SUMMARY OF THE SCC DECISION AND REASONS IN FRASER

Transcript:SUMMARY OF THE SCC DECISION AND REASONS IN FRASER:
SUMMARY OF THE SCC DECISION AND REASONS IN FRASER Steven Barrett, Sack Goldblatt Mitchell THE MAJORITY’S PRE-HEALTH SERVICES SUMMARY “After Dunmore, there could be no doubt that the right to associate to achieve workplace goals in a meaningful and substantive sense is protected by the guarantee of freedom of association, and that this right extends to realization of collective, as distinct from individual, goals. Nor could there be any doubt that legislation (or the absence of a legislative framework) that makes achievement of this collective goal substantially impossible, constitutes a limit on the exercise of freedom of association. Finally, there could be no doubt that the guarantee must be interpreted generously and purposively, in accordance with Canadian values and Canada’s international commitments.” [P32] “The common goals protected extend to some collective bargaining activities, including the right to organize and to present submissions to the employer. What is required is a process that permits the meaningful pursuit of these goals. No particular outcome is guaranteed. However, the legislative framework must permit a process that makes it possible to pursue the goals in a meaningful way.” [P33] THE MAJORITY: WHAT HEALTH SERVICES DECIDED “In Health Services, per McLachlin C.J. and LeBel J., [the Court] held that legislation and government actions that repealed existing collective agreements and substantially interfered with the possibility of meaningful collective bargaining in the future constituted a limit on the s. 2(d) right of freedom of association.” [P34] THE MAJORITY: WHAT HEALTH SERVICES DECIDED: “the claimants did not seek the enactment of associational protections. Rather, they asserted that s. 2(d) protected a right to collective bargaining and that the government had violated the constitutional guarantee of freedom of association by legislating to both overturn existing contracts and preclude effective collective bargaining in the future.” [P36] THE MAJORITY: WHAT HEALTH SERVICES DECIDED: “s. 2(d) includes “a process of collective action to achieve workplace goals” (para. 19 [Health Services]). This process requires the parties to meet and bargain in good faith on issues of fundamental importance in the workplace (para. 90). By legislating to undo the existing collective bargaining arrangements and by hampering future collective bargaining on important workplace issues, the British Columbia government had “substantially interfered” with the s. 2(d) right of free association…” [P37] THE MAJORITY: WHAT HEALTH SERVICES DECIDED: “Bargaining activities protected by s. 2(d) in the labour relations context include good faith bargaining on important workplace issues