On April 2, 2009, the Supreme Court of Canada granted leave to appeal in Fraser v. Ontario (Attorney General)
, a case that has the potential to redefine the nature and scope of the constitutional protection afforded to unionization and collective bargaining both in the agricultural industry and in the traditional manufacturing and industrial sectors.
The Fraser case has its genesis in the Ontario agricultural industry more than a decade ago. Workers in that industry had traditionally been excluded from collective bargaining legislation because of concerns that work stoppages and increased costs of unionized workforces would threaten the viability of an already vulnerable industry, particularly in the case of small family farms and other seasonal businesses.
In the early 1990s, the Ontario government enacted collective bargaining legislation that provided workers in the agricultural industry rights that were similar to those available to workers in the traditional manufacturing and industrial sectors. A change in government resulted in the legislation being repealed, but not without opposition from trade unions. A subsequent constitutional challenge resulted in a landmark decision in Dunmore v. Ontario (Attorney General), in which the Supreme Court of Canada found that freedom of association contained in the Charter of Rights and Freedoms would not permit the wholesale exclusion of agricultural workers, a historically vulnerable segment of the workforce, from collective bargaining legislation. The court ordered the government to re-enact legislation that provided workers in the agricultural sector with the right to collectively organize, though the scope of that legislation was left largely to the discretion of the government.
The Fraser case centers on whether the newly enacted legislation, the Agricultural Employees Protection Act (AEPA) went far enough to protect the collective rights of agricultural workers in Ontario. The trade union spearheading the constitutional challenge to the AEPA alleges that the failure to include substantive protections, such as a duty to bargain in good faith and a mechanism for resolving bargaining disputes, violates freedom of association contained in the Charter. The union argues that without these substantive protections, which are common features in other collective bargaining regimes, the ability to organize agricultural workers is meaningless. The AEPA provides agricultural employees with the right to collectively make representations, but it does not provide the same bargaining framework adopted in other legislation.
The application to strike down the AEPA was initially dismissed when the Ontario Superior Court of Justice found that the treatment of agricultural workers under the AEPA was constitutional and met the minimum statutory requirements necessary to protect freedom of association.
The decision was overturned by the Ontario Court of Appeal. Relying on the Supreme Court of Canada’s previous decision in Dunmore and its subsequent decision in B.C. Health Services, the Ontario Court of Appeal held that the AEPA was unconstitutional because it impaired the right of agricultural workers to bargain collectively by not requiring employers to bargain with workers. According to the court, in addition to the statutory rights already provided for in the AEPA, freedom of association in the Charter mandates that the government incorporate into the legislation, among other things, a duty to bargain in good faith, a mechanism for resolving bargaining disputes, and a mechanism for resolving disputes over the interpretation and administration of collective agreements. The court ordered the Ontario government to provide agricultural workers with sufficient protections to enable them to meaningfully exercise their right to collectively organize.
In Fraser, the Supreme Court of Canada will likely clarify the nature and scope of freedom of association in the context of collective bargaining and whether that right necessarily includes substantive statutory protections as provided by the Court of Appeal.
Fraser v. Ontario (Attorney General) (2008), 92 O.R. (3d) 481 (C.A.).
Professional Pointer: Existing case law indicates that legislation that does not provide for a duty to bargain in good faith, a mechanism for resolving bargaining disputes, and a mechanism for resolving disputes over the interpretation and administration of collective agreements does not violate freedom of association. Both Dunmore and B.C. Health Services appeared to have confirmed this outcome. Because Fraser has the potential to enlarge a right to these recourses in the agricultural industry, as well as in traditional manufacturing and industrial industries, it is a case that should be watched closely by all employers.
Mark Mendl is an attorney in the Toronto office of Baker & McKenzie LLP, an international full-service law firm with 69 offices in 38 countries, and can be reached at (416) 865-6948 or firstname.lastname@example.org.
Ontario Ct. App.: AEPA Declared Unconstitutional, SHRM Online Legal Issues, Dec. 24, 2008
Editor’s Note: This article should not be construed as legal advice.