Friday, February 7, 2014

Mandatory disclosure to Unions not a breach of Charter

Bernard v. Canada (Attorney General) 2014 SCC 13 may be relevant to potential right to work legislation:

[37]                          Ms. Bernard's freedom of association argument has no legal foundation. Her argument was that since the Board's order required the employer to provide her personal information to the union, she was thereby being compelled to associate with the union, contrary to s. 2(d) of the Charter. In our view, the compelled disclosure of home contact information in order to allow a union to carry out its representational obligations to all bargaining unit members does not engage Ms. Bernard's freedom not to associate with the union. This Court's decision in Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, is determinative and its conclusion is supported by the more recent decision in R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209. 

[38]                          In Lavigne, the Court concluded that the payment by Rand Formula employees of union dues for the purposes of collective bargaining did not amount to unjustified "compelled association" under s. 2(d). Even though s. 2(d) protected freedomfrom association as well as freedom of association, the majority concluded that s. 2(d) does not provide protection from all forms of involuntary association, and was not intended to protect against association with others that is a necessary and inevitable part of membership in a modern democratic community. In other words, s. 2(d) is not a constitutional right to isolation: Lavigne, at pp. 320-21. While in Advance Cutting & Coring three different approaches to the right not to associate emerged, on none of them would Ms. Bernard have a plausible s. 2(d) claim.

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