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.
