Ontario (Attorney General) v. Fraser, 2011 SCC 20

In Ontario (Attorney General) v. Fraser, the Supreme Court of Canada considered the extent to which collective bargaining rights are covered by the guarantee of freedom of association, and ultimately struck down an Ontario Court of Appeal decision on the matter as being too broad.

The court rejected the view of many labour leaders that the government is constitutionally required to take an active role in promoting and fostering collective bargaining. Instead, the right to freedom of association merely protects the collective bargaining process from excessive government interference:

The Ontario legislature is not required to provide a particular form of collective bargaining rights to agricultural workers, in order to secure the effective exercise of their associational rights. In this case, the Court of Appeal has overstated the ambit of the s. 2(d) right. The affirmation of the right to collective bargaining is not an affirmation of a particular type of collective bargaining, such as the Wagner model which is dominant in Canada. What s. 2(d) protects is the right to associate to achieve collective goals. Laws or government action that substantially interfere with the ability to achieve collective goals have the effect of limiting freedom of association, by making it pointless. It is in this derivative sense that s. 2(d) protects a right to collective bargaining. Legislatures are not constitutionally required, in all cases and for all industries, to enact laws that set up a uniform model of labour relations imposing a statutory duty to bargain in good faith, statutory recognition of the principles of exclusive majority representation and a statutory mechanism for resolving bargaining impasses and disputes regarding the interpretation or administration of collective agreements. What is protected is associational activity, not a particular process or result.

Decided by the Supreme Court of Canada on April 29, 2011
Click here for the full text of the decision.

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Filed under Section 2: Fundamental Freedoms, Section 2(d): Freedom of Association

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