Unionizing farm workers

Today’s important Court of Appeal decision in Fraser v. Ontario 2008 ONCA 760 strikes down the current regime in Ontario for unionizing farm workers.  The case is a careful consideration of the right of association under the Constitution and worth reading in full.

 

In deciding the case the Court reviewed the right to collective bargaining and when there is a positive duty on government to act to protect that right.

 

The Court holds:

 

[52]          In summary, the combined effect of Dunmore and B.C. Health Services is to recognize that s. 2(d) protects the right of workers to organize and to engage in meaningful collective bargaining.  The decisions also recognize that, in certain circumstances, s. 2(d) may impose obligations on the government to enact legislation to protect the rights and freedoms of vulnerable groups.

 

[53]          The test for determining whether a claimant making a positive rights claim under s. 2(d) is entitled to government action was initially laid down in Dunmore.   The Supreme Court subsequently expanded the test for positive rights claims under s. 2 of the Charter in Baier v. Alberta, [2007] 2 S.C.R. 673, at para. 30 (“Baier”).  Applying the Baier test in this context involves  the following five inquiries:

 

1.      Are the activities for which the appellants seek s. 2(d)  protection associational activities?

 

2.      Are the appellants seeking a positive entitlement to government action, or simply the right to be free from government interference?  If the former, then the three so-called “ Dunmore factors” must be considered.

 

3.      Are the claims grounded in a fundamental freedom protected by s. 2(d), rather than in access to a particular statutory regime?

 

4.      Have the appellants demonstrated that exclusion from a statutory regime has the purpose or effect of substantially interfering with the freedom to organize or the right to bargain collectively?

 

5.      Is the government responsible for the inability to exercise the fundamental freedom?