[2001] 3 S.C.R. | Dunmore v. Ontario (Attorney General) | 1016 |
Walter Lumsden and Michael Doyle, on
their
own behalf and on behalf of the United Food and
Commercial Workers International UnionAppellants
v.
and Fleming
ChicksRespondents
and
Attorney General for Alberta,
Canadian
Labour Congress and
Labour Issues Coordinating Committee
("LICC")
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO
In 1994, the Ontario legislature enacted the Agricultural Labour Relations Act, 1994 ("ALRA"), which extended trade union and collective bargaining rights to agricultural workers. Prior to the adoption of this legislation, agricultural workers had always been excluded from Ontario's labour relations regime. A year later, by virtue of s. 80 of the Labour Relations and Employment Statute Law Amendment Act, 1995 ("LRESLAA"), the legislature repealed the ALRA in its entirety, in effect subjecting agricultural workers to s. 3(b) of the Labour Relations Act, 1995 ("LRA"), which excluded them from the labour relations regime set out in the LRA. Section 80 also terminated any certification rights of trade unions, and any collective agreements certified, under the ALRA. The appellants brought an application challenging the repeal of the ALRA and their exclusion from the LRA, on the basis that it infringed their rights under ss. 2(d) and 15(1) of the Canadian Charter of Rights and Freedoms. Both the Ontario Court (General Division) and the Ontario Court of Appeal upheld the challenged legislation.
Held (Major J. dissenting): The appeal should be allowed. The impugned legislation is unconstitutional.
Per McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.: The purpose of s. 2(d) of the Charter is to allow the achievement of individual potential through interpersonal relationships and collective action. This purpose commands a single inquiry: has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals? While the traditional four-part formulation of the content of freedom of association sheds light on this concept, it does not capture the full range of activities protected by s. 2(d). In some cases s. 2(d) should be extended to protect activities that are inherently collective in nature, in that they cannot be performed by individuals acting alone. Trade unions develop needs and priorities that are distinct from those of their members individually and cannot function if the law protects exclusively the lawful activities of individuals. The law must thus recognize that certain union activities may be central to freedom of association even though they are inconceivable on the individual level.
Ordinarily, the Charter does not oblige the state to take affirmative action to safeguard or facilitate the exercise of fundamental freedoms. There is no constitutional right to protective legislation per se. However, history has shown and Canada's legislatures have recognized that a posture of government restraint in the area of labour relations will expose most workers not only to a range of unfair labour practices, but potentially to legal liability under common law inhibitions on combinations and restraints of trade. In order to make the freedom to organize meaningful, in this very particular context, s. 2(d) of the Charter may impose a positive obligation on the state to extend protective legislation to unprotected groups. The distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime contributes substantially to the violation of protected freedoms.
Several considerations circumscribe the possibility of challenging underinclusion under s. 2 of the Charter: (1) claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime; (2) the evidentiary burden in cases where there is a challenge to underinclusive legislation is to demonstrate that exclusion from a statutory regime permits a substantial interference with the exercise of protected s. 2(d) activity; and (3), in order to link the alleged Charter violation to state action, the context must be such that the state can be truly held accountable for any inability to exercise a fundamental freedom. The contribution of private actors to a violation of fundamental freedoms does not immunize the state from Charter review.
In order to establish a violation of s. 2(d) of the Charter, the appellants must demonstrate that their claim relates to activities that fall within the range of activities protected by s. 2(d) of the Charter, and that the impugned legislation has, either in purpose or effect, interfered with these activities. In this case, insofar as the appellants seek to establish and maintain an association of employees, their claim falls squarely within the protected ambit of s. 2(d). Moreover, the effective exercise of the freedoms in s. 2(d) require not only the exercise in association of the constitutional rights and freedoms and lawful rights of individuals, but the exercise of certain collective activities, such as making majority representations to one's employer. Conflicting claims concerning the meaning of troubling comments in the legislature make it impossible to conclude that the exclusion of agricultural workers from the LRA was intended to infringe their freedom to organize, but the effect of the exclusion in s. 3(b) of the LRA is to infringe their right to freedom of association.
The LRA is clearly designed to safeguard the exercise of the freedom to associate rather than to provide a limited statutory entitlement to certain classes of citizens. Through the right to organize inscribed in s. 5 of the LRA and the protection offered against unfair labour practices, the legislation recognizes that without a statutory vehicle employee associations are, in many cases, impossible. Here, the appellants 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, although its effective exercise may require legislative protection in some cases. The appellants have met the evidentiary burden of showing that they are substantially incapable of exercising their fundamental freedom to organize without the LRA's protective regime. While the mere fact of exclusion from protective legislation is not conclusive evidence of a Charter violation, the evidence indicates that, but for the brief period covered by the ALRA, there has never been an agricultural workers' union in Ontario and agricultural workers have suffered repeated attacks on their efforts to unionize. The inability of agricultural workers to organize can be linked to state action. The exclusion of agricultural workers from the LRA functions not simply to permit private interferences with their fundamental freedoms, but to substantially reinforce such interferences. The inherent difficulties of organizing farm workers, combined with the threat of economic reprisal from employers, form only part of the reason why association is all but impossible in the agricultural sector in Ontario. Equally important is the message sent by the exclusion of agricultural workers from the LRA, which delegitimizes their associational activity and thereby contributes to its ultimate failure. The most palpable effect of the LRESLAA and the LRA is, therefore, to place a chilling effect on non-statutory union activity.
With respect to the s. 1 analysis, the evidence establishes that many farms in Ontario are family-owned and operated, and that the protection of the family farm is a pressing enough objective to warrant the infringement of s. 2(d) of the Charter. The economic objective of ensuring farm productivity is also important. Agriculture occupies a volatile and highly competitive part of the private sector economy, experiences disproportionately thin profit margins and, due to its seasonal character, is particularly vulnerable to strikes and lockouts.
There is also a rational connection between the exclusion of agricultural workers from Ontario's labour relations regime and the objective of protecting the family farm. Unionization leads to formalized labour-management relationships and gives rise to a relatively formal process of negotiation and dispute resolution. It is reasonable to speculate that unionization will threaten the flexibility and cooperation that is characteristic of the family farm. Yet this concern is only as great as the extent of the family farm structure in Ontario and does not necessarily apply to the right to form an agricultural association. The notion that employees should sacrifice their freedom to associate in order to maintain a flexible employment relationship should be carefully circumscribed, as it could, if left unchecked, justify restrictions on unionization in many sectors of the economy.
The wholesale exclusion of agricultural workers from Ontario's labour relations regime does not minimally impair their right to freedom of association. The categorical exclusion of agricultural workers is unjustified where no satisfactory effort has been made to protect their basic right to form associations. The exclusion is overly broad as it denies the right of association to every sector of agriculture without distinction. The reliance on the family farm justification ignores an increasing trend in Canada towards corporate farming and complex agribusiness and does not justify the unqualified and total exclusion of all agricultural workers from Ontario's labour relations regime. More importantly, no justification is offered for excluding agricultural workers from all aspects of unionization, in particular those protections that are necessary for the effective formation and maintenance of employee associations. Nothing in the record suggests that protecting agricultural workers from the legal and economic consequences of forming an association would pose a threat to the family farm structure. Consequently, the total exclusion of agricultural workers from Ontario's labour relations regime is not justifiable under s. 1 of the Charter.
The appropriate remedy in this case is to declare the LRESLAA unconstitutional to the extent that it gives effect to the exclusion clause found in s. 3(b) of the LRA, and to declare s. 3(b) of the LRA unconstitutional. The declarations should be suspended for 18 months, thereby allowing amending legislation to be passed if the legislature sees fit to do so. Section 2(d) of the Charter only requires the legislature to provide a statutory framework that is consistent with the principles established in this case. At a minimum, these principles require that the statutory freedom to organize in s. 5 of the LRA be extended to agricultural workers, along with protections judged essential to its meaningful exercise, such as freedom to assemble, freedom from interference, coercion and discrimination and freedom to make representations and to participate in the lawful activities of the association. The appropriate remedy does not require or forbid the inclusion of agricultural workers in a full collective bargaining regime, whether it be the LRA or a special regime applicable only to agricultural workers.
It is unnecessary to consider the status of occupational groups under s. 15(1) of the Charter.
Per L'Heureux-Dubé J.: The purpose of s. 80 of the LRESLAA and s. 3(b) of the LRA is to prevent agricultural workers from unionizing, and this purpose infringes s. 2(d) of the Charter. In the record, there is clear evidence of intent on the part of the government of Ontario to breach the s. 2(d) rights of agricultural workers, including repeated instances where government officials indicated that the impugned legislation's intent was to hinder union-related activities in the agricultural sector. On a balance of probabilities, the evidence demonstrates that the legislature's purpose in enacting the exclusion was to ensure that persons employed in agriculture remained vulnerable to management interference with their associational activities, in order to prevent the undesirable consequences which it had feared would result from agricultural workers' labour associations. Furthermore, the evidence does not reveal any positive effects upon the associational freedom of agricultural workers stemming from their exclusion from the LRA. The reality of the labour market, which has led to the development of protective labour legislation, indicates that when the protection is removed without any restriction or qualification, associational rights are often infringed, or have the potential to be infringed, to an extent not confined to unionization activities. Consequently, it was in the reasonable contemplation of the government at the time of the enactment of the impugned legislation that the effect of the exclusion clause would be to affect associational freedoms beyond the realm of unionization, thus breaching s. 2(d) Charter rights.
In the present case, there is a positive obligation on the government to provide legislative protection against unfair labour practices. A positive duty to assist excluded groups generally arises when the claimants are in practice unable to exercise a Charter right. In the case of agricultural workers in Ontario, the freedom to associate becomes meaningless in the absence of a duty of the State to take positive steps to ensure that this right is not a hollow one. The government has breached the s. 2(d) rights of agricultural workers because it has enacted a new labour statute which leaves them perilously vulnerable to unfair labour practices. The absolute removal of LRA protection from agricultural workers has created a situation where employees have reason to fear retaliation against associational activity by employers. In light of the reality of the labour market, the failure of the Ontario legislature to spell out a regime defining which associational activities are to be protected from management retaliation has a chilling effect on freedom of association for agricultural workers. The chilling effect of the impugned provision has forced agricultural workers to abandon associational efforts and restrain themselves from further associational initiatives. The freedom of association of agricultural workers under the LRA can be characterized as a hollow right because it amounts to no more than the freedom to suffer serious adverse legal and economic consequences. In a constitutional democracy, not only must fundamental freedoms be protected from State action, they must also be given "breathing space".
Since the impugned legislation infringes s. 2(d), it is necessary to make but a single observation with respect to whether the exclusion of agricultural workers from the LRA constitutes discrimination under s. 15(1) of the Charter. The occupational status of agricultural workers constitutes an "analogous ground" for the purposes of an analysis under s. 15(1). There is no reason why an occupational status cannot, in the right circumstances, identify a protected group. Employment is a fundamental aspect of an individual's life and an essential component of identity, personal dignity, self-worth and emotional well-being. Agricultural workers generally suffer from disadvantage and the effect of the distinction made by their exclusion from the LRA is to devalue and marginalize them within Canadian society. Agricultural workers, in light of their relative status, low levels of skill and education, and limited employment and mobility, can change their occupational status only at great cost, if at all.
The impugned legislation is not justifiable under s. 1 of the Charter. While labour statutes, such as the LRA, fulfill important objectives in our society, s. 3(b) does not pursue a pressing and substantial concern justifying the breach of the appellants' Charter rights. It cannot be argued that Ontario agriculture has unique characteristics which are incompatible with legislated collective bargaining. It is also difficult to accept that none of the LRA's purposes, enumerated at s. 2 of the LRA, which speak to the basic characteristics required for the operation of a modern business, are inapplicable in the agricultural sector. At the very least, the expressions of intent found in s. 2 of the LRA would apply to factory-like agricultural enterprises. Without enunciating a constitutionally valid reason, one cannot countenance a breach of a Charter guaranteed fundamental freedom on grounds which appear to be based on a policy geared to enhance the economic well-being of private enterprises. The government is entitled to provide financial and other support to agricultural operations, including family farms. However, it is not open to the government to do so at the expense of the Charter rights of those who are employed in such activities, if such a policy choice cannot be demonstrably justified.
Even if the impugned legislation pursued a valid objective, the absoluteness of the exclusion clause, barring all persons employed in agriculture from all components of the LRA, speaks to the lack of proportionality between the perceived ills to be avoided and their remedy. First, a rational connection between the objective of securing the well-being of the agricultural sector in Ontario and the exclusion of persons employed in agriculture from all associational protections contained in the LRA has not been established. If the good labour management principles outlined in s. 2 of the LRA have a basis in fact, then barring all persons employed in agriculture from all the benefits under the LRA may have the opposite effect. Second, the complete exclusion of agricultural workers from the LRA does not minimally impair their Charter rights. Such a blunt measure can hardly be characterized as achieving a delicate balance among the interests of labour and those of management and the public. It weakens the case for deference to the legislature. This is further aggravated because those affected by the exclusion are not only vulnerable as employees but are also vulnerable as members of society with low income, little education and scant security or social recognition. The current law is not carefully tailored to balance the Charter freedoms of persons employed in agriculture in Ontario and the societal interest in harmonious relations in the labour market. While the important role that family farms play in Ontario agriculture must be recognized, such a role is not unique to Ontario. Further, both families and farms have evolved. There is no obvious connection between the exclusion of agricultural workers from the LRA and farmers or family farms. A city-based corporation could be operating an agricultural entity and benefit from the restrictions on the freedoms of association of its agricultural workers. Labour statutes in other provinces contain agricultural exemptions that are narrower than the one contained in the LRA. The objective of securing the well-being of the agricultural sector in Ontario can be achieved through a legislative mechanism that is less restrictive of free association than the existing complete exclusion of agricultural workers from the LRA.
Per Major J. (dissenting): The appellants failed to demonstrate that the impugned legislation has, either in purpose or effect, infringed activities protected by s. 2(d) of the Charter. In particular, s. 2(d) does not impose a positive obligation of protection or inclusion on the state in this case. Prior to the enactment of the LRA, agricultural workers had historically faced significant difficulties organizing and the appellants did not establish that the state is causally responsible for the inability of agricultural workers to exercise a fundamental freedom.
Agricultural workers are not an analogous group for the purposes of s. 15(1) of the Charter and, as a result, the exclusion of agricultural workers from the LRA does not violate their equality rights.
Cases Cited
By Bastarache J.
Referred to: Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ferrell v. Ontario (Attorney General) (1997), 149 D.L.R. (4th) 335; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; R. v. Skinner, [1990] 1 S.C.R. 1235; Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959] S.C.R. 206; McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718; R. v. Beaulac, [1999] 1 S.C.R. 768; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Vriend v. Alberta, [1998] 1 S.C.R. 493; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; R. v. Oakes, [1986] 1 S.C.R. 103; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Wellington Mushroom Farm, [1980] O.L.R.B. Rep. May 813; Calvert-Dale Estates Ltd., [1971] O.L.R.B. Rep. Feb. 58; Spruceleigh Farms, [1972] O.L.R.B. Rep. Oct. 860; Cuddy Chicks Ltd., [1988] O.L.R.B. Rep. May 468, application for judicial review dismissed (1988), 66 O.R. (2d) 284, aff'd (1989), 70 O.R. (2d) 179, aff'd [1991] 2 S.C.R. 5; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; South Peace Farms and Oil, Chemical and Atomic Workers International Union, Local No. 9-686, [1977] 1 Can. L.R.B.R. 441; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
By L'Heureux-Dubé J.
Referred to: Haig v. Canada, [1993] 2 S.C.R. 995; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Cuddy Chicks Ltd., [1988] O.L.R.B. Rep. May 468; Cuddy Chicks Ltd., [1992] O.L.R.D. No. 1170 (QL); New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, aff'g (1983), 49 A.R. 194; Vriend v. Alberta, [1998] 1 S.C.R. 493; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; Egan v. Canada, [1995] 2 S.C.R. 513; R. v. Beaulac, [1999] 1 S.C.R. 768; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; McKinley v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38; R. v. Généreux, [1992] 1 S.C.R. 259; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; South Peace Farms and Oil, Chemical and Atomic Workers International Union, Local No. 9-686, [1977] 1 Can. L.R.B.R. 441; Wellington Mushroom Farm, [1980] O.L.R.B. Rep. May 813; Rathwell v. Rathwell, [1978] 2 S.C.R. 436.
By Major J. (dissenting)
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Haig v. Canada, [1993] 2 S.C.R. 995.
Statutes and Regulations Cited
Agricultural Labour Relations Act, 1994, S.O. 1994, c. 6 [rep. 1995, c. 1, s. 80], s. 10.
Canadian Charter of Rights and Freedoms, ss. 1, 2(a), (b), (d), 15(1), 32.
Collective Bargaining Act, 1943, S.O. 1943, c. 4, s. 24 [rep. & sub. by Labour Relations Board Act, 1944, S.O. 1944, c. 29].
Convention (No. 11) concerning the Rights of Association and Combination of Agricultural Workers, 38 U.N.T.S. 153, Art. 1.
Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 17, Arts. 2, 9, 10.
Convention (No. 141) concerning Organisations of Rural Workers and Their Role in Economic and Social Development, I.L.O. Official Bulletin, vol. LVIII, 1975, Series A, No. 1, p. 28, Art. 2.
Corporations Tax Act, R.S.O. 1990, c. C.40, s. 1(2) "family farm corporation".
Employment Standards Act, R.S.O. 1990, c. E.14.
Employment Standards Act Regulations, R.R.O. 1990, Reg. 325, s. 3(1)(i).
Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, s. 1(1) "farmer".
Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 1(5)(a).
Junior Farmer Establishment Act, R.S.O. 1990, c. J.2, s. 1 "family farm".
Labour Code, R.S.Q., c. C-27, s. 21.
Labour Code of British Columbia Act, S.B.C. 1973, c. 122.
Labour Relations Act, R.S.O. 1980, c. 228, s. 2(b).
Labour Relations Act, 1950, S.O. 1950, c. 34, s. 2(b) [am. 1960, c. 54, s. 2(bb)].
Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A,
ss. 1(1) "agriculture", 2, 3, 3(b), (e) [am. 1997,
c. 4, s. 83], (f) [idem, c. 31, s. 151],
5, 13, 70, 72, 76, 86, 87, 88.
Labour Relations and Employment
Statute Law Amendment Act, 1995, S.O. 1995, c. 1, ss. 80,
81(1).
Labour Relations Board Act, 1944, S.O. 1944, c. 29, s. 10(a) [rep. & sub. Labour Relations Act, 1948, S.O. 1948, c. 51].
National Labor Relations Act, July 5, 1935, c. 372, 49 Stat. 449 (29 U.S.C. §§ 151 to 169).
Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 3(2).
Tenant Protection Act, 1997, S.O. 1997, c. 24, s. 3(b).
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APPEAL from a judgment of the Ontario Court of Appeal (1999), 182 D.L.R. (4th) 471, 49 C.C.E.L. (2d) 29, [1999] O.J. No. 1104 (QL), upholding the decision of the Ontario Court (General Division) (1997), 155 D.L.R. (4th) 193, 37 O.R. (3d) 287, 49 C.C.E.L. (2d) 5, [1997] O.J. No. 4947 (QL). Appeal allowed, Major J. dissenting.
Chris G. Paliare and Martin J. Doane, for the appellants.
Richard J. K. Stewart, for the respondent the Attorney General for Ontario.
Alan L. W. D'Silva, Darrell L. Kloeze and Vincent C. Kazmierski, for the respondent Fleming Chicks.
Written submissions only by Renée Madore and Monique Rousseau, for the intervener the Attorney General of Quebec.
Rod Wiltshire, for the intervener the Attorney General for Alberta.
Steven Barrett, for the intervener the Canadian Labour Congress.
Written submissions only by John C. Murray and Jonathan L. Dye, for the intervener the Labour Issues Coordinating Committee.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
BASTARACHE J. --
I. Introduction
II. Factual Background
3. This Act does not apply,
.
. .
(b) to a person employed in agriculture, hunting or
trapping;
The net effect of the LRESLAA was to re-subject agricultural workers to this exclusion clause. Thus, in addition to challenging the constitutionality of the LRESLAA, the appellants challenge the constitutionality of s. 3(b) of the LRA.
III. Relevant Statutory Provisions
6Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1
1.(1) The Labour Relations Act, 1995, as set out in Schedule A, is hereby enacted.
80.(1) The Agricultural Labour Relations Act, 1994 is repealed.
(2) On the day on which this section comes into force, a collective agreement ceases to apply to a person to whom that Act applied.
(3) On the day on which this section comes into force, a trade union certified under that Act or voluntarily recognized as the bargaining agent for employees to whom that Act applies ceases to be their bargaining agent.
(4) On the day on which this section comes into force, any proceeding commenced under that Act is terminated.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A
3. This Act does not apply,
. . .
(b) to a person employed in agriculture, hunting or trapping;
Canadian Charter of Rights and Freedoms
2. Everyone has the following fundamental freedoms:
. . .
(d) freedom of association.
IV. Judicial History
A. Ontario Court (General Division) (1997), 155 D.L.R. (4th) 193
7 The issues before the Ontario Court (General Division) in this case were essentially the same as those before this Court, namely, whether the exclusion of agricultural workers from Ontario's statutory labour relations scheme infringes s. 2(d) and/or s. 15(1) of the Charter and, if so, whether the infringements are justifiable under s. 1. It might be noted that Sharpe J. released his decision prior to this Court's decisions in Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, and other cases that provide important authority for this appeal.
8 Sharpe J. began with the appellants' s. 2(d) claim, observing that the right of workers to form a trade union is protected by s. 2(d), while the right to collective bargaining is not. The balance of Sharpe J.'s s. 2(d) analysis was thus devoted to whether the impugned provisions infringed, either in purpose or effect, the former right. With respect to purpose, Sharpe J. held that while the purpose of the legislation was undoubtedly to deny agricultural workers the right to bargain collectively, "it is difficult . . . to discern a governmental purpose to deny agricultural workers the right to form an association" (pp. 205-6). He then considered the effect of the legislation on s. 2(d) rights, holding that to the extent agricultural workers are deprived of the ability to form trade unions, such deprivation is due to the private actions of their employers rather than the legislative regime itself. The former actions being unreviewable by virtue of this Court's decision in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, Sharpe J. dismissed the s. 2(d) claim. In response to the appellants' claim that the LRESLAA constituted independently reviewable state action, Sharpe J. held that reviewing the LRESLAA would essentially constitutionalize the statute it repealed, namely, the ALRA. This would create "a broad class of statutes that would enjoy the status of a constitutional guarantee as they would be immune from repeal" (p. 208), an outcome rejected by the Ontario Court (General Division) in Ferrell v. Ontario (Attorney General) (1997), 149 D.L.R. (4th) 335.
B. Ontario Court of Appeal (1999), 182 D.L.R. (4th) 471
V. Constitutional Questions
11 On June 20, 2000, Binnie J. stated the constitutional questions as follows:
(a)to freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms; or
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
(a)to freedom of association guaranteed by s. 2(d) of the Charter; or
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
VI. Analysis
A. Freedom of Association
(1) Nature of the Claim
13 In order to establish a violation of s. 2(d), the appellants must demonstrate, first, that such activities fall within the range of activities protected by s. 2(d) of the Charter, and second, that the impugned legislation has, either in purpose or effect, interfered with these activities (see, in the s. 2(a) context, R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at pp. 331-36, and in the s. 2(b) context, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 971). On the first point, I shall review the existing framework of the s. 2(d) protection established by this Court in the 1987 "labour trilogy" and subsequent cases. This discussion will include a purposive analysis of s. 2(d), one which aims to protect the full range of associational activity contemplated by the Charter and to honour Canada's obligations under international human rights law. After reviewing the content of freedom of association, I shall examine the contours of state responsibility under s. 2(d) of the Charter. In particular, I shall ask whether s. 2(d) obligates the state simply to respect trade union freedoms, or additionally to protect trade union freedoms by prohibiting their infringement by private actors. Following my discussion of the scope of s. 2(d), I shall examine the purpose and effects of the impugned legislation.
(2) Scope of Section 2(d)
(a) General Framework
14 The scope of s. 2(d) was first decided by this Court in a landmark trilogy of labour cases, all of which concerned the right to strike (see Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 ("Alberta Reference"); PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460). In the Alberta Reference, McIntyre J. (writing for himself) stressed the double-edged nature of freedom of association, holding that "while [freedom of association] advances many group interests and, of course, cannot be exercised alone, it is nonetheless a freedom belonging to the individual and not to the group formed through its exercise" (p. 397). On the basis of this principle, McIntyre J. confined s. 2(d) to three elements: (1) the freedom to join with others in lawful, common pursuits and to establish and maintain organizations and associations (with which all six justices agreed), (2) the freedom to engage collectively in those activities which are constitutionally protected for each individual (with which three of six justices agreed) and (3) the freedom to pursue with others whatever action an individual can lawfully pursue as an individual (with which three of six justices agreed). These three elements of freedom of association are summarized, along with a crucial fourth principle, in the oft-quoted words of Sopinka J. in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 ("PIPSC"), at pp. 401-2:
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. [Emphasis added.]
The third and fourth of these principles have received considerably less judicial support than the others, having only been explicitly affirmed by three of six judges in the Alberta Reference and two of seven judges in PIPSC. Moreover, these elements of s. 2(d) provided little assistance to this Court in Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157 ("Egg Marketing"), which involved an activity that could not conceivably be performed by an individual. Most recently, in Delisle, supra, this Court did not have to rule on the validity of the existing framework because all of the activities involved fell within it. In that case, this Court clarified that s. 2(d) does not guarantee access to a particular labour relations regime where the claimants are able to exercise their s. 2(d) rights independently.
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. This purpose was first articulated in the labour trilogy and has accordingly been used to define both the "positive" freedom to associate as well as the "negative" freedom not to (see Alberta Reference, supra; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 318; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70). 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. "Man, as Aristotle observed, is a `social
animal, formed by nature for living with others', associating with his
fellows both to satisfy his desire for social intercourse and to realize
common purposes." (L. J. MacFarlane, The Theory and Practice of Human
Rights (1985), p. 82.)
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 (see PIPSC, supra, per
Sopinka J., at pp. 401-2, per Cory J. (dissenting), at p. 379; R.
v. Skinner, [1990] 1 S.C.R. 1235, per Dickson C.J., at p.
1243; Lavigne, supra, per La Forest J., at p.
317, per Wilson J., at p. 251; per McLachlin J. (as she then
was), at p. 343). In Lavigne, Wilson J. (writing for three of seven
judges on this point) conducted an extensive review of this Court's s.
2(d) jurisprudence, concluding 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). Wilson J. added
that the Court has remained steadfast in this position despite numerous
disagreements about the application of s. 2(d) to particular
practices.
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 added.]
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. At best, it would encourage s. 2(d) claimants to contrive individual analogs for inherently associational activities, a process which this Court clearly resisted in the labour trilogy, in Egg Marketing, supra, and in its jurisprudence on union security clauses and the right not to associate (see Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959] S.C.R. 206 ("[t]he union is . . . the representative of all the employees in the unit for the purpose of negotiating the labour agreement", hence "[t]here is no room left for private negotiation between employer and employee" (per Judson J., at p. 212)); McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718 ("[t]he reality is, and has been for many years now throughout Canada, that individual relationships as between employer and employee have meaning only at the hiring stage" (per Laskin C.J., at p. 725)); I. Hunter, "Individual and Collective Rights in Canadian Labour Law" (1993), 22 Man. L.J. 145, at p. 147 ("[i]ndividual rights vis-à-vis their employer are replaced by rights in respect of their union, which, in turn, is mandated to advance the interests of bargaining-unit members"); D. Beatty and S. Kennett, "Striking Back: Fighting Words, Social Protest and Political Participation in Free and Democratic Societies" (1988), 67 Can. Bar Rev. 573, at pp. 587-88). The collective dimension of s. 2(d) is also consistent with developments in international human rights law, as indicated by the jurisprudence of the Committee of Experts on the Application of Conventions and Recommendations and the ILO Committee on Freedom of Association (see, e.g., International Labour Office, Freedom of Association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO (4th ed. 1996)). Not only does this jurisprudence illustrate the range of activities that may be exercised by a collectivity of employees, but the International Labour Organization has repeatedly interpreted the right to organize as a collective right (see International Labour Office, Voices for Freedom of Association (Labour Education 1998/3, No. 112): "freedom is not only a human right; it is also, in the present circumstances, a collective right, a public right of organisation" (address delivered by Mr. Léon Jouhaux, workers' delegate)).
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).
(b) State Responsibility Under Section 2(d)
I recognize that in cases where the employer does not form part of government, there exists no Charter protection against employer interference. In such a case, it might be demonstrated that the selective exclusion of a group of workers from statutory unfair labour practice protections has the purpose or effect of encouraging private employers to interfere with employee associations. It may also be that there is a positive obligation on the part of governments to provide legislative protection against unfair labour practices or some form of official recognition under labour legislation, because of the inherent vulnerability of employees to pressure from management, and the private power of employers, when left unchecked, to interfere with the formation and administration of unions. [Emphasis added.]
This dictum was not rejected by the Delisle majority, which focused instead on the fact that an interference with associational activity had not been made out on the facts of the case. Indeed, in making this finding, I deferred judgment on the appellant's argument that underinclusion could have "an important chill on freedom of association because it clearly indicates to its members that unlike all other employees, they cannot unionize, and what is more, that they must not get together to defend their interests with respect to labour relations" (see Delisle, supra, at para. 30). In addition, I left open the possibility that s. 2 of the Charter may impose "a positive obligation of protection or inclusion on Parliament or the government . . . in exceptional circumstances which are not at issue in the instant case" (para. 33).
22 Even before Delisle, Le Dain J. recognized in the Alberta Reference, supra, that s. 2(d) protected workers' freedom to organize "without penalty or reprisal", making no distinction between workers employed by government or private entities (p. 391). What this dictum recognized, in my view, is that without the necessary protection, the freedom to organize could amount "to no more than the freedom to suffer serious adverse legal and economic consequences" (see H. W. Arthurs et al., Labour Law and Industrial Relations in Canada (4th ed. 1993), at para. 431). Perhaps more importantly for this appeal, this dictum implies that total exclusion from a regime protecting the freedom to organize could engage not only s. 15(1) of the Charter, but also s. 2(d) of the Charter. Where a group is denied a statutory benefit accorded to others, as is the case in this appeal, the normal course is to review this denial under s. 15(1) of the Charter, not s. 2(d) (see Haig v. Canada, [1993] 2 S.C.R. 995; Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627 ("NWAC"); Delisle, supra). This was properly recognized by Sharpe J. who noted that "by `dipping its toe in the water', and affording or enhancing the rights of some", the government is not obliged to "go all the way and ensure the enjoyment of rights by all" (p. 207). However, it seems to me that apart from any consideration of a claimant's dignity interest, exclusion from a protective regime may in some contexts amount to an affirmative interference with the effective exercise of a protected freedom. In such a case, it is not so much the differential treatment that is at issue, but the fact that the government is creating conditions which in effect substantially interfere with the exercise of a constitutional right; it has been held in the s. 2(a) context, for example, that "protection of one religion and the concomitant non-protection of others imports disparate impact destructive of the religious freedom of the collectivity" (see Big M Drug Mart, supra, at p. 337). This does not mean that there is a constitutional right to protective legislation per se; it means legislation that is underinclusive may, in unique contexts, substantially impact the exercise of a constitutional freedom.
24 In my view, the cases of Haig, NWAC and Delisle function to circumscribe, but not to foreclose, the possibility of challenging underinclusion under s. 2 of the Charter. One limit imposed by these cases is that claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime. Thus, in Haig, the majority of this Court held that "[a] government is under no constitutional obligation to extend [a referendum] to anyone, let alone to everyone"* 1 , and further that "[a] referendum as a platform of expression is . . . a matter of legislative policy and not of constitutional law" (p. 1041 (emphasis in original)). Similarly, in NWAC, the majority of this Court held that "[i]t cannot be claimed that NWAC has a constitutional right to receive government funding aimed at promoting participation in the constitutional conferences" (p. 654). In my view, the 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. While it may be that the effective exercise of this freedom requires legislative protection in some cases, this ought not change the fundamentally non-statutory character of the freedom itself. As long as the appellants can plausibly ground their action in a fundamental Charter freedom, Haig and NWAC ought simply to be distinguished.
26 Assuming an evidentiary foundation can be provided, a third concern is whether the state can truly be held accountable for any inability to exercise a fundamental freedom. In this case, it is said that the inability to form an association is the result of private action and that mandating inclusion in a statutory regime would run counter to this Court's decision in Dolphin Delivery, supra. However, it should be noted that this Court's understanding of "state action" has matured since the Dolphin Delivery case and may mature further in light of evolving Charter values. For example, this Court has repeatedly held that the contribution of private actors to a violation of fundamental freedoms does not immunize the state from Charter review; rather, such contributions should be considered part of the factual context in which legislation is reviewed (see Lavigne, per La Forest J., at p. 309; see, similarly, R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, per Dickson C.J., at p. 766). Moreover, this Court has repeatedly held in the s. 15(1) context that the Charter may oblige the state to extend underinclusive statutes to the extent underinclusion licenses private actors to violate basic rights and freedoms (see Vriend v. Alberta, [1998] 1 S.C.R. 493). Finally, there has been some suggestion that the Charter should apply to legislation which "permits" private actors to interfere with protected s. 2 activity, as in some contexts mere permission may function to encourage or support the act which is called into question (see Lavigne, per Wilson J., at p. 248). If we apply these general principles to s. 2(d), it 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.
28 In sum, while it is generally desirable to confine claims of underinclusion to s. 15(1), it will not be appropriate to do so where the underinclusion results in the effective denial of a fundamental freedom such as the right of association itself. This is not to say that such claims will be common: they are constrained by both s. 32 of the Charter, which demands a minimum of state action before the Charter can be invoked, as well as by the factors discussed above. However, a claim for inclusion should not, in my view, automatically fail a s. 2(d) analysis: depending on the circumstances, freedom of association may, for example, prohibit the selective exclusion of a group from whatever protections are necessary to form and maintain an association, even though there is no constitutional right to such statutory protection per se. In this sense, the burden imposed by s. 2(d) of the Charter differs from that imposed by s. 15(1): while the latter focuses on the effects of underinclusion on human dignity (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497), the former focuses on the effects of underinclusion on the ability to exercise a fundamental freedom. This distinction is contemplated by the wording of the Charter itself and is supported by subsequent jurisprudence of this Court (see, e.g., Delisle, supra, at para. 25).
(c) Summary of Discussion on Section 2(d)
(3) Application to the Ontario Legislation
(a) Purpose of the Exclusion
(b) Effects of the Exclusion
(i)The LRA is Designed to Safeguard the Exercise of the Fundamental Freedom to Associate
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 added) (see Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, Issue No. 43, January 22, 1981, at pp. 69-70 (Kaplan)). As recently as Delisle, supra, L'Heureux-Dubé J. noted that "the right to freedom of association must take into account the nature and importance of labour associations as institutions that work for the betterment of working conditions and the protection of the dignity and collective interests of workers in a fundamental aspect of their lives: employment" (para. 6 (emphasis in original)). These remarks echo those of Dickson C.J., who noted in the Alberta Reference, supra, that "[w]ork 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" (p. 368) (see similarly, McKinney v. University of Guelph, [1990] 3 S.C.R. 229, per La Forest J., at p. 300; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986, at p. 1002; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, per Iacobucci J., at para. 95). Moreover, the importance of trade union freedoms is widely recognized in international covenants, as is the freedom to work generally. In my view, judicial recognition of these freedoms strengthens the case for their positive protection. 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.
(ii)Without the Protection of the LRA, Agricultural Workers Are Substantially Incapable of Exercising the Freedom to Associate
(iii)The Exclusion of Agricultural Workers from the LRA Substantially Reinforces the Inherent Difficulty in Exercising the Freedom to Associate
B. Section 1
49 Having established a violation of s. 2(d) of the Charter, the question arises as to whether exclusion from the LRA constitutes a reasonable limit on agricultural workers' freedom to organize. In this regard, s. 1 of the Charter obliges the respondents, as the parties seeking to uphold the limitation, to establish both that the objective underlying the limitation is of sufficient importance to warrant overriding a constitutionally protected right or freedom, and that the means chosen to reach this objective are proportionate (see R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 136-39). This analysis must be undertaken with a close attention to the factual and social context surrounding the enactment of the LRA; as I noted in Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 87, "context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right". The contextual factors established in Thomson Newspapers and subsequent cases will prove especially helpful at the minimum impairment stage of the s. 1 analysis.
(1) Sufficiently Important Objective
(1)to recognize the unique characteristics of Ontario agriculture and its resulting incompatibility with legislated collective bargaining; and
(2)to further the purpose of the LRA by extending legislated collective bargaining only to fields of employment where the Act's purposes can be realized.
While it is widely recognized that certain occupations may, in certain cases, be incompatible with collective bargaining, the judiciary and some essential services, for example, it is less certain that agricultural workers fall into this category. The Attorney General tenders extensive affidavit evidence on this point, arguing that the prevalence of the "family farm" and the vulnerability of the agricultural production process militate against legislated collective bargaining. For their part, the appellants maintain that the family farm no longer typifies Ontario agriculture and that the vulnerability of the agricultural production process, assuming it exists, does not militate against legislated collective bargaining. This discussion is however somewhat irrelevant in that the breach of the right of association does not extend to collective bargaining. What the government of Ontario must justify with regard to this appeal is its substantial interference with the right to form agricultural associations.
52 Judging from the parties' evidence, I am satisfied both that many farms in Ontario are family-owned and -operated, and that the protection of the family farm is a pressing enough objective to warrant the infringement of s. 2(d) of the Charter. The fact that Ontario is moving increasingly towards corporate farming and agribusiness does not, in my view, diminish the importance of protecting the unique characteristics of the family farm; on the contrary, it may even augment it. Perhaps more importantly, the appellants do not deny that the protection of the family farm is, at least in theory, an admirable objective. The choice to "pursue the pastoral path" implies a unique and non-commercial way of life; this way of life is entitled, according to many, to the same level of protection as "that which prevails in our factories and office buildings" (D. M. Beatty, Putting the Charter to Work: Designing a Constitutional Labour Code (1987), at p. 91). If providing this protection means restraining the activities of those who would interfere with that choice, the appropriate response is not to deny the protection, however, but to balance these interests against one another. Such balancing, in my view, is the essence of s. 1 of the Charter (see R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 97). As Professor Beatty puts it, at p. 91, "the freedom of those who choose to experience their lives in such non-commercial, self-sustaining ways may justify restraining the freedom of others who would wish to associate with them in a way which would threaten or deny them the opportunity to realize their choice".
(2) Proportionality
(a) Rational Connection
(b) Minimum Impairment
56 The next issue is whether recognizing the unique characteristics of Ontario agriculture and its resulting incompatibility with the formation of agricultural associations as a reasonable minimum justifies the complete exclusion of agricultural workers from the LRA. The LRA excludes all persons "employed in agriculture, hunting or trapping" from its application, defining agriculture as "farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation" (see LRA, s. 1(1)). This provision has been broadly interpreted by Ontario's Labour Relations Board, albeit with some reluctance and interpretive difficulty. In Wellington Mushroom Farm, [1980] O.L.R.B. Rep. May 813, for example, a majority of the board denied LRA certification to the employees of a mushroom factory, even though the actual growing of the mushrooms took place within a single-storey concrete block building. The majority of the board recognized that the employer's operation did "not differ in any material respect from a typical manufacturing plant", but it concluded that the growing of mushrooms constituted an agricultural activity in the ordinary sense of the term (p. 819). In other cases, the board has denied LRA protection to stationary engineers employed at a greenhouse, truck drivers hired to transport chickens and employees of a chicken hatchery (see Calvert-Dale Estates Ltd., [1971] O.L.R.B. Rep. Feb. 58; Spruceleigh Farms, [1972] O.L.R.B. Rep. Oct. 860; Cuddy Chicks Ltd., [1988] O.L.R.B. Rep. May 468, application for judicial review dismissed (1988), 66 O.R. (2d) 284 (Div. Ct.), aff'd (1989), 70 O.R. (2d) 179 (C.A.), aff'd [1991] 2 S.C.R. 5; see also, G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at pp. 6-49 and 6-50).
61 In my view, there are at least two ways in which the LRESLAA might impair Charter rights more than is reasonably necessary to achieve its objectives: first, by denying the right of association to every sector of agriculture, and second, by denying every aspect of the right, specially whatever protection is necessary to form and maintain employee associations, to agricultural workers. A similar approach to s. 1 was applied in Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, in which this Court struck down a prohibition on partisan political activity by public servants. Much like the legislation at issue in this appeal, the provision in Osborne banned "all partisan-related work by all public servants, without distinction either as to the type of work, or as to their relative role, level or importance in the hierarchy of the public servant" (per Sopinka J., at p. 100 (emphasis added)). Moreover, in Osborne the Court was referred, as in this case, to legislation in other jurisdictions that made distinctions both as to the activity proscribed and the level of public servant, without any weakening of the underlying objective. Based on these factors, Sopinka J. concluded that "[t]he restrictions on freedom of expression in this case are over-inclusive and go beyond what is necessary to achieve the objective of an impartial and loyal civil service" (p. 100). Although the Court differed on whether to strike down the legislation or to read it down in that particular case, its minimum impairment analysis provides unequivocal authority for the current appeal (see, similarly, Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, striking down a restriction on advertising by dentists on grounds that it was overbroad).
C. Remedy
66 To the extent they substantially impede the effective exercise of the freedom of association, both the LRESLAA and s. 3(b) of the LRA must be declared contrary to the Charter. Given the nature of these enactments, however, determining the appropriate remedy is not without difficulty. First, the respondents point out that the precise effect of striking down the LRESLAA would be to re-enact the statute it repealed, namely, the ALRA. As this Court is not in a position to enact such detailed legislation, nor to confer constitutional status on a particular statutory regime, I prefer to strike down the LRESLAA to the extent that it gives effect to the exclusion clause of the LRA. The precise effect of this remedy is to strike down that exclusion clause, which is the alternate remedy sought by the appellants. This remedy presents its own problems, as it obliges the legislature to extend the full panoply of collective bargaining rights in the LRA to agricultural workers. As such action is not necessarily mandated by the principles of this case, I would suspend the declarations of invalidity for 18 months, allowing amending legislation to be passed if the legislature sees fit to do so. Such a remedy was discussed by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, at p. 570, in response to legislation he had found to be over-inclusive:
. . . this Court has recognized that an immediate declaration of invalidity is not always advisable, especially where, as here, the provision pursues an important objective but is over-inclusive: were this Court to strike down the provision effective immediately, those whom the government could protect constitutionally with a more tailored provision, and who indeed should be protected, would be left unprotected. This would clearly pose a "potential danger to the public". . . .
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 added.]
VII. Conclusion
(a)to freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms; or
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
Section 80 of the Labour Relations and Employment Statute Law Amendment Act limits freedom of association guaranteed by s. 2(d) of the Charter to the extent that its effect is to re-subject agricultural workers to the exclusion clause found in s. 3(b) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. For this reason, it is not necessary to answer the s. 15(1) question.
(a)to freedom of association guaranteed by s. 2(d) of the Charter; or
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
Section 3(b) of the Labour Relations Act, 1995 limits the right of agricultural workers to freedom of association guaranteed by s. 2(d) of the Charter. For this reason, it is not necessary to answer the s. 15(1) question.
No.
The following are the reasons delivered by
71L'HEUREUX-DUBÉ J. -- I have read the reasons of Bastarache J. I believe that this case can be resolved on simpler grounds. I will therefore outline the reasoning upon which I base my opinion.
76 In Haig v. Canada, [1993] 2 S.C.R. 995, speaking for a majority of the Court, I addressed the issue of positive government obligations in the context of Charter analysis by first noting, at p. 1038 (quoting Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 ("Alberta Reference"), per Dickson C.J., dissenting, at p. 361):
Section 2 of the Charter protects fundamental "freedoms" as opposed to "rights". Although these two terms are sometimes used interchangeably, a conceptual distinction between the two is often drawn. "Rights" are said to impose a corresponding duty or obligation on another party to ensure the protection of the right in question whereas "freedoms" are said to involve simply an absence of interference or constraint. This conceptual approach to the nature of "freedoms" may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms (e.g., regulations limiting the monopolization of the press may be required to ensure freedom of expression and freedom of the press). [Emphasis added by L'Heureux-Dubé J. in Haig.]
. . . distinctions between "freedoms" and "rights", and between positive and negative entitlements, are not always clearly made, nor are they always helpful. One must not depart from the context of the purposive approach articulated by this Court in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. Under this approach, a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required. This might, for example, take the form of legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information.
In the proper context, these may perhaps be relevant considerations leading a court to conclude that positive governmental action is required. [Emphasis added.]
78 In Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627, at p. 667, I pointed out that Haig also stands for the proposition that while the government may have been under no constitutional obligation to provide for the right to a referendum under s. 2(b) of the Charter, once the government decides to provide a specific platform of expression, it must do so in a manner consistent with the Charter. I refer specifically to p. 1041 of Haig:
While s. 2(b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. The traditional rules of Charter scrutiny continue to apply. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion, and particularly not on [a] ground prohibited under s. 15 of the Charter. [Emphasis added.]
79 Turning to the labour relations context in Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, a case dealing with s. 2(d) rights of government employees, I noted, at para. 7:
. . . in cases where the employer does not form part of government, there exists no Charter protection against employer interference. In such a case, it might be demonstrated that the selective exclusion of a group of workers from statutory unfair labour practice protections has the purpose or effect of encouraging private employers to interfere with employee associations. It may also be that there is a positive obligation on the part of governments to provide legislative protection against unfair labour practices or some form of official recognition under labour legislation, because of the inherent vulnerability of employees to pressure from management, and the private power of employers, when left unchecked, to interfere with the formation and administration of unions.
I. Legislative History and Factual Background
2. This Act does not apply,
. . .
(b)to any person employed in agriculture, horticulture, hunting or trapping;
2. This Act does not apply,
. . .
(b)to any person employed in agriculture, hunting or trapping;
(bb) to any person, other than an employee of a municipality or a person employed in silvaculture [sic], who is employed in horticulture by an employer whose primary business is agriculture or horticulture.
90 The issues surrounding the statutory provision at the heart of this case were referred to indirectly in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, where this Court examined the jurisdiction of the Ontario Labour Relations Board ("OLRB") to determine the constitutionality of s. 2(b) of the Labour Relations Act, R.S.O. 1980, c. 228 (now s. 3(b) of the LRA) in the course of proceedings before the OLRB. One of the issues on appeal was whether the Ontario Court of Appeal erred in holding that the OLRB had jurisdiction to decide the constitutional validity of s. 2(b) of its enabling statute by applying the Charter as part of its duty to consider statutes bearing on proceedings before it.
There is no doubt that the hatchery is a highly mechanized, technologically sophisticated operation and that the employees in many respects work in factory-like conditions with set shifts, year-round employment and the benefits and disciplinary provisions similar to or the same as one would expect to find in a factory. We accept respondent counsel's submission that agriculture has become highly technological and commercial, but that that does not make those activities non-agricultural: Wellington Mushroom Farm, [1980] OLRB Rep. May 813. It is thus the nature of the activities and not the way they are performed or the tools by which they are performed that is relevant. [Emphasis added.]
The applicant and respondent, by letter dated March 23, 1992, have jointly requested the Board to hold this matter in abeyance, in light of the amendments currently being considered for the Act, in particular as it affects the exclusion of "agricultural" employees in section 2(b).
99 The LRA features an expansive definition of "agriculture" at s. 1(1):
"agriculture" includes farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation, but does not include anything that was not or would not have been determined to be agriculture under section 2 of the predecessor to this Act as it read on June 22, 1994;
100 The exclusionary section of the LRA largely replicates the language of its predecessor:
3. This Act does not apply,
(a)to a domestic employed in a private home;
(b)to a person employed in agriculture, hunting or trapping;
(c)to a person, other than an employee of a municipality or a person employed in silviculture, who is employed in horticulture by an employer whose primary business is agriculture or horticulture;
(d)to a member of a police force within the meaning of the Police Services Act;
(e)except as provided in Part IX of the Fire Protection and Prevention Act, 1997, to a person who is a firefighter within the meaning of subsection 41(1) of that Act;
(f)to a member of a teachers' bargaining unit established by Part X.1 of the Education Act, except as provided by that Part, or to a supervisory officer, a principal or a vice-principal;
(g)to a member of the Ontario Provincial Police Force;
(h)to an employee within the meaning of the Colleges Collective Bargaining Act;
(i)to a provincial judge; or
(j)to a person employed as a labour mediator or labour conciliator. [Emphasis added.]
II. Charter Analysis
105 In New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319, McLachlin J. (as she then was), stated that "[t]he Charter has changed the balance of power between the legislative branch and the executive on the one hand, and the courts on the other hand, by requiring that all laws and government action must conform to the fundamental principles laid down in the Charter" (p. 389 (emphasis added)).
106 As stated by Dickson J. (as he then was), for this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 156, the intent of the Charter is to constrain government action:
I begin with the obvious. The Canadian Charter of Rights and Freedoms is a purposive document. Its purpose is to guarantee and to protect, within the limits of reason, the enjoyment of the rights and freedoms it enshrines. It is intended to constrain governmental action inconsistent with those rights and freedoms. [Emphasis added.]
107 This Court has, on several occasions, set forth the guidelines to be employed in construing Charter provisions. In R. v. Oakes, [1986] 1 S.C.R. 103, at p. 119, Dickson C.J. stated that "[t]o identify the underlying purpose of the Charter right in question . . . it is important to begin by understanding the cardinal values it embodies". In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, Dickson J. stated:
In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one. The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.
In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts. [Emphasis added.]
109 In Vriend v. Alberta, [1998] 1 S.C.R. 493, at para. 60, the majority discussed the scope of government obligations under s. 32 of the Charter in the context of underinclusive legislation:
The relevant subsection, s. 32(1)(b), states that the Charter applies to "the legislature and government of each province in respect of all matters within the authority of the legislature of each province". There is nothing in that wording to suggest that a positive act encroaching on rights is required; rather the subsection speaks only of matters within the authority of the legislature. Dianne Pothier has correctly observed that s. 32 is "worded broadly enough to cover positive obligations on a legislature such that the Charter will be engaged even if the legislature refuses to exercise its authority" ("The Sounds of Silence: Charter Application when the Legislature Declines to Speak" (1996), 7 Constitutional Forum 113, at p. 115). The application of the Charter is not restricted to situations where the government actively encroaches on rights. [Emphasis in original.]
A. Section 2(d) Analysis
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. In every area of human endeavour and throughout history individuals have formed associations for the pursuit of common interests and aspirations. Through association individuals are able to ensure that they have a voice in shaping the circumstances integral to their needs, rights and freedoms. [Emphasis added.]
113 In Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, at p. 252, Wilson J. reviewed the analysis on freedom of association in the Alberta Reference, supra, and concluded that:
[I]n construing the purpose behind s. 2(d) this Court was unanimous in finding that freedom of association is meant to protect the collective pursuit of common goals. This reading of the purpose behind the guarantee of freedom of association has been confirmed in more recent cases. For instance, s. 2(d) was considered again in the labour relations context in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 ("P.I.P.S."). [Emphasis added.]
114 Thus, I agree with my colleague Bastarache J. that the purpose of s. 2(d) is to protect the collective pursuit of common goals. With respect, however, I do not agree with his assertion that the right not to associate is protected under s. 2(d) of the Charter (see R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70), but this right is not implicated in the present case, and I say no more about it.
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. As the United States Supreme Court stated in N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), at p. 33:
Long ago we stated the reason for labour organizations. We said that they were organized out of the necessities of the situation; that a single employee was helpless in dealing with an employer; that he was dependent ordinarily on his daily wage for the maintenance of himself and family; that if the employer refused to pay him the wages that he thought fair, he was nevertheless unable to leave the employ and resist arbitrary and unfair treatment; . . .
The "necessities of the situation" go beyond, of course, the fairness of wages and remunerative concerns, and extend to matters such as health and safety in the work place, hours of work, sexual equality, and other aspects of work fundamental to the dignity and personal liberty of employees. [Emphasis added.]
117 In Delisle, Cory and Iacobucci JJ., writing in dissent, stated, at para. 67:
The Court has also acknowledged the inherent vulnerability and inequality of the individual employee in the workplace in the face of management. In Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1051, Dickson C.J. concluded, on behalf of the majority of the Court, that employees are a vulnerable group in Canadian society. In Wallace, supra, Iacobucci J. noted that this vulnerability is underscored by the very importance which our society attaches to employment. He emphasized the inequality of bargaining power and information between employees and employers, noting that this power imbalance is not limited to the context of the employment contract proper, but rather affects "virtually all facets of the employment relationship": para. 92.
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. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self respect.
In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity. [Emphasis added.]
Purpose of the Exclusion Clause
The unique context of labour relations must always be considered in constitutional claims in this area, and the right to freedom of association must take into account the nature and importance of labour associations as institutions that work for the betterment of working conditions and the protection of the dignity and collective interests of workers in a fundamental aspect of their lives: employment. The contextual approach to Charter analysis must also take into account the history of the need for government intervention to make effective the rights of workers to associate together. I agree with my colleagues that both intrinsic and extrinsic sources are admissible and significant in determining legislative purpose and effects, and with their comments on the fact that an invalid purpose is sufficient to find a violation of a Charter right. [Emphasis in original.]
. . . I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose. [Emphasis added.]
A Charter claimant who seeks to establish that impugned legislation infringes a Charter right or freedom by virtue of its purpose bears the onus of establishing the alleged invalid purpose on a balance of probabilities. The ordinary rules of evidence applicable in civil trials apply. Accordingly, it cannot be assumed that the purpose of a law is invalid solely because an invalid purpose is a plausible purpose of the law. There must be clear evidence that an invalid purpose is probable. In addition, the evidence must rebut the presumption of constitutionality. That is, if there are two equally probable purposes for the impugned legislation, and one of these purposes is valid and is not inextricably linked to the invalid purpose, then the valid purpose is presumed to apply: Slaight Communications, supra, at p. 1078, per Lamer J. (as he then was); Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 581-82, per Lamer C.J. However, where the Charter claimant is able to adduce a preponderance of evidence of the invalid purpose, the presumption of constitutionality is rebutted and the court is required to find an infringement of the Charter. [Emphasis added.]
In this context, leaving aside altogether the collective bargaining rights and the grievance procedure set out in the PSSRA, the fact that RCMP members are excluded from the application of even these limited associational protections is significant. The PSSRA is modelled upon The Industrial Relations and Disputes Investigation Act. It was enacted at a time when legislative awareness of the fundamental importance of the freedom of employees to associate was high, as evidenced by domestic and international legislation at the time. It is unquestionable that Parliament was aware of the importance of freedom of association for all employees, and of the possibility of protecting this freedom without providing all employees with collective bargaining rights. The symbolism inherent in declining to guarantee to RCMP members even the basic freedom to associate must have been recognized. [Emphasis added.]
The key consideration, in examining Parliament's purpose in excluding members of the RCMP from the PSSRA, is the reason for the decision to exclude. If Parliament's purpose in excluding a particular employee group from a labour statute was to ensure that the employee group remained vulnerable to management interference with labour association, this is impermissible in light of s. 2(d). Even though the effect of the exclusion may be simply to maintain the status quo of employees whereby they are burdened with the inherent imbalance of power in the employment context, the central consideration is whether Parliament's deliberate decision to exclude flowed from a purpose that is in conflict with the fundamental freedom of employees to associate. It is of some relevance that the status quo in the labour relations context is one of inherent employee vulnerability to management interference with labour associations. It is simply not open to Parliament to enact a statutory provision where the motivation for enacting the provision is anti-associational, subject of course to s. 1 of the Charter. [Emphasis in original.]
Dickson J. in Big M Drug Mart, supra, emphasized that the effects of impugned legislation need not be looked to if the purpose of the legislation is invalid, and further that even if the effects are looked to and found to be "inoffensive" this fact will not affect a finding that the purpose of the legislation is invalid. Nonetheless, courts may, where appropriate, look to the effects of legislation for assistance in inferring the legislation's purpose, as Dickson J. noted, at p. 331. In particular, where the effects of the impugned legislation are contrary to the invalid purpose alleged by the Charter claimant, a court should weigh the evidence carefully before concluding that the purpose is indeed invalid. In light of the presumption of constitutionality, it is fitting for a court to look for the existence of any such beneficial effects before ruling that the purpose of a law is contrary to the Charter. [Emphasis added; emphasis in original deleted.]
142 My colleague makes the point that any interference with s. 2(d) rights must be substantial. While I agree with him that trivial breaches of the Charter should not be given much credence, I believe that we must seek to examine the severity of the Charter breach from the point of view of the party whose rights are affected. As I stated in Egan v. Canada, [1995] 2 S.C.R. 513, at para. 58, "groups that are more socially vulnerable will experience the adverse effects of a legislative distinction more vividly than if the same distinction were directed at a group which is not similarly socially vulnerable".
145 We could perhaps draw a useful analogy from the argument made with regards to language rights by my colleague in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 20, where he stated that:
Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees; see J. E. Oestreich, "Liberal Theory and Minority Group Rights" (1999), 21 Hum. Rts. Q. 108, at p. 112; P. Jones, "Human Rights, Group Rights, and Peoples' Rights" (1999), 21 Hum. Rts. Q. 80, at p. 83: "[A] right . . . is conceptually tied to a duty"; and R. Cholewinski, "State Duty Towards Ethnic Minorities: Positive or Negative?" (1988), 10 Hum. Rts. Q. 344. [Emphasis added.]
147 In Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, I pointed out, at p. 214:
Rights and freedoms must be nurtured, not inhibited. Vague laws intruding on fundamental freedoms create paths of uncertainty onto which citizens fear to tread, fearing legal sanction. Vagueness serves only to cause confusion and most people will shy from exercising their freedoms rather than facing potential punishment.
Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices. [Emphasis added.]
155 As stated by Cory and Iacobucci JJ. in Delisle, supra, at para. 68:
The ability of employees to form and join an employee association is thus crucially linked to their economic and emotional well-being. Membership in employee groups assists the individual member in a great many ways. Simply to join a trade union is an important exercise of an individual's freedom of expression. It is a group which so often brings to the individual a sense of self-worth and dignity. An employee association provides a means of openly and frankly discussing work-related problems without fear of interference or intimidation by the employer. The association provides a means of expressing a collective voice, not only in communicating with the employer, but also in communicating with government, other groups, and the general public. The fundamental importance of the union remains, even though a statute may prohibit the employees from going on strike, or from holding a sit-in. The freedom of employees to participate in an employee association is basic and essential in our society. A statute whose purpose or effect is to interfere with the formation of employee associations will clearly infringe s. 2(d) of the Charter. [Emphasis added.]
It might also be possible to say in this case that the deliberate decision to omit sexual orientation from the provisions of the IRPA is an "act" of the Legislature to which the Charter should apply. This argument is strengthened and given a sense of urgency by the considered and specific positive actions taken by the government to ensure that those discriminated against on the grounds of sexual orientation were excluded from the protective procedures of the Human Rights Commission. However, it is not necessary to rely on this position in order to find that the Charter is applicable.
The situation with respect to employees of employers who operate approved hospitals under the Hospitals Act is quite different. Prohibiting the right to strike across the board in hospital employment is too drastic a measure for achieving the object of protecting essential services. It is neither obvious nor self-evident that all bargaining units in hospitals represent workers who provide essential services, or that those who do not provide essential services are "so closely linked" to those who do as to justify similar treatment. As pointed out above, the Freedom of Association Committee of the I.L.O. expressed concern about the overinclusiveness of s. 117.1 of the Labour Relations Act:
132. The Committee notes that this broad exclusion covers kitchen help, janitors, gardeners, etc. . . . Given that this provision is not sufficiently specific as regards the important qualification of "essential employee", the Committee refers to the principle . . . concerning circumstances in which recourse to strike action may be prohibited. It requests the Government to re-examine section 117.1 so as to confine the prohibition of strikes to services which are essential in the strict sense of the term. [Emphasis in original.]
163 In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, a case concerning a challenge to the federal provisions prohibiting public servants from working for or against candidates or political parties, I concurred with Wilson J.'s reasons that once legislation is found to be over-inclusive, infringes a Charter right and cannot be justified under s. 1, "the Court has no alternative but to strike the legislation down or, if the unconstitutional aspects are severable, to strike it down to the extent of its inconsistency with the Constitution" (pp. 76-77).
B. Section 15(1) Analysis
166 In Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, the Court held, at para. 93, that the determination of whether a ground or confluence of grounds is analogous to those listed in s. 15(1)
is made on the basis of a complete analysis of the purpose of s. 15(1), the nature and situation of the individual or group at issue, and the social, political and legal history of Canadian society's treatment of the group. A ground or grounds will not be considered analogous under s. 15(1) unless it can be shown that differential treatment premised on the ground or grounds has the potential to bring into play human dignity . . . .
In other words, "[t]o say that a ground of distinction is an analogous ground is merely to identify a type of decision making that is suspect because it often leads to discrimination and denial of substantive equality" (Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, at para. 8). A ground need not be immutable to be analogous; it can be based on characteristics that the government has no legitimate interest in expecting claimants to change to receive equal treatment under the law, or, in other words, characteristics that are difficult to change, or changeable only at great cost (Corbiere, supra, at paras. 13-14; see also Vriend, supra, at para. 90). In Egan, supra, I took the position that reliance on grounds amounts to an "indirect means by which to define discrimination" (para. 35 (emphasis in original deleted)), whereas the preferable approach would be to focus on the group adversely affected by the distinction as well as on the nature of the interest affected. I remain convinced that this is the most direct and truthful way of addressing the problem of discrimination. Nonetheless, even under the majority's current "grounds" approach, there is no reason why an occupational status cannot, in the right circumstances, identify a protected group.
167 First, this Court has repeatedly recognized that employment is a fundamental aspect of an individual's life and an essential component of identity, personal dignity, self-worth and emotional well-being (see, e.g., McKinley v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38, at para. 53 (quoting Alberta Reference, supra, per Dickson C.J., at p. 368)). Second, though it has had the opportunity to do so, this Court has never declared categorically that a ground of differential treatment based on an occupational status may not be subject to scrutiny under s. 15(1) (see especially Delisle, supra, at para. 44; R. v. Généreux, [1992] 1 S.C.R. 259, at p. 311). In Delisle, while the majority concluded that RCMP officers did not satisfy this prong of the Law test, it left the door open for the possibility that other occupationally oriented forms of discrimination could fall under the scope of s. 15(1) by limiting its holding to RCMP officers only (see Delisle, supra, at para. 44). In my concurring reasons in that case, I expressed my belief that an occupational status could constitute a suspect marker of discrimination, at para. 8:
[O]ccupation and working life are often important sources of personal identity, and there are various groups of employees made up of people who are generally disadvantaged and vulnerable. Particular types of employment status, therefore, may lead to discrimination in other cases, and should be recognized as analogous grounds when it has been shown that to do so would promote the purposes of s. 15(1) of preventing discrimination and stereotyping and ameliorating the position of those who suffer social and political disadvantage and prejudice.
Legal commentators have also embraced the notion that occupational distinctions between certain groups can be subject to Charter scrutiny (see, e.g., D. Gibson, The Law of the Charter: Equality Rights (1990), at p. 257; D. Pothier, "Connecting Grounds of Discrimination to Real People's Real Experiences" (2001), 13 C.J.W.L. 37, at p. 57).
agricultural workers have historically occupied a disadvantaged place in Canadian society and that they continue to do so today. For the purposes of the s. 15 analysis, I have no hesitation in finding on the evidence that agricultural workers are a disadvantaged group. They are poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility.
In light of this, I believe it safe to conclude of agricultural workers what Wilson J. concluded of non-citizens in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 152, namely that they "are a group lacking in political power and as such vulnerable to having their interests overlooked and their rights to equal concern and respect violated. They are among `those groups in society to whose needs and wishes elected officials have no apparent interest in attending'". Thus, the critical question here is whether the government has a legitimate interest in expecting agricultural workers to change their employment status to receive equal treatment under the law.
C. Section 1 Analysis
171 The role of s. 1 in the Charter was first fully examined by this Court in Oakes, supra. In R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 768, Dickson C.J. summarized the steps in the analysis:
Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights.
As with all Charter analysis, a contextual approach is to be followed.
(1) Sufficiently Important Objective
176 The LRA also added a new s. 2, titled "Purposes" that states:
2. The following are the purposes of the Act:
2 To recognize the importance of workplace parties adapting to change.
3 To promote flexibility, productivity and employee involvement in the workplace.
4 To encourage communication between employers and employees in the workplace.
7 To promote the expeditious resolution of workplace disputes.
(2) Proportionality
(a) Rational Connection
184 At this stage of the proportionality analysis, the respondents must show, on the basis of reason or logic, a causal connection between the objective of protecting the well-being of the agricultural sector in Ontario and the means chosen to secure this objective. While scientific evidence of a causal connection (or of a lack thereof) is relevant at this stage of the s. 1 inquiry, it is not always required (Delisle, supra, at para. 119 (citing RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at paras. 153-54, per McLachlin J.); Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 101).
Generally speaking, where this Court has been faced with contradictory evidence of causation for the purpose of the rational connection inquiry, the difficulty has been simply in deciphering whether the evidence supported a causal link. This case raises the somewhat unusual situation that some of the evidence not only does not support a causal link between the legislative objective and the means used to achieve that objective, but it supports precisely the reverse conclusion, namely that the means chosen engender the very mischief sought to be cured. It seems contrary to the purpose of s. 1 of the Charter to find that the state has demonstrably justified its law in circumstances where it is equally probable that the law causes the very social harm it purports to target. [Emphasis added.]
(b) Minimal Impairment
Labour law, as we have seen, is a 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. One group concedes certain interests in exchange for concessions from the other. There is clearly no correct balance which may be struck giving permanent satisfaction to the two groups, as well as securing the public interest. The 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.
. . . is not designed to protect a vulnerable group in Canadian society. It is true that the public at large is vulnerable to the harmful effects of a police strike. However, in our view, the general public is not a vulnerable group in the sense understood in this Court's s. 1 jurisprudence: see, e.g., Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 995, per Dickson C.J. and Lamer and Wilson JJ.; Ross, supra, at para. 88; Thomson Newspapers, supra, at paras. 88-90, per Bastarache J. The only vulnerable group at issue in the present analysis is RCMP members themselves. Although clearly police officers are not generally considered a vulnerable group within the overall fabric of Canadian society, they are members of a vulnerable group in a relative sense insofar as they are employees. As mentioned above, Dickson C.J. noted in Slaight Communications, supra, at p. 1051, that legislation which seeks to ameliorate the position of employees falls within "a class of cases in which the governmental objective is that of protection of a particularly vulnerable group, or members thereof". It follows that legislation whose purpose is to maintain the inherent weakness of employees, such as para. (e) in the present case, is not entitled to deference. Indeed, such legislation should be examined with particular care. [Emphasis added.]
The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement . . . . On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.
1(5) For the purposes of this Act,
(a) a unit, where an employee is employed in agriculture, shall comprise five or more employees;
Persons employed in the operation of a farm shall not be deemed to be employees for the purposes of this division [Certification of Associations of Employees] unless at least three of such persons are ordinarily and continuously so employed.
I do not know what term one might properly apply to the Rathwell properties -- "family farm", or "farming business", and with all respect to those of a contrary view, I do not think it matters. In one sense, it was a family farm, in another a business, in another it was a way of life. The property was all operated as one family unit by Mr. and Mrs. Rathwell working together.
(c) Deleterious and Salutary Effects
205 At this stage, the words of Cory and Iacobucci JJ. in Delisle, supra, at para. 148, are apt:
Having found that the impugned para. (e) of the definition of "employee" in s. 2 of the PSSRA does not minimally impair the appellant's freedom of association, it is not necessary to consider the proportionality between the importance of the objective and the deleterious effects of the measure, or between the deleterious and salutary effects. We would note, though, that it is unlikely that the provision would be found proportionate at this stage of the inquiry. The exclusion of RCMP members from the PSSRA's basic associational protections has few, if any, demonstrable salutary effects which could not be achieved by a lesser exclusion. Its negative effects, on both a symbolic level and a practical level, are severe and cut to the core of the Charter's s. 2(d) protection.
III. Conclusion
207 I would answer the constitutional questions as follows:
(a)to freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms; or
Yes.
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
In view of the answer above there is no need to answer this question.
(a)to freedom of association guaranteed by s. 2(d) of the Charter; or
Yes.
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
In view of the answer above there is no need to answer this question.
No.
The following are the reasons delivered by
208MAJOR J. (dissenting) -- In spite of the benefit of the reasons of Justices L'Heureux-Dubé and Bastarache, I am unable, principally for the reasons of Sharpe J. (as he then was) in the Ontario Court (General Division), to agree with their disposition of this appeal. In my view, neither s. 2(d) nor s. 15 of the Canadian Charter of Rights and Freedoms is infringed and I would dismiss the appeal.
I.Section 2(d)
A.Purpose of the Exclusion
B. Effect of the Exclusion
211 In Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, the majority held (at para. 33):
On the whole, the fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue in the instant case.
212 At paras. 24-26, Bastarache J. has articulated three factors to be considered in determining whether such "exceptional circumstances" exist in a particular case, such that a positive obligation is imposed on the state by s. 2(d). I respectfully disagree with his conclusion that a consideration of these factors in the present case leads to a finding of a s. 2(d) violation. Specifically, a consideration of the third factor leads to the opposite conclusion on the facts of this case. The third factor is "whether the state can truly be held accountable for any inability to exercise a fundamental freedom" (para. 26). As noted by Bastarache J. at para. 23, in Haig v. Canada, [1993] 2 S.C.R. 995, even if the appellant had been unable to express his views on Quebec secession, this inability was not caused by his exclusion by the state from the national referendum. Thus, the third factor essentially compels an examination of the causal role of the state in the appellants' inability to exercise the fundamental freedom. In order for the state to "truly be held accountable", the appellants must be able to demonstrate by direct evidence or inference that the state is causally responsible for his inability to exercise a fundamental freedom, in that the state "substantially orchestrates, encourages or sustains the violation of fundamental freedoms" (para. 26).
In this context, the effect of s. 3(b) of the LRA is not simply to perpetuate an existing inability to organize, but to exert the precise chilling effect I declined to recognize in Delisle.
II.Section 15
However, with reference to identifying personal characteristics, the evidence before me indicates that agricultural workers are a disparate and heterogenous group. There is nothing in the evidence to indicate that they are identified as a group by any personal trait or characteristic other than that they work in the agricultural sector. The evidence indicates that farm owners and operators also suffer from low wages, and that many have low education levels. The low status and prestige of farm workers is similar to that of other manual labourers. In my view, the evidence shows that the legislative decision to exclude agricultural workers from the collective bargaining regime does not reflect stereotypical assumptions about the personal characteristics of agricultural workers, either individually or as a class. Rather, it is based upon the policy-maker's perception of the characteristics and circumstances of the agricultural industry. The effects of the legislative exclusion impact the diverse group of individuals who work in that sector of the economy and who are not otherwise identifiable as a group.
While a sub-group of temporary seasonal workers brought to Ontario pursuant to a highly structured federal program may be identifiable by race and the status of non-citizen, I fail to see how their situation advances the applicants' case. These seasonal foreign workers were not covered by ALRA, they are not subject to LRA, and they would not gain the right to be members of a union or enjoy the right to engage in collective bargaining if this application were successful.
In light of this factual record, in the end, the applicants' case must turn on whether the economic disadvantage of a group of workers, identified as a group only by the fact that they work in a particular sector of the economy, constitutes an analogous ground within the meaning of s. 15(1). I hardly need state that the wisdom, or lack thereof, from the perspective of labour relations policy, of the decision to exclude agricultural workers from collective bargaining has no bearing on this question.
In my view, the disadvantaged position occupied by agricultural workers is not sufficient to constitute the legislative classification "agricultural workers" as an analogous ground for the purposes of s. 15. Economic disadvantage is often the product of discrimination on an analogous ground, and hence serves as a marker that may indicate the presence of such discrimination. There are, however, many causes of economic disadvantage that do not attract the scrutiny of s. 15, and a showing of economic disadvantage does not, by itself, establish discrimination on an analogous ground within the meaning of s. 15. In my view, the absence of evidence of any traits or characteristics analogous to those enumerated in s. 15 which serve to identify those who make up the group of agricultural workers is fatal to their s. 15 claim.
III.Conclusion
216 I would dismiss the appeal. I would answer the constitutional questions as follows:
(a)to freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms; or
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
No.
(a)to freedom of association guaranteed by s. 2(d) of the Charter; or
(b)to equality before and under the law and equal benefit of the law without discrimination as guaranteed by s. 15 of the Charter?
No.
In view of the answers to questions 1 and 2 there is no need to answer this question.
Appeal allowed with costs, MAJOR J. dissenting.
Solicitors for the appellants: Paliare Roland Rosenberg Rothstein, Toronto.
Solicitor for the respondent the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitors for the respondent Fleming Chicks: Fasken Martineau DuMoulin, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Attorney General of Quebec, Montréal.
Solicitor for the intervener the Attorney General for Alberta: The Attorney General for Alberta, Edmonton.
Solicitors for the intervener the Canadian Labour Congress: Sack Goldblatt Mitchell, Toronto.
Solicitors for the intervener the Labour Issues Coordinating Committee: Heenan Blaikie, Toronto.
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