Labour & Employment Law Blog

Riding to the Rescue of Collective Bargaining Rights

Zeilikman Law

Zeilikman Law

Case Summary

The Supreme Court of Canada released a significant decision on the expansion and meaning of freedom of association in the labour context pursuant to section 2(d) of the Canadian Charter of Rights Freedoms.

In a 6-1 decision, the court ruled in favour of RCMP members’ constitutional right to representation of their choosing and one that would be independent of managerial control vis-à-vis the employer. The majority held that the right to collective bargaining must be meaningful if it is to pass constitutional muster.

The core issue in Mounted Police Association of Ontario v. Canada (Attorney General) [2015] S.C.J. No. 1 surrounded the constitutionality of the scheme under which RCMP members advocate for their work-related interests. RCMP members could not bargain with their employer like most other public employees pursuant to the Public Service Labour Relations Act. Instead, labour relation concerns would be channelled through a mechanism called the staff relations representative program (SRRP). The appellants advancing the appeal on behalf of RCMP members were voluntary, private associations organized by members and incorporated as non-profit entities; however, the SRRP was the only form of employee representation recognized by management. The SRRP’s constitution — formally created for the promotion of “mutually beneficial relations between Force management and the wider membership” — was unilaterally adopted by the SRRP and the RCMP commissioner. The process was meant to be collaborative; however, the final word rested with management.

In its concurring majority ruling, the court dismissed the decision of the Ontario Court of Appeal wherein the lower court held that it was not “effectively impossible” for RCMP members to meaningfully exercise their section 2(d) right to freely associate under the prevailing scheme. Consistent with its evolving attitude in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia [2007] S.C.J. No. 27 and, to a degree, in Ontario (Attorney General) v. Fraser [2011] S.C.J. No. 20, the court repeated that section 2(d) of the Charter meant to guarantee “meaningful association” in the labour relations bargaining context. The court further held that such an interpretation was to be “centered on the purpose of encouraging the individual’s self-fulfillment and the collective realization of human goals, consistent with democratic values.” In sum, the court held that to freely associate in a labour relations context is to have the right to choose and rely on independent workplace representation without substantial interference from management.

The approach, according to the court, had to be purposive, and the fundamental purpose of section 2(d) was “to protect the individual from ‘stateenforced isolation in the pursuit of his or her ends’: Alberta Reference, at p. 365.”

Ultimately, the court held that section 2(d) protects three classes of activities: “(1) the right to join with others and form associations; (2) the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.” The court reiterated the notion that the right is one that guarantees a process rather than an outcome or a particular labour relations mechanism.

In making the above pronouncements, the court overturned its earlier decision in Delisle v. Canada (Deputy Attorney General) [1999] S.C.J. No. 43 that the exclusion of RCMP members from the PSLRA’s predecessor legislation (the Public Service Staff Relations Act) did not violate section 2(d) of the Charter.

In a strongly worded dissent, Justice Marshall Rothstein described the majority’s decision as a “constitutional reversal” tantamount to an imposition of an adversarial system, a central feature of the American Wagner Act. Notwithstanding the majority’s qualification that section 2(d) does not articulate a particular model for collective bargaining, Justice Rothstein saw the majority’s decision as an imposition of a system that would call for the resolution of industrial disputes through confrontation and in which management would be regarded as the “enemy of the employees.”

It is not yet clear as to what mechanism will be set in place — the federal government was granted a 12-month suspension over the declaration of the law’s invalidity. What is clear, however, is that inequality of bargaining power between weaker employees and management remains axiomatic in the eyes of the law. Commensurate with that perspective is the notion that for work-related negotiations and deliberations to be effective the process must be meaningful and, to a significant degree, conducted at arm’s length. This also means that, in practical terms, collaborative schemes of dispute resolution involving industrial conflict will have to be crafted with a view to the parties’ oppositional stances, independence from managerial meddling and a representation of choice.

The above article is for general information purposes only, does not constitute legal advice or create a solicitor-client relationship. Because each case is unique and factually driven, if you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere. We represent clients in the Greater Toronto Area including Toronto, North York, Markham, Vaughan, Thornhill, Newmarket, Aurora, Brampton, Mississauga, Barrie, Ajax, Whitby, Pickering and Oshawa.

Legal Receptionist

Zeilikman Law is an employment law firm located in Vaughan, Ontario. We are looking to hire a legal receptionist to join our firm. Preference will be given to candidates who have experience working as a receptionist at another law firm.

Location: Vaughan, Ontario.

Start Date: Immediately.

Hours: Monday to Friday, 9 am to 5 pm. Full time. In-person only. This is not a remote work position.

Wages: 35,000 to 40,000 per year.

Duties and Responsibilities:

  • Manage our firm’s multi-line telephone system to receive incoming calls.  Screen incoming telephone call inquiries to determine the nature of the telephone call and provide standard information related to our legal services.  Take and deliver messages and route incoming telephone calls to the appropriate staff person.
  • Answer general inquiries coming from the firm’s social media and website email.
  • Welcome in-person visitors upon arrival.  Direct visitors to the appropriate staff person and / or office or boardroom.
  • Organize in-person visitor schedule to prevent overlap and multiple bookings.
  • Receive, sort, and distribute daily mail and deliveries.
  • Arrange for couriers.
  • Keep front reception, kitchenette area and boardroom tidy.
  • Perform various clerical duties such as filing, photocopying, and faxing on an as-needed basis.
  • Process client or other payments.
  • May be asked to run minor errands outside of office such as attending post office to arrange a courier or pick up mail.
  • May be asked to assist other law clerks or lawyers of the firm as required and as appropriate.
  • Any other basic administrative duties or tasks as deemed appropriate.

Required Skills:

  • Basic knowledge of general office procedures including filing, faxing, and printing and copying.
  • Basic word processing computer skills.
  • Proficient in receptionist and telephone practices, etiquette, and decorum.
  • Professional attitude and appearance.
  • Excellent organizational skills.
  • Positive customer service attitude is a must.
  • Must be able to maintain confidential and sensitive information.

Education and Experience:

  • Highschool diploma or equivalent.
  • 1 – 2 years’ experience in an office setting with an emphasis in accounting, reception or clerical work is required.   We would prefer experience in a law firm environment.

Applications for this position should be sent via email to jennifer@zeilikmanlaw.com. All applications should include a cover letter, resume and at least two references. Only successful candidates will be contacted.