Issue: does S. 2(d) of the Charter, “freedom of association,”
include a right to strike?
Background: 1970s & early 80s, several strikes in AB by nurses and pub servants. 1983: Alta. Labour Act amended to prohibit strikes & lockouts by pub servants, hosp empls, firefighters & nurses (pol already prohibited). Comp arbitration instead.
Labour leaders claimed legis unconst because of 2(d). To settle,
AB sent ref Q to prov CA. Premier Lougheed stated that if gov’t lost,
it would use S. 33.
Ct of Appeal: no right to strke; unions appealed to SCC.
-Majority (McIntyre): there are six possible approaches:
1. Fr of assoc means rt to assoc with others & gps; gov’t can limit objects of the groups
2. Gps can engage collectively in what indiv’s can do
3. Whatever indiv’s can do alone, they can do with others
4. Groups can engage collectively in activities fundamental to culture & traditions
5. Gps can engage in lawful activities that are essential to the group
6. Gps can engage in any activity, subject to reasonable limits in S.1
The Charter is primarily an an individual rights document. Denominational school rts and aborig rts are the only exceptions.
Charter doesn’t create new group rights. Only the first 3 interpretations of 2(d) acceptable.
Example: gun club members can’t claim a right to bear arms as a group, thought they can’t as individuals
Tocqueville: rt to associate with others is inalienable and a foundation of society.
Courts don’t belong in labour relations field. Progressive lawyers since the time of Laskin say they should stay out.
McIntyre’s approach is “legalistic, ungenerous, indeed vapid.” If McIntyre’s approach acc’d, why have 2d?
Workers are powerless against employers if they can only act individually. Coll bargaining allows workers and employers to bargain as relative equals. It has brought relative labour peace. It promotes dignity of workers.
Dickson's application of Oakes (what he would have decided had the majority
found a right to strike in 2d):
Objective – to protect services that are truly essential – sub. Important
Why are all pub servants and hosp workers essential? Fails rational connection. Also does not impair rts minimally: certain matters can’t be arbitrated.
Public Service Alliance (1987)
Impugned: fed gov’t “6 & 5” sage restraint legislation of 1982
Leg extended all coll agreements for 2 years for fed pub ser’ts & railway workers; & limited increases to 6% first year and 5% in second. Other employers encouraged but not required to follow same approach.
Majority: legis valid for same reason as AB Lab Ref: no right to strike
Dickson's dissent: there’s a rt to strike, but most of leg passes Oakes test. Objective: control inflation. Part of legis didn’t pass rational conn test: limits on coll bargaining re non-compensatory matters.
Wilson's dissent: None of the legis passes Oakes test, as the singling out of fed pub servants and railway workers does not pass rational connection test. As well, this violates equality under Bill of Rights (S. 15 not in effect when union made argument)
Sask Dairy Workers (1987)
Impugned: back-to-work legis for dairy workers.
Majority: upheld the back-to-work legislation, as there's no right to strike in the Charter.
Dickson: upholds because Oakes test passed; strike causes undue harm to 3rd parties (jud notice)
Wilson: would strike down as Crown did not produce evidence re effects on producers.
Sought declaration that this violated 2(d) of Charter.
Supported by NCC, which spent $500,000 by 1989. Unions spent $400,000 defending
Lavigne won at trial, lost in Ont CA (though indiv members could require unions to reimburse for expenditures they objected to) and appealed to SCC. Lavigne also lost at SCC
All 7 judges on panel: Charter applies to colleges because of direct gov’t control
La Forest, Sopinka, Gonthier: Lavigne’s rt not to associate is protected by 2(d), but justified under s.1. Obj: encourage union democracy, and participation in social debates. Alternatives (opting in or out) do not meet Pt II requirements as effectively.
Wilson, L’H-D, Cory: 2(d) does not include rt not to associate.
McLaughlin: payments don’t violate 2(d) because they don’t necessarily associate Lavigne with union positions.
2(b) Fr of Exp argument: no one agrees with Lavigne position that
the spending of the union check-off on political causes violates freedom
of expression. Lavigne is still free to express himself, including
his disagreement with his union.