Dunmore v. Ontario (Minister of Labour)
The Supreme Court of Canada has decided that the exclusion of agricultural workers from collective bargaining under the Ontario Labour Relations Act, 1995 breaches the guarantee of freedom of association under the Canadian Charter of Rights and Freedoms.
Until 1994, agricultural workers were excluded from Ontario’s labour relations regime. In 1994, the NDP government extended trade union and collective bargaining rights to agricultural workers under the Agricultural Labour Relations Act, 1994 (“ALRA”). However, when the Conservative government of Mike Harris was elected in 1995, it repealed the ALRA and terminated the certification of trade unions and collective agreements that had been obtained under that Act. Once again agricultural workers were excluded from the labour relations regime, this time under s. 3(b) of the Ontario Labour Relations Act, 1995. The exclusion also prohibited voluntary recognition of agricultural associations.
The United Food and Commercial Workers Union, which had been certified under the ALRA as the exclusive bargaining agent for agricultural workers at a mushroom farm in Leamington and which had two other certification applications in process before the ALRA was repealed, challenged the exclusion under the freedom of association guarantee in s. 2(d) of the Charter. Both the Ontario Court (General Division) and the Ontario Court of Appeal dismissed the challenge. They held that, to the extent agricultural workers were deprived of the ability to form trade unions, it was due to the private actions of their employers and not the legislative regime itself. Since private action is not subject to the Charter, agricultural workers had no case. The UFCW appealed to the Supreme Court of Canada. The Canadian Labour Congress intervened in support of the UFCW.
The Supreme Court allowed the appeal, holding that, in some circumstances, the Charter may require the state to extend protective legislation to unprotected groups. In the circumstances of this case, the exclusion from the statutory regime substantially interfered with the fundamental freedom to organize:
The wholesale exclusion of agricultural workers from a labour relations regime can only be viewed as a stimulus to interfere with organizing activity. The exclusion suggests that workplace democracy has no place in the agricultural sector and, moreover, that agricultural workers’ efforts to associate are illegitimate. As surely as the [Labour Relations Act] protection would foster the “rule of law” in a unionized workplace, exclusion from that protection privileges the will of management over that of the worker…
It is reasonable to conclude that the exclusion of agricultural workers from the [Labour Relations Act] substantially interferes with their fundamental freedom to organize. The inherent difficulties of organizing farm workers, combined with the threats of economic reprisal from employers, form only part of the reason why association is all but impossible in the agricultural sector in Ontario. Equally important is the message sent by s. 3(b) of the [Act], which delegitimizes associational activity and thereby ensures its ultimate failure. Given these known and foreseeable effects of s. 3(b), I conclude that the provision infringes the freedom to organize and thus violates s. 2(d) of the Charter.
The Court rejected the argument that the exclusion was justified under s. 1 of the Charter and struck down the exclusion clause. However, the Court suspended the declaration of invalidity for 18 months to give the legislature time to determine whether all of the collective bargaining rights contained in the Labour Relations Act should be extended to agricultural workers. At a minimum, the Court’s decision required a regime that would give agricultural workers the protection necessary to allow them to organize, as well as the protections necessary to make organization meaningful (such as the freedom to assemble, participate in the lawful activities of the association and to make representations and the right to be free from interference, coercion and discrimination in the exercise of those freedoms).
Steven Barrett represented the intervener, Canadian Labour Congress.