The Supreme Court of Canada began 2015 by tipping the scales of workplace associational freedom under section 2(d) of the Canadian Charter of Rights and Freedoms towards workers. In Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 ("MPAO") the majority of the Court struck down the challenged legislative scheme that both denied RCMP members the choice over who represented their workplace interests and barred them from identifying and advancing their workplace concerns free from management's influence. This decision has important implications for the collective bargaining rights of employees and has paved the way for subsequent decisions on the nature and scope of freedom of association in the labour context.
Facts
Previously, RCMP members were not permitted to unionize or engage in collective bargaining under the Public Sector Labour Relations Act ("PSLRA"). Instead, RCMP members were subject to a non-unionized labour relations scheme whereby members could advance their workplace concerns through the Staff Relations Representative Program ("SRRP"). While the SRRP bore some similarities to a traditional union, RCMP members could neither choose nor control this arrangement. Rather, the structure was part of the labour-management organization of the RCMP. Members had no option outside of the SRRP to meet with management to promote their interests. In this case, the appellants challenged the constitutionality of both the PSLRA exclusion and the SRRP process.
Decision
The Supreme Court of Canada ("SCC" or the "Court") recognized that independence and choice to determine and pursue collective interests are components of a meaningful process of collective bargaining. The Court concluded that the current legislative regime denied RCMP members that choice and imposed on them a scheme that was dominated by management. The Court further held that this was a violation of s. 2(d) and was not saved by s. 1 of the Canadian Charter of Rights and Freedoms (the "Charter").
In concluding that s. 2(d) guarantees the right of employees to meaningfully associate in the pursuit of collective workplace goals, the Court affirmed the central holdings of Health Services and Support -- Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27 ("Health Services") and Ontario (Attorney
General) v. Fraser, 2011 SCC 20 ("Fraser"). The Court noted that, while this guarantee includes a right to collective bargaining, this right only guarantees a process. It does not guarantee a particular outcome or model of labour relations. In this respect, the decision stops short of guaranteeing the right for RCMP members to unionize.
Reasons
Purposive Approach
The Court summarized the evolution of s. 2(d) jurisprudence by observing that the previous restrictive approach to freedom of association has evolved into a more generous and purposive approach. This analysis involves a consideration of the associational activity in question viewed in its full context and history. The Court held that s. 2(d), viewed purposively, protects the right to join with others to:
- form associations;
- pursue other constitutional rights;
- meet on more equal terms with other groups.
Collective Bargaining as an Independent Right
The Court confirmed that the right to collective bargaining is not derivative of other rights, such as freedom of religion and the political rights. This was a departure from the majority's decision in Fraser which recognized the right to collective bargaining as a "derivative right" stemming from the purpose of s. 2(d). Rather, the Court held that it is an independent right with independent content.
Substantial Interference Standard
The SCC in Fraser held that in order for a legislative scheme to breach s. 2(d), it had to make "meaningful collective bargaining effectively impossible". In MPAO the Court relaxed that standard, holding that the government cannot enact laws or impose a labour relations process that "substantially interferes" with the right of employees to associate for the purpose of meaningfully pursuing collective workplace goals. The Court noted that the use of terms like "impossible" and "effectively nullified" in Fraser and Health Services should be understood consistently with the Court's purposive and generous approach to s. 2(d).
Takeaways from the Decision
The SCC applied its reasoning in MPAO in another decision issued on the same day, Meredith v. Canada (Attorney General), 2015 SCC 2 ("Meredith"), where it found that legislation that imposed certain prohibitions on compensation increases for RCMP members did not substantially impair the collective pursuit of the workplace goals of RCMP members. Accordingly, s. 2(d) was not breached in that case.
The SCC's adoption of a purposive approach in MPAO and Meredith confirmed that freedom of association protects the right of employees to meaningfully come together in the pursuit of collective workplace goals as an independent right; the substantial interference with this right is a breach of the Charter. These cases would prove to be a springboard from which the constitutional right to strike was born in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4.
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