Exiting the Freedom of Association Labyrinth: Resurrecting the Parallel Liberty Standard under 2(d) & Saving the Freedom to Strike
Oliphant, Benjamin, University of Toronto Faculty of Law Review
I. INTRODUCTION II. HISTORY OF THE FREEDOM AND RIGHT TO STRIKE IN CANADA i. From Common Law Freedoms to Wagner Act Model Rights ii. The Trilogy iii. Dunmore, BC Health & Fraser III. APPLICATION OF BC HEALTH & FRASER i. Application of the Law to the Right (or Freedom) to Strike ii. Government action rendering a freedom 'impossible' to exercise iii. 'Substantial interference' through government inaction iv. Summary IV. RESURRECTING THE TRILOGY'S PARALLEL LIBERTY STANDARD i. Arguments Against the Parallel Liberty Standard ii. The Parallel Liberty Standard's Compatibility with Other Section 2 Freedoms a. Largely a negative entitlement b. Abstract, content neutral standard of breach c. Individual freedom, not a collective right V. RECONCILING DUNMORE AND BC HEALTH WITH THE PARALLEL LIBERTY APPROACH i. The Dunmore Exception-Impossibility Imposing a Positive Duty on the Government ii. The BC Health Exception-No Individual Analogy as a Matter of Fact VI. CONCLUSION
The author would like to extend thanks to Professor Brian Langille, Steven Barrett and
"One of the most effective ways of diluting or expanding a constitutionally guaranteed right is to substitute for the crucial word or words of a constitutional guarantee another word or words, more or less flexible and more or less restricted in meaning"
Justice Hugo Black, Griswold v Connecticut, 381 US 479 (1965)
Following the constitutionalization of rights to facilitate unionization in Dunmore and collective bargaining rights in BC Health and Fraser, the question of whether the Charter of Rights and Freedoms (Charter) implies a right or freedom to strike has been thrust into the limelight. (1) Resolution of the controversy has become pressing, as courts have been tasked anew with sorting out the scope of freedom of association in the notoriously complex labour relations context (2) just as legislatures appear more willing to abridge these rights, most notably the right to strike. (3) More vexing still, the Court may have reinvigorated old concerns about the wisdom of granting labour rights to public servants, to the extent that it has taken the scope of certain labour rights and the terms of collective agreements out of the hands of the legislatures.
The principal argument put forward by opponents of collective action in the public sector is, like the argument against the availability of public sector collective bargaining more generally, based on the sovereignty of the state:
"governments cannot accede to industrial action because to do so would compromise the sovereign authority to govern conferred on the legislative body by the will of the people." (4) This anxiety is exacerbated by the fact that public sector providers often represent a monopoly, such that unlike with private sector strikes (where customers can typically obtain services from other providers), public sector unions may deprive society of a given set of services entirely. (5) Such concerns are not altogether persuasive where the legislature has complete power to legislate with respect to the scope of collective agreements or otherwise define the bounds of labour rights, including the right to strike. It is at least partially the presence of this overriding legislative authority that, in contrast to the United States, (6) the sovereignty concern has been almost entirely absent in the Canadian discourse. (7) Simply put, where legislatures retain the authority over the ultimate scope and content of collective bargaining and associated labour rights, it is difficult to give much credence to the argument that public sector unions wield unconscionable power over public decision making, particularly given the vast influence other organized groups frequently bring to bear. (8) However, it is precisely this democratic safeguard--the ability of legislatures to modify and repeal those rights, or interfere with collective agreements, entirely or on an ad hoc basis--that has been put in jeopardy to an uncertain degree by the recent Supreme Court jurisprudence ostensibly placing certain labour rights and entitlements above the democratic fray. …