association in s. 2(d) of the Charter does not include, in the case of a
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

trade union, a guarantee of the right to bargain collectively and the right to strike
It is essential to keep in mind that this concept must be applied to a wide range of associations or organizations
of a political, religious, social or economic nature. It is in this larger perspective that one must consider the
implications of extending a constitutional guarantee to the right to engage in particular activity on the ground that
the activity is essential to give an association meaningful existence.
What is in issue here is not the importance of freedom of association in this sense, but whether particular activity
of an association in pursuit of its objects is to be constitutionally protected. The rights for which constitutional
protection is sought – the modern rights to bargain collectively and to strike, involving correlative duties or
obligations resting on an employer – are not fundamental rights or freedoms. They are the creation of
legislation, involving a balance of competing interests in a field which has been recognized by the courts as
requiring a specialized expertise.
McIntyre J:
 While freedom of association like most other fundamental rights has no single purpose or value, at its core rests the
simple proposition that the attainment of individual goals, through the exercise of individual rights, is generally
impossible without the aid and cooperation of others
 Freedom of association serves the interest of the individual, strengthens the general social order and supports the
healthy function of democratic government.
 Freedom of association, however, does not vest independent rights in the group. People cannot, by combining
together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess.
The group can exercise only the constitutional rights of its members on behalf of those members.
 This notion that an association is no more than the sum of its individual members seems essential in a society in
which it is the individual who is the ultimate concern of the social order
 It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of
association. Therefore, the association does not acquire a constitutionally guaranteed freedom to do what is
unlawful for the individual. This definition fully realizes the purpose of freedom of association which is to ensure that
various goals may be pursued in common as well as individually.
 The Charter cannot confer greater constitutional rights upon members of an association than upon non-members.
 Freedom of association is not concerned with the particular activities or gals themselves; it is concerned with how
activities or goals may be pursued
 Freedom of association under the Charter means 1) the freedom to engage collectively in those activities
which are constitutionally protected for each individual, and 2) the freedom to associate for the purposes of
activities which are lawful when performed alone.
 Since the right to strike is not independently protected under the Charter, it can receive protection under freedom of
association only if it is an activity which is permitted by law to an individual.
 It is not correct to say that it is lawful for an individual employee to cease work during the currency of his contract of
employment. There is also no analogy between the cessation of work by a single employee and a strike
 Restriction on strikes are not aimed at and do not interfere with the collective or associational character of trade
unions. The Charter also does not concern itself with economic rights.
 S. 2(d) cannot support an interpretation which could include a right to strike. Although strikes are commonplace in
Canada and have been for many years, the framers of the Constitution did not include a specific reference to the
right to strike in the Charter. This omission, taken with the fact that the overwhelming preoccupation of the Charter is
with individual, political, and democratic rights with conspicuous inattention to economic and property rights, speaks
strongly against any implication of a right to strike.
 The right to strike accorded by legislation throughout Canada is of relatively recent vintage. It cannot be said that at
this time it has achieved status as a fundamental right which should be implied in the absence of specific reference
in the Charter.
 Labour law is based upon a political and economic compromise between organized labour (a very powerful
socio-economic force) and the employers of labour (an equally powerful socio-economic force). Care must
be taken when considering whether constitutional protection should be given to one aspect of this dynamic and
evolving process.
 Labour law is evolving through societal development. Let society constitutionalize labour practices, not courts.
Legislators and labour tribunals are much better equipped to deal with these implications! Strikes are not amenable
to principled resolutions; they must be solved based on the particular facts of that particular case
Dickson & Wilson (dissenting):
 Freedom of association is the freedom to combine together for the pursuit of common purposes or the advancement
of common causes. It protects individuals from the vulnerability of isolation and ensuring the potential of effective
participation in society. Freedom of association is the cornerstone of modern labour relations.
 The fundamental nature of freedom relates to the central importance to the individual of his or her interaction with
fellow human beings. It is to recognize the profoundly social nature of human endeavours and to protect the
individual from state-enforced isolation in the pursuit of his or her ends
 The goals of labour organizations go beyond the fairness of wages and remunerative concerns, and extend to
matters such as health and safety in the workplace, hours of work, sexual equality, and other aspects of work
fundamental to the dignity and personal liberty of employees.
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Ratio
Comments
 A summary of international law shows the close relationship between the concept of freedom of association and the
organization & activities of labour unions. Convention 87 goes beyond merely protecting the formation of labour
unions and provides protection of their essential activities- that is, of collective bargaining and the right to strike.
 If freedom of association only protects the joining together of persons for common purposes, but not the pursuit of
the very activities for which the association was formed, then the freedom is indeed legalistic, ungenerous, vapid!
 The meaning of a Charter right was to be ascertained by an analysis of the purpose of such a guarantee; it was to
be understood, in others, in the light of the interests it was meant to protect!
 While it is right to say that s.2(d) normally embraces the liberty to do collectively that which one is permitted to do as
an individual, it is not correct to regard this proposition as the exclusion touchstone for determining s.2(d) claims.
 There will be instances where no analogy involving individuals can be found for associational activity. There is no
individual equivalent to a strike. The refusal to work by one individual does not parallel a collective refusal
to work.
 The overarching consideration remains whether a legislative enactment or administrative action interferes with the
freedom of persons to join and act with others in common pursuits.
 In the present case, the three statutes prohibited strikes and defined a strike as a cessation of work or refusal to
work by two or more persons acting in combination or in concert or in accordance with a common understanding.
There is no doubt that the Alberta legislation was aimed at foreclosing a particular collective activity because of its
associational nature. The very nature of a strike is to influence an employer by joint action which would be ineffective
if it were carried out by an individual.
 No justification under s.1. Protection of essential services is a valid objective and there is rational connection, but
prohibition of the right to strike of ALL hospital workers and public service employees was too drastic a measure for
achieving the object of protecting essential services (i.e. no minimal impairment). Without evidence, it is not selfevident that interruption of these services would endanger the lives and safety of the population, i.e. cafeteria worker
in the hospital. The provision is therefore too wide to be justified as relating to essential services for the purposes of
s.1.
 However, as stated, essential services can be justified in having a prohibition against striking (police officers and
firefighters). This prohibition from strikes must be accompanied by a mechanism for dispute resolution by a third
party. The purpose of such a mechanism is to ensure that the loss in bargaining power through prohibition of strikes
is balanced by access to a system which is capable of resolving in a fair, effective and expeditious manner labour
disputes
 The arbitration system provided by the Acts was not an adequate replacement for the employees' freedom to strike.
Serious doubt is cast upon the fairness and effectiveness of an arbitration scheme where matters which would
normally be negotiable are excluded from arbitration. Furthermore, none of the arbitration schemes provide a
right to refer a dispute to arbitration.
There is no right to strike. In obiter, it is stated there is no right to collective bargaining.
Dickson on rights vs. freedoms and its application to Dunmore, Fraser, Health Services:
"Rights" are said to impose a corresponding duty or obligation on another party to ensure the protection of the right in
question whereas "freedoms" are said to involve simply an absence of interference or constraint. This conceptual
approach to the nature of "freedoms" may be too narrow since it fails to acknowledge situations where the absence of
government intervention may in effect substantially impede the enjoyment of fundamental freedoms.
Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381
Facts
In 1988, the government of Newfoundland and Labrador signed a Pay Equity Agreement for female employees in the
health care sector including those represented in collective bargaining by the appellant union. The collective
agreements for a number of years included a prohibition against discrimination on the ground of sex. Despite this
provision, female-dominated work classifications paid less than male-dominated classifications for work of equal value.
The government agreed later that this resulted in systemic discrimination.
In 1991, the government introduced the Public Sector Restraint Act, which deferred from 1988 to 1991 the
commencement of the promised pay equity increase (s. 9) and extinguished the 1988-91 arrears. The effect of s. 9
was to erase an obligation the Province had for approximately $24 million. The justification for extinguishing the
arrears was that the government was experiencing a financial crisis unprecedented in the Province’s history.
The government adopted other severe measures to reduce the Province’s deficit, including a freeze on wage scales
for all public sector employees, a closure of hospital beds, laid off almost two thousand employees and terminated
medicare coverage
Issues
Holding
Reasoning
Grievances were filed by the union on behalf of some female employees affected by the cut to pay equity.
1. Is the Public Sector Restraint Act a violation of s.15 of the Charter? 2. If so, can the violation be justified under s.1?
1. Yes; 2. Yes.
Binnie J:

The Court is required to consider what sort of government fiscal crisis is sufficient (if any) to justify limiting a right
or freedom guaranteed by the Charter

Pay equity has been one of the most difficult and controversial workplace issues of our times. By 1988, it had
become a significant collective bargaining issue between the provincial government in Newfoundland and the
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



public sector unions.
The Pay Equity Agreement signed on June 24, 1988 was a major achievement. No doubt it was bought by the
public sector unions with concessions on other fronts. Progress on such an important issue, once achieved,
should not be lightly set aside.
When the provincial government signed the Pay Equity Agreement in 1988, it changed the legal landscape by
creating enforceable contractual rights to end pay discrimination by a procedure contractually binding on all of the
parties. This process converted pay equity from a policy argument into an existing legal obligation for the benefit
of the female hospital workers.
The purpose of the Public Sector Restraint Act was to reduce the women’s pay below this contractual entitlement
and its intended effect was to continue to pay women less than was paid to men for work of equal value. The
female hospital workers were being told that they did not deserve equal pay despite making a contribution of
equal value. The effect of the Act was to affirm a policy of gender discrimination.
The contextual factors listed in Law lead to the conclusion that the targeting of an acquired right to pay equity
amounted to discrimination within the meaning of s. 15(1) of the Charter. First, a pre-existing disadvantage is
shown since “women’s jobs” are chronically underpaid and the Act perpetuated and reinforced the idea that
women could be paid less for no reason other than the fact that they were women. Second, the postponement of
pay equity did not correspond to the actual needs, capacity or circumstances of the claimants. Indeed, it did just
the opposite. Third, the Act did not have an ameliorative purpose in relation to the workforce. Fourth, since work
is an important part of life, the (nature and scope of the) interest affected by the Act was of great importance. In
sum, s. 9 of the Act affirmed a policy of gender discrimination which the provincial government had itself
denounced three years previously.
Section 1

Nevertheless, s.9 is justified under s.1 of the Charter. The need to address the fiscal crisis was a pressing and
substantial legislative objective in the spring of 1991. The crisis was severe. The cost of putting pay equity into
effect according to the original timetable was a major expenditure. A lower credit rating, and its impact on the
government’s ability to borrow, and the added cost of borrowing to finance the provincial debt, were matters of
great importance.
 The Court defers to legislature regarding evidence. Only factual evidence was an extract from Hansard and
some budget documents, but since it is only public accounts that are in question, the court took “judicial
notice” of it.
 Moreover, the government was debating not just rights versus dollars, but rights versus hospital beds,
layoffs, jobs, education and social welfare. Financial considerations wrapped up with other public policy
considerations could qualify as sufficiently important objectives under s.1
 Courts will continue to look with strong scepticism at attempts to justify infringements of Charter rights on the
basis of budgetary constraints.

The government’s response to its fiscal crisis was also proportional to its objective. Although the making of a
budget is a quintessentially political activity, this does not immunize the budget choices from Charter review.
 First, as the pay equity payout represented a significant portion of the budget, its postponement was
rationally connected to averting a serious financial crisis.
 Second, the government’s response was tailored to minimally impair rights in the context of the problem it
confronted. Despite the scale of the fiscal crisis, the government proceeded to implement the pay equity
plan, albeit at a slower pace.
 Third, on a balance of probabilities the detrimental impact of a delay in achieving pay equity did not outweigh
the importance of preserving the fiscal health of a provincial government through a temporary but serious
financial crisis.

On the topic of deference to the legislator: “It is not the courts which limit the legislatures. Rather, it is the
Constitution, which must be interpreted by the courts, that limits the legislatures. This is necessarily true of all
constitutional democracies.”

While the separation of powers is a defining feature of our constitutional order, the separation of powers cannot be
invoked to undermine the operation of a specific written provision of the Constitution like s.1 of the Charter
Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27
Facts
The Health and Social Services Delivery Improvement Act was adopted as a response to the “crisis in sustainability”
facing British Columbia’s health care system. The goals of the Act were to reduce costs and to facilitate the efficient
management of the workforce in the health care sector. In the period from 1991 to 2001, the growth rate of health care
costs in BC was three times that of the provincial economy.
The Act was quickly passed and there was no meaningful consultation with unions before it became law. Union
representatives expressed their desire to be further consulted. The Minister of Health Services phoned a union
representative 20 minutes before Bill 29 was introduced in the legislature to inform the union that the legislation would
deal with employment security and other provisions of existing collective agreements. This was the only consultation
with unions before the Act was passed.
Part 2 of the Act introduced changes to transfers and multi worksite assignment rights (ss. 4 and 5), contracting out (s.
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Issues
Holding
Reasoning
6), the status of contracted out employees (s. 6), job security programs (ss. 7 and 8), and layoffs and bumping rights
(s. 9). It gave health care employers greater flexibility to organize their relations with their employees as they see fit,
and in some cases, to do so in ways that would not have been permissible under existing collective agreements and
without adhering to requirements of consultation and notice that would otherwise obtain. It invalidated important
provisions of collective agreements then in force, and effectively precluded meaningful collective bargaining on a
number of specific issues. Furthermore, s. 10 voided any part of a collective agreement, past or future, which was
inconsistent with Part 2, and any collective agreement purporting to modify these restrictions.
Does Part 2 of the Act violate freedom of association and equality under the Charter?
Sections 6(2), 6(4) and 9 violate s.2(d), but not s.15 (summary not dealing with s.15).
McLachlin + Le Bel (+Bastarache, Binnie, Fish, Abella):

Freedom of association includes a procedural right to collective bargaining. This protection does not cover
all aspects of “collective bargaining”. Nor does it ensure a particular outcome in a labour dispute, or guarantee
access to any particular statutory regime. What is protected is the right of employees to associate in a process of
collective action to achieve workplace goals. If the government substantially interferes with that right, it violates
s. 2(d) of the Charter (Dunmore)

This conclusion rests on four propositions. 1) Past reasons to withhold this right can no longer stand. 2) An
interpretation of s.2(d) that precludes collective bargaining from its ambit is inconsistent with Canada’s historic
recognition of the importance of collective bargaining to freedom of association. 3) Collective bargaining is an
integral component of freedom of association in international law, which may inform the interpretation of Charter
guarantees. 4) Including this right is consistent with and promotes other Charter rights, values and freedoms
Summary of Jurisprudence reasons excluding the right to collective bargaining (Labour Trilogy)

Right to strike and to bargain collectively are modern rights created by legislation, not fundamental freedoms. This
can be rebutted by stating that there is nothing in the statutory entrenchment of collective bargaining that detracts
from its fundamental nature

Recognizing a right to collective bargaining would go against the principle of judicial restraint in interfering with
government regulation of labour relations. However, to declare a judicial “no go” for an entire fight on that it may
involve the courts in policy matters is to push deference too far!

Main reason is that the freedom of association protects only those activities performable by an individual. This
narrow focus on individual activities has been overtaken by Dunmore. “Some collective activities may, by their
very nature, be incapable of being performed by an individual.” Certain collective activities must be recognized if
the freedom to form and maintain an association is to have any meaning.

The fourth reason is that the Charter is meant to protect procedure rather than a goal. Collective bargaining as a
procedure has always been distinguishable from its final outcomes.

Bora Laskin’s definition of collective bargaining 60 years ago: “Collective bargaining is the procedure through
which the views of the workers are made known, expressed through representatives chosen by them. It is a
procedure through which terms and conditions of employment may be settled by negotiations between an
employer and his employees on the basis of a comparative equality of bargaining strength.

The Trilogy cases took a decontextualized approach to defining the scope of freedom of association, in contrast
to the purposive approach taken to other Charter guarantees.

Dunmore’s ratio: What constitutes interference with the associational aspect of an activity; the need for a
contextual approach to freedom of association; the recognition that s.2(d) can impose positive obligations
Canada’s historic recognition of the importance of collective bargaining

The history of collective bargaining demonstrates that association for such purposes has long been recognized
as a fundamental Canadian right which predated the Charter.
 We can look to the framework of rights and responsibility established by the state (1940s) after it became
apparent that unions were natural concomitants of a mixed enterprise economy.
 American law became an influential force when the United States passed the Wagner Act in 1935
 The development of labour relations law in Canada may be divided into three major eras: repression,
toleration and recognition.
 Workers began forming collectives to bargain over working conditions with their employers as early as the
18th century. However, the common law cast a shadow over the rights of workers to act collectively.
When Parliament first began recognizing workers’ rights, trade unions had no express statutory right to
negotiate collectively with employers. Employers could simply ignore them. However, workers used the
powerful economic weapon of strikes to gradually force employers to recognize unions and to bargain
collectively with them. By adopting the Wagner Act (see notes below) model, governments across Canada
recognized the fundamental need for workers to participate in the regulation of their work environment.
 By the time the Charter was enacted in 1982, collective bargaining was recognized as part of freedom of
association in the labour context.
 The preamble of the CLC expresses the benefits that collective bargaining brings to society: “Whereas
there is a long tradition in Canada of labour legislation and policy designed for the promotion of the
common well-being through the encouragement of free collective bargaining and the constructive
settlement of disputes.”
Canada’s international obligations can assist courts charged with interpreting the Charter’s guarantees.
 Canada’s adherence to international documents recognizing a right to collective bargaining also supports
recognition of that right in s. 2(d). The Charter should be presumed to provide at least as great a level of
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protection as is found in the international human rights documents that Canada has ratified. ICESCR, the
ICCPR and Convention No. 87 all extend protection to the functioning of trade unions in a manner
suggesting that a right to collective bargaining is part of freedom of association.
 Note a recent ILO report summarizing principles concerning collective bargaining recognizes the principle
of good faith in collective bargaining and notes the unacceptability of compulsory arbitration in deadlock or
interventions by governments that modify or nullify past collective agreements. It also notes that
restrictions on future collective agreements are only permissible following consultation and must be
exceptional measures; of limited duration; and include protection for workers’ standards of living.
The right to bargain collectively with an employer is consistent with Charter values,

The Charter should be interpreted in a way that maintains its underlying values and its internal coherence. Our
constitutional Charter must be construed as a system where “Every component contributes to the meaning as a
whole, and the whole gives meaning to its parts.”

The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers
by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control
over a major aspect of their lives. Collective bargaining is intrinsically valuable as an experience in selfgovernment. It is the mode in which employees participate in setting the terms and conditions of employment.

One of the fundamental achievements of collective bargaining is to palliate the historical inequality between
employers and employees

Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in
the workplace.
The Right to Collective Bargaining under s.2(d)

The constitutional right to collective bargaining concerns the protection of the ability of workers to engage in
associational activities, and their capacity to act in common to reach shared goals related to workplace issues
and terms of employment.

Section 2(d) of the Charter does not guarantee the particular objectives sought through this associational activity
but rather the process through which those goals are pursued.

It means that employees have the right to unite, to present demands to government employers collectively and to
engage in discussions in an attempt to achieve workplace related goals. Section 2(d) imposes corresponding
duties on government employers to agree to meet and discuss with them. It also puts constraints on the exercise
of legislative powers in respect of the right to collective bargaining.

Section 2(d) protects only against “substantial interference” with associational activity. Intent to interfere with the
associational right of collective bargaining is not essential to establish breach of s. 2(d). It is enough if the effect
of the state law or action is to substantially interfere with the activity of collective bargaining.
Test
To constitute substantial interference with freedom of association, the intent or effect must seriously undercut or
undermine the activity of workers joining together to pursue the common goals of negotiating workplace conditions and
terms of employment with their employer.

Determining whether a government measure affecting the protected process of collective bargaining amounts to
substantial interference involves two inquiries:
1) The importance of the matter affected to the process of collective bargaining, and more specifically,
the capacity of the union members to come together and pursue collective goals in concert.
 The importance of an issue to the union and its members is not itself determinative, but will bear on the
“single inquiry” prescribed in Dunmore as it applies in the particular context of collective bargaining: does
interference with collective bargaining over certain subject matter affect the ability of the union members to
come together and pursue common goals?.
2) The manner in which the measure impacts on the collective right to good faith negotiation and
consultation.
 The duty to bargain in good faith under labour codes is essentially procedural
 A basic element of the duty to bargain in good faith is the obligation to actually meet and to commit time to
the process. The parties have a duty to engage in meaningful dialogue, to exchange and explain their
positions and to make a reasonable effort to arrive at an acceptable contract.
 However, the duty to bargain in good faith does not impose on the parties an obligation to conclude a
collective agreement, nor does it include a duty to accept any particular contractual provisions.
 In considering whether the legislative provisions impinge on the collective right to good faith negotiations
and consultation, regard must be had for the circumstances surrounding their adoption. Situations of
exigency and urgency may affect the content and the modalities of the duty to bargain in good faith.
 In some circumstances, even though a party is participating in the bargaining, that party’s proposals and
positions may be “inflexible and intransigent to the point of endangering the very existence of collective
bargaining. This inflexible approach is often referred to as surface bargaining.” See Royal Oak Mines

If the matters affected do not substantially impact on the process of collective bargaining, the measure does not
violate s. 2(d) and the employer may be under no duty to discuss and consult.

If the changes substantially touch on collective bargaining, they will still not violate s. 2(d) if they preserve a
process of consultation and good faith negotiation.
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
Only where the matter is both important to the process of collective bargaining and has been imposed in violation
of the duty of good faith negotiation will s. 2(d) be breached. This must all be determined contextually.
Application to Case

Sections 4-10 have the potential to interfere with collective bargaining in two ways: by invalidating existing
collective agreements and undermining the past bargaining processes that formed the basis for these
agreements; by prohibiting provisions dealing with specified matters in future collective agreements and thereby
undermining future collective bargaining over these matters

Sections 4 and 5 are concerned with relatively minor modifications to in place schemes for transferring and
reassigning employees. Significant protections remained in place. Ss. 4 and 5 cannot be said to amount to a
substantial interference with the union’s ability to engage in collective bargaining

However, the provisions dealing with contracting out (ss. 6(2) and 6(4)), layoffs (ss. 9(a), 9(b) and 9(c)) and
bumping (s. 9(d)) infringe the right to bargain collectively protected by s. 2(d). These provisions deal with matters
central to the freedom of association and amount to substantial interference with associational activities. These
provisions affect the employees’ capacity to retain secure employment, one of the most essential protections
provided to workers by their union.

Although the government was facing a situation of exigency, the measures it adopted constituted a virtual denial
of the s. 2(d) right to a process of good faith bargaining and consultation. The absolute prohibition on contracting
out eliminates any possibility of consultation.

The section 2(d) infringement is not justified under s. 1 of the Charter. While the government established that the
Act’s main objective of improving the delivery of health care services was pressing and substantial, and while it
could logically and reasonably be concluded that there was a rational connection between the means adopted by
the Act and the objectives, it was not shown that the Act minimally impaired the employees’ s. 2(d) rights. To
forbid any contracting out clause completely and unconditionally strikes us as not minimally impairing.

The record discloses no consideration by the government of whether it could reach its goal by less intrusive
measures. A range of options were on the table, but the government presented no evidence as to why this
particular solution was chosen and why there was no meaningful consultation with the unions about the range of
options open to it.

This was an important and significant piece of labour legislation which had the potential to affect the rights of
employees dramatically and unusually. Yet, it was adopted rapidly with full knowledge that the unions were
strongly opposed to many of the provisions.


Comments
Ratio
Deschamps J (dissenting in part):
Yes s.2(d) includes a right to bargain collectively, but the analysis should be reversed: First consider good faith
consultation and interference in the process of negotiation; then turn to step two and consider whether issues are
significant. This way it re-emphasizes the fact that s.2(d) should only protect the process by covering it in the first
step.

Minimal impairment is a spectrum of constitutionally justifiable activity whose outer limits are defined by the courts
on the basis of relevant contextual factors.

Of the other alternatives considered by the governments, they included options that directly and substantially
affected other Charter rights. The record shows that many of the rejected alternatives were not pursued because
the government believed that they would not meet its objective of improving health care delivery. More deference
should have been granted to the government.

“It is the collective bargaining process that is constitutionally protected, not the content of the actual
provisions of the collective agreement.”
Note that in the section 15 analysis, the differential and adverse effects of the legislation on some groups of workers
relate essentially to the type of work they do, and not to the persons they are.
S.2(d) protects the capacity of labour unions to engage in collective bargaining on workplace issues! It is
conceived however as a limited right. It is a right to process, it does not guarantee a certain substantive or economic
outcome. Moreover, the right is to a general process of collective bargaining, not to a particular model of labour
relations, nor to a specific bargaining method.
The substance of collective bargaining is drawn entirely from our labour relations framework – the Wagner Act model. In B.C. Health
Services, the court cited Klare who identified the following main objects of the
Wagner Act:
1. Industrial Peace: By encouraging collective bargaining, the Act aimed to subdue “strikes and other forms of industrial strife or
unrest,” because industrial warfare interfered with interstate commerce; that is, it was unhealthy in a business economy. Moreover,
although this thought was not embodied in the text, industrial warfare clearly promoted other undesirable conditions, such as
political turmoil, violence, and general uncertainty.
2. Collective Bargaining: The Act sought to enhance collective bargaining for its own sake because of its presumed “mediating” or
“therapeutic” impact on industrial conflict.
3. Bargaining Power: The Act aimed to promote “actual liberty of contract” by redressing the unequal balance of bargaining power
between employers and employees.
4. Free Choice: The Act was intended to protect the free choice of workers to associate amongst themselves and to select
representatives of their own choosing for collective bargaining.
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5.
6.
Underconsumption: The Act was designed to promote economic recovery and to prevent future depressions by increasing the
earnings and purchasing power of workers.
Industrial Democracy: This is the most elusive aspect of the legislative purpose, although most commentators indicate that a
concept of industrial democracy is embedded in the statutory scheme. The means of providing for the workers’ lives in industry the
sense of worth, of freedom, and of participation that democratic government promises them as citizens.”
R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209
Facts
Advance Cutting asserts that workers could not obtain competency certificates without becoming members of one of
the union groups listed in s.28 of the Construction Act. They claim that this obligation is unconstitutional because it
breaches the right not to associate. They claim that construction workers should have to obtain the competency
certificates, because their issuance was tied in with compulsory union membership.
A historical background is needed to this legislation. Violence of labour relations in the Quebec construction industry
has plagued the provincial government since the mid 1960s. The construction industry dried up. Conflicts arose within
union and employer groups. Half a dozen provincial, regional or trade groups competed for support among contracts.
Violence frequently flared up at construction sites. Work stoppages broke out often and uncontrollably. Abuses like
bribery or improper use of union placement systems were rife. To fix this, the 1974 Cliche Commission was created
and they concluded that the imposition of a public trusteeship on a number of union locals for several years. This
legislative framework has governed the construction industry ever since.
Issues
Holding
Reasoning
The Cliche Commission regime maintained a special labour system for the construction industry entirely separate from
the Quebec Labour Code. It provides for provincial collective bargaining between union groups recognized as
representative by the law itself and a unified employer association. All employees select a union group as their
representative. The main functions of the representative unions are restricted to the negotiation of labour conditions.
The law recognizes five union groups as representative parties. Only a union or a group of associations with a
representativeness of >50% of all certified construction workers may negotiate collective agreements
Whether the right not to associate exists under s.2(d), and if so, what would be the nature and limits of such a right?
The right not to associate exists, but it is not violated in this case!
Bastarache (McLachlin, Major, Binnie): Dissent

Prior to the Charter, ideological conformity was a major concern to the courts. According to the Rand decision, the
democratic principle is an underlying value of prime importance in this analysis and any form of coercion affecting
it must be taken very seriously. He attempted to balance the interest of individuals in not being forced to associate
with an organization against their will.

Rand denied the union shop. The Rand formula specifically provides for dissent by stipulating that no member of
the bargaining unit is required to join and thereby become a member of the union. Free expression was thus
enhanced by giving unionists and non-unionists alike a voice in the administration of the employment relationship

When analysing the scope of a fundamental freedom, reference must be given to the meaning and purpose of the
other specific rights and freedoms with which it is associated within the text of the Charter. In this case, the
fundamental values that must be protected in the workplace include freedom of conscience, mobility, liberty,
freedom of expression, and the right to work. This all points to the need to take a broad view of the Charter
right not to associate.

The UN Declaration of Human Rights states that 2) No one may be compelled to belong to an association. The
development of international human rights is an important influence on Charter understanding

From the Lavigne case: Forced association will stifle the individual’s potential for self-fulfillment and realization as
surely as voluntary association will develop it. A conception of freedom of association that did not include freedom
FROM association would not truly be “freedom”.

Freedom from forced association should not be viewed in opposition, as negative v positive. These are not distinct
rights, but two sides of a bilateral freedom from which has as its unifying purpose the advancement of individual
inspirations. S.2(d) is meant to promote self-actualization. How could this be if association was forced? It is
important that belonging to important social institutions be free; this is how democracy will be enhanced!

Due to the legislation, membership in one of the unions is obligatory. Furthermore, membership has
meaning. Membership is about sharing values, joining to pursue goals in common, expressing views
reflecting the position of a particular group in society.

It is because of the collective force produced by membership that unions can be a potent force in public debate,
that they can influence Parliament and the legislatures in their functions, that they can bargain effectively.

It is sufficient that adherence is required to a scheme advocating state-imposed compulsory membership which
affects freedom of conscience and expression for it to have a negative impact on the right to work, because such
adherence itself is a form of ideological coercion.

This is a case where the freedom not to associate is markedly infringed. This is a clear situation of government
coercion, the result of which mandates that works in the construction industry group together in a few unions
which are specified and approved by government

Workers may feel strongly about joining a union for various reasons, but whether they are moral, religious or
political, these beliefs must be pushed aside if one wishes to work in the construction industry.

Since ideological conformity is part of the broader test to which I subscribe, I conclude that the
challenged statutory provisions infringe the negative rights of s.2(d)
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
Distinction can be made with professional associations where the need for protection of the public can be justified
via s.1. In this case, the provisions are not based on the protection of the public.

S.1 test: The pressing concern presented by the AG was that is in the public interest to have structured collective
bargaining, however the legislation brings into play restrictions on the admission to the industry, cancellation of
the ability to have a non-unionized business, restriction on bargaining rights, imposition of regional quotas ad
impingement of regional mobility. The AG’s affidavit does not demonstrate a logical relationship between the
stated objectives and these restrictions.

There are alternatives to mandatory union membership; the Rand formula allowed for workers to opt-out of
unions!
L’Heureux-Dubé (Concurring):

The negative right is nowhere articulated in the Charter. It is antithetical to the purpose and scope of the protected
right of association. It does not sit well with the structure of the Charter

A negative freedom of association within the compass of s.2(d) would set the scene for contests between the
positive associational rights of union members and the negative associational rights of non-members

It would not correspond with jurisprudence to characterize the purpose of s.2(d) as meaning solely the protection
of the common pursuit of individual goals.

Negative rights are viewed as individual rights embodying individual goals. But, if the fundamental purpose of
freedom of association is to permit the collective pursuit of common goals, the very concept of a negative freedom
of association becomes suspect. See para 66 for an amazing analogy

We should also be cautious based on the fact that those who push for these negative rights have historically
originated with those oppose to the establishment or maintenance of labour associations.

No negative right in the Charter!
LeBel (Gonthier, Arbour): Majority

A successful challenge to the form of union security scheme involved in this case might weaken the unions’ ability
to maintain their membership and preserve their financial base. In the long run, it could affect the balance of
power within the economy or political arena.

The guarantee of freedom of association stands in a special place within the Canadian Constitution. It concerns
not only the relationship between the state and the citizens, but also those relationships that arise from the
interaction between the persons themselves.

Canada has followed the pattern of the European Convention for the Protection of Human Rights and
Fundamental Freedoms which has expressly recognized the existence of the right of association.

The Court adopts the view that, although the right of association represents a social phenomenon involving the
linking together of a number of persons, it belongs first to the individual. It fosters one’s self-fulfilment by allowing
one to develop one’s qualities as a social being.

The right of association belongs to the individual as a personal act; a group cannot enjoy more extensive
constitutional rights and freedoms as its members. (This changes after BC Health)

In the Lavigne case, it was found that a right not associate existed as a necessary component of the
guarantee of freedom of association under s.2(d). The Rand formula violated s.2(d) but was saved under s.1

Forced association would not, in itself, offend s.2(d).Forced association has to be accepted as one the
‘requirements of life’. The plaintiff would have to demonstrate a threat to a liberty interest worthy of protection.

Forced association may be legitimate when they respect democratic values. An individual may be forced to
associate so long as he or she is not stripped of the right to disassociate from the ideology of the group, and not
deprived of his or her liberty interests guaranteed under the Charter

This aligns with the courts view that the exercise of the right of association reinforces the ability of an individual to
convey ideas and opinions, through a group voice.

The acknowledgement of a negative right not to associate would not justify a finding of an infringement of the
guarantee whenever a form of compelled association arises. Otherwise, it would mean that the mere fact of
association might amount to a breach of the Charter. A contextual inquiry is needed

The Construction Act was meant to protect against past, present and future union abuse. Unions are deprived of
any direct control over employment in the industry. Provided a worker hold the required competency certificates,
all workers are entitled to work in the construction industry without regard to their particular union affiliation. As it
stands, the law does not impose on construction workers much more than the bare obligation to belong to a union.
It does not create any mechanism to enforce ideological conformity.

In order to trigger the negative guarantee, ideological conformity or breach of another liberty interest would have
to be found in the fact that unions, as other groups belonging to or participating in a democratic society,
sometimes engage in public debate, take positions on issues concerning their members, or comment on broad
social or political questions.

No evidence was introduced about union practices that would impose values or opinions on their members. No
evidence was offered about the internal life of construction unions or about the constraints they might seek to
impose upon members. The different unions express varying/conflicting views on social, economic and political
issues. There is only a very weak link between Quebec unions and political parties.

Without any evidence, the assertion seems to rest on the tenuous line that, although we do not have any evidence
to this effect, coercion on the individuals should be inferred from “ideological trends” present in the labour
movement

The Construction Act in fact promotes democracy. It forces workers to evaluate which union best represents their
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views.
Hard to compare jurisprudence and conventions from other jurisdictions because they did not have to deal with
the tumultuous historical context of the Quebec construction industry. The Quebec legislature should be given
deference in their decision. It was based on a comprehensive Commission. It was based on past experiences,
failures and successes. It was meant to deal with a very substantial and pressing concern.

The voting procedure constituted the fairest and most effective way to determine the representativeness of
unions. The legislature viewed this form of security as a better instrument to maintain and develop democracy
than the Rand formula, under which workers pay for services and have no say on the most important issues
concerning the association and its members. Union members are entitled to detailed financial statements and
reports. No discrimination is allowed against a worker who becomes a member of another union.

One must also emphasize that this system has been in place for 30 years after a very bloody and violent past
where nothing worked!

The Charter does not demand conformity across the Confederation. It simply demands that provinces find the
system that works best for them following certain requirements!
Iacobucci (concurring):

Agrees that s.2(d) guarantees a freedom from association

It has never been adopted by a majority of this Court that the basis of a negative right violation is founded in the
“ideological conformity” criteria

He would adopt the Lavigne approach which finds a violation when the forced association imposes a danger to a
specific liberty interest

This case violates a liberty interest (adopts Bastarache’s view), but agrees with LeBel’s s.1 analysis
Check Iacobucci for a great summary of the case
A negative right guaranteeing freedom from association exists under s.2(d). The proper test for determining whether
there has been a violation of the right to be free from compelled association is whether the legislation imposes a form
of “ideological conformity” or threatens other liberty interests.

Comments
Ratio
Ontario (Attorney General) v. Fraser, 2011 SCC 20 (CanLII)- the sequel to Dunmore!
In 2002, Ontario enacted the Agricultural Employees Protection Act which excluded farm workers from the Labour
Relations Act but crafted a spate labour relations regime for farm workers. This was in response to Dunmore. In the
legislation, it states that the employer must give an association the opportunity to make representations respecting
terms and conditions of employment and it must listen to those representations or read them.
Facts
After limited efforts to use the new protection, a constitutional challenge was mounted on the basis the Act infringed
farm workers’ right under s.2(d) and s.15 of the Charter by failing to provide effective protection for the right to
organize and bargain collectively and by excluding farm workers from the protections accorded to workers in other
sectors.
The respondents claim that to satisfy s.2(d) requirements, the following is required: 1) statutory protection for
majoritarian exclusivity, meaning that each bargaining unit is represented by a single bargaining agent; 2) an LRA-type
statutory mechanism to resolve bargaining impasses and interpret collective agreements; 3) a statutory duty to bargain
good faith.
Issues
Holding
Reasoning
The union, UFCW, passed the vote in favour of certification. When it approached the farm owner to commence
negotiations, the owners responded that he would never recognize the union. There has been no further consultation
or negotiations. This happened at one other farm. No remedies under the AEPA have been pursued.
Does the AEPA satisfy the BC Health Services requirement? What does Health Services stand for?
The legislation is valid! Properly interpreted, the AEPA imposes a duty to consult and negotiate in good faith!
Charron and Rothstein (concurring, strong dissent in disguise):

Health Services broke from jurisprudence when the Court found that s.2(d) required that government legislate to
facilitate collective goals which an association was formed to pursue, rather than protecting the freedom of
association itself. In Dunmore, the requirement that government provide legislation to protect workers was
anchored in the proposition that certain workers could not associate without government intervention. The majority
in Health Services focused on the goals of an association and the enhancement of those goals, rather than the
ability of the claimants to associate

The Chief Justice says that Health Services follows directly from Dunmore because, in both cases, government
action rendered the meaningful pursuit of workplace goals and activities impossible. This conflates two
arguments. The first that restrictions on the ability to associate, either directly or because the government
interfered with an activity because of its associational nature are unconstitutional, which was the finding of
Dunmore, The second is that governments are required to provide legislation which enhances the ability of an
existing association to pursue its goal of negotiating a collecting agreement, which was the finding of Health
Services, not Dunmore.

Health Services incorrectly interpreted an individual freedom as giving rise to collective rights with no individual
rights foundation. Health Services transformed the s.2(d) freedom into a positive right by imposing an obligation to
act on third parties by enforcing the duty to act in good faith. Distinction between freedom (negative obligation) v
right-granting (positive obligations). Fundamental freedoms should not cross over into rights territories unless it is
a derivative right. Collective bargaining cannot be because it’s a collective right, and s.2(d) are individual rights.
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
Rothstein uses a cool metaphor of choir singing and melodies to show the difference between individual rights
exercised alone and individual rights exercised collectively

Health Services also erred in privileging certain associations over others. The Court in earlier cases did exhibit a
content-neutral approach to freedom of association in the sense that they did not claim to privilege particular
associations. Health Services erred in saying that these approaches were not purposive. The extent of that
protection should not change depending on who is exercising their s.2(d) rights. The protection of fundamental
freedoms should not involve the Court adjudicating the relative values of the way in which individuals exercise
those freedoms. A purposive interpretation is intended to benefit the coloration of the Charter right, not the
individual organization asking for the Charter right.

Although Health Services purported to constitutionalize the process of collective bargaining rather than its fruits,
it is in fact granted constitutional protection to the collective agreements on the basis that they were the fruits of
that process.

Health Services also erred in not affording enough deference to the legislative branch in the field of labour
relations. The court should not be legislating specific labour regimes.

While the duty to bargain in good faith may be a fundamental precept of the Wagner model of collective
bargaining, it is not a fundamental precept of collective bargaining as it was understood before introduction of the
Wagner Act or as it is still understood today in many parts of the world.

The Charter enshrines the fundamental principles of individual liberty. The activities of man may change
over time, but these principles remain constant. Collective bargaining does not have this same timeless
quality.

Nor does international law supporting constitutionalizing collective bargaining rights. The Court mistakenly
conflated Convention 87 and 98. The court incorrectly cited 87 as granting collective bargaining rights, when in
fact it was Convention 98 that did, a convention Canada did not sign. Furthermore, Convention 98 does not
contemplate the imposition of a duty on parties to bargain in good faith.

Nor did invoking Charter values in Health Services support constitutionalizing collective bargaining rights. Either
the Charter requires something, or it does not. It is not to simply promote, as much as possible, values that some
subjectively think to underpin the Charter in a general sense.

While good faith may promote the Charter, nowhere does the Charter state that it requires good faith or imply via
its linguistic, philosophical and historical context

Finally, the majority’s approach to collective bargaining in particular and s.2(d) in general articulated in Health
Services is unworkable! Although it claims that only good faith was constitutionalized, many more requirements
are needed to make this statement more than an illusory benefit. Each of these go well beyond protection of a
mere process and results in the protection of a particular substantive outcome. The constitutionalization of
collective bargaining terms demonstrate the unworkability of the distinction between substance and process
asserted in Health Services.

The text, context, purpose of the AEPA clearly demonstrates that the legislature intentionally opted not to include
a duty on employers to engage in collective bargaining with employee associations. Section 5 of the AEPA cannot
be read as imposing a duty to bargain in good faith; the words are unambiguous.

“They say because the Minister used the word “meaningful” she intended that the AEPA would protect collective
bargaining. They say this despite the fact that Health Services had not been written yet!”

The purpose of the act was to allow collective representation. It is meaningful because of the increased
persuasive weight carried by collective representations rather than individual representations

Go to page 509 for a summary of his arguments
McLachlin (LeBel, Binnie, Fish, Cromwell): Majority

The Chief Justice begins by explaining that the Trilogy cases affirmed that the core protection of s.2(d) focuses
on the right of individuals to act in association with others to pursue common objectives and goals.

Dunmore came along and concluded that: 1) s.2(d), interpreted purposively, guarantees freedom of associational
activity in the pursuit of individual and common goals; 2) The common goals protected extend to some collective
bargaining activities, including the right to organize and to present submissions to the employers; 3) the legislative
framework must permit a process that makes it possible to pursue the goals in a meaningful way

Section 2(d) of the Charter protects the right to associate to achieve collective goals. This requires a process of
engagement that permits employee associations to make representations to employers, which employers must
consider and discuss in good faith. Laws or state action that substantially interfere with the ability to achieve
workplace goals through collective actions have the effect of negating the right of free association and there
constitute a limit on the s.2(d) right of free association. This is BC Health Services ratio.

Bargaining activities protected by s.2(d) include good faith bargaining on important workplace issues. It requires
both employer and employees to meet and to bargain in good faith, in the pursuit of a common goal of peaceful
and productive accommodation. Good faith negotiation under s.2(d) requires the parties to meet and engage in
meaningful dialogue; it does not impose a particular process; it does not require the parties to conclude an
agreement or accept any particular terms; it protects only the right to a general process of collective bargaining.
What s.2(d) guarantees in the labour relations context is a meaningful process

The right is not merely a paper right, but a right to a process that permits meaningful pursuit of workplace goals

BC Health Services recognized, as did previous jurisprudence, that s.2(d) is an individual right, but to
meaningfully uphold this individual right, s2(d) may require legislative protection of group or collective activities.

The affirmation of the right to collective bargaining is not an affirmation of a particular type of collective
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bargaining, such as the Wagner model. What s.2(d) protects is the right to associate to achieve collective goals.
What is protected is associational activity, not a particular process or result
A process which permits an employer not even to consider employee representations is not a meaningful process.
Another way to interfere is to set up a system that makes it impossible to have meaningful negotiations on
workplace matters.

If it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by
a law (or absence of laws), or by government action a limit on the exercise of the s.2(d) right is established, and
the onus shifts to the state to justify the limit under s.1 of the Charter

Quick response to Deschamps: If Health Service’s ratio was narrow, the legislation in question would have
been found to be constitutional; the hospital workers could still make collective representation

Response to Rothstein: The narrow focus on individual rights was changed by Dunmore, not Health Services.
The majority, in both cases, concluded that the realization of the individual right required a capacity to act in
common, which may give rise to a need to protect group activities and recognize group rights.

The distinction between freedom and right is a matter of semantics and not helpful. A purposive protection of
freedom of association may require the state to act positively to protect the ability of individuals to
engage in fundamentally important collective activities, just as a purposive interpretation of freedom of
expression may require the state to disclose documents to permit meaningful discussion.

The court has never held that labour laws are immune to Charter review. Health Services did not give contracts
priority over statutes; it simply held that the unilateral nullification of a collective agreement was a significant
interference on associational activities

In the case at hand, the AEPA provides a process that satisfies this constitutional requirement. The right of
employees’ associations to make representations to their employers is set out in the legislation and provides that
the employers shall listen to oral representations and read written representations, and acknowledge having read
them. The AEPA also provides a tribunal for the resolution of disputes

Any ambiguity in s.5 should be resolved by interpreting it as imposing a duty on agricultural employers to consider
employee representations in good faith, as a statute should be interpreted in a way that gives meaning and
purpose to its provisions and legislators are presumed to intent to comply with the Charter. Just because the
legislation does not specifically say good faith doesn’t mean that it rules it out! This was stated in Slaight.

To fulfill the purpose of reading or listening, the employer must consider the submission. Moreover, the employer
must do so in good faith. It cannot employ surface bargaining.

The s.15 claim is premature. Until the AEPA is tested, it cannot be known whether it inappropriately
disadvantages farm workers. Closes by saying that the union should have tried out the remedies before
complaining!
Deschamps(concurring):

The holding in Health Services does not have the broad scope being attributed to it by the majority in the case at
bar. The duty to act in good faith is part and parcel of a web of statutory components. It should not be found to be
a constitutional requirement in the instant case.

The effect of Health Services is that freedom of association includes the freedom to engage in associational
activities and the ability of employees to act in common to reach shared goals related to workplace issues and
terms of employment

The requirement created by the majority in the instant case that the legislature imposes statutory obligations on
private employers to conduct good faith negotiations cannot be found in Health Services. Check out s.32
Charter, it only applies to state action, not private parties!

Dunmore was based on the notion that the Charter does not ordinarily oblige the government to take action to
facilitate the exercise of a fundamental freedom. To get around the general rule, a framework was established for
cases in which the vulnerability of a group justified resorting to government support
Abella (dissenting):

Agrees with everything the majority says except for the interpretation of the legislation at hand. Agrees with
Rothstein’s interpretation tthat there is no obligation of good faith!

The AEPA violates s.2(d) because it does not protect, and was never intended to protect, collective bargaining
rights.

Dunmore defined the scope of s.2(d) as being the right to organize and make representations

Health Services expanded that scope to include protection for a process of collective bargaining, including the
duty to consult and negotiate in good faith.

The AEPA has no language that indicates protection for a process of collective bargaining. It requires only that an
employer “listen” or “acknowledge” that something was heard or read.

There is no ambiguity. The clarity of statutory language and legislative intent cannot be converted by the
interpretive process into a completely different scheme.

Finds no meaningful progress in the agricultural workers plight since Dunmore

For Ontario agricultural works to have a meaningful process, two things are required: 1) a statutory enforcement
mechanism with a mandate to resolve bargaining disputes. 2) A requirement that the employer bargain only with
the representative selected by a majority of the employees in the bargaining unit.
8 people believe that a duty of good faith is required. 6 believe this is correct. 5 believe this was satisfied in this case.
Rothstein’s argument hinges on his assertion that the Wagner model has been constitutionalized as a result
This case reaffirms the BC Health Services ratio that a process which involves a duty to consult and negotiate in


Comments
Ratio
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good faith is required by s.2(d) in order to protect the associational rights. The right of an employees’ association to
make representations to the employer and have its views considered in good faith is a derivative right under s.2(d)
Confédération des syndicats nationaux v. Québec (Procureur général), 2008 QCCS 5076
Facts
RSGs are essentially nannies/maids. 95% of them are female. They have no holidays, sick leave, parental leave. They
have no social insurance or pension. Experts testified that due to a stereotype linked to this work, they are
undervalued and underpaid. The stereotype is purported to stem from the fact that women are natural nannies.
RI/RTFs are workers who take care of adults with no capacity and who have less than 9 adults that they are taking
care of. The government does not give them any working status. They are excluded from social insurance plans.
In the 1990s, after several years of discussions with government representatives and finding that their working
conditions were unsatisfactory, RSGs and RI/RTFs opted for unionization. Labour Tribunals found that the link
between CPEs and the RSGs and between the state and the RI/RTFS were implied contracts, and that they
constituted employment contracts. This went against the legislator’s intent when they created these bodies, and they
passed two pieces of legislation that had the result of denying the existence of any employment contracts.
The union representing these bodies are contesting the constitutionality of this legislation. More specifically, they claim
that the laws interfere with their s.2(d) rights as it a) nullifies the certification granted to the union, and b) deprives the
RSGs and RI/RTFs of their right to exercise essential associational activities such as the right to unionize and the right
to collective bargaining. They also find the unilateral manner in which the legislation and new legal regime imposed on
them was not done in good faith. They rely on Health Services.
The AG pleads that the relationship held by RSGs and RI/RTFs and their ‘organizers’ are not employer/employee
contracts. And secondly, RSGs and RI/RTFs have historically exercised their s.2(d) rights outside of the union process
provided by the Quebec Labour Code. For example, the advocacy groups bringing this litigation right now can still
represent them! They conclude that they still have access to a labour regime, and that Health Services does not
mandate for a particular labour relations regime.
Furthermore, the unions claim s.15 violations as RSGs and RI/RTFs are mainly women.
Issues
Reasoning
A major preliminary matter discussed was the legal status of the RSGs and RI/RTFs. Are they workers as defined in
the Quebec Labour Code? The plaintiffs say that a s.96 court does not have competence to rule on the matter, and
even if did, the Labour Tribunal had already ruled on the matter. The AG responds that the provincial laws are quite
clear that no matter what the plaintiff or labour tribunals has said, the laws are declaratory in nature and retroactively
applies, thereby making it juridically impossible that RSGs and RI/RTFs are salary workers. The court rejects this
argument, as this would summarily dispose of the constitutional claim. The AG is making the proposition that the new
laws have presumption of constitutionality. The court also declines to retry the matter of the legal status, as it was the
labour tribunal’s decision that has directly led to this litigation.
Did the legislation significantly affect the associational activities protected under s.2(d)?

Summarizes what the Labour Trilogy stood for: 1) The right to strike and collective bargaining are not
fundamental freedoms; 2) Recognizing the right to collective bargaining would violate the deference courts grant
to the legislator in labour relations; 3) s.2(d) only protects activities that can be done by an individual; 4) s.2(d)
does not protect the goals of an association

Dunmore stood for: 1) the determination of what constituted a significant interference on collective activity; 2) the
necessity to give freedom of association a contextual interpretation; 3) s.2(d) can impose positive duties

Health Services: 1) Workers are free to unionize to negotiate with their employer working conditions; 2) the
process of collective bargaining is compatible with Charter fundamental values; 3) the right to collective bargaining
is meant to protect the capacity of workers to participate in associational activities to achieve common goals; 4)
employers have an obligation to negotiate in good faith; 5) only the process is protected, it does not guarantee
results nor a particular labour relations model; 6) the interference must substantially affect the process for
associations to achieve their objectives; 7) To determine if it is substantial, one must a) look at the importance of
the aspect affected, and b) see how if there was consultation and good faith negotiations
Looking at the law in question

The plaintiffs have lost their status of paid employees that they obtained via unionization. This deprives them of
substantial benefits accorded by the Quebec Labour Code. The declaratory, retroactive effect prevents the
plaintiffs from ever regaining paid worker status

In particular, the Labour Code contains minimal standards meant to protect disadvantaged women. The plaintiffs
lose out on all maternal leave benefits, parental insurance, sick insurance, equitable pay plans.

The court concludes that the laws exclude the plaintiffs from effect unionization. It has eliminated all the gains
that the plaintiffs realized thanks to their unions. The laws rendered the agreements reached by the unions null
and void. (This sounds a lot like the effects of Health Services)

The court finds that the plaintiffs are not asking for a particular labour regime. They are simply litigating against
the fact that State action has significantly impacted their union’s ability to act during collective bargaining

Although the government is not the employer in the strict sense, it is the public authority that assures their
financing. The government is not a neutral third party, disinterested in the negotiation process

The notion of social equity implies a right to decent minimum work standards and the right to a veritable
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Holding
Ratio
Comment
collective representation process. Only the status of paid worker can grant this social protection. A union
whose members are barred from this status is a lame union. They enter negotiations with empty hands.

It was legislative interference that took away this power from the union. It is a substantial interference

The government controls all aspect of the collective bargaining process. It chooses which associations it will
discuss with. There isn’t an obligation to even negotiate working standards with anyone. In a sense, the
legislation deprives the plaintiffs their right to choose their representatives for the collective bargaining
process. It fails the duty to consult and negotiate in good faith step of the test.

International conventions also support the finding of a s.2(d) violation. One must assume that the Charter protects,
at a minimum, the rights protected under International convention.
S.15 Claim

Plaintiffs must show: 1) A distinction in treatment under law; 2) The distinction is an innumerated or analogous
grounds

To determine if the distinction creates a disadvantage by the perpetuation of stereotype, use Law test: 1) preexisting disadvantage; 2) the link between the discrimination and the group in question; 3) is there an ameliorative
purpose; 4) the nature of the right affected

This case satisfied all of it. The distinction is the right to paid employee legal status. The distinction directly relates
to the issue of sex.

It reinforces the idea that nannies merit less respect. 95% of the plaintiffs are women. No ameliorative affect. It
touches upon the fundamental aspect of labour, the courts have repeatedly recognized the importance of work to
the individuals dignity
S.1 Test

The AG pleads that the pressing objective was to preserve the integrity of the legislative regime put in place to
protect the health, security and development of the child.

The court finds that this is BS. The integrity was not in peril. This was simply an easy administrative decision.
The legislation fails. Taking away previous gains due to union action which relate to the access to minimum standards,
and creating a system where there is no obligation to negotiate violates s.2(d)
Reaffirms Health Services. Substantial interference on the process of collective bargaining.
This gets very close to preserving the results, not the process!
Guest Lecturer
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Migrant worker programs in Canada with a historical perspective; inherent inequality in these programs
Temp worker framed around the quest for reliable labour
Industrialization causes a reduction in an agricultural labourers; we look to foreign workers
Wages low, working conditions suck
Canadian government had to look for ways to recruit workers; let’s go for vulnerable people!
Then we looked to eastern European immigrants; had to work on the farm for two years to get immigration papers…and after
two years, all the workers left!
So there is a problem of recruitment AND retention
Looked at the US, they were bringing Caribbean workers near the end of 1950s
The gov took a policy stance in the 1950s that working and wage conditions for temp workers cannot be lower than that of
Canadian citizens
Another depressing thing is that internal immigration policy did not want blacks in Canada…!
In the late 60s, the government came to the conclusion that wage and working condition increases could not continue and that
other strategies must be employed; they also question whether even if they increased salary, would people still work on
farms?
Here comes the idea of temp worker! Bring in workers on a seasonal basis with no promise of citizenship
Now the government says, “maybe Canadians aren’t suitable for this work, but maybe Mexicans are suitable to these working
conditions”
These people are suitable to work in terrible conditions, but they are not suitable to be citizens
Seasonal temp worker program started in 1966 with Jamaica!
Expanded to Mexico in 1974 because a Canadian task force found 3 rd parties bringing in Mexicans and putting them through
terrible working conditions. Canadian government eliminated the 3rd party by putting all Mexicans through this system
Objective of the seasonal agricultural worker program is an supplementary source of reliable and qualified seasonal workers;
reliability and suitability
This policy is still grounded in stereotypes; employer still gets to choose which country the workers come from; how does
this matter which country a worker comes from? Stereotypes on how these workers deal with authority; competitive nature
between countries as well = worker complains to consulate, they’ll be told to suck it up so more workers from their country is
picked next year
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Is the labour shortage qualitative or quantitative? Do we not have enough workers or do we just not want to do this type of
work?
Racialized workers for agricultural work
There is a Canadian First rule though; employers have to show that they tried hiring Canadians first before going for temp
workers; what this means in practice is that an employer has to submit an ad in the newspaper for two weeks with no reply
from prospective workers
When the governments meet every year to negotiate worker wages, there is no worker representation at the table! There is a
conflict of interest between the governments and the workers; the foreign governments gain lots of money by having the most
amount of workers in Canada; they won’t negotiate for the best wage and working conditions!
In mid-70s, strategy turned to filling labours shortages in a more general sense; categorization between high skill and low
skill workers
High skilled workers have a much higher change to becoming full immigrants, citizens
Low-skilled worker program was created more in line with the seasonal worker; an idea that the workers will be temporary
We now have way more temp foreign workers coming than permanent residents
Racialization between high-skilled and low-skilled workers
Most of the high-skilled are from Europe and US
Low-skilled coming from Asia and South America
Lot of low skilled workers going to work at the oil sands; biggest demand is coming from Alberta
Low-skilled workers can stay for two years max
Seasonal workers are allowed to stay for 8-10 months only
5 features of temporary foreign worker programs that institutionalize inequality or create prospects for discrimination
1) Repatriation provisions; the employer can send a worker for “non-compliance, refusal to work or any other sufficient
reason”; there is no appeal process! No dispute resolution process either
2) Migrant workers do not have any labour mobility in Canada; they must return home after the contract is done; work permit
is tied to a single employer; can’t quit one employer to work with another; even if you’re fired, you can’t find another
employer for your duration in Canada!
3) Workers have no access to citizenship; no access to the Canadian political or social system; the workers do not vote, no
political clout; politician’s priorities go to votes
Alberta is in a constant work shortage; why don’t we make them citizens so we don’t have to bring them in all the time!
Make them citizens and pay taxes as well
4) Competitive nature of the migrant worker program; rat race; race to the bottom; which country will tolerate the lowest
working conditions for its citizens; this is exacerbated by the fact that the employers can choose which country the workers
come from
There is now an issue where employers are hiring through the low-skill program for seasonal workers, i.e. Quebec employers
hiring Guatemalan workers; this is done because Guatemala does not have a consulate here = no way for the workers to
uphold their labour rights
5) the lack of a monitoring mechanism; majority of workers are governed by provincial labour laws; a lot of workers don’t
bring their complaints forwarded for fear of reprisal; this is even worse with foreign workers because reprisal=deportation
There should be some type of inspection services to protect workers; low rate of unionization in agricultural work = no one is
policing the work site!
Feds introduced some monitoring program in 2007; violations ban employers from using the system for a year; there is also a
voluntary program….obvious fail is obvious
IV. Acquisition and Termination of Bargaining Rights
Who is an employee for the purposes of collective bargaining? Who is the appropriate employer for the purposes of
collective bargaining? What are the strengths and weaknesses of enterprise-level organizing? Why should certification
survive the transfer of an enterprise?
(I) EMPLOYEE STATUS
Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 1015
Facts
City of Pointe Claire hired Ginette Lebeau through a personnel agency to work for 6 weeks as a receptionist and then
for 18 weeks as a clerk. During the two work assignments, the employee’s wages were determined and paid by the
agency, which submitted an invoice to the city. The employee performed her work under the direction and supervision
of a manager working for the city. The general working conditions, such as hours of work, breaks and statutory
holidays, were dictated by the city. According to the evidence, Lebeau had the same working conditions as the City’s
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permanent employees in terms of working hours, meal periods, breaks and statutory holidays. If the employee had not
been qualified or had experienced problems in adapting, the city would have informed the agency, which would have
taken the appropriate action.
Issues
Holding
Reasoning
The city union requested to have the temporary employee included in the union’s bargaining unit. The labour
commissioner found that the city was the employee’s real employer since the evidence showed that it had actual
control over the work done by Ms. Lebeau and granted the union’s request. It stressed the importance of day-to-day
control of working conditions. It acknowledged that the agency recruited, assigned positions to, evaluated, disciplined
and paid the temporary employees, but concluded that the city was the real employer. The Labour Court also noted
that there was a relationship of legal subordination between the city and the employee because the city’s managers
directed and supervised how she did her day to day work.
Who was the employee’s real employer in a tripartite relationship in the collective labour relations context? Did the
administrative tribunal make a patently unreasonable ruling?
The city. (No.)
Lamer C.J. (+ La Forest, Gonthier and Cory JJ.):
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Begins by stating that the Labour Court’s decisions are protected by a privative clause. The standard of review is
patent unreasonableness.
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Personnel agencies can be described as intermediaries in that they supply business with the services of
employees they recruit.
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The employer-employee relationship is defined by three essential elements, as per the QLC: 1) performance of
work, 2) remuneration and 3) the legal subordination of the employee to the employer (most important).
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The importance of the legal subordination criterion encompasses the notion of actual control by a party over the
employee’s day to day work.
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However, the court held that the test of actual control over work performance is much too rigid. To identify the real
employer in a tripartite relationship, a comprehensive approach must be taken.
 The criterion of legal subordination and integration into the business must not be used as exclusive criteria
for identifying the real employer.
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A comprehensive approach has the advantage of allowing for a consideration of which party has the most control
over all aspects of the work on the specific facts of each case. This approach requires a consideration of the
factors relevant to the employer-employee relationship, including (but not limited to): the selection process,
hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration
into the business.
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This promotes the purpose of the Quebec Labour Code; it is essential that temporary employees be able to
bargain with the party exercises the greatest control over all aspects of their work, and not only the supervisors of
their day-to-day work
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In applying the fundamental control test, Canadian and Quebec jurisprudence generally conclude that the client is
the temporary employee’s real employer
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Labour Court used a comprehensive approach by not basing its decision solely on the criterion of legal
subordination, looked at working conditions and the criterion of legal subordination, role of the agency and the
city with respect to remuneration and discipline, and the specific facts of the employee’s case.
Furthermore, remuneration was not determinative in this case. While the agency paid Lebeau’s wages directly,
the City bore the cost of those wages by fully reimbursing the agency for them.
However, it was justified giving predominant weight to working conditions and the legal subordination test by
relying on the ultimate objective of the Labour Code. The purpose of certification is to promote bargaining
between the employer and the union in order to determine the employees’ working conditions.
According to the Labour Court, those conditions are “essential aspects of an employee’s experience”.
Finally, LeBeau performed her work in unionized positions. Those positions were covered by the collective
agreement and specific wages applied to them. Her wages had to be the same as those established by the
collective agreement. The Labour Court’s decision follows common sense, since the working conditions
established by the collective agreement applied to LeBeau’s position.
The City states that the Labour Court’s decision leads to inconsistent application of two employer-employee
relation statutes. However, each of the labour statutes has a distinct object and its provisions must be interpreted
on the basis of their specific purpose. It is fine that the two statutes find two different employers.
L’H-D (dissenting):
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In the type of tripartite relationship at issue in this case, all of the traditional elements of an employment
relationship exist between the agency and its employee.
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The Labour Court should have decided that the Code’s regime governing collective bargaining was not intended
to cover tripartite agreements, and it should have avoided adding wording to the Code to cover tripartites
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There is no evidence that any of the three parties to the tripartite relationship negotiated or indicated the
possibility that this collective agreement would apply to the agency or its employee. The Union is seeking to
impose a legal regime on two complete outsiders and unwilling parties.
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The Union was never certified to represent the Agency’s employee!
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The test of de facto control was developed to measure the intensity of legal subordination in order to prevent an
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employer from pretending to use an outside contractor when in reality it has hired an employee. The de facto
control test was never meant to establish a legal link. Therefore, this test is inappropriate for tripartites
The appropriate test should begin by determining the legal status of the parties, through examining all the rights
and obligations agreed to by the various parties in a tripartite agreement. This will determine who the employer is!
It is absurd to find an employment relationship where one finds none of the other traditional elements of selection,
hiring, training, remuneration, discipline, integration, continuity of employment, and sense of belonging on the part
of the employee.
The Labour Court’s decision brings about an absurd result. It creates two legal relationships, binding one
employee to two separate employers simultaneously, for the same work done at the same time. One employer is
for the purposes of collective bargaining and another for all other purposes.
First, confusion will inevitably arise as to who the employer is, particularly as regards important rights in the
workplace. Second, the Labour Court’s decision creates incoherence within labour and employment legislation.
Third, some of the most important of an employee’s rights pursuant to the collective agreement binding the City
are unenforceable against the agency and, therefore, virtually meaningless for the employee within this
arrangement. Fourth, many conditions of employment which are of great concern to a temporary services
employee will be completely absent from such a collective agreement. Fifth, the employee is prevented from
exercising her rights, pursuant to the Code, to collective negotiation with the agency of these and other important
terms of employment. Sixth, the employee is denied many other rights pursuant to legislation aimed at ensuring
minimum standards of employment.
This jurisdiction cannot extend to an interpretation which essentially ignores the fundamental
requirement that an employer and an employee have actually agreed to enter a legal relationship of
employment.
The Labour Law Casebook Group, Labour and Employment Law: Chapter 5, The Acquisition and Termination of
Bargaining Rights
The Wagner Act Model and the Principle of Exclusivity
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Some of the most bitter strikes were fought more for trade union recognition than over demands for working condition
improvements
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In every Canadian jurisdiction, there is a statutory procedure known as certification, which allows a union, upon proving that it has
majority support among a unit of employees, to become the exclusive bargaining agent for those employees and to compel their
employer to bargain with it on their behalf. These are the principles of majority rule and exclusivity of bargaining rights
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Exclusivity is justified by the fact that the union has demonstrated that it has the support of a majority of the employees, as well
as by the assumption that it is generally to the advantage of all parties to have one clearly identified agent for the employees
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Other countries do not divide the labour force into tiny bargaining units
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The Wagner Act compelled intransigent employers to enter into negotiations with a union once it achieves certification. The
practical result of certification for unions is compulsory collective bargaining.
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There were several benefits for the employer: 1) they are allowed to contest certification campaigns; 2) it dissipated the industrial
strife, certification legitimized industrial autocracy; 3) employers do not have to recognize independent unions representing a
minority of employees.
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Globalization has had mostly a negative effect on organized labour’s bargaining power and political influence. Competition from
lower-cost producers is exerting downward pressures on wages and other working conditions. The mere threat of relocation saps
union’s bargaining power even further. Unions must underbid their peers across the globe.
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Globalization has placed groups of workers in different jurisdictions in competition with each other. Employers now have a choice
on where to acquire labour, turning it even more into a commodity.
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Even where workers occasionally transcend national boundaries, they confront systemic difficulties in the form local labour laws
with inconsistent legal rules
The Appropriate Bargaining Unit
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A bargaining unit is a group of employees defined on the basis of the employer for whom they work and the positions they
occupy. In some cases, it consists of all employees of the employer who are engaged in the production of a particular good or
service. In others, it consists only of a subset of those employees who perform certain tasks. It can include workers employed at
only one workplace or at several locations.
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A bargaining has two functions: 1) An electoral constituency for the purposes of (de)certification; 2) The basis for collective
bargaining as the agreement is meant to cover all employees in the unit.
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Traditionally, the most important consideration in determining an appropriate bargaining unit is the community of interest
among the employees in question
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The parameters of the unit affects the employer-employee relationship: 1) there may be strong pressure toward the compression
of wage differentials toward uniformity on other terms of employment for everyone covered by the agreement
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2) If there are a multiplicity of units in a single enterprise, disputes may occur over which collective agreement governs which task
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3) The degree of economic pressure that each party has will be affected by the design and size of the unit
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Each wage settlement is strongly influenced by “coercive comparisons”. The tactic of leap-frogging is used where one unit seeks
to obtain a better agreement than the previously-negotiated one
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The Bargaining Unit can be determined either by voluntary recognition or through collective bargaining after certification
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Voluntary Recognition is protected by legislation preventing employers from abusing the process, either by being dominated or
inappropriately influenced by the employer
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Decertification can occur if, after a specified time has elapsed, the union has failed to adequately fulfill its bargaining
responsibilities or no longer represents a majority of the employers in the unit.
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A Labour Board must always decide whether the bargaining unit is the appropriate one! Boards are given wide discretion
Metroland Printing Publishing and Distributing case
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Employer asserts that a bargaining unit at his business should not include all employees, but it should be split into different units
for full-time, part-time, temps and students. Here is the Board’s ruling…
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“The Board has significant experience in placing disparate groups of employees in one bargaining unit with little apparent
negative effect on labour relations. Community of interest has much less influence on the determination than it once had
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community of interests exists simply by being employed by the same in employer in the same workplace, unless this creates
serious labour relations problems for the employer
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The employer’s proposal would lead to inappropriate bargaining unit fragmentation. Broader-based bargaining units are
better for collective bargaining.
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Part-time and casual employment has been the largest growth segment in the Canadian labour market since the 1980s. Although
part-time workers are particularly vulnerable, unions show hostility towards part-time workers. This is because unions oppose the
hiring of part-timers, whom they saw as competitors for jobs and as exerting downward pressure on wages
Major concerns of the Labour Board for including casual employees into a union
1) The possibility of casual employees preventing full-time employees from having access to collective bargaining
2) Casual employees have a different community of interest from regularly-employed employees
3) Hesitancy to confer full labour rights onto a small group of employees who only have a marginal connection to the industry
An important consideration for the bargaining unit is the continuity or the pattern of employment
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Although it may be easier to organize employees branch by branch, single branch bargaining units may not have enough power
to engage in effective collective bargaining. A great case study of this are banks and unionization of branches
SORWUC v Canadian Imperial Bank of Commerce
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Boards have found that employees consider the single location unit to be a natural unit, because this where the employees work
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The community of interest of employees at a single location is sufficient to hold that the single location unit is appropriate
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The Bank has asked to deviate from this and state that the only appropriate unit is one that encompasses all its branches
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The request is in the interest of administrative efficiency and convenience of bargaining. Branch managers do not have enough
power and flexibility to tailor their branches to the specific needs of the union
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The Board must fashion bargaining units that give employees a realistic possibility of exercising their rights. Too large units in
unorganized industries will abort any possibility of collective bargaining from ever commencing.
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The Bank’s position restricts s.2(d) because it essentially makes certification impossible
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Decides that a single branch location is the appropriate bargaining unit
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This inadvertently destroyed the union movement. The unions tried to bargain with the banks on a multi-branch basis, the banks
refused saying that they were only entitled to branch-by-branch bargaining. This tactic stretched the union’s resources to the
breaking point. The banks also announced that their annual across-the-board pay increases would only apply to non-union
branches
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The small numbers of staff at each branch, and the sheer amount of branches created huge union costs. The enormous disparity
between bargaining power of a national institution and a single branch did not allow for equitable collective bargaining
United Steelworkers of America v TD Canada Trust, 2005
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Union applies for a bargaining unit that encompasses 6 branches. The bank opposes this in saying that the only appropriate unit
is the single branch
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Union submits that that the general job descriptions at all branches are a sufficient community of interest. The bank states that
the significant geographical distances between the branches opposes a finding of community of interest
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The Board finds: a) It is not required to determine the ideal unit; b) there may be more than one appropriate unit; 3) it is not bound
by any earlier finding
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Generally speaking, ideal units are those units that group the most employees possible
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Reject stare decisis; board must take into account new developments and needs in the field
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The geographical location does not generally affect employees’ working conditions. The volume of business does not
fundamentally change the basic job descriptions
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Bargaining units are not configured to accommodate the employer’s administrative structure, but in view of giving employees
access to collective bargaining rights!
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Even within single-jurisdiction, single-employer enterprises, highly particularistic units may be certified, i.e. McGill!
Brian Langille, “The Michelin Amendment in Context”
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One should use the Amon principle (the enlarging factor) when dealing with a multi-branch enterprise.
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This achieves a reconciliation of the conflicting purposes of the bargaining unit. It enables organization to take place while at the
same time ensuring that an unfragmented and thus stable and broad base bargaining structure results in the long run
Determining Employee Support
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Three Canadian models: 1) a quick vote in every case; 2) primary reliance on membership evidence, with a brief period after the
certification application to allow for change-of-heart applications; 3)primary reliance on membership evidence as of the date of
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application
Normally, a union is certified if its membership evidence shows that it had majority support at the date of application
Concern with the time lag between certification application and the vote is that it gives the employer the opportunity to turn its
workers against the union. Employers have dismissed union activists as a means of quelling union sentiments
Best approach is a highly-compressed time interval. It allows for a vote as a symbolic value that a card check alone can never
have. Secondly, it does not give the employer enough time to launch a sustained campaign against unionization
Mandatory vote certification has been shown to reduce the number of applications and the number of successful applications and
increase the effectiveness of employer unfair labour practices
Timelines of Certification and Decertification Applications
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The basic principle is that a union may apply at any time to be certified as a bargaining agent for a unit of employees who are not
already covered by collective bargaining
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Where a union fails to establish majority support, they barred for a certain period from applying again to certification
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A bargaining agent will be decertified if established that the certification was obtained by fraud
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Decertification applications by employees and rival unions are subject to the same requirements
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Decertification occurs where the union is not adequately fulfilling its responsibilities to the employees and it no longer represents
a majority of the employees in the unit
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In a funny case where a strike is taking place, the employer’s scab employees apply for decertification. The Board gets very
angry and states that the employees are not members of the bargaining unit. This must be true to prevent an employer from
hiring anti-union employees during a strike with the goal of decertifying the union
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Decertification applications CANNOT BE influenced by the employers or management! Giving an anti-union employee the tools
and resources to apply for decertification is not allowed!
Alternatives to the Wagner Act Model

Globalization and technological advances have allowed manufacturers to implement flexible production. This has significantly
impacted the union’s bargaining power
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“If collective bargaining is to remain meaningful, it must take place in larger structures that encompass not only a plant’s core
workforce but all workers who contribute to the production process. We must transcend the old paradigm of traditional bargaining
units.”
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North American collective bargaining is atomized and highly decentralized, with a tradition of autonomous and uncoordinated
action. Job rights should only be exercised with reference to specific operations in which they are grounded.

We must begin to question majoritarian exclusivity. Pro-union minorities may be a way to facilitate the organization of workers

These minority groups could help employees know and enforce their individual employment rights, i.e. OH&S

Occupational unionism could help promote training and experience of the particular occupation; dedicated to the enhancement of
the individual

Unions should begin to move into the community and political field. Create meaningful bonds for their values and rights to be
shared and exercised. Lobbying would enhance the democratic and citizen-making aspects of unions. This will tie employment
more closely to human dignity as the political field is what controls minimum standards of living

As employee mobility increases, unions should evolve to develop strategies, skills and strengths that go beyond single contract
with single employees.
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New Craft Unionism promotes the creation of networking and continual learning. Citizen unionism brings geographical workers
together from all corporations to pressure area employers to provide adequate working & living conditions

We must abandon the idea that treats unionized workplace as an isolated and separate sphere. We must abandon the
community of interest principle. We need broader-based bargaining

In Germany, there exist employee councils. Instead of relying on the union for collective bargaining, an elected council of
employers and employees vote on the enterprises decisions. This promotes amicable, democratic solutions to problems in a nonpartisan manner. Since consensus is sought before decision implementation, resistance subsequent to the change is kept to a
mininum
Quebec
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Quebec is the only in North America with a strict extension mechanism. By provincial decree, the provisions of a collective
agreement concluded between private parties are extended to third parties, making these working conditions obligatory for
employers and workers who otherwise would not be subject to them.

This sits in the middle of liberal market economies and coordinated market economies

This system improves the working conditions of nonunionized workers, but also protects employers from unfair competition. This
protects against the situation where an employer providing better working conditions cannot compete with employers with lesser
working conditions
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The Decree’s field of application has two dimensions, one industrial and the other territorial. It essentially determines the minimal
conditions of labour that all employers in that particular dimension must follow

This has led to labour market stability and low-inflation wage settlements. Employers realize that costs associated with the decree
system do not outweigh the benefits of industry-level wage coordination, stable work force, a pool of valuable workers, enhanced
productivity of factors, constructive relations with employee representatives
(II) BARGAINING UNIT DETERMINATION
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Natrel Inc. v. Syndicat démocratique des distributeurs (1996), T.T. 567
Jurisdiction
Facts
Issues
Holding
Reasoning
Labour Tribunal ruling on Labour Commissioner’s decision
The employer, Natrel, contested the decision on the basis that the distributors were in fact independent contractors
and not employees, and therefore was not covered by the Labour Code. The appellant company was one of the
largest milk distributors in Quebec. It distributed milk by way of the employees, who typically had two types of clients,
which were retail clients, at home or in small businesses, and clients who were in fact Natrel's clients, which billed
them directly, and on which the distributors were paid a commission for delivery.
80% of the volume of all purchases was billed directly to Natrel and 20% was payable directly to the distributor (by the
smaller purchasers). In the former case, the distributor's remuneration was based on whatever mark-up he could
charge the client. It was up to the distributor to build up his clients in his territory. For most of the distributors, clients
billed directly by Natrel constituted the majority of their clients. In those cases, the distributors had little control over
territory, no control over price, availability of product, or any related factor. Natrel was able, under the contract, to take
over the business of a retail client previously serviced directly by one of its distributors.
Are the distributors “employees”, allowing them to be accredited as a bargaining unit?
Yes, but only partially.
Monsieur le Juge Paul Yergeau:
 The Commissioner's decision was partially affirmed. The distributing agents were employees concerning
customers billed by Natrel, but concerning the rest of their sales they enjoyed a degree of autonomy which was
inconsistent with the status of employee.
 When the distributors sold products to customers billed directly by Natrel, they were, for practical
purposes, milk deliverymen on commission. Although the owner of his truck, he delivers milk to the
customer for Ks concluded by representatives of Natrel. It is Natrel which negotiates shelf space within the
trade, Natrel which sets the price paid per litre of milk, and Natrel which indicates to the distributor where to
deliver and during what hours. The distributor must carry out its work in a professional manner and avoid
criticism as it may then lose that client, which will go on the road to another distributor. The clientele belongs to
Natrel.
 For the other 20% the distributor buys Natrel products and is free to sell them on its territory. Natrel
suggests prices for its products, but the distributor is free to follow or not. Obviously, competition from food
chains made sure that the distributor is a prisoner of this reality and if he sells at a higher price than that offered
to the chains, the distributor risks losing all its customers. Nevertheless, in these circumstances, the distributor
faces a different reality than that of an “employee”. He can set his working hours, fix prices of the products, and
sell the goodwill that has developed among its own customers. The distributor can also buy the goodwill of
another distributor.
 80% is an “employee” (thus can bargain for 80%)
 It is almost as though these distributors have two jobs.
 The notion of a dependent contractor does not exist in the Quebec Labour Code. In the Canada Labour Code,
s. 3 (dependant contractor) is someone who owns their own vehicle, and uses its vehicle to provide certain
services, and is able to keep for personal use any profit made once costs have been deducted. Also, this type
of worker is said to provide services on behalf of another person in such a way that it is under the economic
dependence of the latter and the obligation to perform certain tasks.
 Since we do not have this concept in the Quebec Labour Code, I am forced to conclude that for the portion of
sales paid directly to the distributor, they were independent contractors. Although heavily dependent,
economically speaking, on NATREL, the evidence reveals no legal subordination.
(III) SUCCESSOR RIGHTS
QLC
Certification not invalidated by sale of undertaking
45. The alienation or operation by another in whole or in part of an undertaking shall not invalidate any certification granted under this
Code, any collective agreement or any proceeding for the securing of certification or for the making or carrying out of a collective
agreement.
The new employer, notwithstanding the division, amalgamation or changed legal structure of the undertaking, shall be bound by the
certification or collective agreement as if he were named therein and shall become ipso facto a party to any proceeding relating
thereto, in the place and stead of the former employer.
46. It shall be the duty of the labour commissioner, upon the motion of an interested party, to rule on any matter relating to the
application of section.
For such purpose, the labour commissioner may determine the applicability of that section and issue any order deemed necessary to
effect the transfer of rights or obligations contemplated therein. He may also settle any difficulty arising out of the application of that
section.
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Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 565
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Facts
Issues
Holding
Reasoning
Ivanhoe is a property management company (owns shopping malls). It handled janitorial services in its buildings
until 1989 when it contracted those services to Moderne. All of Ivanhoe’s janitorial employees were transferred to
Moderne. Ivanhoe’s janitors have been unionised since 1974 and they have a collective agreement.
- The transfer of the certification and collective agreement to Moderne was recognized under s.45.
- In 1991, Moderne’s contract expired and it dismissed the entire janitorial staff.
- There is no legal relationship between Moderne and the contractors, which employed their own staff and used
their own equipment.
- The work performed by the contractors’ employees was the same as the work done previously by Moderne and
Ivanhoe
- The union, despite its bargaining unit having zero members, applies under s.45 to have certification and the new
collective agreement signed by Moderne be transferred to the 4 contractors.
- The Labour Court affirmed that the commissioners’ decisions that operation of part of an undertaking had been
transferred, as required by s. 45(1), and that s. 45 applied since the tests in Bibeault had been met.
Does s.45 apply to the certification or collective agreement such that it can be transferred from Moderne to the 4
companies?
Applies to the certification, but not the CA. Ivanhoe can make the application, but here it fails.
Arbour J (McLachlin, L’Heureux-Dubé, Gonthier, Iacobucci, Major): Majority

Before Bibeault there was disagreement about how to define an undertaking: i.e. functional approach (defined
undertaking in terms of the work being done) or organic approach (defined as a set of various components:
physical, human, intellectual, legal). The Labour Court was deadlocked. (definition of undertaking is key to s.45)

In Bibeault the SCC adopted the organic approach. SCC said collective bargaining has to be seen in tripartite
framework: employer, union, and undertaking. Where the essential elements of this framework survive a
consensual transfer from one employer to another, s.45 applies.

A part of an undertaking is a portion of a business capable of being defined/ identified as a functioning entity that
is viable in itself or sufficiently distinguishable to be severable from the whole.

There must be adequate resources, directed towards a certain activity by the first employer, which are used by
the second in an identifiable way for the same purposes in terms of the work required from employees, even if the
commercial or industrial objective is different

Once the same activities were carried on by a second employer, it followed that the latter must have acquired
sufficient operating resources from the first to ensure continuity of the undertaking

One of the elements that must be present, is the right to operate, the right to perform specific duties at a specific
location for a specific purpose

Where the main characteristic of the part of the undertaking operated by another consists, as it does in this case,
of the specific right to operate on the premises of the main undertaking, it clearly cannot enjoy wholly
autonomous existence. Because a business is not merely a collection of assets, the vital consideration “is
whether the transferee has acquired from the transferrer a functional economic vehicle”

In the view of the Labour Court, therefore “it is of the essence of operation by another of part of the undertaking
that its activities continue to be carried on within the fold of the central undertaking that provides it with its identity”
The present case

Labour Court had the authority to assess the respective importance of the various components of the undertaking
and to conclude in this case that the transfer of a right to operate, combined with the transfer of functions, was
sufficient to result in s. 45 being applied, under the organic definition of an undertaking
Section 45 applies to certification (it's transferred)

On the s.45 issue, the court employs the theory of “retrocession”, which deals with context of temporary subcontracting  when the subcontract expires, the certification that was transferred to the subcontractor
automatically "retrocedes" back to original employer. (might not apply to certification that originated with
subcontractor)

The theory of retrocession makes it possible to ensure that employers cannot permanently rid themselves of the
certifications that apply to them by engaging in mere temporary transfers of operation, which would be contrary to
the purposes of s. 45.

So in this case s.45 does apply to certification  when the K between Ivanhoe and Moderne lapsed, the
certification retrosceded to Ivanhoe for a notional instant and then is retransferred to the 4 companies. This is the
twisted way that s.45 is interpreted to get the certification transferred from M to the 4. (Bibeault is distinguished:
in Bibeault cert was not transferred, because unlike Ivanhoe, the school board had never run janitorial service inhouse before K'ing out.)

The concept of "potential employer" is the legal fiction that makes it possible to transfer stuff from one
subcontractor to another without the primary operator of the undertaking (e.g. Ivanhoe) actually taking back the
operation before retransferring it. For the notional instant between retroscession and retransferral to the 4
companies, Ivanhoe is the "potential employer."
Section 45 does not apply to the collective agreement (it's not transferred)

Cert and CA are normally transferred together, but here s.45 does not apply to the collective agreement  Since
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
the undertaking transferred from Ivanhoe to the 4 companies was Ivanhoe’s, the collective agreement between
Moderne and the union lapsed when the K between Ivanhoe and Moderne expired. There was thus no CA left to
be transferred from M to the 4.
The dilemma faced by the Labour Court in this case is apparent. On the one hand, transferring the collective
agreement signed with Moderne shortly before its contract expired would allow a contractor to impose working
conditions on one of its competitors, even where no undertaking has been transferred between them. On the
other hand, transferring the agreement originally signed by Ivanhoe would result in the application of obsolete
working conditions set out in an agreement negotiated several years earlier
Ivanhoe's s.41 application fails

Ivanhoe has the right to make the application because Ivanhoe's name is on the cert document.

But the application fails because Ivanhoe may not cancel certification during the temporary period when the cert
was subK'ed to M.
a) s.41 says cert can be cancelled when the union no longer represents a majority of workers, but there are no
workers, so this can't be ascertained.
b) the representativeness of the association is best gauged with respect to the operator of the undertaking
(Ivanhoe) rather than with respect to the subK'or (M). Otherwise, Ivanhoe would be able to rid itself of the
certification permanently by transferring the undertaking temporarily.

Ivanhoe argued that the association could no longer have represented the majority of the employees in the
bargaining unit.

However, the Labour Court took the view that a party that has contracted out the operation of its undertaking on a
temporary basis cannot have the certification that applied to it cancelled during the period covered by the transfer
of operation. Otherwise, the petition for cancellation of certification would allow the application of s. 45 to
successive transfers of the undertaking to be avoided, since when the transfer expired, the party which had
contracted out the work would no longer be subject to a certification that might benefit its employees if it took
back the operation of its undertaking, or that might be transferred to another employer if it opted to transfer the
operation of the undertaking afresh.
Comment
Ratio
Bastarache dissenting in part:

Section 45 doesn't apply because there's a lack of connection between Moderne and the 4 companies, as
required by s.45

Majority broke with Bibeault by using a functional definition of undertaking

Undertaking doesn't just mean "work." Something more, a going concern, must be transferred for there to be
transferral of an undertaking.

How can the certification be transferred but not the collective agreement!?!

Ivanhoe is treated as present employer in that it's allowed to make the s.41 application, but then the application is
denied on the basis that Iv's only a previous employer. Incongruous.
This case emphasizes the considerable amount of deference granted to labour tribunals to work out solutions
for particular problems
In respect to s.45, the only requirement is that the elements that characterize the essence of the part of the
undertaking be transferred. It is sufficient that the transferee be legally independent and be responsible for the work
performed by its employees, even if the transferor continues to exercise administrative or legal control under a contract
S.41 petition may be denied on the merits where the undertaking is in fact being operated by another employer, in
respect of which the certification temporarily applies
Sept-Îles (City) v. Quebec (Labour Court), [2001] S.C.R. 670
Facts
The city of Sept-Îles contracted out garbage collection in certain districts of the City to subcontractors. In accordance
with s. 15 of the collective agreement between the City and the respondent union representing the City’s salaried
manual labourers (since 1982), no unionized employees were laid off, had wages cut or lost benefits as a result of the
contracts with the subcontractors.
The union filed motions under s. 45 of the Labour Code with the labour commissioner general, seeking to have the
transfer of the certification and the collective agreement to the subcontractors recorded. According to the evidence
adduced, the subcontractors used their own staff and their own equipment, continued to exercise complete authority to
manage their staff and were required to comply with the City’s instructions regarding the proper performance of the
contract. If there was a breach, the City could go after the contractor and not the employees. The City continued to be
ultimately responsible for a number of aspects of the garbage collection service (e.g. specifying tasks, volume of
containers installed, dealing with customers, need according to season, etc.).
The labour commissioner recorded the partial transfer of the City’s rights and obligations to the subcontractors and
held that they were bound by the certification and collective agreement. The commissioner noted that according to
previous decisions of the Labour Court, s. 45 could be applied to the transfer of a right to operate janitorial or green
space upkeep services.
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Issues
Holding
Reasoning
The Labour Court affirmed the decision and:
 Held that the City, which continues to be responsible to the public for collection services, may nevertheless
contract out the operation of the services to someone else.
 Concurred with a previous decision that although contracts for services involve much closer control now than
they used to, this does not mean that s. 45 cannot be applied.
 Found that in service industries, the transfer of technology or equipment is of much less significance to the
analysis that must be done under s. 45, and the fact that taxing authority is not transferred is not decisive
either.
 The clause in the collective agreement authorizing subcontracting cannot defeat the application of s. 45,
which is a provision of public order.
Does the Labour Court have the power to conclude that a union’s certification and collective agreement may be
transferred to a subcontractor of the employer?
Yes.
Arbour J (+ McLachlin, L’H-D, Gonthier, Iacobucci, Major JJ):

The standard of review for s. 45 cases is patent unreasonableness (Ivanhoe).

Under the principles developed by the Labour Court following Bibeault, s. 45 of the Labour Code may apply to
subcontracts where the transferee, in addition to performing functions similar to those performed by the transferor
to which the certification originally applied, receives a right to operate part of the transferor’s undertaking.

Those principles are not patently unreasonable and do not conflict with the decisions of this Court, which provide
that it is up to the specialized decision making authorities to weigh the applicable criteria in order to determine
whether a transfer of the operation of an undertaking has occurred.

Moreover, the decisions of the commissioner and the Labour Court in this case do not represent a return to a
functional definition of an undertaking. On the contrary, the specialized decision-making authorities have sought
to identify the essential elements of the part of an undertaking of which the operation had been transferred, by
considering the nature of the undertaking and the relative importance of its various components. That approach
is consistent with the definition of an undertaking adopted by this Court in Bibeault.

In addition, in situations involving the transfer of the operation of part of an undertaking, the Labour Court has
developed reasonable principles for adapting the requirement that the transferee be given a sufficient degree of
autonomy so that a conclusion may be made that the operation of an undertaking has been transferred.

In this case, the commissioner and the Labour Court used the criterion of the subordination of the employees to
the contractors in order to determine the degree of legal autonomy that the contracts gave the contractors. This
criterion can be used to establish whether the legal transaction between the parties gives the transferee sufficient
authority to enable it to effectively become the new employer in charge of operating the part of the undertaking in
question

The existence of a contract laying down certain precise methods of performing the work is not a barrier to
applying s. 45. In Bibeault, this Court did not establish that a subcontractor must have total control over the part
of the undertaking of which operation was transferred. Indeed, requiring total control would be incompatible with
the very concept of the transfer of the operation of part of an undertaking.

Authorizing subcontracting on certain conditions does not amount to a waiver of the application of s. 45. Indeed,
since s. 45 is a provision of public order, its application cannot be precluded by a contractual provision.
Certification vs. Collective Agreement

Although the collective agreement will normally follow the certification, a distinction can be made, under ss. 45
and 46 of the Labour Code, between first transferring the certification and then deciding whether it is appropriate
to transfer the entire collective agreement. It is possible, as in Ivanhoe that the CA won’t be transferred.

Contractual provisions designed to protect the employees in the event of a transfer of operation, as well as the
concrete fact situation prevailing in the undertaking and the industry in general, are relevant factors that the
commissioner may consider when deciding whether the collective agreement should be transferred. However,
the commissioner and the Labour Court have the sole authority to examine the factors in question and select the
solution they consider most appropriate.

In this case, the specialized decision-making authorities opted for transfer of the collective agreement. That
solution involves certain disadvantages. First, this may limit the municipality’s opportunities for subcontracting by
deterring potential bidders. Second, it may prove difficult to put into effect in the case of contractors that employ
a small number of workers. However, these disadvantages are not sufficient to warrant judicial review in a
situation where the standard of review to be applied is patent unreasonableness.
Bastarache (dissenting):

Bibeault prohibited a purely functional definition of “undertaking” (“entreprise”) in s. 45 that would be revived by a
finding of successorship in a situation such as this where all that was transferred was tasks or work.

When Beetz J in Bibeault said that, in this context, subcontracting does not mean a person simply assumes
“responsibility for certain parts of a project, supply contract or undertaking for which another has overall
responsibility” but rather it means the “practice by which an organization assigns the performance of certain work
to an independent specialized contractor [where] [t]his contractor assumes complete responsibility for the work,
which he performs himself or has performed by his own employees”. In other words, he adopted a “total control”
understanding of the type of subcontracting that could trigger s. 45.
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


This is not what’s going on here. What we have in this case is the type of subcontracting that is the work alone
and the City remains responsible for the provision of the service.
According to Bibeault, “an undertaking for the purposes of s. 45 cannot consist merely of work, tasks or functions
performed by the employees under the former employer. Something more must be sold or operated by another
in order for the successorship provision to be triggered.”
Furthermore, in Lester this court required an element of finality to the transfer for s.45 to apply. First, what is
transferred must be a viable functional economic vehicle or entity. Second, there must be an element of finality to
the transfer in the sense that the first business no longer has control over the part of the business that has been
given over, i.e. relinquished it to be obtained by another
T.U.A.C. loc. 503 c. Quebec (Commission des relations du travail) [2008] D.T.E. E-38







An IGA was being run by in the mall by Sobeys. Sobeys wants to change the store’s business model, so they give Mr Gagné the
right to open an IGA EXTRA in the same mall. The original store closes, and a new store opens. The employees from the first
store are all fired, but several are rehired to work in the new store
This new business model involved a liquidation of assets, a reduction in services personnel.
The union wants to transfer certification under s. 45. Mr Gagné contests this because there is no legal link between the two
stores. There was no transfer of a franchise in this case. They are two different business ventures
The Commission finds that, indeed, there was no alienation of an undertaking. Gagé did not acquire anything from the other IGA
store, no equipment, no inventory. It recruited its own employees. It has its own lease agreement.
These are two distinct enterprises, therefore there can be no transfer of certification. Sobeys does not act as an intermediary like
in Ivanhoe, therefore no retrocession can occur.
At the appeal, TUAC brings several supplementary arguments in that Sobeys was the wholesaler and trustee (2 functions) for
both IGAs, and therefore the certification could transfer from one IGA to the other. The tribunal maintained that the matter had
already been judged.
S. 45 is not as broad as Ivanhoe makes one think. Here, there are two separate and distinct businesses. There was no
intermediary organization that could create a legal fiction to allow for certification to pass through via retrocession
Syndicat national du lair inc c. Laiterie Royala inc., 2004 QCRT 602)

New s.45 of the Quebec Labour Code in play!
45. The alienation or operation by another in whole or in part of an undertaking shall not invalidate any certification granted under this
Code, any collective agreement or any proceeding for the securing of certification or for the making or carrying out of a collective
agreement.
The new employer, notwithstanding the division, amalgamation or changed legal structure of the undertaking, shall be bound by the
certification or collective agreement as if he were named therein and shall become ipso facto a party to any proceeding relating
thereto, in the place and stead of the former employer.
The second paragraph does not apply in the case of the transfer of part of the operation of an undertaking where such transfer does
not entail the transfer to the transferee, in addition to functions or the right to operate, of most of the elements that characterize the
part of the undertaking involved.






The concession of milk delivery is undeniable a transfer of functions
However, the new s.45 has the words “of most of the elements that characterize the part of the undertaking involved”
This stipulation seeks to subtract partial alienation of an undertaking from s.45
In the case at hand, there was no transfer of employee, material, equipment
This is only a partial transfer, and as such, certification cannot be passed along to the new employer
This cases seems to be misguided. It focuses more on what wasn’t transferred, rather than what WAS transferred to show that an
alienation of an undertaking had taken place
V. Unfair Labour Practices
What are unfair labour practices meant to safeguard? Have they been effective? What is the relationship between commercial
freedoms and the constitutionally protected freedom of association?
City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22
Facts
City Buick Pontiac sells and services vehicles. The employees were unionized, and were trying to renew their
collective agreement. The general manager, Loyd Rogers freely admitted that it was closing up shop because of its
inability to negotiate a satisfactory agreement with its sales staff. A letter dismissing the employees also stated that
due to considerable financial losses, the dealership would have to close, and that some of these losses were
attributable to the inability to come to agmt. The letter expressed regret at having to close and dismiss the employees.
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Issues
Holding
Reasoning
In the following weeks, the dealership was totally closed down.
Is it legal for an employer to close shop in the face of an inability to negotiate a collective agreement? Is this just cause
for dismissal?
Yes. Yes.

It was not for the Labour Tribunal to sit in judgment of the employer’s reasons for shutting down, but only to
assure that the employer carried out that decision genuinely and did not merely engage in an elaborate sham to
break the employees’ strike.

In our free enterprise system, there is no legislation to oblige an employer to remain in business and to regulate
his subjective reasons in this respect.

If an employer, for whatever reason, decides as a result to actually close up shop, the dismissals which follow are
the result of ceasing operations, which is a valid economic reason not to hire personnel, even if the cessation is
based on socially reprehensible considerations.

What is prohibited is to dismiss employees engaged in union activities. It is not prohibited to definitively close a
business because one does not want to deal with a union or because a union cannot be broken, even if the
secondary effect of this is employee dismissal.

It is still necessary, and this is of utmost importance, that the decision to discontinue be authentic and not a
simulation, merely an argument in the arsenal of methods used to overcome union demands, because it would
then be a pretext and a fiction that would preclude a consideration of it independently of the reasons therefore.

This would be the case if, by subterfuge, the employer continued its activities indirectly, with the assistance of
others, elsewhere or in other ways or after a period of time has passed in order to keep up appearances.

Any indication that it is keeping a door open to resume the same business would preclude a finding of its complete
and definitive discontinuance.
Quebec Labour Code
12. No employer, or person acting for an employer or an association of employers, shall in any manner seek to dominate, hinder or
finance the formation or the activities of any association of employees, or to participate therein.
No association of employees, or person acting on behalf of any such organization, shall belong to an association of employers or seek
to dominate, hinder or finance the formation or activities of any such association, or to participate therein.
13. No person shall use intimidation or threats to induce anyone to become, refrain from becoming or cease to be a member of an
association of employees or an employers' association.
14. No employer nor any person acting for an employer or an employers' association may refuse to employ any person because that
person exercises a right arising from this Code, or endeavour by intimidation, discrimination or reprisals, threat of dismissal or other
threat, or by the imposition of a sanction or by any other means, to compel an employee to refrain from or to cease exercising a right
arising from this Code.
This section shall not have the effect of preventing an employer from suspending, dismissing or transferring an employee for a good
and sufficient reason, proof whereof shall devolve upon the said employer.
15. Where an employer or a person acting for an employer or an employers' association dismisses, suspends or transfers an employee,
practises discrimination or takes reprisals against him or imposes any other sanction upon him because the employee exercises a right
arising from this Code, the Commission may
(a) order the employer or a person acting for an employer or an employers' association to reinstate such employee in his employment,
within eight days of the service of the decision, with all his rights and privileges, and to pay him as an indemnity the equivalent of the
salary and other benefits of which he was deprived due to dismissal, suspension or transfer.
That indemnity is due in respect of the whole period comprised between the time of dismissal, suspension or transfer and that of the
carrying out of the order, or the default of the employee to resume his employment after having been duly recalled by his employer.
If the employee has worked elsewhere during the above mentioned period, the salary which he so earned shall be deducted from such
indemnity;
(b) order the employer or the person acting for an employer or an employers' association to cancel the sanction or to cease practising
discrimination or taking reprisals against the employee and to pay him as an indemnity the equivalent of the salary and other benefits of
which he was deprived due to the sanction, discrimination or reprisals.
16. The employees who believe that they have been the victim of a sanction or action referred to in section 15 must, if they wish to avail
themselves of the provisions of that section, file a complaint at one of the offices of the Commission within thirty days of the sanction or
action.
17. If it is shown to the satisfaction of the Commission that the employee exercised a right arising from this Code, there is a simple
presumption in his favour that the sanction was imposed on him or the action was taken against him because he exercised such right,
and the burden of proof is upon the employer that he resorted to the sanction or action against the employee for good and sufficient
reason.
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Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 SCR 465
Facts
In August 2004, the union to which P belongs was certified to represent the employees of Wal-Mart in Jonquière. The
Jonquière store was the first Wal-Mart store to be unionized in North America. After several fruitless bargaining
sessions, the union filed an application to establish the provisions of a first collective agreement. On February 9,
2005, the Minister of Labour referred the dispute to arbitration and notified the parties of the referral. That same
day, Wal-Mart informed the employees of its decision to close the store. On April 29, 2005, P’s employment, along with
that of approximately 190 other employees, was terminated. According to the union, the store’s closure was merely as
a step taken by Wal-Mart in a larger employer strategy of hindrance, intimidation and union busting. In this case, P
filed a complaint under ss. 15 to 17 of the Code and claimed to have lost his employment because of his union
activities. He sought an order that he be reinstated in his job.
Issues
Holding
Reasoning
The CRT found that Wal-Mart had shown the store’s closure to be genuine and permanent which satisfies the “good
and sufficient reason” within the meaning of s. 17 to justify the dismissal.
Whether employees have a remedy against an employer who closes a workplace for anti-union motives via s.15-17 of
the Quebec Labour Code
Not under s.15-17, but potentially under s.12-14.
McLachlin (Binnie, Deschamps, Fish, Charron and Rothstein): Majority

Under ss. 15 to 17, the question before the tribunal relates to the reasons for the employees’ loss of jobs whereas
the question that can be put in play under ss. 12 to 14 is the broader issue of why the plant was closed at all, and
specifically was it closed as part of an anti-union strategy.

A finding of an unfair labour practice under ss. 12 to 14 opens up broader redress under the general remedial
provisions provided by ss. 118 and 119 of the Code for the benefit of all employees who suffered as a result of the
wrongful store closure, including those who were not involved in union activity, and even for those who opposed

As per Place des Arts, no legislation in Quebec obliges an employer to remain in business and that an employer
can close a plant for “socially reprehensible considerations”.

While the effect of Place des Arts is to exclude workplace closure situation from s. 17, that case does not stand for
the proposition that closure immunizes an employer from associated unfair labour practices. Nor does it preclude
a finding that the closure itself constitutes an unfair labour practice aimed at hindering the union or the employees
from exercising rights under the Code. Evidence of anti-union conduct to establish an unfair labour practice must
be done under ss. 12 to 14.

S.15 -17 is not available to an employee in circumstances where a workplace no longer exists. The s. 15
reinstatement remedy presupposes the existence of a place to which reinstatement is possible.

The City Buick doctrine that a definitive workplace closure constitutes “good and sufficient reason” for the
purposes of s. 17 has been followed consistently and was not overruled by the legislature

Adding the generality of ss. 118 and 119 remedies to a s. 15 violation would give the s. 17 presumption an
expanded effect beyond reinstatement and associated relief contemplated Former employees of a closed
workplace would never be obliged to establish anti-union misconduct because its existence would always be
presumed in their favour as soon as they established that prior to the closure they had exercised “a right arising
from this Code”

No argument was raised against the constitutionality of any provisions of the Code and the Constitution does not
require that every provision, including s. 17, be interpreted to favour the union and the employees.
LeBel, Abella and Cromwell: (dissenting)

A dismissal in the case of the closing of a business can be scrutinized for anti-union animus under s. 15 to 19 of
the Labour Code. To suggest otherwise represents a marked and arbitrary departure from the philosophical
underpinnings, objectives and general scope of the Labour Code.

City Buick’s dramatic departure from the remedial approach and legislative objectives embodied in the Labour
Code makes it unsustainable. Closing a business can in fact be the most severe form of reprisal for union activity.
Since in all other complaints involving s. 15 the RT scrutinizes the motives of the employer for anti-union animus,
it is inconsistent to scrutinize only the authenticity of a closing, rather than the reasons behind it

Sections 15 to 19 were added to the Labour Code 50 years ago to provide access to civil remedies for anti-union
conduct by an employer, and to facilitate this access through a presumption levelling the evidentiary playing field
between employers and employees. Once the employee shows that he or she is exercising a right under
the Labour Code, s. 17 creates a legal presumption in his or her favour,

The presumption under s. 17 is at the procedural core of the legislature’s scheme to protect employees from
unfair labour practices, and is one of labour law’s most vaunted equity tools for redressing the evidentiary
advantage held by employers.

To suggest that ss. 15 to 19, including the remedies available under ss. 118 and 119, are only available to a
dismissed employee in the case of an ongoing workplace, contradicts the consistent, historic and unequivocal
confirmation that remedial statutes require a broad interpretation consistent with the purposes of the legislation
Desbiens v. Wal-Mart Canada Corp., 2009 SCC 55, [2009] 3 SCR 540
Facts
Same facts, except that this time the CRT was not satisfied that the store closure was definitive and allowed the
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employees’ complaint, holding that Wal-Mart had failed to discharge its onus under s. 17 of the Code that the
dismissals were for good and sufficient reason. It reserved its jurisdiction to determine the appropriate remedies.
The Superior Court dismissed Wal-Mart’s application for judicial review, but the Court of Appeal overturned that
decision.
In Plourde, which dealt with the same factual issue, the CRT heard additional evidence which persuaded it
that Wal-Mart had in fact terminated the lease of the building at the Jonquière location and concluded
that Wal-Mart had successfully rebutted the s. 17 presumption by proof of a real and definitive business closure. None
of the parties now contends that Wal-Mart retains its option to reopen the Jonquière store. The Jonquière store is
closed and there is no possibility of reinstatement of the employees. The substratum of their s. 15 claim no longer
exist.
Holding
Article 12 of the Quebec Labour Code
12. No employer, or person acting for an employer or an association of employers, shall in any manner seek to dominate, hinder or
finance the formation or the activities of any association of employees, or to participate therein.
No association of employees, or person acting on behalf of any such organization, shall belong to an association of employers or seek
to dominate, hinder or finance the formation or activities of any such association, or to participate therein.
Section 94 is the parallel provision in the Canada Labour Code.
Syndicat canadien des communications, de l’énergie et du papier, local 194 v. Disque Améric, [1996] A.Q. 3381 (Tribunal du
travail)
Facts
Disque Americ produced optical CDs. It employed about 700, including 600 in production, 300 of which were
temporary. The staff had certain bones of contention. For e.g., the temporary staff “casual” employees who were laid
off in recurring periods of respite, particularly in the fall, wanted better opportunities to access permanent jobs. Also,
they wanted to relax the standards of the fairly demanding number of hours worked. On the evidence, it was clear that
CEO Pierre Deschênes had strong feelings against unionization. He felt a union would discourage an environment of
hard work, slowdowns, and encourage strikes. He called for a more "flexible" communications in the enterprise via a
voluntary association called the “Comité Bonne Entente” whose members were chosen in an informal manner by the
workers.
An application for certification was filed June 2, 1994. The next day a compulsory meeting was called and on the
agenda was “the past, present and future of Americ Disc”, with the emphasis on the impact of the new plant in Miami,
as well as a focus on the organizing campaign. At the meeting Deschênes said that the employees were free to
choose, but that the corporation favoured the Comité Bonne Entente, whose representatives encouraged their fellow
employees to leave the proposed bargaining unit. Through discussions with the Committee, an "Employee Manual"
was created, and included numerous elements to be found in a collective agreement, ranging from seniority to
financial assistance through the protection of the 'employment, benefits and health and safety. A binder was provided
to each employee, with a word of welcome from the chief executive officer
An intense period of campaigning occurred in October and inevitably a lot of rumours and various comments
were circulating, some referring to a possible closure, or that all employees would be made temporary. It
appears, however, that the atmosphere at any time did not become explosive and disruptive to the task and
operation of the company. On October 14, a letter was sent by the management to all employees outlining
“problems solved” in the past, and announced topics to be addressed in the near future with the informal
committee structure, such as bonuses, salary increases, the recall list for temporary employees and the
respect of their seniority, and so on. Another meeting was held during work hours, so employees attending
were paid, and a 4% bonus for all employees was announced.
Issues
Holding
Reasoning
The director of Human Resources took the position that it had to confront exaggerations and misleading untruths being
spread by the pro-union people, and that some of the anti-union people wanted the employer to formally address the
issues. It had to be done before the secret ballot. In the end, 300 of the 450 opposed the accreditation.
Were Disque Americ’s actions interference, contrary to article 12 of the QLC?
Commite was not bad, telling his opinion was not bad, but shouldn’t have made meetings mandatory
Juge Lesage:

Note that prior to 1969 it was quite legal for an employer to openly oppose unionization. Furthermore, given the
advent of the Charter, freedom of expression is now a constitutionally protected right. Just because a corporation
might be motivated by profits doesn’t limit freedom of expression (RJR-MacDonald)

It is therefore necessary to balance this freedom of expression with the freedom to associate, the latter being an
important part of the democratic process and requiring strong protection. The interface between these freedoms
must be evaluated according to each context.

An employer will exercise his legitimate right as a citizen exercising public voice, when no promise or
threat whatsoever, direct or indirect, is made, without controversy or outrageous lies, and when it is were
geared primarily to reason rather than emotions of the receiver who must be free to receive the message
or not.
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










The words that the employer can put, in words or in writing, to its employees to express its opposition to
unionization, must meet the following requirements such that it is using its legal right to free expression, rather
than constituting interference in the right of association:
1. There should be no direct or indirect threat;
2. There should be no direct or indirect promise to induce employees to adopt his point of view;
3. It must take account justifiable concerns about their reality, without aim to deceive;
4. It must apply to the reason and reflection of people and not raise their emotions, especially their
contempt, avoiding anything outrageous or pathetic;
5. Its interlocutors must be free or not to listen to or receive his message;
6. In some respect, it should not in any way use his authority as an employer, based on the
relationship of subordination established with employees, to propagate his views against
unionism.
In determining the legitimate intent of the employer to exercise its right to free expression, rather than its intent to
seek to harm the rights of association, it is important to detect the unsaid.
The specialised body of work must bear this delicate trial, with the tools of his experience, updated in
contemporary reality without overprotecting the weak but not naive to the good conscience of the strong.
Of course the employer can respond to attacks unjust or falsehood; but it does not mean he can force others to
listen to it in all circumstances. No employer should use its legal authority, its management powers to compel its
employees involved in a unionization to suffer his views on trade union issues without the consent of the
association, unless there are immediate problems of running of the company to settle.
In this case the defendant had a generally sound record.
The Committee was not just a puppet but a genuine effort to deal with issues. There was a bit of hampering when
the Committee was collecting resignations from the bargaining unit at the end of the mtg. But Deschênes did tell
employees they could freely choose.
When the application for accreditation was presented, Disque Americ didn’t tighten any discipline and took a
legitimate stance.
The letter they wrote on October 14 was clearly anti-union, outlining past union failures, but it was phrased in
measured terms, without exaggeration, and expressed a reasonable and defensible opinion. Most importantly,
the letter contained no threat or promise and employees were not compelled to read the letter.
The bonus was also okay because it was not conditional on their rejecting the accreditation. These bonuses had
also been contemplated for a while now and were not announced simply to combat unionizatio.
HOWEVER, the meetings held on October 21 and 25 were too much. It was too much to require
employees to come to a meeting during work hours to listen to what was really an attack on the union.
Employers were coerced by their immediate supervisors to attend a mandatory meeting on work hours.
The employer cannot use his own legal and juridical authority to force workers listen to anti-union statements.
(II) FAILURE TO BARGAIN IN GOOD FAITH
Canada Labour Code
50. Where notice to bargain collectively has been given under this Part,
(a) the bargaining agent and the employer, without delay, but in any case within twenty days after the notice was given unless the
parties otherwise agree, shall
(i) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good
faith, and
(ii) make every reasonable effort to enter into a collective agreement;
Royal Oak Mines. v. CASAW, Local 4, [1996] 1 S.C.R. 369
Facts
The unionized workers of Royal Oak Mines voted overwhelmingly to reject a tentative agreement put forward by the
appellant. A bitter and violent 18-month strike, which affected the whole community, occurred. After several bouts of
violence in 1992, RO dismissed 49 employees after a riot. Later, RO refused to consider a process of reinstating these
employees, and this issue became the biggest barrier to bargaining. In Sept 1992, an explosion at the mine killed 9
replacement workers, and a striking member of the bargaining unit was convicted of murder. Various attempts to effect
a settlement were made during the strike, from the appointment of an industrial commission to the naming of very
experienced mediators. RO often was the party who refused settlements.
The Canada Labour Relations Board, on an application made by the union, unanimously found that the appellant
employer had failed to bargain in good faith. They had not fulfilled their obligation under s.50, for three reasons: 1) The
employer refused to bargain until the certification of replacement workers had been resolved – they are required to
deal exclusively with the bargaining unit. 2) Further the employer wished to impose a probationary period on all
returning strikers. 3) Finally the employer refused to agree to a provision for any type of arbitration or consideration of
questions arising from discharge of the 49 employees, which completely blocked bargaining.
In light of the long history of intransigence and the bitterness of the parties, the Board decided that to issue the usual
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remedy of a cease and desist order, or a direction to the parties to bargain, would be "unrealistic and even a cruel
waste of time".
Issues
Holding
Reasoning
The Board directed the appellant employer to tender the tentative agreement which it had put forward earlier (and
which had been rejected) with the exception of four issues about which the appellant employer had changed its
position. The parties were given 30 days of bargaining to settle those issues and, if they remained unresolved, then
compulsory mediation was to be imposed. At issue is the jurisdiction of the Board to make this order.
Was the Board’s finding of RO’s breach of the duty to bargain in good faith patently unreasonable? Was the Board’s
remedy patently unreasonable?
No. No. The Board was acting within its jurisdiction on both issues.
Cory J (+Gonthier and L’H-D):

The standard of review of the Board’s jurisdiction is patent unreasonableness. The Code provides that parties
may complain to the Board if the duty to bargain in good faith is not fulfilled, and the Board will assist in settling
the complaint. So clearly this issue is in the Board’s jurisdiction.

All provincial labour statues have an equivalent of this duty  In the context of the duty to bargain in good faith a
commitment is required from each side to honestly strive to find a middle ground between their opposing
interests.

Two facets  Not only must the parties bargain in good faith, but they must also make “every reasonable effort”
(s.50(a)(ii)) to enter into a collective agreement. Breach of either component is a breach of the duty.

In this case the appellant’s behaviour was so egregious that clearly the Board’s finding of a breach of the duty of
good faith was not patently unreasonable.

If it is common knowledge that the absence of such a clause would be unacceptable to any union, then a party
such as the appellant, in our case, cannot be said to be bargaining in good faith.

A refusal to include such basic and standard terms in an agreement leads to the inference that despite any
"sincerely and deeply held" beliefs the party claims to have, by taking a rigid stance on such a widely accepted
condition, it becomes apparent that the party has no real intention of reaching an agreement. In other words, the
employer is breaching the duty to "make every reasonable effort to enter into a collective agreement"

The employer was not engaged in hard bargaining with the aim of protecting its legitimate interests within the
framework of collective and negotiated labour relations. The employer was engaged in surface bargaining. At
the formal level, it adopted an approach that was at first glance above reproach, as the usual motions are. On
closer view, this approach was unlawful, unjustifiable and contrary to what is permitted in good faith bargaining.
On the issue of the remedy:

There are four situations in which a remedial order will be considered patently unreasonable: (1) where the
remedy is punitive in nature; (2) where the remedy granted infringes the Charter; (3) where there is no rational
connection between the breach, its consequences, and the remedy; and (4) where the remedy contradicts the
objects and purposes of the Code. In this case at issue are #3 and 4.

Free collective bargaining is a corner stone of the Canada Labour Code and of labour relations. As a general rule
it should be permitted to function.

Nonetheless, situations will arise when that principle can no longer be permitted to dominate a situation. Where
the dispute has been bitter and lengthy; the parties intransigent and their positions intractable; when it has been
found that one of the parties has not been bargaining in good faith and that this failure has frustrated the
formation of a collective bargaining agreement; and where a community is suffering as a result of the strike then a
Board will be justified in exercising its experience and special skill in order to fashion a remedy.

This will be true even if the consequence of the remedy is to put an end to free collective bargaining. The Board's
order rightly placed more weight on the Code’s objectives of promoting the common well-being and encouraging
the constructive settlement of disputes. It demonstrated a balanced and carefully considered approach to the
particular situation confronting it.

In this case, there is a rational connection between the breach, the consequences and the remedy. The position
of the appellant, particularly on the dismissed employees issue, put an end to any possibility of true bargaining
between the parties.

In the circumstances of this case it was beneficial to the parties and to the community that the Board applied its
experience and skill to design a remedy that was eminently fair and sensible.

The Board didn’t just impose any random agreement. Rather the Board used as a basis for the bulk of its remedy
the tentative agreement drafted and put forward by the appellant, and ordered mediation on the 4 unresolved
issues. They had tried conciliation, mediation, ministerial intervention and the appointment of an Industrial Inquiry
Commission.
Lamer CJ (concurring in the result):

I wish to stress that such an extraordinary order, while justified in these circumstances, runs against the
established grain of federal and provincial labour codes by overriding the cherished principle of "free collective
bargaining" which animates our labour laws. While "free collective bargaining" is not the only policy interest
advanced by the Code, it is undoubtedly one of the most important and one of the most sacred.

It would be an ironic and tragic development in our labour law if the principle of free collective bargaining were to
be regularly subordinated to the societal goal of the "constructive settlement of disputes".
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Major (+ McLachlin and Sopinka JJ) (dissenting):

Agree with the issue of bad faith bargaining.

The issue of remedy is one of jurisdiction, and therefore the SoR is correctness.

The effect of the Board's order was to impose the terms of a new collective agreement upon the employer. This
was a form of compulsory interest arbitration which was outside the remedial jurisdiction

The order imposed by the Board did not exhibit the requisite nexus between the breach, consequences adverse
to the objects of the Code and the remedy.

The order failed to promote the primary object of the Code which is to encourage the constructive settlement of
disputes by the parties through the process of free collective bargaining.

Re, rational connection  The breach which caused the Board's intervention was the appellant's bad faith
bargaining regarding the claims of dismissed employees. The Board did not hold that this bad faith bargaining
caused the parties not to reach a collective agreement. Rather it held that it was the consequence of the failures
of both parties to bargain in good faith over the course of the negotiations. This does not justify the imposition of
the complete terms of a collective agreement on one of those parties which happens to now be in breach of its
good faith bargaining duty in only one particular respect.

The Board incorrectly concluded that the failure to reach a collective agreement was adverse to the objects of the
Code. The objects of the Code are the encouragement of free collective bargaining and the constructive
settlement of disputes by the parties through the collective bargaining process. The obligations of the bargaining
parties under the Code are to bargain in good faith and to "make every reasonable effort". Parties are not
required to reach an agreement.

According to the Board and the Union, the offer represents the collective agreement that the parties would have
reached but for the "bad faith" position of the employer regarding the dismissed employees. The inclusion of
clauses unrelated to the alleged "bad faith" forces one to the conclusion that the order constitutes the imposition
of a full collective agreement.

What the Board could have done is ordered the employer (1) to table within a specified time a collective
agreement which it was willing to honour, and (2) to cease and desist from its unreasonable position with respect
to the dismissed employees (or even impose a specific term to deal with this issue alone).
(III) DOUBLE-BREASTING (IN QUEBEC)
Ville-Marie Pontiac Buick Inc. v. Syndicat des travailleurs de garage de Montréal (C.S.N.), [1993] T.T. 162
Facts
Issues
Holding
Reasoning
Ville-Marie was a car dealer of General Motors and Pontiac Buick cars and had originally had a union - Fraternité
canadienne des cheminots, local – which was replaced by the plaintiff-respondent in 1990. As a result of a union
dispute, it had to close its doors on Dec. 31, 1990. Passeport Hochelaga had a more elite car dealership with Saabs
and Isuzu. The administrators of both were René Forte et René LeGrand. Each had separate advertising,
administration and external contacts. Hochelaga paid rent to Ville-Marie. Except for vendors and the receptionist, the
staff (mostly mechanics and servicemen) at Hochelaga were hired and paid by Ville Marie. The Ville-Marie union
applied to have a s.45 transfer, but this was denied. The union then tried to apply under s.39 to have employees of
Hochelaga recognized as members of the other union, saying they were the same employer. The union argued that
the companies belonged to the same people.
 s. 35 CLC lets the board declare a single employer, but there's no equivalent of s.35 in QLC.
Is there only one single employer here for the purposes of accreditation?
No.
Le Juge Bernard Lesage:

Without hesitation I can say that there is not one single employer here

This case provides me with a good opportunity to comment on the concept of “a single employer. The Canada
Labour Code has this concept in s.35 where the Board may declare a single employer where two or more
employers have common control or direction, thereby determining whether the employees constitute one or more
collective bargaining units.

In Lestor, McLachlin J distinguished the “classic situation”, when a business or part of a business is transferred
from one company to another (s. 45 type situations). Absent legislation, the effect of the transfer is to terminate
the relationship between the union and the employer, with the result that the employees would lose their
bargaining rights.

The second situation arises where one company, which continues to carry on business subject to a union
contract, sets up a second parallel company which operates without a union. This practice is known as
"double breasting". By having a new non-union company take on a new job, the employer can avoid the
union contract. The workers for the first company, if they want work, may be compelled to work in a nonunion shop for the second company. In the absence of some type of disposition, successorship
provisions will not prevent double breasting.

Although it is difficult to figure this out in concrete factual scenarios, it appears that at the level of principle, it's
quite simple. We should not use “single employer” terminology in the way it’s applied in other jurisdictions where
both companies are closely linked and benefit each other, and where it would be convenient to have only one
certification and a single collective agreement.
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

In our current state of the law, it is necessary to go further and see if all organized elements for the production of
the two major seemingly distinct entities rest in one entrepreneur, regardless of whether the attributes thereof can
be found in several natural or legal persons. This is a difficult judgement to make in concrete cases.
These dealerships certainly benefit each other in their secondary activities, but their structure and basic
means of production remain distinct, as does their legal structure and their history
(IV) INTERFERENCE WITH UNION ACTIVITY
C.B.C. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 (“Goldhawk”)
Facts
Issues
Holding
Reasoning
Goldhawk was the host of Cross Country Check-Up, and the president of Alliance of Canadian Cinema, Television and
Radio Artists (ACTRA). Under the union's by-laws, the president is also its official spokesperson. In the midst of an
election campaign in which free trade was a central issue, Goldhawk wrote an article against free trade in the union
newspaper. The CBC was concerned that his article and his public involvement as president of the union violated the
CBC's journalistic policy requiring impartiality of journalists. It was agreed that, as an interim measure, Goldhawk would
cease hosting his program until after election day. After the election, Goldhawk offered to relinquish his duties as the
union's spokesperson, while remaining its president, in order to accommodate the CBC's concerns. The CBC rejected the
offer and forced him to choose between his job as host of a radio program and his role as the president of the union.
Goldhawk resigned as union president and resumed hosting his radio program.
Are the union's statements on political matters outside the collective bargaining context protected by s. 94(1)(a) of the
Canada Labour Code? Did CBC’s request to Goldhawk to choose between hosting his show or his union activity
constitute interference with a union activity?
Yes. Yes.
Iacobucci J (+Lamer C.J. and Cory, Major, as well La Forest with very very slightly different reasons):

Whether there has been interference with a union activity is a question of law that Parliament intended to be
answered by the Board, and not the courts, and so the SoR is patent unreasonableness.

The test developed by the Board to adjudicate the s. 94(1)(a) claims involves (1) a characterization of the
activities of the union and a determination as to whether there has been employer interference with them; and (2),
if such interference is made out by the union, whether there was justification for the interference

The fact that the CBC is a creation of, and is governed by an external statute – the Broadcasting Act – does
not raise the overall standard of review to one of correctness, even though no deference will be shown to the
Board in its interpretation of the provisions of that statute.

The general requirement in the Broadcasting Act to provide a balanced information service must be interpreted in
a way that is consistent with the specific obligations contained in the Code. The journalistic policy itself, however,
does not enjoy the status of legislation. This policy cannot oust the CBC's legal obligations in the Canada Labour
Code.

The Board's decision that the CBC had interfered with the administration of a trade union or the representation of
employees by that union was not patently unreasonable.
 The Board, while recognizing that s. 94(1)(a) has its limits, found that the publication by a union and its
officer of an article in a union newsletter expressing an opinion that a government economic policy
constituted a threat or a benefit to its members was protected by s. 94(1)(a).
 The substance of the article was not aimed at the employer, but rather at gathering support from members
for the union's official position.
 It is not unreasonable to find a connection between the collective bargaining relationship and the activities
of unions as they relate to external social issues affecting their members.
 It is not unreasonable to conclude that included in the dominant purpose of the Canada Labour Code, or
necessarily incidental to that purpose, was the right of the union president to communicate to union
members in a union publication on issues of importance to the members in their capacity as journalists,
writers and performers

Alternatively, the Board also found that the CBC's action in refusing to accept G's offer that he retain his position
as union president while no longer serving as its spokesperson had the effect of preventing any broadcast
journalist from being the president of the union, and thus affected the right of the union to choose its president
from among its entire membership.

The election of whichever person the union members wish to have as their president is an activity that falls within
the concept of "administration" of a trade union or "representation" of employees by that union.

Finally, the Board's conclusion that the CBC had failed to show a valid and compelling business justification for its
interference is not unreasonable. The Board considered the journalistic policy but did not find that it compelled
the CBC to take the action that it did in order to fulfil its requirement of impartiality.
L’H-D J + Gonthier (Concurring):

An administrative tribunal protected by a full privative clause, as is the Board, is entitled to curial deference in its
interpretation of an external statute. The interpretation of an external statute cannot be characterized as a
jurisdictional question as such.
Sopinka J (concurrig):
 Given the range of union activity which could be the subject of a complaint under s. 94(1)(a), much of which has
little or nothing to do with the purposes of the Code, Parliament cannot have intended to leave it to the Board to
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Comments
determine which part of this activity can be swept into its jurisdiction. The standard of review is correctness.
McLachlin J (dissenting): See Para 116

The purpose of the Code is to promote and preserve the collective bargaining system and the protection provided
by s. 94(1)(a) to employees who speak out is confined to that purpose.

Thus, only union statements relating to the collective bargaining process fall within the ambit of s. 94(1)(a)
protection; statements made for personal or political reasons are not protected.
 The union representative making a political statement unrelated to collective bargaining is for practical
purposes in the same position as a non-union person making a similar statement.
 The inclusion of all non-abusive union statements within the ambit of s. 94(1)(a) is not a rational extension
 If the statement puts the employee in a situation where the employer's policy necessitates taking some
action, then there is no reason why the employer should not do so

Had the CBC's action in putting G to a choice between continuing as union president and continuing as host of
his program been in response of a statement made by G in the course of collective bargaining, it would clearly
have constituted interference with a union activity under s. 94(1)(a).

Finally, assuming the CBC interfered with a union activity protected by the Code, the CBC policy was capable of
being considered a "compelling reason" for interfering with the activity of the union, given the special position
obligation placed on it by law.
CLC 94. (1) No employer or person acting on behalf of an employer shall
(a) participate in or interfere with the formation or administration of a trade union or the representation of employees by
a trade union; or
VII. Industrial Conflict
What are the expressive and associational values protected through the right to strike? What are the limits on trade union solidarity,
particularly in the new economy?
U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083
Facts
During a labour dispute with two KMart stores, members of the appellant union distributed leaflets at other KMart
stores where the union does not represent employees (“secondary sites”). They handed out two types of leaflets,
describing KMart’s alleged unfair practices and urging customers to shop elsewhere. The distribution of leaflets did
not interfere with employees at the secondary sites nor was there any indication that it interfered with the delivery of
supplies. The activity was carried out peacefully and it did not impede public access to the stores. Neither was there
any evidence of verbal or physical intimidation. The evidence did indicate that as a result of the distribution of leaflets
some customers appeared confused and a small number appeared to turn away.
Issues
Holding
Legislation
Reasoning
The Labour Relations Board) ordered the union to refrain from picketing at the secondary sites. The Board rejected
the union’s argument that the statutory definition of “picketing” was unconstitutional and should be read down to
exclude leafleting in light of s. 2(b) of the Charter.
Does the definition of picketing in s.1(1) of the Code infringe s. 2(b) of the Charter by being overly broad (thus
encompassing peaceful distribution of leaflets at the secondary sites)? If so, is the infringement justifiable under s. 1?
Yes (No)
1. (1) In this Code
“picket” or “picketing” means attending at or near a person’s place of business, operations or employment for the
purpose of persuading or attempting to persuade anyone not to
(a) enter that place of business, operations or employment,
(b) deal in or handle that person’s products, or
(c) do business with that person,
and a similar act at such a place that has an equivalent purpose;
 Work is important to a person's identity, self-worth, and emotional well-being. Workers, and especially retail
workers, remain vulnerable and there is an inherent inequality in their relationship with the employer.
 Freedom of expression is fundamental to freedom. It is the foundation of any democratic society. It is the
cornerstone of our democratic institutions and is essential to their functioning
 Workers, particularly vulnerable workers, must be able to speak freely on issue related to working conditions.
 Section 64 of the BC Labour Relations Code provides that a trade union and its members are free to
communicate information to the public with regard to a labour dispute, except in a manner which may constitute
picketing.
 Both the legislation and the Board decisions that news ads, press releases etc. are okay appreciate how very
important it is for workers to disseminate accurate information in a lawful manner with regard to a labour
dispute.
 The distribution and circulation of leaflets has for centuries been recognized as an effective and economical
method of both providing information and assisting rational persuasion
 The definition of “picketing” contained in s. 1(1) of the Code is overly broad and infringes the guarantee of freedom
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of expression contained in s. 2(b) of the Charter.
 The Crown admitted that the restriction on consumer leafleting infringed on the freedom of expression
Oakes
 The s.1 analysis in Dolphin Delivery is not helpful in this case. In Dolphin Delivery the determination of the objective
proceeded on the assumption that the anticipated picketing would involve conventional picket lines with tortious
activity, interfering with contractual rights of third parties.
 Consumer leafleting is very different from a picket line, which acts as a barrier and impedes public access.
 Leafleting seeks to persuade members of the public to take a certain course of action through informed and rational
discourse, the very essence of freedom of expression. Leafleting does not have the same coercive component as a
picket line, and does not in any significant manner impede access to or egress from premises.
 Consumers must retain the ability to choose either to stop and read the material or to ignore and enter the neutral
site unimpeded.
 Leafleting which complies with the following conditions will constitute a valid exercise of freedom of expression:
 (i) the message conveyed by the leaflet was accurate, not defamatory or unlawful, and did not entice people to
commit unlawful or tortious acts;
 (ii) although the activity was carried out at neutral sites, the leaflet clearly stated that the dispute was with the
primary employer only;
 (iii) leafleting was conducted was not coercive, intimidating, or otherwise unlawful or tortious;
 (iv) the activity did not involve a large number of people so as to create an atmosphere of intimidation;
 (v) the activity did not unduly impede access to or egress from the leafleted premises;
 (vi) the activity did not prevent employees of neutral sites from working and did not interfere with other contractual
relations of suppliers to the neutral sites.
 Just like any time the legislature has to balance interests on complex issue, some deference is called for. However,
deference should not deter the courts from determining whether those political choices fall within constitutionally
permissible parameters of reasonable alternatives.
 The purpose of the legislation is to insulate third parties from the harmful effects of labour dispute and picketing.
While a restriction on conventional picketing is rationally connected, this prohibition is too broad. Many kinds of
expressive activities could be caught in this purpose.
 the public’s interest in the dissemination of accurate information by lawful means has been overlooked. It has been
held that the consumer’s interest in receiving the information could be one of the reasons for striking down
restrictions on freedom of expression
 The image of an oversensitive consumer cannot be the standard by which to assess the constitutionality of the
activity
 It has been recognized that where a Labour Board is acting within its jurisdiction its decision can only be overturned
if it is patently unreasonable. However where the Board interpreted or applied the Charter the standard of review
must be that of correctness.
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156
Facts
Issues
Holding
Reasoning
The union engaged in a variety of protest and picketing activities during a lawful strike and lockout at one of the
appellant’s plants. These activities eventually spread to “secondary” locations, where delivery of the appellant’s
products to retail outlets was prevented and the store staff was dissuaded from accepting delivery. They carried
placards in front of a hotel where members of the substitute labour force were staying; and engaged in intimidating
conduct outside the homes of appellant’s management personnel.
An interlocutory injunction was granted which effectively prohibited the union from engaging in picketing activities at
secondary locations.
Is secondary picketing legal at common law?
Wrongful action approach: secondary picketing is legal, within the bounds of tort law, crim law, and possibility future
constitutional legislation. Mere location of picketing is not a criterion. Secondary picketing does not exist!

Statutory silence cannot imply the legislator’s intent to crystallize the common law and preclude its development.

The development of the CML must reflect the values in the Charter and grows with the Charter.
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The common law does not exist in a vacuum. It does not grow in isolation from the Charter, but rather with it.
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In Hill, the Court held that “Charter values, framed in general terms, should be weighed against the principles
which underlie the common law. The Charter values will then provide the guidelines for any modification to the
common law which the court feels is necessary.”
Secondary Picketing
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It is accepted that when negotiations stall, unions and employers may legitimately exert economic pressure on
each other to the end of resolving their dispute.
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One labour law text says that ingredients common to the act of picketing in all jurisdictions appear to be the
physical presence of persons called pickets, the conveying of information, and the object of persuasion
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However it is very difficult to define picketing. Picketing represents a continuum of expressive activity; from
workers walking peacefully back and forth on a sidewalk carrying placards and handing out leaflets to passers-by,
to rowdy crowds shaking fists, shouting slogans, and blocking the entrances of buildings.
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Picketing, however defined, always involves expressive action. As such, it engages s. 2(b) of the Charter.
Although Dolphin Delivery reflect a concern with the interests of third parties to labour disputes who may incur
collateral damage, they should not be read as suggesting that third parties should be completely insulated from
economic harm arising from labour conflict
How do we judge when the detriment suffered by a third party to a labour dispute is “undue”, warranting the
intervention of the common law?
The Hersees and modified Hersees approaches, which start with the proposition that secondary picketing is per
se unlawful regardless of its character or impact, are out of step with Charter values.
While protection from economic harm is an important value capable of justifying limitations on freedom of
expression, it is an error to accord this value absolute or pre-eminent importance over all other values, including
free expression.
The wrongful action model is the correct model! Secondary picketing is generally lawful unless it involves
tortious or criminal conduct.
This wrongful action model best balances the interests at stake in a way that conforms to the fundamental values
reflected in the Charter. It allows for a proper balance between traditional common law rights and Charter values
and falls in line with the core principles of the collective bargaining system
The wrongful action approach focuses on the character and effects of the activity as opposed to its location. This
approach offers a rational test for limiting picketing, and avoids the difficult and often arbitrary distinction between
primary and secondary picketing. In addition, labour and non-labour expression is treated in a consistent
manner.
A wrongful action rule offers sufficient protection for neutral third parties. In particular ,picketing which breaches
the criminal law or tort (nuisance/defamation) will be illegal
Torts protect property interests. They will not allow for intimidation, and will protect free access to private
premises.
Rights arising out of contracts or business relationships also receive basic protection through the tort of inducing
breach of contract.
We should be mindful not to extend the application of the signal effect to all forms of union expression. “The
‘signal’ component of conventional picketing attracts the need for regulation and restriction in some
circumstances”
Given the diverse range of activities captured by the term “picketing,” it is apparent that the signal effect operates
to a greater degree in some situations than in others. We conclude that signalling concerns may provide a
justification for proscribing secondary picketing in particular cases, but certainly not as a general rule.
In the case at hand, it was peaceful informational picketing. It did not amount to the tort of intimidation, which
has to do with the intentional infliction of loss by unlawful means.
With regard to the demonstration outside the homes of Pepsi-Cola’s management personnel, the injunction was
well-founded, since the conduct was tortious.
Quebec Labour Code- Scab Labour
109.1. For the duration of a strike declared in accordance with this Code or a lock-out, every employer is prohibited from
(a) utilizing the services of a person to discharge the duties of an employee who is a member of the bargaining unit then on strike or
locked out when such person was hired between the day the negotiation stage begins and the end of the strike or lock-out;
(b) utilizing, in the establishment where the strike or lock-out has been declared, the services of a person employed by another
employer or the services of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike
or locked out;
(c) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee who is a member of the
bargaining unit then on strike or locked out unless
(i) an agreement has been reached for that purpose between the parties, to the extent that the agreement so provides, and, in the case
of an institution contemplated in section 111.2, unless the agreement has been approved by the Commission;
(ii) in a public service, a list has been transmitted or, in the case of an institution contemplated in section 111.2, approved pursuant to
Chapter V.1, to the extent that the list so provides;
(iii) in a public service, an order has been made by the Government pursuant to section 111.0.24.
(d) utilizing, in another of his establishments, the services of an employee who is a member of the bargaining unit then on strike or
locked out;
(e) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in another
establishment;
(f) utilizing, in an establishment where a strike or a lock-out has been declared, the services of a person other than an employee he
employs in another establishment, except where the employees of the latter establishment are members of the bargaining unit on strike
or locked out;
(g) utilizing, in an establishment where a strike or lock-out has been declared, the services of an employee he employs in the
establishment to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out.
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U.I.E.S., local 740 v. Association accréditée du personnel non enseignant de l’Universite McGill, 2008 QCCRT
0114, [2008] D.T.E. T-265.
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AGSEM went on strike. These were TA’s
McGill wants profs to correct finals at the end of the year. AGSEM says that this constitutes scab labour because this is mostly
accomplished by TA’s
Court declares that profs are allowed to correct exams in proportion to the amount of work they do usually
This gives mean to the legislation; the university can’t use other non-managers to complete the work of striking employees. Profs
can continue to do whatever they did before the strike!
VIII. The Effects of Certification: Administration of the Collective Agreement and the
Individual
Who does the union represent? What is the impact of certification on representation? Can equality rights and reasonable
accommodation be reconciled with workplace citizenship? What is the specificity of labour arbitration? What is its relationship to the civil
law? What is its scope? What is the appropriate scope of a union’s duty of fair representation?
The Labour Law Casebook Group, Labour and Employment Law Cases, Materials and Commentary, Eighth
Edition, Irwin Law Inc., 2011, Sections 8:100 & 8:200 (pages 495 - 521).
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Modern Canadian labour relations legislation does not permit strikes or lockouts during the term of a collective agreement.
Every such agreement must provide a dispute settlement process to resolve disputes over collective agreement interpretation
Generally, there is an informal grievance procedure followed by third-party adjudication
Modern grievance arbitration is said to be the quid pro quo for the ban on work stoppages. However, this overlooks the fact that if
a matter in issue is not addressed in the collective agreement, nothing legal is able to resolve the issue
Common law traditionally used three reasons to not enforce collective agreements:
1) unions were not perceived to have legal capacity; they were thought illegal due to their apparent restraint on trade
2) The courts doubted that employers and unions intended their collective agreement to be legally binding, rather than informal
3) rules of privity of contract made the agreement enforceable only upon current employees
Arbitrators are selected by the parties and viewed as labour law specialists whereas judges are state appointed legal generalists
Arbitrators can either be seen to act like judges, adhering to strict contractual law, or rather as a labour relations physicians
where he is able to colour the contract to put emphasize on overriding labour relations goals
Management is required to take the initiative in ordering relations within the plant to best take account of the new demands posed
by altered circumstances, i.e. new collective agreement
Arbitrators can be mediators, industrial policy-makers and adjudicators
Mediators: mutual acceptability, wiling acquiescence by the ‘losing party’, tailor decisions to preserve essential interests of both
parties
Policy maker: Because not all principles can be found in collective agreement, given authority to make value judgments which he
thinks will best suit the employer-employee relationship in an industrial society, must be flexible, equity-based, wider public
interest
Adjudicator: Disposes of disputes by elaborating and applying a legal regime established by the collective agreement, an
adversarial process, collective agreement is a governing legal system in the workplace
Conclusion: Arbitrators have very limited resources; can only work with the collective agreement and the facts given by the
parties, and the inherent-adjudicative system given to him by labour relations regime. He should stay as an adjudicator
Because management has unilateral initiative to apply the collective agreement, more deference is granted to their decisionmaking, there is no mutually-accepted standard of the agreement, no consensus on what a rational decision is; arbitration
becomes a way for management to justify unilateral action; this becomes even worse in the unwritten area of the collective
agreement
We should make a mandatory duty to bargain even throughout the existence of the collective agreement
Traditional ineffectiveness of duty to bargain creates an argument that unions should always be allowed to strike for their needs
to be heard
This would also have the effect of making the employers take the initiatives to think twice about their decisions before using their
unilateral prerogative
Another article that takes issue with the solely adjudicative role advocated in the previous article…
This idea of deference to unilateral management initiative goes against the liberal-democratic tradition of law, it would be
inconsistent with the most basic conception of justice and fairness
Arbitrators can fill in the collective agreement gaps by using context instead of facts; give them a policy-based role to make value
decisions in order to find solutions that will lead to equitable solutions for all parties; use best practice standards
Arbitration should be seen as enforcing an employment standard at workplaces; this is to keep industrial integrity; arbitrators can
contribute to the procedural fairness of the entire collective bargaining system
This second author’s view has supplanted the first author’s as courts have allowed arbitrators interpret and apply the Charter to
collective agreements
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United Steelworkers of America and Russelsteed reference
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There are two schools of thought on an arbitrators role
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Reserved rights school: permits contracting out in the absence of some express prohibition in the collective agreement. This
school takes the position that typical management rights clause reserves to the employer all of his precollective bargaining rights,
save those which were expressly bargained away in collective negotiations
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Other school (the Laskin school): the introduction of a collective bargaining regime involves the acceptance by the parties of
assumptions which are entirely alien to an era of individual bargaining. Any attempt to measure rights and duties in
employer/employee relations by reference to the pre-collective barraging standards is an attempt to reenter a world which has
ceased to exist
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No doctrine of stare decisis operates in labour arbitration
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Obey now, grieve later rule: Management has unilateral initiative powers: Respect his decisions and follow them through; if it
doesn’t work, grieve!
The rationale for this lies in the employer’s need to be able to direct and control the productive process of his operations, to
ensure that they continue uninterrupted and unimpeded even when controversy may arise, and in its concomitant authority to
maintain such discipline as may be required to ensure the efficient operation of the plant
Does an arbitrator only have jurisdiction once there is a grievance? Can he pre-emptively rule on management directives?
The courts moved away from the strict positivist view of collective agreements to allow more and more incorporation of good faith,
reasonably, honestly standards into the collective agreement and into managerial discretion where the collective agreement is
silent
“There is therefore a lace for some creativity, some recourse to arbitral principles, and overall notion of reasonableness
Adelle Blackett & Maude Choko, Chapitre XIII, Les effets de l'accréditation, JURISCLASSEUR Droit du travail,
Lexis Nexis, 2011.
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The union exert a central function and have exclusive representational rights over the works. Majoritarian exclusivity is the effect
of certification, and it reflects the freedom of association
Certification is of public order. It survives even in the absence of employees. The employer must recognize the union, and the
union alone. The State can modify the certification mandate to better serve the public interest
The principle of continuity pervades certification. There is no temporal limit on the monopoly of representation. To avoid legal
vacuums, new unions can be subrogate in the rights and obligations resulting from previous collective agreements
Broad powers granted under s.39 of the Quebec Labour Code allows the commissioner to act flexibly to allow coherent, logical
and common-sense certification
The public nature of certification cannot impede on union autonomy. Union internal politics should largely be left outside of the
competence of courts. However, recent legislation have allowed courts to enforce certain representative duties onto unions
Labour Commissions have exclusive jurisdiction for recourse against unions who fail this duty
The worker has the burden of proof that the union has failed their duty of just representation even though large discretion is given
to their negotiative, administrative, and representative powers
The Commision can forward this complaint to the Labour Tribunals if it finds a worthy claim. Remedies can be compensatory
payment or referral to arbitration
Steele v. Louisville & Nashville Railroad Company, 323 U.S. 192 (1944)
Jurisdiction
United States Supreme Court
Facts
The petitioner, Mr. Steele, was a black person employed by the Railroad. The respondent is Brotherhood, the labour
organization designated under the Railway Labour Act as the exclusive bargaining agent of the craft of firemen
employed by the Railroad. The majority of the firemen are white and members of the Brotherhood, but a substantial
minority are black, who are excluded from membership (by its constitution and by practice). Because the members
make up a majority of the Railway employees, they have a right to choose their representative, and black firemen must
accept Brotherhood as their representative.
The Brotherhood, purporting to act as representative of all firemen, without informing the black fireman or giving them
an opportunity to be heard, proceeded to negotiate to amend the collective bargaining agreement to ultimately exclude
all black firemen from the service. The agreement provided that not more than 50% of the firemen in each class should
be black, and until such a percentage is reached, all new vacancies should be filled by white men. Mr. Steele was in a
“passenger pool” with one white and 5 other black firemen, and the latter were all disqualified and then twice
reassigned to work more arduous, longer, and less remunerative.
Issues
The Brotherhood claimed that the statute did not create a relationship of principal and agent between the members
and Brotherhood, but conferred on them the plenary authority to enter into Ks fixing rates of pay and working
conditions for the craft as a whole w/o any legal obligation to protect the rights of minorities from discrimination or
unfair treatment.
1. Does the Railway Labour Act impose on a labour organization, acting by authority of the statute as the exclusive
bargaining representative of a craft or class of railway employees, the duty to represent all the employees in the craft
without discrimination because of their race? 2. If so, do the courts have jurisdiction to protect the minority of the craft
from a violation of this duty?
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Holding
Reasoning
1. Yes; 2. Yes.
Mr. Chief Justice Stone (for the Court):
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If the Brotherhood’s claims are correct, as the state court held, then constitutional issues arise because the
representative is clothed with power not unlike that of a legislature which is subject to constitutional limitations on
its power to deny, restrict destroy or discriminate against the rights of those for whom it legislates
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But we think that Congress did not intend to confer plenary power upon the union to sacrifice, for the benefit of its
members, rights of the minority of the craft, without imposing on it any duty to protect the minority.
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The use of the word ‘representative,’ as thus defined and in all the contexts in which it is found, plainly implies that
the representative is to act on behalf of all the employees which, majority as well as minority, by virtue of the
statute, it undertakes to represent (at para 2). It is to act for and not against whom it represents (at para 9/10).
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The purposes of the Act of avoiding interruption to commerce by encouraging the prompt and orderly settlement
of disputes would hardly be attained if a substantial minority of the craft were denied the right to have their
interests considered, and if their interests were ultimately sacrificed.
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The Act, requiring carriers to bargain with the representative so chosen, operates to exclude any other from
representing a craft. The minority members of a craft are thus deprived by the statute of the right, which they
would otherwise possess, to choose a representative of their own, and its members cannot bargain individually on
behalf of themselves as to matters which are properly the subject of collective bargaining.
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The labour organization chosen to be the representative of the craft or class of employees is thus chosen to
represent all of its members, regardless of their union affiliations or want of them. The very purpose of providing
for a representative is to secure benefits by virtue of the strength of the bargaining group, and not to deprive them
of those benefits.
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The Act imposes upon the statutory representative of a craft at least as exacting a duty to protect equally the
interests of the members as the Constitution imposes upon a legislature to give equal protection to the interests of
those for whom it legislates.
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Variations in the terms of the contract based on differences relevant to the authorized purposes of the contract in
condition to which they are applied are within the scope of the bargaining representation of a raft. Racial
discrimination is not
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So long as a labour union assumes to act as the statutory representative of a craft, it cannot refuse to perform the
duty to represent the entire membership. It requires the union to represent non-union and minority union members
without hostile discrimination, fairly, impartially, and in good faith.
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The union is required to consider requests of minority members with respect to collective bargaining and to give
them notice of and opportunity for hearing upon its proposed action
Mr. Justice Murphy (concurring):
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The utter disregard for the dignity and the well-being of colored citizens shown by this record is so pronounced as
to demand the invocation of constitutional condemnation. To decide the case and to analyze the statute solely
upon the basis of legal niceties, while remaining mute and placid as to the obvious and oppressive deprivation of
constitutional guarantees, is to make the judicial function something less than it should be.

The cloak of racism surrounding the actions of the Brotherhood in refusing membership to Negroes and in
entering into and enforcing agreements discriminating against them, all under the guise of Congressional
authority, still remains.
Parry Sound (district) Social Services Administration Board c. O.P.S.E.U. local 324, [2003] 2 R.C.S. 157
Facts
O was a probationary employee. Her terms of employment were governed by a collective agreement which states that
“a probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the Employer
and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a
difference between the parties”.
Prior to the expiry of her probationary term, O went on maternity leave. Within a few days of returning to work, the
employer discharged her. O filed a grievance.
Issues
Holding
Legislation
The Board of Arbitration found that s. 48(12)(j) of the Ontario Labour Relations Act, 1995 (“LRA”), empowers
a board of arbitration to interpret a collective agreement in a manner consistent with the Human Rights Code and
imports the substantive rights of the Human Rights Code into a collective agreement over which an arbitrator has
jurisdiction. The Board ruled that it was entitled to consider whether O had been a victim of discrimination under
the Human Rights Code.
The Divisional Court granted the employer’s application for judicial review, holding that s. 48(12)(j) confers power on
a board of arbitration to interpret and apply the Human Rights Code when and if it already has jurisdiction to hear a
grievance, but not otherwise. Because the grievance was not a difference arising out of the collective agreement,
the Board did not have the jurisdiction to resolve the dispute.
Does a grievance arbitrator have the power to enforce the substantive rights and obligations of human rights and other
employment-related statutes and, if so, under what circumstances
Yes, the LRA demands that arbitrators look at human rights legislation when interpreting the validity and effects of a
collective agreement
48. (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of
work, of all differences between the parties arising from the interpretation, application, administration or alleged
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violation of the agreement, including any question as to whether a matter is arbitrable.
Reasoning
(12) An arbitrator or the chair of an arbitration board, as the case may be, has power,
(j)
to interpret and apply human rights and other employment-related statutes, despite any conflict between those
statutes and the terms of the collective agreement.
McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and Deschamps: Majority
 The collective agreement is the “foundation” of a grievance arbitrator’s jurisdiction. Absent a violation of the
collective agreement, a grievance arbitrator has no jurisdiction over a dispute; if the alleged misconduct does not
constitute a violation of the collective agreement, there is no basis on which to conclude that a dispute is arbitrable.
 The Board was correct to conclude that the substantive rights and obligations of the Human Rights Code are
incorporated into each collective agreement over which an arbitrator has jurisdiction.
 The broad rights of an employer to manage the enterprise and direct the work force are subject not only to the
express provisions of the collective agreement, but also to statutory provisions of the Human Rights Code and other
employment-related statutes.
 The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to
conclude that a violation of that right does not constitute a violation of the collective agreement. Rather, human
rights and other employment-related statutes establish a floor beneath which an employer and union cannot contract
 There are certain terms and conditions that are implicit in the agreement, irrespective of the mutual intentions of the
contracting parties. The statutory rights of employees constitute a bundle of rights to which the parties can add but
from which they cannot derogate
 This willingness to consider factors other than the parties’ expressed intention is consistent with the fact that
collective bargaining and grievance arbitration has both a private and public function. The collective agreement is a
private contract, but a contract that serves a public function: the peaceful resolution of labour disputes.
 The phrase “to interpret and apply human rights and other employment-related statutes” indicates that it
was the legislature’s intention that an arbitrator would have the power not only to enforce those rights and
obligations that are expressly provided for in the collective agreement, but those that are provided for in
human rights and employment-related statutes as well.
 Grievance arbitrators have the responsibility to implement and enforce the substantive rights and obligations of
human rights and other employment-related statutes as if they were part of the collective agreement.
 Granting arbitrators the authority to enforce the substantive rights and obligations of human rights advances the
stated purposes of the LRA, which include promoting the expeditious resolution of workplace disputes.
 It also bolsters human rights protection
 An alleged violation of the Human Rights Code therefore constitutes an alleged violation of the collective agreement
and falls squarely within the Board’s jurisdiction. Accordingly, the Board’s finding that the discriminatory discharge
of a probationary employee is arbitrable is not patently unreasonable and should be upheld.
 The appellants position that that an alleged contravention of an express provision of a collective agreement is a
condition precedent of an arbitrator’s authority to enforce the substantive rights and obligations of employmentrelated statutes.
 The purpose of s. 64.5(4) of the ESA is not to bind a union to affirm the principle that an employee to whom a
collective agreement applies is not entitled to file or maintain a complaint under the Act. It must be done by the union
 Procedural requirements should not be stringently enforced in those instances where, as here, the employer
suffered no prejudice.
Major and LeBel (dissenting):
 Absent legislative action, courts should not on their own initiative interfere with the terms of a collective agreement.
 The minority’s interpretation of McLeod is that collective agreements cannot be contrary to law.
 A more focussed reading of McLeod serves the public interest. It allows employers and unions to craft the mutually
beneficial agreements most appropriate to their circumstances, subject to explicit legislative direction.
 O is not without a remedy. She may use the mechanisms carefully set out by the legislature to vindicate her human
rights, and may bring her claim before the Human Rights Commission, as the employer urged and as the
legislature intended.
Isidore Garon ltée v. Tremblay [2006] 1 S.C.R. 27.
Facts
G and F notified their employees that they would cease operating their businesses and gave each of them a notice
that complied with the time requirement established by the Act respecting labour standards. There was no clause in
either collective agreement dealing with the closing of the business, although G’s agreement did provide that the
employer had to give notice as provided for in the A.L.S. in the event of a layoff for more than six months.
By way of grievances, the unions representing both groups of employees contended that the notice of termination was
not given in reasonable time within the meaning of art. 2091 of the CCQ and claimed compensation equivalent to
four weeks’ salary per year of service for each employee.
Issues
The Court of Appeal concluded that the arbitrators had jurisdiction to hear the grievances because the rule set out in
arts. 2091 and 2092 had been implicitly incorporated into the collective agreements.
Does article 2091 of the CCQ apply to the collective labour relations scheme? Is it of public order?
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Holding
Legislation
Reasoning
It does not. An arbitrator has jurisdiction over legislation that is compatible with the collective labour relations scheme;
incompatible rules cannot be incorporated into a CA.
Civil Code of Quebec
2091. Either party to a contract with an indeterminate term may terminate it by giving notice of termination to the other
party.
The notice of termination shall be given in reasonable time, taking into account, in particular, the nature of the
employment, the special circumstances in which it is carried on and the duration of the period of work.
2092. The employee may not renounce his right to obtain compensation for any injury he suffers where insufficient
notice of termination is given or where the manner of resiliation is abusive.
Deschamps J (+ Bastarache, Binnie, and Charron JJ):
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There have been two lines of cases about the interplay between individual rights and the rights arising from
collective agreements.
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In the first line of cases, the general law and individual negotiation have no place in matters relating to working
conditions in the collective labour relations context (e.g. McGavin Toastmaster, Noel, cases reacting to economic
liberalism underlying the law, trying to maintain the integrity of the collective scheme).
 Recognition of the autonomy of labour, a statute law of a social nature which supplants the general law
 To equalize the balance of power between employers and employees, freedom of contract is dispensed with,
and exclusive representation by the union and predominance of the collective agreement replace individual
negotiation between an employer and an employee
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In the second line of cases, the minimum employment standards, substantive rights and freedoms in human rights
legislation and the principles of the Canadian Charter have been incorporated into collective agreements
(culminating in Parry Sound.) In Weber, the Court stated that arbitrators apply the law of the land, “be it the
common law, statute law or the Charter”. At the heart of these cases was the desire to protect the employee and
all employer-related recourses can be exercised in the same forum.
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A desire to achieve an outcome favourable to the employees in a particular case cannot dictate which principles
apply. The collective scheme must survive disputes involving individual rights and yet remain coherent. But we
want to make sure that an employee’s statutory rights remain meaningful.
The mechanism of incorporating compatible mandatory norms and the use of implicit conditions ensure that the
collective scheme is a coherent legal scheme.
The principle that arose from Parry Sound is that if a rule is incompatible with the collective labour relations
scheme, it cannot be incorporated and must be disregarded. If the rule is found to be compatible and if it is a
supplementary or mandatory norm, the arbitrator will have jurisdiction to apply it.
 The individual K is only suspended while a CA is in effect, and when the union’s certification is revoked,
the K comes into effect again. It’s not like the employment relationship hinges entirely on the collective
relations.
 Not everything is in a collective agreement, but it doesn’t exist in a vacuum.
 The fact that individual contracts are subordinate to the collective scheme allows collective interests to be
reconciled with individual interests in situations where it is possible for the latter to subsist without
hindering the proper conduct of collective relations.
 So only those CCQ rules which are compatible with the collective labour relations scheme may be
incorporated into a CA.
How do we decide if a particular provision is compatible with the collective scheme? Well, the arbitrator has
jurisdiction over all disputes that can be connected with the collective agreement through their factual context and
will decide those disputes by referring to the express or implicit rules of the agreement.
In this case, the rule in s. 2091 is incompatible with the collective scheme (and therefore should not be
incorporated) for several reasons.
1. The very nature of notice of termination demonstrates that it is not compatible with a context in which a
collective agreement exists. S. 2091 is shown to be incompatible as it reflects the consensual approach of
the law of K. The conditions in a CA are agreed upon collectively and in advance; the notice in 2091 is
agreed on individually at the time of termination. Length of notice is determined by the CA (so long as it
meets the minimum standards in ALS). The parties’ failure to specify in the collective agreement what will
happen if the business closes does not make the general law relating to individual contracts of employment
applicable.
2. The right of employees to claim reasonable notice of termination under the general law is the counterpart of
the employer’s right to terminate the employment relationship by providing pay in lieu of notice, without
having to show good and sufficient cause. Since the employer’s right to dismiss is limited in the collective
labour relations context and reinstatement is the most common remedy, it follows that the employee’s right
under art. 2091 to reasonable notice is inapplicable
3. 2091’s legis history shows that it was not intended to be incorporated into the coll scheme. A proposal to
have the CCQ govern both individual and collective labour relations was rejected. The courts should not
impose their vision where the legislature has chosen not to impose the rule set out in art. 2091 C.C.Q. in the
context of the collective scheme.
Para 59: “To say that an employee is isolated or vulnerable when he or she is represented by a union would be an
affront to organized labour”
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LeBel (+ McLachlin and Fish) (dissenting):
 An individual K continues to exist even after a union is certified, so CCQ rules on individual Ks continue to apply.
 For the employer-employee relationship to be recognized, it must materialize through a juridical act that retains its
individual nature, subject to collective agreement provisions. The relationship between the employer and the
employee is created by an individual act. The CCQ applies!
 Labour legis doesn’t cover everything; CCQ fills gaps. The rights of the individual and collective schemes can be
harmonised consistently with the hierarchy of legal rules.
 In principle, the CA contains all the conditions of employment expressly included by the parties during the collective
bargaining process, but the parties’ ability to freely negotiate the substantive standards that will govern them is
limited by the obligation to respect, or incorporate into the agreement, the rights and values protected by the
charters and statutes, including certain general principles of law, particularly those that are of public order
 The ALS is of public order (minimum standards) and an employee likewise cannot renounce his rights under 2091
and 2092, because they’re of public order too. Section 62 of the Labour Code says a CA can’t contravene public
order.
 Since its wording excludes any possibility of renunciation, art. 2092 C.C.Q. must be regarded as a provision of
directive social and economic public order.
 The argument of reinstatement is silly. You can’t reinstate when the business shuts down!
 To determine whether the dispute arises out of the collective agreement, two factors must be considered: (1) the
nature of the dispute and (2) the ambit of the collective agreement. The analysis of whether a matter falls within the
exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not
on the basis of the legal issues which may be framed”
 Here the arbitrators have jurisdiction to hear the cases. 2091 and 2092 are not incompatible, they supplement the
collective labour law scheme and provide a remedy to employees who lose their jobs without being adequately
compensated by their employer. There is no reason why unionised employees shouldn’t be entitled to notice.
 In the case of Garon, the CA makes provision for notice; here the arbit must decide whether that provision is in
agreement with the CCQ.
 In the case of Fillion, the CA has no provision; here the arbit must determine whether, having regard to 2091, the
minimum standard in the ALS is sufficient in the circumstances.
Morin : Québec (Commission des droits de la personne et des droits de la jeunesse) c. Québec (procureur général), [2004] 2
R.C.S. 185
The teachers’ unions entered into a modification of a collective agreement with the Province, which affected a minority
group composed primarily of younger and less experienced teachers. The younger teachers complained to the
Quebec Human Rights Commission that the agreement discriminated against them, treating them less favourably than
older teachers and violating the equality guarantee of the Quebec Charter of Human Rights and Freedoms.
Facts
Issues
Holding
Legislation
Reasoning
The Commission brought the matter before the Human Rights Tribunal. The respondents filed a motion asking the
Tribunal to decline jurisdiction on the ground that the labour arbitrator possessed exclusive jurisdiction over the
dispute. The Tribunal rejected the motion but the Quebec Court of Appeal reversed the decision.
Does the Human Rights Tribunal have jurisdiction over a labour dispute? Is there exclusive jurisdiction in favour of the
labour tribunal?
Yes, it does! No exclusive jurisdiction!
Quebec Labour Code
100. Every grievance shall be submitted to arbitration in the manner provided in the collective agreement if it so
provides and the certified association and the employer abide by it; otherwise it shall be referred to an arbitrator
chosen by the parties or, failing agreement, appointed by the Minister.
Except where provided to the contrary, the provisions of this division prevail over the provisions of any collective
agreement in case of incompatibility.
McLachlin (Iacobucci, Major, Binnie and Fish):

Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employerunion disputes. Other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be
endowed with exclusive jurisdiction

The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction. The second
step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the
arbitrator.

S.111 of the Quebec Charter grants the Human Rights Tribunal a large jurisdiction over human right matters in
Quebec

While s. 100 of the Quebec Labour Code gave jurisdiction over matters arising out of the collective agreement’s
operation to the arbitrator, the main fact that animates the dispute between the parties is that those responsible for
negotiations agreed to a term in the collective agreement that treats the complainants and members of their group
less favourably than more senior teachers.

The dispute, viewed not formalistically but in its essential nature, engages matters which pertain more to alleged
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

discrimination in the formation and validity of the agreement, than to its “interpretation and application”
The Human Rights Tribunal was entitled to exercise its jurisdiction over the matter under the governing legislation
since it was satisfied that the complainants had not, on the basis of the same facts, personally pursued one of the
remedies provided for in ss. 49 and 80 of the Charter
The complainants cannot be faulted for not asking the unions to file a grievance on their behalf.
 the nature of the question does not lend itself to characterization as a grievance under the collective
agreement
 the unions were, on the face of it, opposed in interest to the complainants
 Because this affected hundreds of teachers, the Human Rights Tribunal was a “better fit” for the dispute than
the appointment of a single arbitrator to deal with a single grievance
Bastarache + Arbour: (Dissent)

Arbitrators have exclusive jurisdiction over issues arising from the interpretation, application, administration or
violation of a collective agreement. This is what Weber stood for.

Two factors must be considered when making the determination of the appropriate forum: the essential character
of the dispute in its factual context and the ambit of the collective agreement

The essential character concerns pay and the taking into account of experience gained during the 1996-1997
school year for the purpose of setting pay.

Such issues form the very foundation of the contract and working conditions and are clearly within the scope of
the collective agreement and the exclusive jurisdiction of the arbitrator

Applying the essential character test, the dispute arises out of the application of the collective agreement and
places the dispute within the arbitrator’s exclusive jurisdiction.

“The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to
conclude that a violation of that right does not constitute a violation of the collective agreement.” It cannot be said
that a human rights issue is incidental to a collective agreement if it is implicitly incorporated into it.

The fact that the Tribunal has greater expertise than arbitrators with respect to human rights violations is an
insufficient basis on which to conclude that arbitrators should not have the power to uphold fundamental rights.

The arbitrator has jurisdiction over any issue that is expressly or inferentially linked or related to the collective
agreement. Arbitrators have the authority to remedy Charter violations because their enabling legislation
authorizes them to render decisions in this regard

Reaching a collective agreement, with the intention of amending it through negotiations, raises a multitude of
issues that an arbitrator is by far in the best position to handle on an informed basis
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