COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Health Services and Support-Facilities Subsector Bargaining Assn. v. British Columbia,

 

2004 BCCA 377

Date: 20040705


Docket: CA31275

Between:

The Health Services and Support-Facilities Subsector

Bargaining Association, The Health Services and Support-Community Subsector Bargaining Association,

The Nurses’ Bargaining Association, The Hospital Employees’ Union, The B.C. Government and Service Employees’ Union,

The British Columbia Nurses’ Union, Heather Caroline Birkett,

Janine Brooker, Amaljeet Kaur Jhand, Leona Mary Fraser,

Pamela Jean Sankey-Kilduff, Sally Lorraine Stevenson,

Sharleen G.V. Decillia and Harjeet Dhami

Appellants
(Plaintiffs)

And

Her Majesty the Queen in Right of the

Province of British Columbia

Respondent
(Defendant)

 


Before:

The Honourable Mr. Justice Esson

The Honourable Mr. Justice Low

The Honourable Mr. Justice Thackray

J.J. Arvay, Q.C.
C.J. Parker

Counsel for the Appellants

P.A. Gall, Q.C.
N. Iyer
A. Zwack
N. Sharma

Counsel for the Respondent

Place and Dates of Hearing:

Vancouver, British Columbia

May 3, 4 and 5, 2004

Place and Date of Judgment:

Vancouver, British Columbia

July 5, 2004

Written Reasons by:

The Honourable Mr. Justice Thackray

Concurred in by:

The Honourable Mr. Justice Esson

The Honourable Mr. Justice Low


Reasons for Judgment of the Honourable Mr. Justice Thackray:

I.    INTRODUCTION

[1]            This appeal arises out the Health and Social Services Delivery Improvement Act, S.B.C. 2000, c.2 (“Bill 29” or “the legislation”), passed by the Legislature of British Columbia on 28 January 2002.  The appellants submit that Parts 1 and 2 of the Bill, which modified collective agreements entered into by and on behalf of health care workers with their employers, contravene sections 2(d) and 15 of the Canadian Charter of Rights and Freedoms and, as such, are unconstitutional.

[2]            Sections 2(d) and 15(1) of the Charter read as follows:

2.         Everyone has the following fundamental                            freedoms:

            (d)   freedom of association.

 

                        . . .

 

15.(1)      Every individual is equal before and under            the law and has the right to the equal              protection and equal benefit of the law         without discrimination and, in particular,            without discrimination based on race,                   national or ethnic origin, colour,                 religion, sex, age or mental or physical       disability.

 

 

[3]            The Health and Social Services Delivery Improvement Act reads, in part, as follows:

Part 1 – Introductory Provisions

Definitions

1.    In this Act:

Code” means the Labour Relations Code;

labour relations board” means the Labour Relations Board established under the Code.

 

Application of Canada Health Act

2.    The criteria referred to in section 7 of the Canada Health Act respecting public administration, comprehensiveness, universality, portability and accessibility prevail in the event of a conflict or an inconsistency with this Act.

 

Part 2 – Health Sector

3.    In this Part:

bumping” means the exercise of a right of one employee to displace another employee who is on the same seniority list under a collective agreement;

collective agreement”  means a collective agreement between HEABC [Health Employers Association of British Columbia] and a trade union or an association of trade unions in an appropriate bargaining unit;

ESLA” means the Employment Security and Labour Force Adjustment Agreement, issued as part of the recommendations of the Industrial Inquiry Commissioner on May 8, 1996 and included in whole or in part in one or more collective agreements; …

health sector” means all members of HEABC whose employees are unionized and includes their unionized employees;

 

Contracting outside of the collective agreement for services

6(1)  In this section:

non-clinical services” means services other than medical, diagnostic or therapeutic services provided by a designated health services professional to a person who is currently admitted to a bed in an inpatient unit in an acute care hospital, and includes any other services designated by regulation.

 (2)  A collective agreement between HEABC and a trade union representing employees in the health sector must not contain a provision that in any manner restricts, limits or regulates the right of a health sector employer to contract outside of the collective agreement for the provision of non-clinical services.

 (4)  A provision in a collective agreement requiring an employer to consult with a trade union prior to contracting outside of the collective agreement for the provision of non-clinical services is void.

 

Employment Security and Labour Force Adjustment Agreement

7(1)  A party to ESLA is not required to carry out a term of ESLA on or after the coming into force of this section.

 

Healthcare Labour Adjustment Society

8(2)  The minister may appoint an administrator for HLAA.

 (3)  The administrator appointed under subsection (2) replaces the directors of HLAA and may exercise all the rights and duties of directors under the Society Act.

 

Layoff and bumping

9.    For the period ending December 31, 2005, a collective agreement must not contain a provision that

(a)     restricts or limits a health sector employer from laying off an employee,

(b)     subject to paragraph (c), requires a health sector employer to meet conditions before giving layoff notice,

(c)     requires a health sector employer to provide more than 60 days’ notice of layoff to an employee directly or indirectly affected and to the trade union representing the employee, or

(d)     provides an employee with bumping options other than the bumping options set out in the regulations.

 

Part prevails over collective agreements

10(1) A collective agreement that conflicts or is inconsistent with this Part is void to the extent of the conflict or inconsistency.

  (2) A provision of a collective agreement that

        (a)   requires a health sector employer to            negotiate with a trade union to replace        provisions of the agreement that are void         as a result of subsection (1), or

        (b)   authorizes or requires the labour               relations board, an arbitrator or an                  person to replace, amend or modify              provisions of the agreement that are void             as a result of subsection (1),

is void to the extent that the provision relates to a matter prohibited under this Part.

 

[4]            The appellants also submit that Health Sector Labour Adjustment Regulation, B.C. Reg. 39/2002 is unconstitutional.  That regulation adds details to several sections of the Act

[5]            The hearing in the British Columbia Supreme Court was heard in April 2003 by Madam Justice Garson.  The judge concluded as follows:

[191] The plaintiffs have challenged the constitutionality of Parts 1 and 2 of Bill 29 on three constitutional grounds, s.2(d), s.7 and s.15 of the Charter. I have concluded the impugned law does not infringe the Charter on any of the three grounds argued by the plaintiffs, accordingly the plaintiffs’ claim is dismissed.

 

II.   SECTION 2(d)

[6]            The appellants assert that sections of Bill 29 regarding contracting out, bumping, layoffs, Employment Security and Labour Force Adjustment Agreement (“ESLA”) and the Healthcare Labour Adjustment Agency (“HLAA”) affect the collective agreement and are therefore contrary to s.2(d) of the Charter.

[7]            Portions of the opening statement by the appellants outline their approach to the s.2(d) issue:

This is a constitutional challenge to the Health and Social Services Delivery Improvement Act (“Bill 29” or “the Legislation”) and the Health Sector Labour Adjustment Regulation (the “Regulation”) which voided numerous provisions of the collective agreements which apply to unionized workers in the health care sector, prohibited the renegotiation by these workers of certain collective agreement terms and denied health care workers access to various provisions of the Labour Relations Code (the “Code”), which would otherwise govern their activities.

Bill 29 targets associational conduct because of its concerted or associational nature and is thus a breach of section 2(d) of the Canadian Charter of Rights and Freedoms (the “Charter”).

The chambers judge erred by interpreting section 2(d) in an overly restrictive manner which is inconsistent with the Supreme Court of Canada jurisprudence relating to the provision.

 

A.    Reasons for judgment of the chambers judge

[8]            In commendable detail the reasons for judgment of Madam Justice Garson set forth the legislation, the challenges, an  analysis and conclusions.  I will quote passages from the  reasons that illustrate the case that came before her and, to a significant extent, before this Court.

[1]   … Broadly speaking, Bill 29, which applies to non-clinical services performed by health care workers, voids certain provisions of existing collective agreements with the result that:

·                  a health sector employer may contract with outside service providers to perform certain services previously provided by the plaintiffs;

·                  upon lay-off, the employer shall not give more than 60 days notice to employees;

 

·                  the previously agreed regime for the bumping by senior employees of junior employees upon lay-off is replaced with a more restrictive one;

 

·                  health care workers or services may be transferred or assigned between different sites; and

 

·                  health sector employers are no longer required to provide laid off employees with the benefits of the Employment Security and Labour Force Adjustment Agreement which gave such employees up to one year of retraining and assistance in finding alternative positions.

                       . . .

[4]   The plaintiffs’ argument rests upon three grounds:

·         Bill 29 impedes the plaintiffs’ freedom to join, establish and maintain an association, namely, a workplace union, which freedom is guaranteed by s. 2(d) of the Charter of Rights and Freedoms.

 

                        . . .

[7]   The plaintiffs’ principal argument is that the impact of Bill 29 is so significant that it impedes their s.2(d) freedom to associate. Mr. Arvay, counsel for the plaintiffs, describes this as his “what is the point?” argument, meaning that the plaintiffs would, if asked, articulate their feeling about Bill 29 by saying “what is the point of joining or maintaining a union membership?” “What would be the point?” they would say because the fundamental advantages of union membership have been removed by the legislature and their hard won achievements, such as pay equity included in their last collective agreement, have been frustrated by Bill 29. He says that the recent judgment of the Supreme Court of Canada in Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94, in which the Court held that the provision of the Ontario Labour Relations Act, R.S.O. 1980, c.288 excluding agricultural workers from the labour relations regime was a breach of the plaintiffs’ s.2(d) Charter rights, is the first but significant step by the Supreme Court of Canada towards giving constitutional protection to certain fundamental entitlements of collective bargaining.

 

[9]            The judge continued by detailing the changes that Bill 29 made to the “governance, structure and management of the health care sectors”, she narrated the legislative history of the statutes that have governed employment in the health care sector of British Columbia in recent years and she set forth the history of legislative intervention.

[10]        The judge noted the “three distinct ways” in which the appellants submitted that Bill 29 was unconstitutional.  They were paralleled in the hearing in this Court so I will simply summarize them as: (1) the voiding of collective agreements; (2) the interference with health care workers’ ability to join, establish and maintain an association; and (3) interference with essential aspects of collective bargaining.  The judge said that the plaintiffs submitted that Bill 29 was inconsistent with s.2(d) of the Charter under the formulation derived from cases commonly called the “labour trilogy”, the citations being: Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, 38 D.L.R. (4th) 161, [1987] 3 W.W.R. 577 (the “Alberta Reference”); PSAC v. Canada, [1987] 1 S.C.R. 424, 38 D.L.R. (4th) 429 (“PSAC”) and RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460, 38 D.L.R. (4th) 277, [1987] 3 W.W.R. 673.

[11]        The judge noted that the appellants relied primarily upon Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 207 D.L.R. (4th) 193, 2001 SCC 94, and added:

[62]  They assert that as a result of Dunmore it is no longer sufficient that s.2(d) protect only a formal right to join a trade union: it must also protect those inherently collective activities of the union that make that right meaningful and that promote the purpose of s.2(d). In determining what collective activities should attract Charter protection the threshold is whether the activity falls “within the framework established by the labour trilogy or that otherwise furthers the purpose of s.2(d)”: Dunmore at [¶] 69. While conceding that not every aspect of a specific collective bargaining regime will receive constitutional protection, the plaintiffs submit that those aspects critical to realizing the purpose of s.2(d) in the context of labour relations must be included within the ambit of its protection.

                              . . .

[65]  The plaintiffs submit that while Dunmore did not explicitly overrule the Labour Trilogy, the conclusions in those cases that collective bargaining does not fall within the protective ambit of s.2(d) can, to some extent, be distinguished. They additionally assert that the earlier cases should no longer be relied upon to the extent they deny s.2(d) protection to collective activities on the basis that they do not have an individual analogue.

[12]        This brought Madam Justice Garson to the jurisprudence, which she set forth in significant detail. She then came to a conclusion that the appellants say is in error:

[96]  … While Dunmore opens the door to the possibility that some limited aspects of collective bargaining, such as the freedom to make representations to an employer, may warrant constitutional protection, it otherwise explicitly endorses the Court’s conclusion in the earlier cases [the labour trilogy] that the ability to bargain collectively is not protected by the Charter.

 

[13]        The judge then “answered questions required by a Dunmore analysis.”  She held that “the regulation of the plaintiffs’ collective agreements by Bill 29 does not come within the range of activities protected by s.2(d) as described in the labour trilogy.”  That burden having not been met she answered the second branch of the Dunmore analysis, that is, whether the plaintiffs had satisfied the burden of demonstrating that the Legislature targeted associational conduct because of its associational nature.  She concluded:

[112] Th[e] evidence does not establish that the impact of Bill 29 interferes with or prohibits membership in one of the plaintiff unions. The evidence does establish that the plaintiffs are disappointed about losing hard-fought for achievements, and that many may lose their jobs but the evidence does not go so far as to establish that the plaintiffs[’] Charter-guaranteed right to join a trade union is interfered with, only that some of the benefits of such association have been circumscribed by Bill 29. Bill 29 must also be examined in the context of the legislative history of government intervention in the health care sector. Notwithstanding the continued intervention as described above the plaintiff unions have remained robust and politically powerful. I am not persuaded by the evidence before me that Bill 29 targets associational conduct i.e. joining, or maintaining membership in, a union.

 

[14]        Another alleged judicial error is in the following excerpt from the reasons:

[115] … As long as the impugned legislation does not effectively prevent employees from collectively approaching their employer, there is no violation of s.2(d). Constitutionally enshrining certain aspects of collective agreements would hamstring legislators from doing what is in the public interest. In my view, a legislature is constitutionally free to establish permissible and prohibited subjects of collective bargaining, even if the result is the elimination of certain subjects of bargaining that were previously permitted, provided that in doing so it does not target the associational activity itself. Here the evidence falls short of establishing that the associational activity was targeted.

 

[15]        Madam Justice Garson said there are three key aspects of collective bargaining that the plaintiffs argued deserved constitutional protection: the opportunity to develop a collective position and make majority representations to an employer; the capacity to collectively enter into agreements on matters of fundamental importance to workers; and the ability to enforce collective agreements.  She held as follows, a conclusion that the appellants say is in error:

[118] … In my view, Dunmore does not support the plaintiffs’ position. Neither Dunmore nor any other authority has held that s.2(d) requires an employer to respond in a certain way to, or negotiate in respect of, those representations. The Charter permits significant legislative limits on the freedom of contract with respect to employment.

 

[16]        With respect to s.2(d) the judge held:

[123] I conclude that nothing in Bill 29 limits or otherwise interferes with the plaintiffs’ ability to form or participate in the lawful activities of a trade union. Accordingly, in light of the Supreme Court’s jurisprudence, the plaintiffs’ s.2(d) claim cannot succeed because it relates to an activity that does not fall within the range of activities protected by s.2(d).

 

B.    Recent statutory history respecting employment in the       health care sector in British Columbia

[17]        The judge devoted a full section of her reasons for judgment to this subject.  This is understandable and commendable in that the positions of the competing parties in this case diverge as to how Bill 29 fits into the historical context of labour/management relations in the public sector, specifically the health care sector.  The judge said:

[46]  While the plaintiffs describe Bill 29 as “an unprecedented attack on the association rights of health care workers,” the defendant characterizes it as simply another instance in a long history of legislative intervention in collective bargaining in the health care sector. A review of the history of legislative regulation of, and intervention in, health care sector labour relations in the Province provides an important contextual framework to the plaintiffs’ claim that Bill 29 infringes their rights to freedom of association guaranteed under s.2(d) of the Charter. In other words, the plaintiffs’ claim that there is now no purpose in joining a union or maintaining their union membership in the face of Bill 29’s interference in the collective bargaining process must be examined in the context of previous legislative intervention, much of which has not been favourable to the plaintiffs, but which has not hindered or prevented the plaintiffs from joining, establishing and maintaining a trade union.

 

[18]        Madam Justice Garson traced the history of labour relations and statutory intervention, noting that hospital employees had been covered by collective bargaining legislation that went back to at least 1968.  In that year their right to strike was legislatively curtailed by the designation of health care as an “essential service.”  The Public Service Labour Relations Act, S.B.C. 1973, c.144 established broadly-based collective bargaining in the provincial public service for the first time.

[19]        In 1975 a strike at the Vancouver General Hospital was halted by a legislatively imposed collective agreement.  In 1977 the Essential Services Disputes Act, S.B.C. 1977, c.83 introduced criteria for arbitrators to consider when resolving collective bargaining disputes in the public sector.  In 1982 the government enacted the Compensation Stabilization Act, S.B.C. 1982, c.32, which imposed public sector wage controls.  This was followed in 1987 by amendments to the Industrial Relations Act which permitted the government to order a 40-day cooling off period in disputes involving essential services and to unilaterally suspend strikes and lockouts.

[20]        In 1987 the Labour Relations Code, which had replaced the Industrial Relations Act, extended the power of the Labour Relations Board with respect to establishing levels of essential services during labour disputes.  In 1992 the Health Employers Association of British Columbia was created to act as a bargaining agent for health sector employers.

[21]        In 1993 the Health Authorities Act, S.B.C. 1993, c.47 regionalized management responsibilities.  In the same year the government proposed an agreement known as the “Health Accord” that outlined its broad plan to deal with labour issues in health care.  The Health Accord expired in March 1996 and the parties were unable to agree to its renewal and were also unable to reach agreement regarding renewals of their collective agreements.

[22]        In 1995 the Dorsey Health Sector Labour Relations Commission recommended the establishment of five industry-wide multi-employer bargaining units reflecting the five sub-sectors in health care.  Those sub-sectors were: nurses; paramedicals; residents; health services and support-facilities (the “Facilities” sub-sector); and health services and support-community (the “Community” sub-sector).  Each sub-sector was to have independent bargaining unit covered by its own province-wide collective agreement.

[23]        This recommended structure was implemented through the Health Sector Labour Relations Regulation, B.C. Reg. 329/95.  This stripped some health care unions of their collective bargaining rights.  The regulation was repealed in 1997.

[24]        In 1996, following expiry of the Health Accord and unsuccessful attempts to arrive at new collective agreements,  the Legislature passed the Education and Health Collective Bargaining Assistance Act, S.B.C. 1996, c.1.  It allowed the government to order acceptance of recommendations from an Industrial Inquiry Commissioner that it had appointed.  On 8 June 1996 the Commissioner’s report was legislatively imposed.

[25]        In 1996 and 1998 the Community and Facilities sub-sections bargained collective agreements.  In 2001 the unions argued that there should be parity in the two sub-sections and pressed for joint bargaining.  This was legislatively enacted. 

[26]        In the summer of 2001 nurses and paramedicals engaged in strike action.  The Government legislated a cooling off period and then imposed collective agreements through the Health Care Services Continuation Act, S.B.C. 2001, c.23 and the Health Care Services Collective Agreements Act, S.B.C. 2001, c.26.

[27]        The history of legislative intervention in labour relations in the health care sector is important in the context of the appellants’ submission that Bill 29 was an “unprecedented assault on the rights of labour” and, as such, exceeded constitutional competence.  Counsel for the appellants asserted that Bill 29 “pushed the boundaries of its powers to pass labour law further than ever done before.  It has, in an unprecedented way, voided lawfully concluded labour contracts.”

C.    Any interference with the content of collective       bargaining or with collective agreements is an interference with s.2(d)

[28]        This is the first foundation of the appeal as framed by the appellants.  The second ground, posed by the appellants as their “alternative argument”, is that in the circumstances of this case, Bill 29 infringes s.2(d).  I will deal with that later in these reasons but the analysis that I will undertake on this first foundation is applicable, for the most part, to the second foundation as well.

[29]        Counsel for the appellants submitted that s.2(d) “guarantees to workers in British Columbia the basic core aspects of collective bargaining” and that Bill 29 precludes activity because of its associational nature.  He said the “contents of the collective contract have been voided by banning workers from the common pursuit of their common goals”.

[30]        The “core aspects” that counsel submitted were compromised by Bill 29 are:

1.    freedom to make collective representations to   employers;

2.    freedom to negotiate and agree with an    employers’ terms and conditions of employment     in a collective manner; and

3.    the ability to rely on contracts that are       collectively concluded.

 

[31]        Appellants’ counsel asserted that the labour trilogy does not raise “precisely” the same questions raised by Bill 29. Furthermore, it “resulted in a plurality of judgments and no clear consensus on the scope of the s.2.(d) protection”.  Counsel submitted that in the Alberta Reference the reasons of Mr. Justice McIntyre, who agreed with Beetz, Le Dain and Wilson JJ. in the result, “did not close the door and it is this door that I am asking this Court to go through”.  Mr. Arvay explained this by saying that “Mr. Justice McIntyre himself left open the possibility that aspects of collective bargaining may be protected by s.2(d)”.

[32]        Appellants’ counsel submitted that Chief Justice Dickson’s dissents in the labour trilogy “have taken on a new force” in that they have been adopted by the Supreme Court of Canada in Dunmore.  He said that this Court should “move the constitution ahead in a progressive, incremental way” and that the “invitation”, indeed, the requirement, to do so is found in Dunmore.  Mr. Arvay submitted that Dunmore “indicates a new (liberal) approach that opens the way for this Court to find collective bargaining protected by the Charter”.

[33]        The appellants’ ultimate position is that Dunmore demonstrates that a statutory right can capture or make more concrete a constitutional right or freedom, and that:

Regardless of what labour relations scheme a province may choose to enact regarding collective bargaining, it cannot prohibit the collective negotiation and enforcement of employment agreements. While there may not be a right to any particular labour relations framework, there is at least a right to remain free from state interference in carrying out this type of collective activity.

 

i.    Alleged judicial errors

[34]        The appellants allege judicial error in paragraph 115 of the reasons for judgment where the judge found that Bill 29 does not prevent employees from collectively approaching their employer and that it had not been established, on the evidence, that associational activity was targeted.

[35]        Their position is that in curtailing collective bargaining Bill 29 sought out the “meaningful” activity in which the union engaged.  Mr. Arvay submitted that in targeting it the legislation removed the reason for existence of the union.  He termed collective bargaining the “raison d’être” of the union, thus Bill 29 was aimed at associational activity.

[36]        These arguments were made to and not overlooked by Madam Justice Garson.  Commencing at paragraph 99 of her reasons she considered the “Dunmore question” of whether the plaintiff had demonstrated by direct evidence or inference that the legislature targeted associational conduct because of its concerted or associational nature.  She reviewed a large portion of the evidence that was before her.  She concluded that the evidence did “not establish that the impact of Bill 29 interferes with or prohibits membership in one of the plaintiff unions”.

[37]        At paragraphs 114 and 115 the judge repeated the arguments made to her on behalf of the union.  She reiterated her opinion that “the evidence falls short of establishing that the associational activity was targeted”.  She concluded that the impugned legislation does not “effectively prevent employees from collectively approaching their employer”, thus there is no violation of s.2(d).

[38]        I alluded earlier in these reasons to the significance of the history of labour/management relations in the health care sector and the history of legislative intervention.  In coming to the above conclusions, Madam Justice Garson said, at paragraph 112, that the impugned legislation “must also be examined in the context of the legislative history of government intervention in the health care sector”.  In that context she noted that in spite of the history of legislative intervention “the plaintiff unions have remained robust and politically powerful”.

[39]        There is no doubt but that Bill 29 was seen as a great setback by the unions.  However, as acknowledged by Mr. Allnutt and as held by the judge, it did not sound a death knell for the union.

[40]        Another alleged judicial error is in paragraph 118 of the reasons for judgment.  Therein it is said that Dunmore does not support the appellants’ position and that neither it nor any other authority has held that s.2(d) requires an employer to respond in a certain way to, or negotiate in respect of, collective representations.  The judge added that the “Charter permits significant legislative limits on the freedom of contract with respect to employment”.

[41]        The alleged error is that the appellants’ case is not that the employer is required to respond in a certain way or to negotiate with collective representations.  The respondent, in reply, contends that this is “exactly” the appellants’ case.

[42]        The evidence that was introduced by the plaintiffs at trial included segments, such as the testimony of Mr. Allnutt repeated in the reasons for judgment at paragraph 111, that emphasized what the unions had achieved and what they wanted to retain -- for instance, restrictions on contracting out.  The following excerpt from his testimony is revealing:

… the union will be required to expend time and resources organizing workplaces all over again, developing new collective agreements and participating in a myriad of bargaining relationships just to re-establish the rights which have been previously won.

 

[43]        This, in my opinion, substantiates two points made by the judge and advanced by the respondents on this appeal.  Those are, first, that the union is not moribund and second, that what it is seeking is a guarantee of the right to collective bargaining and the preservation of the specific gains won and included in the collective agreement.

[44]        It is further submitted by the appellants that the judge erred in paragraph 96 of her reasons in saying that Dunmore “explicitly endorses the Court’s conclusion in the earlier cases that the ability to bargain collectively is not protected by the Charter”.  This requires an analysis of Dunmore but first it is best to consider the law as laid down by the Supreme Court of Canada.

ii.   Reference Re Public Service Employee Relations Act    (Alta.), [1987] 1 S.C.R. 313 [the “Alberta Reference”]

[45]        Several constitutional questions were referred to the Alberta Court of Appeal.  They raised two main issues: (1) whether the provisions of three acts, which prohibited strikes and imposed compulsory arbitration to resolve impasses in collective bargaining, were inconsistent with the Charter; and (2) whether the provisions of the acts which limited the arbitrability of certain items and required the arbitration board to consider certain factors were inconsistent with the Charter.

[46]        The first act applied to public service employees, the second to firefighters and hospital employees and the third to police officers.  The Court of Appeal of Alberta answered the first issue in the negative and declined to answer the second.  The appeal to the Supreme Court of Canada was as to whether the legislation infringed the guarantee of freedom of association in s.2(d) of the Charter and, if so, whether such violation could be justified under s.1.  The appeal was dismissed.  Dickson C.J. and Wilson J. dissented.  Chouinard J. did not take part in the judgment.

[47]        The appellants say that the Alberta Reference was not about collective bargaining and that Mr. Justice Le Dain, in writing the reasons for himself, Beetz and La Forest JJ., overstated what had been said by Mr. Justice McIntyre. Mr. Justice McIntyre commenced by noting that the question on the appeal was whether the Charter “gives constitutional protection to the right of a trade union to strike as an incident to collective bargaining”.  He reviewed six approaches taken to the right to freedom of association and rejected those that gave greater protection to activities merely because they were done collectively, noting that at the core of freedom of association rests a rather simple proposition: “… [T]he attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others.”  At pages 409-414, he summarized the nature of s.2(d) protection as follows:

It follows from this discussion that I interpret freedom of association in s.2(d) of the Charter to mean that Charter protection will attach to the exercise in association of such rights as have Charter protection when exercised by the individual. Furthermore, freedom of association means that freedom to associate for the purposes of activities which are lawful when performed alone. But, since the fact of association will not by itself confer additional rights on individuals, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.

When this definition of freedom of association is applied, it is clear that it does not guarantee the right to strike. 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. Accepting this conclusion, the appellants argue that freedom of association must guarantee the right to strike because individuals may lawfully refuse to work. This position, however, is untenable … .

… Labour law, as we have seen, is fundamentally important as well as an extremely sensitive subject. It is based upon a political and economic compromise between organized labour – a very powerful socio-economic force – on the one hand, and the employers of labour – an equally powerful socio-economic force – on the other. The balance between the two forces is delicate and the public-at-large depends for its security and welfare upon the maintenance of that balance. … [T]he whole process is inherently dynamic and unstable. Care must be taken then in considering whether constitutional protection should be given to one aspect of this dynamic and evolving process while leaving the others subject to the social pressures of the day. …

 

[48]        Mr. Justice Le Dain commenced his reasons at page 390:

… I agree with McIntyre J. that the constitutional guarantee of freedom of association in s.2(d) of the Canadian Charter of Rights and Freedoms does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike, and accordingly I would dismiss the appeal …                                   [emphasis added]

 

[49]        At page 391 he expressed his own reasons for so deciding:

In considering the meaning that must be given to freedom of association in s.2(d) of the Charter 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, with a wide variety of objects, as well as activity by which the objects may be pursued. It is in this larger perspective, and not simply with regard to the perceived requirements of a trade union, however important they may be, that one must consider the implications of extending a constitutional guarantee, under the concept of freedom of association, to the right to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

 

[50]        At pages 391-92, he concluded his reasons with a paragraph which the respondents emphasize:

What is in issue here is not the importance of freedom of association in this sense, which is the one I ascribe to s.2(d) of the Charter, but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. 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. It is surprising that in an area in which this Court has affirmed a principle of judicial restraint in the review of administrative action we should be considering the substitution of our judgment for that of the Legislature by constitutionalizing in general and abstract terms rights which the Legislature has found it necessary to define and qualify in various ways according to the particular field of labour relations involved. The resulting necessity of applying s.1 of the Charter to a review of particular legislation in this field demonstrates in my respectful opinion the extent to which the Court becomes involved in a review of legislative policy for which it is really not fitted.

 

[51]        In PSAC v. Canada, one of the trilogy cases, at 453-54, Mr. Justice McIntyre clarified his reasons in the Alberta Reference:

… My finding in that case [Alberta Reference] does not, however, preclude the possibility that other aspects of collective bargaining may receive Charter protection under the guarantee of freedom of association.

 

In my opinion, the Public Sector Compensation Restraint Act, S.C. 1980-81-82-83, c.122, does not interfere with collective bargaining so as to infringe the Charter guarantee of freedom of association. The Act does not restrict the role of the trade union as the exclusive agent of the employees. It requires the employer to continue to bargain and deal with the unionized employees through the Union. It also permits continued negotiations between the parties with respect to changes in the terms and conditions of employment which do not involve compensation. The effect of the Act is simply to deny the use of the economic weapons of strikes and lockouts for a two-year period. This may limit the bargaining power of the trade union, but it does not, in my view, violate freedom of association.

 

 

 

[52]        When the Alberta Reference and PSAC are read together it is fair to say that Mr. Justice Le Dain did indeed overstate what Mr. Justice McIntyre said.  The appellants in the case at bar have a point insofar as they assert that the Alberta Reference did not preclude that some aspects of collective bargaining may be protected under s.2(d).  However, what the appellants rely upon are the comments made by Chief Justice Dickson in dissent, at page 334:

Freedom of association is the freedom to combine together for the pursuit of common purposes or the advancement of common causes. It is one of the fundamental freedoms guaranteed by the Charter, a sine qua non of any free and democratic society, protecting 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. Historically, workers have combined to overcome the inherent inequalities of bargaining power in the employment relationship and to protect themselves from unfair, unsafe, or exploitative working conditions.

 

[53]        The Chief Justice, commencing at page 338, pointed out that Canadian jurisprudence on the nature and scope of freedom of association is divided.  He noted that this Court and the Federal Court of Appeal have endorsed a constitutive definition of freedom of association, concluding that collective bargaining and strike activity are not protected by freedom of association.  He cited Dolphin Delivery Ltd. v. Retail, Wholesale & Department Store Union, Local 580 et al (1984), 10 D.L.R. (4th) 198 (B.C.C.A.), wherein Mr. Justice Esson said, at 207-208:

The freedom [of association] is that of the individual (i.e., in the words of s.2, of “everyone”). It is the freedom to unite, to combine, to enter into union, to create and maintain an organization of persons with a common purpose. One of the classes of association guaranteed by s.2 is undoubtedly the trade union. Everyone has the right to join a trade union and to pursue, with the other members, the collective interests of the membership. It does not follow that the Charter guarantees the objects and purposes of the union, or the means by which those can be achieved.

 

[54]        Chief Justice Dickson, after an extensive review of the Canadian, American and international jurisprudence, continued as follows at pages 362-66:

A wide variety of alternative interpretations of freedom of association has been advanced in the jurisprudence summarized above and in argument before this Court.

At one extreme is a purely constitutive definition whereby freedom of association entails only a freedom to belong to or form an association. On this view, the constitutional guarantee does not extend beyond protecting the individual’s status as a member of an association. It would not protect his or her associational actions.
                              [Emphasis of Dickson C.J.]

                              . . .

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, indeed vapid.

In my view, while it is unquestionable that s.2(d), at a minimum, guarantees the liberty of persons to be in association or belong to an organization, it must extend beyond a concern for associational status to give effective protection to the interests to which the constitutional guarantee is directed.

                              . . .

A second approach, the derivative approach, prevalent in the United States, embodies a somewhat more generous definition of freedom of association than the formal, constitutive approach. In the Canadian context, it is suggested by some that associational action which relates specifically to one of the other freedoms enumerated in s.2 is constitutionally protected, but other associational activity is not.

I am unable, however, to accept that freedom of association should be interpreted so restrictively. Section 2(d) of the Charter provides an explicit and independent guarantee of freedom of association. …

                              . . .

Freedom of association is most essential in those circumstances where the individual is liable to be prejudiced by the actions of some larger and more powerful entity, like the government or an employer.

                              . . .

What freedom of association seeks to protect is not associational activities qua particular activities, but the freedom of individuals to interact with, support, and be supported by, their fellow humans in the varied activities in which they choose to engage. But this is not an unlimited constitutional license for all group activity. The mere fact that an activity is capable of being carried out by several people together, as well as individually, does not mean that the activity acquires constitutional protection from legislative prohibition or regulation.            [emphasis added]

 

[55]        Chief Justice Dickson, at page 367, said that if a legislature permits an individual to enjoy an activity that it forecloses to a collective, it may be inferred that it was intended to prohibit the collective activity because of its associational aspect.  However, he pointed out that conversely if the legislative proscription applies equally to individuals and to groups, the purpose of the legislation may be inferred to be a legitimate prohibition of the particular activity “because of detrimental qualities inhering in the activity … and not merely because of the fact that the activity might sometimes be done in association”.  He concluded at pages 367-68:

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. The legislative purpose which will render legislation invalid is the attempt to preclude associational conduct because of its concerted or associational nature.
                                          [emphasis added]

… It has been suggested that associational activity for the pursuit of economic ends should not be accorded constitutional protection. If by this it is meant that something as fundamental as a person’s livelihood or dignity in the workplace is beyond the scope of constitutional protection, I cannot agree. If, on the other hand, it is meant that concerns of an exclusively pecuniary nature are excluded from such protection, such an argument would merit careful consideration. In the present case, however, we are concerned with interests which go far beyond those of a merely pecuniary nature.

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being. …

The role of association has always been vital as a means of protecting the essential needs and interests of working people. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers. The capacity to bargain collectively has long been recognized as one of the integral and primary functions of associations of working people.

 

[56]        It cannot, in my opinion, be correct to say that the Alberta Reference is “not about collective bargaining.”  It might be that Mr. Arvay meant that the reference was not grounded on collective bargaining but rather on constitutionalization of the right to strike.  Nevertheless, the reasons for judgment, including those of the Chief Justice in dissent, leave no room to argue that they are irrelevant to issues arising in collective bargaining and to the process of collective bargaining.  Putting it more bluntly, this Court cannot distinguish the Alberta Reference upon such a basis.

[57]        The Alberta Reference is applicable to the case at bar and, subject only to any subsequent pronouncement from the Supreme Court of Canada limiting its scope, binding upon this Court with respect to the issue at hand.

iii.  The Professional Institute of the Public Service of   Canada v. Northwest Territories, [1990] 2 S.C.R. 367

    (“PIPSC”).

 

[58]        In separate judgments, Chief Justice Dickson, La Forest, L’Heureux-Dubé, and Sopinka JJ. held that collective bargaining was not protected under s.2(d).  L’Heureux-Dubé and La Forest JJ. both expressed their agreement with Sopinka J.’s reasons.  Mr. Justice Cory (Wilson and Gonthier JJ. concurring) held that s.2(d) gave employees the right to choose their bargaining unit and left open the question of whether collective bargaining could be protected under s.2(d). PIPSC is perhaps most widely cited for Mr. Justice Sopinka’s analysis of the scope of s.2(d) protection.  He said at pages 401-402:

Upon considering the various judgments in the Alberta Reference, I have come to the view that four separate propositions concerning the coverage of the s.2(d) guarantee of freedom of association emerge from the case: first, that s.2(d) protects the freedom to establish, belong to and maintain an association; second, that s.2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s.2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s.2(d) protects the exercise in association of the lawful rights of individuals.

 

[59]        Chief Justice Dickson came to the conclusion that collective bargaining was not protected under s.2(d) based on his interpretation of the labour trilogy, the correctness of which he noted was not challenged on the appeal in PIPSC.  He cited Mr. Justice Le Dain’s holding in the Alberta Reference that collective bargaining is not protected and Mr. Justice McIntyre’s holding that s.2(d) cannot vest independent rights in a group.  Chief Justice Dickson concluded that s.2(d) did not guarantee the right to collective bargaining.

iv.   R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209,   205 D.L.R. (4th) 385, 2001 SCC 70

[60]        In order to obtain a competency certificate construction workers had to be members of a union listed in the Construction Act of Quebec.  The appellants claimed this obligation was unconstitutional because it breached the right not to associate which, in their opinion, was a component of the guarantee of freedom of association in s.2(d).

[61]        This constitutional challenge was dismissed at trial and by the Quebec Superior Court.  The application to the Quebec Court of Appeal for leave to appeal was also dismissed.  The Supreme Court of Canada dismissed the appeal.  While the issues were somewhat different than in the case at bar, some of the comments of the majority bear consideration.

[62]        Commencing at paragraph 117, Mr. Justice LeBel reflected upon the history of the labour movement in Quebec.  He noted:

[117] … [P]ersistent difficulties [in the construction industry in Quebec since the mid 1960s] are closely tied to the specific character of the development and structure of the labour movement in Quebec. This history has also been influenced by the particular techniques used by the legislature to regulate labour relations, to establish and administer labour standards and to control the vocational competency of the work force. No analysis of the Construction Act, as it stood when the present litigation began in 1992-1993, would be adequate without some examination of this historical background.
                                          [emphasis added]

                              . . .

[156] Looking back over nearly 20 years of the application of the Charter, it is clear that this Court has been reluctant to accept that the whole field of labour relations should fall under the constitutional guarantee of s.2(d). The law of collective bargaining, as it has developed in Canada since the Depression beginning in 1929 and the Second World War, as well as union and employer conflicts like strikes and lockouts, have been left largely to legislative control based on government policy. …

                              . . .

[175] This Court has adopted 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. … The act of engaging in legal activities, in conjunction with others, receives constitutional protection. The focus of the analysis remains on the individual, not on the group.

 

[63]        Mr. Justice LeBel said that in spite of the strong dissent of Chief Justice Dickson in the Alberta Reference the interpretive approach suggested by Mr. Justice McIntyre has prevailed.  He continued:

[179] On the basis of his definition of the right of association as an instrument of individual self-fulfilment, McIntyre J. refused to grant Charter protection to now traditional labour practices or institutions like the right to strike or the right to collective bargaining. The constitutional guarantee would not extend to the purpose and objects of the common action. Despite Dickson C.J.’s dissent in the trilogy, as discussed above, the jurisprudence of the Court has remained faithful to this approach.

[180] Before turning to other aspects of the guarantee of freedom of association, it should not be forgotten that this interpretation of the constitutional guarantee of individual rights has been applied by the Court in other areas of human activity. In [the Alberta Reference], Le Dain J. had already cautioned against an extension of a constitutional protection to collective bargaining rules for the very reason that freedom of association was not limited to the domain of labour relations. If this constitutional guarantee were to apply to the widest range of associations with the most diverse objects and activities, extending constitutional protection to a legislative creation like collective bargaining might have unforeseeable consequences and widen the sphere of constitutional protection to undefined and unknowable activities, well beyond the proper domain of s.2(d).

                              . . .

[239] The question at stake in this appeal should thus be left to the political process. Such a solution would be consistent with the jurisprudential attitude of the Court that was summarized above. It retains a balance in the application of the Charter. It leaves the legal management of labour relations to Parliament and legislatures as well as to the parties to labour agreements, as the majority of the Court has held consistently since the labour law trilogy of 1987. The management of labour relations requires a delicate exercise in reconciling conflicting values and interests. The relevant political, social and economic considerations lie largely beyond the area of expertise of courts. This limited and prudent approach to court interventions in the field of labour relations reflects a proper understanding of the functions of courts and legislatures. In the application of the Charter, it also avoids characterizing any kind of governmental action in support of human rights as a prima facie infringement of the Charter that would have to be justified under s.1.                  [emphasis added]

[64]        Mr. Justice LeBel, as with Mr. Justice Le Dain, interpreted Mr. Justice McIntyre’s remarks in the Alberta Reference as being that Charter protection does not extend to collective bargaining.  However, if that interpretation is questionable, Mr. Justice LeBel, for the majority, made it clear that the Supreme Court of Canada is of the view that there is no constitutional guarantee to the “purpose and objects of the common action.”

v.    Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R.      1016

[65]        In Dunmore agricultural workers challenged legislation that totally excluded them from the Labour Relations Act on the basis that it violated their freedom to organize as protected under s.2(d) of the Charter.  They also challenged the legislation as being contrary to s.15(1).

[66]        Both the Ontario Superior Court (General Division) and the Ontario Court of Appeal upheld the challenged legislation.  The Supreme Court of Canada held the legislation to be unconstitutional.  Mr. Justice Bastarache wrote the reasons for the majority.  The Court held that there is no constitutional right to protective legislation per se, but that excluding agricultural workers from a protective regime that was in place was a violation of protected freedoms.  In order to make the freedom to organize meaningful, in the context of the facts in the case, s.2(d) of the Charter was seen as imposing a positive obligation on the state to extend protective legislation to this otherwise unprotected group of workers.

[67]        Mr. Arvay submitted that “nothing in Dunmore suggests collective bargaining is not subject to protection, it is not a collective bargaining case therefore there is wriggle room/an open door”.  He further contended that Dunmore invited courts to extend constitutional protection to activities that form the raison d’être for the existence of unions and indeed made the invitation mandatory.

[68]        In support of these propositions Mr. Arvay cited paragraphs from Dunmore to which I will now refer in order to determine if they give to the appellants the “open door or wriggle room” that they say exists and if they extend the invitation suggested:

[15]  In addition to the four-part formulation in PIPSC, supra, an enduring source of insight into the content of s.2(d) is the purpose of the provision. … In defining this purpose, McIntyre J. stressed, in Alberta Reference, supra, at p.395, the unique power of associations to accomplish the goals of individuals:

 

While freedom of association like most other fundamental rights has no single purpose or value, at its core rests a rather simple proposition: the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others. …

 

This conception of freedom of association, which was supported by Dickson C.J. in his dissenting judgment (at pp.334 and 365-66), has been repeatedly endorsed by this Court since the Alberta Reference [citations omitted]. In Lavigne, Wilson J. (writing for three of seven judges on this point) … conclude[ed] that "this Court has been unanimous in finding on more than one occasion and in a variety of contexts that the purpose which s.2(d) is meant to advance is the collective action of individuals in pursuit of their common goals" (p.253). …

 

[16]  As these dicta illustrate, the purpose of s.2(d) commands a single inquiry: has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals? In my view, while the four-part test for freedom of association sheds light on this concept, it does not capture the full range of activities protected by s.2(d). [emphasis added] In particular, there will be occasions where a given activity does not fall within the third and fourth rules set forth by Sopinka J. in PIPSC, supra, but where the state has nevertheless prohibited that activity solely because of its associational nature. These occasions will involve activities which (1) are not protected under any other constitutional freedom, and (2) cannot, for one reason or another, be understood as the lawful activities of individuals. As discussed by Dickson C.J. in the Alberta Reference, supra, such activities may be collective in nature, in that they cannot be performed by individuals acting alone. The prohibition of such activities must surely, in some cases, be a violation of s.2(d) (at p.367):

 

There will, however, be occasions when no analogy involving individuals can be found for associational activity, or when a comparison between groups and individuals fails to capture the essence of a possible violation of associational rights.…. 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. The legislative purpose which will render legislation invalid is the attempt to preclude associational conduct because of its concerted or associational nature.             [emphasis of Bastarache J.]

 

This passage, which was not explicitly rejected by the majority in the Alberta Reference or in PIPSC, recognizes that the collective is "qualitatively" distinct from the individual: individuals associate not simply because there is strength in numbers, but because communities can embody objectives that individuals cannot. For example, a "majority view" cannot be expressed by a lone individual, but a group of individuals can form a constituency and distill their views into a single platform. Indeed, this is the essential purpose of joining a political party, participating in a class action or certifying a trade union. To limit s.2(d) to activities that are performable by individuals would, in my view, render futile these fundamental initiatives. …

 

[17]  As I see it, the very notion of "association" recognizes the qualitative differences between individuals and collectivities. It recognizes that the press differs qualitatively from the journalist, the language community from the language speaker, the union from the worker. In all cases, the community assumes a life of its own and develops needs and priorities that differ from those of its individual members. Thus, for example, a language community cannot be nurtured if the law protects only the individual's right to speak (see R. v. Beaulac, [1999] 1 S.C.R. 768, at para.20). Similar reasoning applies, albeit in a limited fashion, to the freedom to organize: because trade unions develop needs and priorities that are distinct from those of their members individually, they cannot function if the law protects exclusively what might be "the lawful activities of individuals". Rather, the law must recognize that certain union activities -- making collective representations to an employer, adopting a majority political platform, federating with other unions -- may be central to freedom of association even though they are inconceivable on the individual level. This is not to say that all such activities are protected by s.2(d), nor that all collectivities are worthy of constitutional protection; indeed, this Court has repeatedly excluded the right to strike and collectively bargain from the protected ambit of s.2(d) (see Alberta Reference, supra, per Le Dain J., at p.390 (excluding the right to strike and collectively bargain), per McIntyre J., at pp.409-10 (excluding the right to strike); PIPSC, supra, per Dickson C.J., at pp.373-74 (excluding the right to collectively bargain), per La Forest J., at p.390 (concurring with Sopinka J.), per L'Heureux-Dubé J., at p.392 (excluding both the right to strike and collectively bargain), per Sopinka J., at p.404 (excluding both the right to strike and collectively bargain)). It is to say, simply, that certain collective activities must be recognized if the freedom to form and maintain an association is to have any meaning. As one author puts it, the per se exclusion of collective action reduces employee collectives to mere "aggregate[s] of economically self-interested individuals" rather than "co-operative undertakings where individual flourishing can be encouraged through membership in and co-operation with the community of fellow workers" (see L. Harmer, "The Right to Strike: Charter Implications and Interpretations" (1988), 47 U.T. Fac. L. Rev. 420, at pp.434-35). This would surely undermine the purpose of s.2(d), which is to allow the achievement of individual potential through interpersonal relationships and collective action (see, e.g., Lavigne, supra, per McLachlin J., at pp.343-44, per La Forest J., at pp.327-28).            [emphasis added]

 

[18]  In sum, a purposive approach to s.2(d) demands that we "distinguish between the associational aspect of the activity and the activity itself", a process mandated by this Court in the Alberta Reference (see Egg Marketing, supra, per Iacobucci and Bastarache JJ., at para.111). Such an approach begins with the existing framework established in that case, which enables a claimant to show that a group activity is permitted for individuals in order to establish that its regulation targets the association per se (see Alberta Reference, supra, per Dickson C.J., at p.367). Where this burden cannot be met, however, it may still be open to a claimant to show, by direct evidence or inference, that the legislature has targeted associational conduct because of its concerted or associational nature. [emphasis added]

 

                                    . . .

 

[24]  … [T]he appellants in this case do not claim a constitutional right to general inclusion in the LRA, but simply a constitutional freedom to organize a trade association. This freedom to organize exists independently of any statutory enactment, even though the so-called "modern rights to bargain collectively and to strike" have been characterized otherwise in the Alberta Reference, supra, per Le Dain J., at p.391.

 

                                    . . .

 

[26]  … [I]t is not a quantum leap to suggest that a failure to include someone in a protective regime may affirmatively permit restraints on the activity the regime is designed to protect. The rationale behind this is that 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.

 

                                    . . .

 

[30]  In my view, the activities for which the appellants seek protection fall squarely within the freedom to organize, that is, the freedom to collectively embody the interests of individual workers. … [T]he effective exercise of these freedoms may require … the exercise of certain collective activities, such as making majority representations to one's employer. These activities are guaranteed by the purpose of s.2(d), which is to promote the realization of individual potential through relations with others, and by international labour jurisprudence, which recognizes the inevitably collective nature of the freedom to organize. …

 

                                    . . .

 

[36]  … As numerous scholars have pointed out, the LRA does not simply enhance, but instantiates, the freedom to organize. The Act provides the only statutory vehicle by which employees in Ontario can associate to defend their interests and, moreover, recognizes that such association is, in many cases, otherwise impossible. … [T]he activities for which the appellants seek protection antecede, at least notionally, the LRA's enactment; as this Court held in Delisle, supra, "[t]he ability to form an independent association and to carry on [its] protected activities … exists independently of any statutory regime", even though the unprotected aspects of collective bargaining and the right to strike are creatures of statute (para.33). What this means is that, while the inevitable effect of allowing this appeal may be to extend a statutory regime to agricultural workers, depending on the legislative response to this decision, the appellants are not seeking a constitutional "right" to inclusion in the LRA.                           [emphasis added]

 

[37]  The freedom to organize lies at the core of the Charter's protection of freedom of association. So central is this freedom to s.2(d) that, during the legislative hearings preceding the Charter's enactment, an express right to unionize was opposed on the grounds "that that is already covered in the freedom of association that is provided already in … the Charter" [emphasis of Bastarache J.] … It suggests that 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.

 

                                    . . .

 

[42]  … As stated earlier in these reasons, it is only the right to associate that is at issue here, not the right to collective bargaining. Nevertheless, to suggest that s.2(d) of the Charter is respected where an association is reduced to claiming a right to unionize would, in my view, make a mockery of freedom of association. …

 

                              . . .

 

[67]  This raises the question of whether s.2(d) requires that a minimum level of LRA protection be extended to agricultural workers. … [T]he principles established in this case, including both the s.2(d) and s.1 analysis[,] … require at a minimum a regime that provides agricultural workers with the protection necessary for them to exercise their constitutional freedom to form and maintain associations. … [T]he freedom to establish, join and maintain an agricultural employee association lies at the core of s.2(d) of the Charter; the appellants' claim is ultimately grounded in this non-statutory freedom. For these reasons, I conclude that at minimum the statutory freedom to organize in s.5 of the LRA ought to be extended to agricultural workers, along with protections judged essential to its meaningful exercise, such as freedom to assemble, to participate in the lawful activities of the association and to make representations, and the right to be free from interference, coercion and discrimination in the exercise of these freedoms.

 

[68]  In choosing the above remedy, I neither require nor forbid the inclusion of agricultural workers in a full collective bargaining regime ….  … Rather than adjudicate such issues at the remedy stage, I adopt the position of Cory and Iacobucci JJ. in Delisle, supra, at para.151, which is to fashion a remedy according to the nature of the appellants’ claim:

 

The Court has been asked in this case to rule upon whether the impugned [provision] is unconstitutional because of its anti-associational purpose. We have found that the exclusion of RCMP members from the basic associational protections in the PSSRA does have this purpose and violates the Charter, yet because of the manner in which the appellant has articulated his claim we have done so without being required to decide whether a Charter violation results from the total exclusion of RCMP members from the PSSRA's collective bargaining regime. As explained by Sopinka J. in PIPSC, supra, at p.405, it may be that such a total exclusion could interfere with the ability of employees to associate, and thus infringe the Charter's freedom of association guarantee. We do not believe that it is appropriate to decide, at the remedy stage of the analysis, whether it is constitutionally permissible to exclude RCMP members entirely from a collective bargaining regime. Moreover, we do not wish to prejudge the question of whether Parliament may wish to extend limited collective bargaining rights to RCMP members.          [emphasis of Bastarache J.]

 

[69]  Should a claim for inclusion arise in the future, the threshold question will be whether the provision relates to an activity falling within the framework established by the labour trilogy or that otherwise furthers the purpose of s.2(d) of the Charter. If this threshold is crossed, the question becomes whether excluding agricultural workers from the provision in question substantially impedes this activity either in purpose or effect. If the effect of the exclusion is impugned, the claimant's position should be assessed in light of the considerations discussed above.

 

 

 

vi.   Discussion

[69]        The fundamental position of the appellants is set forth in their factum as follows:

The law is now settled that s.2(d) must protect not only the right to belong to an association but certain associational activities as well. Bill 29 violates s.2(d) of the Charter because it denies workers not only the statutory protection of the [Labour] Code, but the more fundamental right to join with others to act in their common interest without interference from the State.

 

[70]        Mr. Arvay conceded that not all associational activities are protected.  He argued that s.2(d) protects those activities that make membership in an association meaningful to the individual.  He stated that collective bargaining is the raison d’être of a union -- the primary reason why individuals join.  Accordingly, he argued that the core aspects of collective bargaining are protected by s.2(d).  The aspects which Mr. Arvay identified as “core labour freedoms”, which I set forth earlier in these reasons but for convenience will repeat, are:

1.    the freedom to make collective representations to      one’s employers;

 

2.    the freedom to negotiate and agree on the terms and conditions of employment in a collective manner; and

 

3.    the ability to rely on and enforce those agreements which are collectively concluded.

 

[71]        The appellants argue that, by voiding certain terms of existing collective agreements and prohibiting the renegotiation of provisions relating to those terms, Bill 29 interferes with the protected aspects of collective bargaining.

[72]        In my view, the reasons in Dunmore do not provide a sufficient basis for establishing that the appellants’ core aspects of collective bargaining are protected by s.2(d).  In Dunmore the Supreme Court of Canada affirmed its earlier jurisprudence that collective bargaining and the right to strike are not protected.  This is, in my view, fatal to the appellants’ claim.

[73]        Until Dunmore the Supreme Court of Canada rejected the proposition that s.2(d) provided independent protection for associational activities.  For example, in Alberta Reference Mr. Justice McIntyre rejected the idea that s.2(d) protects activities that are essential to the lawful goals of an association or that it protects all activities carried out in association, subject to the limits of s.1: see page 404.  The farthest he was willing to extend s.2(d) protection was to include the freedom to associate for the purposes of activities which are lawful when performed by one person.  This interpretation of s.2(d) was affirmed in PIPSC, and was reflected, in particular, in the second of Mr. Justice Sopinka’s four propositions (at 402) which, for convenience, I reproduce here:

First, that s.2(d) protects the freedom to establish, belong to and maintain an association; second, that s.2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s.2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s.2(d) protects the exercise in association of the lawful rights of individuals.                         [emphasis added]

 

[74]        Dunmore does indeed move the s.2(d) jurisprudence forward from where it was in the Alberta Reference and PIPSC by recognizing that certain associational activities may be protected under s.2(d), even where they have no individual analogue.  But Mr. Justice Bastarache did not reject the earlier jurisprudence in its entirety: see e.g. Dunmore paras.18, 69.  He noted at paragraph 16 that the PIPSC test sheds light on determining the scope of s.2(d) protection but “does not capture the full range” of protected activities.  He added that “there will be occasions where the activity does not fall within the [PIPSC test] but where the state has nevertheless prohibited that activity solely because of its associational nature”.  He nonetheless made it clear, at paragraph 17, that the gates were not being thrown open to extend s.2(d) protection to all collective activities:

… the law must recognize that certain union activities -- making collective representations to an employer, adopting a majority political platform, federating with other unions -- may be central to freedom of association even though they are inconceivable on the individual level. This is not to say that all such activities are protected by s.2(d), nor that all collectivities are worthy of constitutional protection; indeed, this Court has repeatedly excluded the right to strike and collectively bargain from the protected ambit of s.2(d) … It is to say, simply, that certain collective activities must be recognized if the freedom to form and maintain an association is to have any meaning.             [emphasis added]

[75]        The appellants correctly note that the Court in Dunmore was not asked to rule on whether collective bargaining is protected under s.2(d).  This Court cannot ignore, however, the fact that the Supreme Court of Canada endorsed its earlier holding, albeit in obiter, that the right to strike and collectively bargain are excluded from the protected ambit of s.2(d): Dunmore, ¶17, above; see also Advance Cutting and PIPSC.

[76]        The appellants distinguish between statutory collective bargaining rights and the constitutional freedom to act collectively in the employment context.  They note that the rights protected by s.2(d) may also be made concrete by labour relations legislation, but that collective bargaining rights should not be seen as wholly statutory.  That analysis is supported by the reasons in Dunmore: see e.g. ¶36.

[77]        However, the question is whether the appellants can avoid the obiter in Dunmore if the aspects of collective bargaining for which they seek protection essentially replicate all the major or essential aspects of a statutory collective bargaining regime.  The appellants cannot, in my opinion, steer around that obiter by seeking protection only for certain core aspects of collective bargaining rights rather than full access to the statutory regime of collective bargaining and the right to strike.  That obiter, in my view, fundamentally undermines the position taken by the appellants on this appeal.

[78]        In considering the definition of collective bargaining, the analysis in the case at bar must recognize the particular context of collective bargaining in the public sector and in view of the historical reality.  It must be noted that in the health care sector, our immediate concern, there is a common history of legislative intervention, as set out above and as described by the judge at paragraphs 46 to 59.

[79]        Collective bargaining in its essentials is a process of negotiation between an employer and a labour union with the object of concluding an agreement regulating the relationship between both the employer and its employees and the employer and the union.  The Court in Dunmore, in using the words “collective bargaining”, was referring to the general concept of collective bargaining and the legal provisions necessary to give effect to that concept.  It is difficult to see how the activities for which the appellants seek protection can be said to be merely aspects of collective bargaining, rather than a right to collective bargaining per se.  Although the appellants ask only that certain aspects of collective bargaining be protected, in my view the three core elements for which they seek protection essentially replicate all the major or essential aspects of collective bargaining.

[80]        Accordingly, constitutional protection for the activities they claim as core labour freedoms must be seen to be foreclosed by the dicta in Dunmore.

[81]        Even an acceptance that the three core freedoms are protected is insufficient to accord constitutional protection to the appellants’ collective agreements or to prohibit the government from removing certain terms from the bargaining table.  The collective agreements are the product of more than the exercise of the protected core freedoms; they are the product of the exercise of those core freedoms plus the exercise of the appellants’ unprotected, statutory collective bargaining rights.

[82]        Mr. Justice Le Dain alluded to this understanding of collective bargaining in the Alberta Reference at page 392 in noting that “the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer--are not fundamental rights or freedoms”.

[83]        The purpose of s.2(d) is to make individuals more powerful by ensuring they can associate with others to pursue objectives which they could not accomplish as effectively on their own. However, the right to freedom of association does not have as its purpose the near absolute levelling of the playing field that is achieved in labour legislation, particularly in the public sector. 

[84]        The appellants argued that this was not a case where “the Government is compelled to enact protective legislation which would enhance their ability to act as a collective in negotiating certain kinds of employment terms”.  However, the collective agreement for which they seek constitutional protection is an agreement that was negotiated under legislation that enhanced their negotiating power.  Even armed with the three core freedoms, collective agreements could not have been achieved without statutory compulsion on the government to appear at the bargaining table.

[85]        The appellants submitted that they negotiated certain terms to protect their ability to act collectively – terms relating to seniority, employee and union security and contracting out.  Their position is that by voiding such terms the government breached its obligation not to interfere with the appellants’ freedom to act collectively.  Yet the protections which they say are attacked by Bill 29 were negotiated not merely as the result of collective action protected by s.2(d) but by collective action that took place within the context of the statutory collective bargaining regime.  If anything is “under attack” by Bill 29, it is the gains from access to the statutory collective bargaining rights and not merely gains from associational activities.

[86]        I have concluded that the three core freedoms are insufficient to afford constitutional protection to the appellants’ collective agreements.

[87]        I will add that in my view a prohibition on renegotiating certain terms, such as restrictions on contracting out, does not violate the appellants’ three core freedoms. As a general matter, the protected aspects of collective bargaining cannot be seen to prohibit an employer from refusing to negotiate over certain terms.  In this case, the terms at issue over which renegotiation is precluded are terms that relate to the strength of the bargaining unit.  The bargaining unit is primarily a creation of statutory protections that enhance a union’s ability to negotiate.  Insofar as Bill 29 takes away some of that enhanced protection it cannot be seen to implicate s.2(d) rights.

[88]        It follows that while Bill 29 may affect the appellants’ bargaining strength it does not interfere with the protected aspects of their collective bargaining rights.  I would not give effect to the appellants’ first argument under s.2(d).

D.    In the circumstances of this case, the overall impact of    Bill 29, including its interference with collective bargaining, constitutes an infringement of s.2(d)

[89]        The appellants noted that this alternative argument is more fact specific than the main argument.  In the main argument the issue is only the protected aspects of collective bargaining.  In this alternative argument the internal items (“activities”) are more important than collective bargaining “which goes only to money”.  The “activities” to which they refer are contracting out, bumping, layoffs and transfers, which they categorize as “collective activities”.

[90]        The appellants opened their arguments under this heading by saying that historically courts have been reluctant to protect specific activities under the rubric of s.2(d) on the basis that only the associational aspects of the activities, rather than the activities themselves, are protected by the section.  However, when activities can be performed by individuals or groups, the legislature “is clearly targeting the associational aspect of activities when it prohibits the group from carrying out activities which are permitted to individuals”.

[91]        Counsel for the appellants submitted that the activities noted above have been “long and hard fought” and that they “define the self worth of the workers”.  He contended that the attack upon them by Bill 29 was “because of the success that had been achieved in securing the benefits of the particular activities”.  He also asserted that in attacking these activities Bill 29 attacks them because of their associational nature.

[92]        The appellants submitted that the ability to negotiate and enforce terms relating to seniority and to employee and union security are fundamental to the ability of a group of employees to act as a collective in the workforce.  They added that the prohibition of restrictions on contracting out provides for the destruction of the bargaining unit.  This, the appellants contend, is contrary to the dictates set forth in paragraph 16 of Dunmore in that Bill 29 has “precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals”.

[93]        The evidence to which Mr. Arvay referred as grounding this assertion is that of Ms. Janine Brooker, a renal dialysis technician from Royal Columbian Hospital:

The HEU has worked hard for its members, but now, because of Bill 29, its members are disillusioned with it. I see that members are less willing to make complaints or file grievances and I believe it is because they have lost some faith in the HEU. I also hear complaints about the HEU and members are wondering why they should bother to pay union dues because the HEU cannot do anything for them. People have said these things to me directly.

 

However, the onus is on the appellants to show that any discouragement in collectively pursuing common goals arose because the legislation was directed at curtailing activities because of their associational nature.  Mr. Justice Bastarache at paragraph 18 of Dunmore said:

… a purposive approach to s.2(d) demands that we "distinguish between the associational aspect of the activity and the activity itself" …. Such an approach begins with the existing framework established in [Alberta Reference], which enables a claimant to show that a group activity is permitted for individuals in order to establish that its regulation targets the association per se … . Where this burden cannot be met, however, it may still be open to a claimant to show, by direct evidence or inference, that the legislature has targeted associational conduct because of its concerted or associational nature.

 

[94]        In the case at bar the appellants have not been able to demonstrate that the legislation “targets the association per se” nor, by either direct evidence or inference, that the legislation targets associational conduct because of its associational nature.  That being the case, effect cannot be given to their alternative argument.  To do so would afford constitutional protection to collective bargaining -- a protection that the Supreme Court of Canada has not endorsed.

[95]        The appellants’ assertion that their associational activity is attacked by the legislation is, in my view, essentially a submission that the strength of their bargaining unit is being undermined.  In seeking protection for the bargaining unit, it is, in my view, much more difficult for the appellants to say they are not seeking access to the statutory regime of collective bargaining.  There is undoubtedly overlap between the activity of a bargaining unit and the activity of a union or other association of employees. To be successful on their alternative argument the appellants must show that Bill 29 attacks the associational activity and not the bargaining unit activity.

[96]        Essentially, the appellants say that the government attacked their associational activity because that activity was so successful.  The legislation may certainly render the bargaining unit less effective but this is not enough if they cannot establish that this ineffectiveness is the result of an attack on their associational activity rather than their bargaining unit activity.

[97]        As Mr. Justice McIntyre noted in PSAC at 454, commenting on the denial of the economic weapon of strikes, “this may limit the bargaining power of the trade union, but it does not, in my view, violate freedom of association”.

[98]        In my view the evidentiary record does not provide an adequate basis for drawing the distinction between an attack on the appellants’ freedom of association and a weakening of the power of the bargaining unit.

[99]        Accordingly, I am of the opinion that the appellants have not established a violation of their s.2(d) freedom under their alternative argument.

E.    Overview

[100]    On this appeal the appellants faced judicial precedents clearly contrary to their position.  They based their case upon successfully reading into the cases, particularly Dunmore, a suggestion that the Supreme Court of Canada is moving away from the law as propounded in the trilogy and that this trend must be continued.

[101]    The appellants, in pursuit of their objective on this appeal, presented to this Court a number of learned articles analyzing the labour cases.  In response the respondent did likewise.  There is nothing improper about doing so.  Indeed, the Supreme Court of Canada, and I refer in particular to the Alberta Reference, cited such articles.

[102]    Mr. Justice McIntyre quoted with approval comments made by Professor J.M. Weiler in “The Regulation of Strikes and Picketing Under the Charter” published in 1986.  At page 417 he quoted from Professor Weiler:

… I believe our current system of collective bargaining law regulating the relations between workers and employers is too complicated and sophisticated a field to be put under the scrutiny of a judge in a contest between two litigants arguing vague notions such as “reasonable” and “justifiable” in a free and democratic society. I have no confidence that our adversary court system is capable of arriving at a proper balance between the competing political, democratic and economic interests that are the stuff of labour legislation.

 

[103]    Mr. Justice McIntyre and other members of the Court, in referring to such articles, presented views of scholars that gave insight into the thinking of academics and “think tank” prognosticators.  However, the labour trilogy was decided upon the law as it had developed to that time.

[104]    In PIPSC it is important to note that the Chief Justice, in spite of his opinions as expressed in the trilogy, accepted that his views, and those of writers espousing similar philosophies, could not carry the day.  The Chief Justice was true to the common law tradition that precedents must be respected.  He thereby sided with the majority opinion that the Charter’s guarantee of freedom of expression does not protect the right to engage in collective bargaining:

… [N]ot without considerable hesitation having regard to the views which I expressed in the labour law trilogy of cases on the scope of s.2(d) of the Canadian Charter of Rights and Freedoms, I have concluded that, short of overruling the reasons of the majority of this Court in the trilogy, this appeal must be dismissed ….

 

[105]    In earlier days the introduction of academic musings as to the “direction” of the Supreme Court would have been discouraged.  While today academic writing and social science research may be used to illuminate legislative and “social framework” facts, of which judicial notice may be taken, such work does not relieve this Court of its duty to understand  and apply the jurisprudence of the Supreme Court of Canada.

[106]    If the views of some of the writers produced on this appeal as to the “new” direction of the Supreme Court, as espoused by the appellants, are to prove correct, that will have to come from the Supreme Court.  I reject the suggestion that in Dunmore the Supreme Court mandated that this is the direction to be followed by lower courts.  If the message of a change of direction can be read into Dunmore that message must be read as being directed to itself.

[107]    This Court must be respectful of the precedents and in this case, in my opinion, they leave little uncertainty.  Although the Supreme Court of Canada in Dunmore incrementally expanded the scope of s.2(d) protections, it clearly affirmed its earlier jurisprudence that collective bargaining is not protected.  The door which the appellants say was opened by Dunmore is not wide enough for their claim to fit through.

[108]    I would not accede to the appellants’ contention that Bill 29 is unconstitutional as interfering with the content of collective bargaining or with collective agreements or, alternatively, unconstitutional in the circumstances of this case.

III.  SECTION 15 OF THE CHARTER

[109]    Section 15(1) of the Charter reads:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

[110]    Counsel for the appellants submitted that both the Charter and collective bargaining are designed to address inequality.  In that workplace collective activity does not have an individual analogue, and in that in the health care sector the majority of workers are female, their collective activity must be given s.15 protection.

[111]    In their opening statement on this appeal the appellants said as follows:

… [B]y targeting only the most female dominated sectors of the public service and denying only those workers the right to rely on and enforce their collective agreements, Bill 29 reinforces and perpetuates the historic prejudice and disadvantage of workers in the health care sector who have suffered systemic discrimination based on sex through the devaluation of their work because of its association with women.

The chambers judge also misapprehended the plaintiffs’ section 15 argument and erred in failing to apply a contextual and purposive approach to the equality guarantee.

 

[112]    The appellants submitted that the critical evidence was not denied by the respondent and in some cases specifically accepted by the judge.  Evidence that was cited on this appeal by the appellants, much of which was specifically accepted by the judge, was as follows:

·         Bill 29 applies only to the health and social services sectors, the most heavily female dominated sectors of the public service.

·         98% of nurses in British Columbia are women.

·         85% of Health Employees’ Union members are women.

·         90% of BCGEU workers in the Community sub-sector are women.

·         27% of the health care sector’s members are immigrants.

·         57% are over age forty-five and such people generally suffer from disadvantage and discrimination in employment.

·         As a result of these and other factors not enumerated collective bargaining is a priority.

 

[113]    Madam Justice Garson said that three important aspects of the “contextual matrix that inform the present case are”:

1.    the disadvantage women suffer in employment,    particularly in terms of wages, hours, benefits and employment security.

2.    the prejudice and stereotyping that is attached       to “women’s work”.

3.    the importance of unionization and collective   bargaining in overcoming this disadvantage.

[114]    At paragraph 162 she acknowledged the following evidence of Professor Patricia Armstrong:

Despite the fact that women now constitute almost half of the labour force and form a critical component in the labour force, they are still significantly disadvantaged in comparison to men, and because of their gender, experience serious discrimination in their paid work. … Women’s work is defined as less valuable and associated with being female …. The kind of systemic discrimination which segregates women into specific female-dominated jobs and pays them low wages is particularly evident in the health and social services sector.

 

[115]    The appellants asserted that the judge failed to apply a contextual approach and that “this led to numerous errors in her s.15(1) analysis”.  For instance she failed to recognize the existence of the ongoing systemic discrimination suffered by women in female dominated jobs.  In failing to take this into account the judge overlooked the fact that Bill 29 was the source of further inequality.

[116]    A judicial error, according to the appellants, was the judge’s failure to take into account that the work done by women has been historically undervalued, particularly in the health care sector.  This devaluation gives rise to the need for pay equity, something that is attacked by Bill 29 which “perpetuates the stereotype that women’s work is not valuable”.

[117]    The appellants further submitted that the judge erred in her application of the “test” enunciated in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1, 236 N.R. 1.  Mr. Justice Iacobucci gave judgment for the Court.  He borrowed from Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 in formulating the analysis that should be undertaken by a court. Mr. Justice Iacobucci made it clear that he was not suggesting that it was a “fixed and limited formula”.  He simply noted that it was the “approach adopted and regularly applied” by the Court.  The issues to be considered are: (A) whether a law imposes differential treatment between the claimant and others in purpose or effect; (B) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and (C) whether the law in question has a purpose or effect that is discriminatory within the meaning of the s.15 guarantee.

[118]    Mr. Justice Iacobucci said, at paragraph 88, that in analyzing those issues the “three broad inquiries” are:

(A)   Does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(B)   Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?

and

(C)   Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?

 

[119]    It should be noted that Mr. Justice Iacobucci did not use the word “test”.  However, his formula for analysis has been so characterized by counsel both at trial and on this appeal and was so described by the judge.  I will therefore adopt that description keeping in mind this caveat.

[120]    The appellants proceeded to articulate the alleged errors committed by the trial judge in applying the Law test.  They submitted that the judge failed to recognize that it was barring access to the Labour Code that was the subject of differential treatment.  They say that female workers in the health care sector “very much consider their occupational status to be part of who they are”.  As such, their occupation is a “personal characteristic” and access to the system must be provided on an equal basis.

[121]    The appellants also asserted that the judge erred in not finding that the treatment accorded by Bill 29 was not based on sex and further that she failed to recognize the linkage between working in the health care sector and being female.  The appellants say that the judge did not apply a purposive and contextual approach.  Their position is that Bill 29 was directed at “the devaluing of women’s work and women as workers”.  They allege that the reasons for the wage level that had been attained was by way of a pay equity process that had eliminated the systemic discrimination faced by women who do work that is associated with women.

[122]    The contention of the appellants is that workers who work in female-dominated occupational sectors should be recognized as an analogous ground.  The appellants made much of the matter of dignity.  They submitted that by legitimizing pre-existing disadvantages Bill 29 “clearly affects these workers’ dignity”.  The appellants said as follows:

The legislation sends a clear message to health care workers – you are not worthy of the benefit of the agreement you have negotiated. You do not deserve your wages, adjusted by pay equity and you do not deserve employment security. You do not deserve to participate in bargaining terms of your employment contract which are fundamental to your dignity and well-being as a worker. Our collective bargaining relationship does not deserve the protection of certain parts of the Code. Your union and the agreement which you have negotiated cannot protect you -– the employer is not required to live up to its side of the bargain. All of this demeans the dignity of these employees.

 

Discussion

[123]    In Law Mr. Justice Iacobucci noted that in Andrews Mr. Justice McIntyre said that the concept of equality is “elusive” and that more than any of the other Charter rights “it lacks precise definition”.  This obvious truth makes it difficult for the appellants in the case at bar to articulate their case.  This might explain the tenor of the paragraph quoted immediately above.

[124]    The purpose of s.15 was explained by Mr. Justice Iacobucci in Law at paragraph 88:

In general terms, the purpose of s.15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice and to promote a society in which all persons enjoy equal recognition at law as human being or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

 

[125]    This was a restatement of what he had said earlier but to which he added:

[51]  … Legislation which effects differential treatment between individuals or groups will violate this fundamental purpose where those who are subject to differential treatment fall within one or more or enumerated or analogous grounds and where the differential treatment reflects the stereotypical application of presumed group or personal characteristics, or otherwise has the effect of perpetuating or promoting the view that the individual is less capable, or less worth of recognition or value as a human being or as a member of Canadian society. Alternatively, differential treatment will not likely constitute discrimination within the purpose of s.15(1) where it does not violate the human dignity or freedom of a person or group in this way ….

 

[126]    Mr. Justice Iacobucci also spoke of the need to locate the appropriate comparator, saying that the object of s.15(1) is not to determine equality in the abstract but rather to determine if the legislation “creates differential treatment between the claimant and others on the basis of enumerated or analogous grounds, which results in discrimination”.

[127]    Keeping these purposes, objectives and analytical requirements in mind, I will turn to the reasons of Madam Justice Garson.  She referred in detail to the reasons in Law and acknowledged that her analysis had to accord with the purposes and intention therein expressed.  She then turned to the three part test in Law.  On Part A she expressed concern about the comparator group chosen by the plaintiff but accepted it to be “those public sector workers who do not work in the most female dominated sectors”.  She concluded that Bill 29 did not differentiate on the basis of “personal characteristics” between the plaintiffs and the comparator group.

[128]    The judge noted that there were three ways in which it might be said that Bill 29 draws a distinction or results in differential treatment.  First, Bill 29 prohibits terms of a collective agreement that restrict contracting out the services provided by non-clinical employees.  In this regard, the comparator group is employees who provide clinical services.  The judge concluded that such a distinction was not based on personal characteristics.

[129]    Second, Bill 29 eliminated the security provisions (ESLA and HLAA) for all to whom it applies, regardless of the union by which they are represented or whether they perform clinical or non-clinical services.  She noted that the only way in which there can be said to be differential treatment is by comparing the plaintiffs with themselves.  She rejected this as differential treatment within the meaning of s.15 which requires that the comparator group be a group other than the claimant.  She concluded that “the plaintiffs are seeking to constitutionally entrench an earlier level of employment benefits”.

[130]    Third, Bill 29 changed terms of other collective agreement rights -- bumping provisions and restrictions on the transfer of employees and services -- and prohibited further collective bargaining with respect thereto.  The judge rejected “non-unionized employees” as an appropriate comparator group “since they are subject to an entirely different employment rights regime”.  In respect of this third manner of differential treatment, the judge found the relevant comparator group to be “unionized public sector employees outside the health sector”.  The judge rejected the plaintiff’s submission that “one’s choice of work is a personal characteristic”.  She said that the distinction being drawn by the plaintiffs was simply between different sectors within the broader public sector, not one based upon personal characteristics of the employees.  She added, “I do not consider the status of the plaintiffs as health care workers to be a personal characteristic”.  The judge noted that even if occupational status could constitute an analogous ground, the status of the plaintiffs as health care workers was too broad and disparate an occupational classification to constitute a personal characteristic.

[131]    The appellants argue that the judge erred in assessing differential treatment only in respect of specific employment rights.  They argue that the differential treatment lies in their exclusion from access to the machinery of the Code to protect their negotiated entitlements and to bargain collectively.  Even if the differential treatment is framed in such broad terms, I fail to see why the comparator group would be any other than “unionized public sector employees outside the health sector”.  The judge’s conclusion that such a distinction is not based on personal characteristics is appropriate.

[132]    I cannot find any error in the finding of the judge with respect to the matters protected by the first part of the Law test.  The appellants have lost several hard fought gains, but they have not lost them because of their personal characteristics.  They have been lost across the board in the legislative restructuring of the labour scheme applicable to health care sector workers.  Madam Justice Garson concluded this segment of her reasons for judgment as follows:

[174] The government has made a policy decision with respect to the health care system that has adversely affected the employment interests of a group whose composition is linked to s.15 characteristics. However, the fact that this group is predominantly female does not constitutionally shield it from governmental action that may adversely affect them without evidence that it is being subject to differential treatment on the basis of s.15 characteristics. I do not find this to be the case. I conclude that the plaintiffs have failed to satisfy either aspect of this first stage of the s.15 analysis.

 

[133]    In analyzing Part B of the test in Law the judge noted that the only authority for the proposition that occupational status may be recognized as an analogous ground is found in the separate concurring reasons of Madam Justice L’Heureux-Dubé in Dunmore.  The majority did not address the s.15 issue and Mr. Justice Major, dissenting, held that agricultural workers in Dunmore did not constitute an analogous ground.  Madam Justice Garson noted that the majority in Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, 176 D.L.R. (4th) 513, 244 N.R. 33 rejected the view that distinction based on employment was an analogous ground.  The judge noted the bases on which Madam Justice L’Heureux-Dubé held that agricultural workers could be an analogous ground, and concluded that unionized health care workers in British Columbia were not similarly disadvantaged.  Finally, in rejecting the contention that workers who work in female-dominated sectors of health care are an analogous group, the judge said as follows:

[181] The fact that health sector work is ”female predominant,” and that much of it is considered to be “women’s work,” does not mean that every law that adversely affects such work or the terms and conditions of those employed to perform it is discriminatory. The true effect of the law is not upon “women” or on “those who perform women’s work” it is upon those who perform health care work in British Columbia’s unionized public sector. The unique circumstances surrounding that work is the distinguishing factor: correspondence with sex or “women’s work” is not the basis of the legislation.

 

[134]    The appellants argued that the judge erred in concluding, in the last sentence of the above paragraph, that sex or women’s work was not the basis of the legislation.  However, this is no more than a bald assertion by the appellants as to the objective of the legislation while the respondent filed material indicating that there were diverse reasons for the legislation, none of which were assertive against females based upon gender.  I am not of the view that the judge erred in her application of Part B of the Law test.

[135]    The appellants argued, under Branch C of the Law test, that Bill 29 effected a loss of their dignity by depriving them of “access to a fundamental social institution” and “equal membership and full participation in Canadian society”.  The appellants noted that dignity is “concerned with physical and psychological integrity and empowerment”.

[136]    Their submission, as can be seen from the quotation included earlier in this section, was more of a political assault than a legal argument.  Its emotional base does not contain any reference to evidence or to legal principles that ground an argument based upon the test in Law.

[137]    There can be no doubt but that the appellants, whether they be the associations of individuals or the individuals themselves, are angry.  They were given, by one government, rights that were used to improve union power and individual incomes.  Another government took away some of that power and some of the economic benefits.

[138]    After a review of the relevant precedents Madam Justice Garson said:

[189] While the plaintiffs are clearly aggrieved by the legislation for various justifiable reasons, the impact upon them is not of the quality or characteristic that impacts their dignity in the sense that engages s.15.

 

[139]    It is suggested in Nova Scotia (Workers’ Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 231 D.L.R. (4th) 385, 310 N.R. 22 at paragraph 103, that economic deprivation may lead to a loss of dignity and that economic disadvantage may be related to human dignity.  However, in my opinion, this is a far cry from holding that economic downturns suffered by individuals are subject to Charter protection.

[140]    I would not accede to the submission that Bill 29 is unconstitutional by being contrary to s.15(1) of the Charter

VI.   DISPOSITION

[141]    I would dismiss the appeal.

 

 

“The Honourable Mr. Justice Thackray”

 

 

 

I Agree:

 

 

 

“The Honourable Mr. Justice Esson”

 

 

 

I Agree:

 

 

 

“The Honourable Mr. Justice Low”