Skip to Main Content

Charter rights and the SCC’s Fraser decision

May 04, 2011

The Financial Post reports today on last week’s ruling of the Supreme Court of Canada in Ontario (Attorney General) v. Fraser. The Fraser case is the Supreme Court of Canada’s latest pronouncement on Charter rights and labour law – specifically, the guarantee of freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms and its application to collective bargaining.

In Fraser, agricultural workers and a union seeking to organize them challenged the constitutionality of Ontario’s Agricultural Employees’ Protection Act, 2002 (AEPA). The AEPA was passed following the Supreme Court’s 2001 decision in Dunmore v. Ontario (Minister of Labour) in which the Court held that the complete exclusion of agricultural workers from collective bargaining under the Ontario Labour Relations Act, 1995 breached s. 2(d) of the Charter.

However, rather than including agricultural workers within the ambit of the Labour Relations Act (as most other provinces do), the Ontario government introduced the AEPA, which gave agricultural employees some protections for organizing, but did not impose an obligation on employers to bargain in good faith – or, indeed, to bargain at all – with an employees’ association. It also did not include any mechanisms to resolve either bargaining impasses or disputes regarding the interpretation or administration of a collective agreement. In addition, it did not preclude the formation of multiple employees’ associations within a single workplace, purporting to simultaneously represent employees in that same workplace with similar job functions.

Following the Supreme Court of Canada’s decision in Health Services, which confirmed that s. 2(d) protects the process of collective bargaining, the UFCW and agricultural employees challenged the AEPA. The Ontario Court of Appeal held that the AEPA substantially interfered with s. 2(d) in that it failed to provide sufficient protections to enable agricultural workers to engage in a meaningful process of collective bargaining.

On Friday April 29, 2011, a majority of the Supreme Court of Canada overturned that decision, holding that, although the AEPA does not expressly require an employer to consider employee representations in good faith, such a requirement could be implied. Since the AEPA contained an implied right to have employee submissions considered in good faith by the employer, it followed that the AEPA did not violate s. 2(d) of the Charter.

In the Financial Post’s discussion of the case, Steven Barrett (who represented the Canadian Labour Congress before the Supreme Court) suggests that the majority’s reasoning misses the point:

“At the end of the day it’s naïve to think that agricultural workers or anyone else can engage in meaningful collective bargaining without many of the traditional protections that virtually all other workers have. There isn’t a democratic society in the world where protection for collective bargaining stops at the duty of good faith, and that’s because everyone understands that collective bargaining works only if the employer and the employee have the right to engage in economic sanctions.”



Steven Barrett

Practice Areas

Constitutional Law, Labour Law