Freedom of Association the same whether raised as a sword to claim the positive right to an effective legislative regime to protect freedom of association or used as a shield to defend against legislation that impinges upon existing statutory protections

Association of Justice Counsel v. Canada (Attorney General), 2012 ONCA 530 deals with freedom of association in the context of labour relations -- it makes clear that there right is not defined as being positive or negative -- the question is an interference in the right to engage in a meaningful process of collective bargaining. The Court holds:

[31] The majority summarized the effect of Heath Services and Dunmore in the following language, at para. 43:

In summary, Health Services applied the principles developed in Dunmore and explained more fully what is required to avoid interfering with associational activity in pursuit of workplace goals and undermining the associational right protected by s. 2(d). Its suggestion that this requires a good faith process of consideration by the employer of employee representations and of discussion with their representatives is hardly radical. It is difficult to imagine a meaningful collective process in pursuit of workplace aims that does not involve the employer at least considering, in good faith, employee representations. The protection for collective bargaining in the sense affirmed in Health Services is quite simply a necessary condition of meaningful association in the workplace context.

[32] This court considered Heath Services and Fraser in Mounted Police Association of Ontario v. Canada (Attorney General), 2012 ONCA 363, [2012] O.J. No. 2420. That case, like Fraser and Dunmore, dealt with what might be described as the "positive right" component of s. 2(d): the issue of the adequacy of legislation to ensure effective bargaining rights. Juriansz J.A. conducted a comprehensive review of the authorities and held that Fraser should be interpreted as establishing that it is only where legislation, or the lack thereof, renders the pursuit of collective goals "effectively impossible" that a claim that s. 2(d) obliges the government to take positive action is made out. This case, like Heath Services, involves what might be described as the "negative right" component of s. 2(d): the issue of whether impugned legislation impinges upon or interferes with the s. 2(d) rights of those who are already part of a full collective bargaining scheme. In my view, the substantive content of s. 2(d) must be the same whether raised as a sword to claim the positive right to an effective legislative regime to protect freedom of association or used as a shield to defend against legislation that impinges upon existing statutory protections. It follows that the "effectively impossible" test applies to this case.