Lavigne v. Ontario Public Service Employees Union

Lavigne v. Ontario Public Service Employees Union
Collection
Supreme Court Judgments
Date
1991-06-27
Report
[1991] 2 SCR 211
Case number
21378
Judges
Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 21378
Decision Content
Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211
Francis Edmund Mervyn Lavigne Appellant
v.
Ontario Public Service Employees Union and
Ontario Council of Regents for Colleges
of Applied Arts and Technology Respondents
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
Canadian Labour Congress,
Ontario Federation of Labour,
National Union of Provincial Government Employees,
Confederation of National Trade Unions and
Canadian Civil Liberties Association Interveners
Indexed as: Lavigne v. Ontario Public Service Employees Union
File No.: 21378.
1990: June 18, 19; 1991: June 27.
Present: Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Application ‑‑ Union entering into collective agreement with community college containing mandatory dues check‑off clause ‑‑ Employee objecting to expenditure of union dues on causes unrelated to collective bargaining ‑‑ Whether Charter applies ‑‑ Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, s. 53 ‑‑ Canadian Charter of Rights and Freedoms, s. 32(1) .
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of association ‑‑ Union entering into collective agreement with community college containing mandatory dues check‑off clause ‑‑ Employee objecting to expenditure of union dues on causes unrelated to collective bargaining ‑‑ Whether s. 2(d) of Canadian Charter of Rights and Freedoms infringed ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Union entering into collective agreement with community college containing mandatory dues check‑off clause ‑‑ Employee objecting to expenditure of union dues on causes unrelated to collective bargaining ‑‑ Whether s. 2(b) of Canadian Charter of Rights and Freedoms infringed ‑‑ If so, whether infringement justifiable under s. 1 of Charter ‑‑ Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 51, 52, 53.
The appellant, a community college teacher, is required to pay dues to respondent Union under a mandatory check‑off clause (art. 12) in the collective agreement between it and respondent Council of Regents, the bargaining agent for college employees. Such clauses, which incorporate the Rand formula, are permitted by s. 53 of the Colleges Collective Bargaining Act. The appellant objected to certain expenditures made by the Union such as contributions to the NDP and disarmament campaigns and applied for declaratory relief. The trial judge declared that ss. 51, 52 and 53 of the Colleges Collective Bargaining Act and the provisions of the collective agreement were of no force and effect in so far as they compelled appellant to pay dues to the union for any purposes not directly related to collective bargaining. He found that the Canadian Charter of Rights and Freedoms applied, that appellant's freedom of association guaranteed by s. 2 (d) had been infringed and that the infringement was not justified under s. 1 . There was no infringement of appellant's freedom of expression. The Court of Appeal reversed the judgment. It found that the use of the dues by the Union was a private activity by a private organization and hence beyond the reach of the Charter . In any event there had been no infringement of appellant's freedom of association, since he remained free to associate with others and oppose the Union. The court agreed with the trial judge's finding that appellant's freedom of expression was not infringed.
Held: The appeal should be dismissed.
Per La Forest, Sopinka and Gonthier JJ.: The Charter applies to this case since the obligation imposed on Lavigne to pay dues can be attributed to government. While it is the collective agreement, not the legislation, which compels appellant to make contributions to the Union, the Council of Regents is an emanation of government. The Minister exercises full control over all the Council's activities, including collective bargaining with college employees, who are Crown employees, and the Council is therefore a Crown agent. The government, through the Minister, has a power of routine or regular control, and the Council is thus simply part of the fabric of government. Further, the Council's agreement to the inclusion of art. 12 in the collective agreement is, by itself, government conduct. Even assuming that art. 12 was included solely at the Union's request, it is also the result of the Council's undertaking to deduct union dues at source, and the performance of that undertaking must surely qualify as government action. The Charter applies to government even when it engages in activities that are in form "private" or "commercial", and the provision and management of the labour force necessary for the provision of public education cannot in any event be considered commercial.
The Rand formula violates s. 2 (d) of the Charter because it interferes with the freedom from compelled association. The essence of the s. 2 (d) guarantee is protection of the individual's interest in self‑actualization and fulfillment that can be realized only through combination with others. The protection of this interest and the community interest in sustaining democracy requires that freedom from compelled association be recognized under s. 2 (d). Forced association will stifle the individual's potential for self‑fulfillment and realization as surely as voluntary association will develop it, and society cannot expect meaningful contribution from groups or organizations that are not truly representative of their memberships' convictions and free choice. Recognition of the freedom of the individual to refrain from association is a necessary counterpart to meaningful association in keeping with democratic ideals. Thus, freedom from forced association and freedom to associate should not be viewed in opposition, one "negative" and the other "positive". They are not distinct rights, but two sides of a bilateral freedom which has as its unifying purpose the advancement of individual aspirations. Full meaning should be given to s. 2 (d), even though some aspects of the freedom may be protected by other provisions of the Charter ; individual rights and freedoms are overlapping rather than discrete. Section 2 (d) does not provide protection from all forms of involuntary association, however. It was certainly not intended to protect against the association with others that is a necessary and inevitable part of membership in a modern democratic community.
The payment of dues, which is the extent of the appellant's association with the Union, is an associative act within the meaning of s. 2 (d) of the Charter . Dues are used to further the objects of the Union, and are essential to the Union's right to "maintain" the association, an aspect of the freedom to associate recognized under s. 2 (d) of the Charter . The freedom of association of an individual member of a bargaining unit will be violated when he or she is compelled to pay dues that are used to support causes, ideological or otherwise, that do not directly relate to collective bargaining. This is consistent with the generous approach to be applied in interpreting rights under the Charter , and derives logically from the premise that the forced association is permissible when the combining of efforts of a particular group of individuals with similar interests in a particular area is required to further the collective good. When that association extends into areas outside the realm of common interest that justified its creation, it interferes with the individual's right to refrain from association. In this case, certain of the Union's expenditures violate appellant's freedom of association as they are not sufficiently related to the concerns of the bargaining unit or to the Union's functions as exclusive bargaining representative.
The limitation on appellant's freedom of association is justified under s. 1 of the Charter . The state objectives in compelling the payment of union dues which can be used to assist causes unrelated to collective bargaining are to enable unions to participate in the broader political, economic and social debates in society, and to contribute to democracy in the workplace. These objectives are rationally connected to the means chosen to advance them, that is the requirement that all members of a unionized workplace contribute to union coffers without any guarantee as to how their contributions will be used. The minimal impairment test is also met. An opting‑out formula could seriously undermine the unions' financial base and the spirit of solidarity so important to the emotional and symbolic underpinnings of unionism. The alternative of having the government draw up guidelines as to what would be deemed valid union expenditures could give rise to the implication that union members are incapable of controlling their institutions. Given the difficulty of determining whether a particular cause is or is not related to the collective bargaining process, the courts should not involve themselves in drawing such lines on a case-by-case basis.
The appellant's contribution to the Union cannot be said to be an attempt to convey meaning, and his freedom of expression guaranteed by s. 2 (b) of the Charter has therefore not been infringed.
Per Wilson and L'Heureux‑Dubé JJ.: Government action sufficient to attract Charter review is present in this case in so far as the adoption of the Rand formula is concerned. The Charter applies to acts of government entities broadly construed. An activity will also be subject to Charter review if it was subject to such significant government control that it may effectively be considered an act of government for Charter purposes. Here the Council of Regents is a Crown agent established, funded and heavily controlled by government. The provision of education at the community college level is also a function of modern government, discharged in the public interest. The college and the Council of Regents are thus part of government for purposes of s. 32(1) of the Charter . The fact that the impugned action is a product of the joint effort of government and a private entity, the union, does not make that action any less governmental, otherwise all government contracts would be immune from judicial review. Government action was also involved in this case since there was clear government control over the decision to apply the Rand formula to all members of the bargaining unit. Dues expenditure is not itself government action, and therefore the Charter does not apply to such expenditure.
Appellant's freedom of association has not been violated in this case. The purpose of s. 2 (d) is to protect association for the collective pursuit of common goals. It should not be expanded to protect a right not to associate. The real harm produced by compelled association is not the fact of association but the enforced support of views, opinions or actions one does not share or approve. Sections 2 (b) and 7 of the Charter are available to redress these harms in appropriate cases. Even if this Court were to recognize a right not to associate under s. 2 (d), this right has not been infringed here since it cannot be broader in scope than the positive right to associate previously defined by this Court. Appellant's claim is inextricably connected to the association's objects which this Court has repeatedly said s. 2 (d) does not protect.
Appellant's freedom of expression guaranteed by s. 2 (b) of the Charter has not been infringed. The fact that appellant is denied the right to boycott the Union's causes prevents him from conveying a meaning which he wants to convey, and the activity in which he wishes to engage therefore falls within the sphere of conduct protected by s. 2 (b). Volunteering financial support is expressive for some people, and a refusal to provide monetary assistance is equally expressive. The government's intention was not to control the conveyance of meaning, however. The purpose of the Rand formula is simply to promote industrial peace through the encouragement of collective bargaining. It does not purport to align those subject to its operation with the union or any of its activities, since it specifically provides for dissent by stipulating that no member of the bargaining unit is required to become a member of the union. Nor does the Rand formula have the effect of depriving appellant of his right to express himself freely. The compelled payment of dues does not publicly identify him with the Union's activities, and does not prevent him from expressing his own views. Compelled financial support does not necessarily violate freedom of expression. The fact that appellant is obliged to pay dues pursuant to the agency shop clause in the collective agreement does not inhibit him in any meaningful way from expressing a contrary view on the merits of the causes supported by the Union.
The Rand formula would in any event meet the requirements of s. 1 of the Charter . The objective of the impugned legislation, which is to promote industrial peace through the encouragement of free collective bargaining, is sufficiently pressing and substantial to warrant overriding a constitutional right. Union discretion in relation to dues expenditure forms part of the means by which the legislature sought to achieve its aim, and there is a rational connection between promoting collective bargaining and permitting unions to invest dues in ways they believe will best serve their constituencies. The minimal impairment test is also met. Placing restrictions on the way in which unions may spend their dues will lead to interminable problems and jeopardize the important government objective at stake. While other means might have been available to the legislature to achieve its objective, none is clearly superior in terms of accomplishing the goal of promoting collective bargaining and respecting the rights of individual employees as far as possible. Here the violation of appellant's rights was minor. His identification, if any, with the causes supported by the Union was indirect and he was completely free to express himself on these causes as he saw fit. The impingement on appellant's Charter rights was thus not out of proportion to the legislature's objective in promoting collective bargaining.
Per Cory J.: The reasons of La Forest J. were agreed with on the question of what constitutes "government". In all other respects the reasons of Wilson J. were concurred with.
Per McLachlin J.: For the reasons given by La Forest J., the Charter applies to the activities in question in this case. There is no violation of s. 2 (d), however, since the payments do not bring appellant into association with ideas and values to which he does not voluntarily subscribe. Assuming that a right not to associate exists, its purpose must be to protect the interest of individuals against enforced ideological conformity. The requirement that appellant make payments to the Union, which the Union may thereafter spend partly on causes he does not support, does not fall within this interest. Under the Rand formula, there is no link between mandatory dues payment and conformity with the ideas and values to which appellant objects. By declining to become a member of the union, the individual dissociates himself from the union's activities. Forced payments in return for services thus entail no imposition of ideological conformity. Practicality and policy support this approach, since extending s. 2 (d) to cover compelled financial contributions per se would recognize the prima facie validity of a plethora of claims and put the courts into the business of assessing the justifiability of many government actions in circumstances where there may be no threat to any constitutional interest.
The payments at issue do not constitute expression under s. 2 (b) of the Charter .
Cases Cited
By La Forest J.
Applied: Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; referred to: Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Re Bhindi and British Columbia Projectionists Local 348 (1986), 29 D.L.R. (4th) 47; Harrison v. University of British Columbia, [1990] 3 S.C.R. 451; Stoffman v. Vancouver General Hospital, [1990] 3 S.C.R. 483; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Lyons, [1987] 2 S.C.R. 309; International Association of Machinists v. Street, 367 U.S. 740 (1961); Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435 (1984); Lehnert v. Ferris Faculty Association, 114 L.Ed. 2d 572 (1991); R. v. Oakes, [1986] 1 S.C.R. 103; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Lathrop v. Donohue, 367 U.S. 820 (1961); West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).
By Wilson J.
Applied: Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; disapproved: Re Bhindi and British Columbia Projectionists Local 348 (1985), 20 D.L.R. (4th) 386; Re Baldwin and B.C. Government Employee's Union (1986), 28 D.L.R. (4th) 301; distinguished: Oil, Chemical and Atomic Workers International Union v. Imperial Oil Ltd., [1963] S.C.R. 584; Young, James and Webster v. United Kingdom (1980), 3 E.H.R.R. 20; referred to: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Fanshawe College of Applied Arts and Technology, [1967] O.L.R.B. Rep. 829; Sault College of Applied Arts and Technology, [1985] O.L.R.B. Rep. 1293; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; R. v. Skinner, [1990] 1 S.C.R. 1235; Arlington Crane Service Ltd. v. Ontario (Minister of Labour) (1988), 67 O.R. (2d) 225; Re Pruden Building Ltd. and Construction & General Workers' Union Local 92 (1984), 13 D.L.R. (4th) 584; Abood v. Detroit Board of Education, 431 U.S. 209 (1977); Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Turpin, [1989] 1 S.C.R. 1296; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, 466 U.S. 435 (1984); Merry v. Manitoba and Manitoba Medical Association (1989), 58 Man. R. (2d) 221; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; R. v. Keegstra, [1990] 3 S.C.R. 697; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Wooley v. Maynard, 430 U.S. 705 (1977); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Elrod v. Burns, 427 U.S. 347 (1976); PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980); National Bank of Canada v. Retail Clerks' International Union, [1984] 1 S.C.R. 269; Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832, [1988] 5 W.W.R. 544; OPSEU v. National Citizens' Coalition (1990), 90 D.T.C. 6326; Isabey v. Manitoba Health Services Commission, [1986] 4 W.W.R. 310; MacKay v. Manitoba, [1989] 2 S.C.R. 357; Prior v. Canada (1989), 101 N.R. 401; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Ford Motor Co. of Canada Ltd. v. U.A.W.‑C.I.O., reprinted in 1 C.L.L.R. (CCH, 1989) (looseleaf), para. 2150; The Adams Mine, Cliffs of Canada Ltd., [1982] O.L.R.B. Rep. 1767; International Association of Machinists v. Street, 367 U.S. 740 (1961); Collymore v. Attorney‑General of Trinidad and Tobago, [1969] 2 All E.R. 1207; Re Federal Republic of Germany and Rauca (1983), 41 O.R. (2d) 225; R. v. Jones, [1986] 2 S.C.R. 284.
By Cory J.
Applied: McKinney v. University of Guelph, [1990] 3 S.C.R. 229.
By McLachlin J.
Referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Abood v. Detroit Board of Education, 431 U.S. 209 (1977); International Association of Machinists v. Street, 367 U.S. 740 (1961).
Statutes and Regulations Cited
American Constitution, First Amendment.
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), (b), (d), 7 , 24(1) , 32(1) .
Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, ss. 1(g), 2(3), 51, 52, 53, 59(2), 68, 71, 76.
Department of Education Amendment Act 1965, S.O. 1965, c. 28 [amending the Department of Education Act, R.S.O. 1960, c. 94].
Employment Equity Act, S.C. 1986, c. 31.
Industrial Relations Act, S.P.E.I. 1962, c. 18, s. 48.
Labour Code, R.S.B.C. 1979, c. 212, s. 9(1).
Labour Code of British Columbia, S.B.C. 1973, c. 122, s. 151.
Labour Relations Act, 1950, S.O. 1950, c. 34.
Labour Relations Act Amendment Act, 1961, S.B.C. 1961, c. 31, s. 5.
Legislature of Ontario Proceedings, 2nd sess., 23rd Leg., March 8, 1950.
Ministry of Colleges and Universities Act, R.S.O. 1980, c. 272, ss. 4, 5.
O. Reg. 403/69.
Prince Edward Island Labour Act, S.P.E.I. 1971, c. 35, s. 76(1)(a).
R.R.O. 1970, Reg. 749, s. 45.
R.R.O. 1980, Reg. 640, s. 6(1).
Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948), Art. 20.
Authors Cited
Aaron, Benjamin. "Some Aspects of the Union's Duty of Fair Representation" (1961), 22 Ohio S.L.J. 39.
Adams, George W. Canadian Labour Law: A Comprehensive Text. Aurora, Ont.: Canada Law Book, 1985.
Beatty, David M. "Labour is not a Commodity". In Barry J. Reiter and John Swan, eds. Studies in Contract Law. Toronto: Butterworths, 1980.
Canada. Task Force on Labour Relations. Canadian Industrial Relations: The Report of the Task Force on Labour Relations. Ottawa: Privy Council Office, 1968.
Cantor, Norman L. "Forced Payments to Service Institutions and Constitutional Interests in Ideological Non‑Association" (1983), 36 Rutgers L. Rev. 3.
Cavalluzzo, Paul J. J. "Freedom of Association ‑‑ Its Effect Upon Collective Bargaining and Trade Unions" (1988), 13 Queen's L.J. 267.
Cox, Archibald. Law and the National Labor Policy. Westport, Conn.: Greenwood Press, 1983.
Emerson, Thomas I. "Freedom of Association and Freedom of Expression" (1964), 74 Yale L.J. 1.
Etherington, Brian. "Freedom of Association and Compulsory Union Dues: Towards a Purposive Conception of a Freedom to not Associate" (1987), 19 Ottawa L. Rev. 1.
Horn, Robert. Groups and the Constitution. New York: AMS Press, 1971.
Kahn‑Freund, Otto. "On Uses and Misuses of Comparative Law" (1974), 37 Mod. L. Rev. 1.
Little, Walter. Collective Bargaining in the Ontario Government Service: A Report. Toronto: s.n., 1969.
Raggi, Reena. "An Independent Right to Freedom of Association" (1977), 12 Harv. C.R.‑C.L. Law Rev. 1.
Swinton, Katherine. "Application of the Canadian Charter of Rights and Freedoms ". In Walter S. Tarnopolsky and Gérald‑A. Beaudoin, The Canadian Charter of Rights and Freedoms . Toronto: Carswells, 1982.
Tocqueville, Alexis de. Democracy in America, vol. I. Edited by Philips Bradley. New York: Alfred A. Knopf Inc., 1945.
Tribe, Laurence H. Constitutional Choices. Cambridge, Mass.: Harvard University Press, 1985.
Weiler, Paul C. Reconcilable Differences: New Directions in Canadian Labour Law. Toronto: Carswells, 1980.
Weiler, Paul C. "The Charter at Work: Reflections on the Constitutionalizing of Labour and Employment Law" (1990), 40 U.T.L.J. 117.
APPEAL from a judgment of the Ontario Court of Appeal (1989), 67 O.R. (2d) 536, 56 D.L.R. (4th) 474, 31 O.A.C. 40, 37 C.R.R. 193, 89 C.L.L.C. 14,011, setting aside White J.'s judgments (1986), 55 O.R. (2d) 449, 29 D.L.R. (4th) 321, 86 C.C.L.C. 14,039 and (1987), 60 O.R. (2d) 486, 41 D.L.R. (4th) 86, 87 C.C.L.C. 14,044 declaring that appellant's Charter rights had been violated. Appeal dismissed.
Dennis O'Connor, Q.C., Ronald Foerster and Diane Oleskiw, for the appellant.
S. T. Goudge, Q.C., and Ian McGilp, for the respondent the Ontario Public Service Employees Union.
Brenda J. Bowlby and Stephen J. Shamie, for the respondent the Ontario Council of Regents for Colleges of Applied Arts and Technology.
E. R. Sojonky, Q.C., and M. Kinnear, for the intervener the Attorney General of Canada.
Robert E. Charney and S. A. Kennett, for the intervener the Attorney General for Ontario.
Jean Bouchard, for the intervener the Attorney General of Quebec.
J. Sack, Q.C., S. M. Barrett and E. Poskanzer, for the interveners the Canadian Labour Congress and the Ontario Federation of Labour.
J. Cameron Nelson and John McNamee, for the intervener the National Union of Provincial Government Employees.
Guylaine Henri, for the intervener the Confederation of National Trade Unions.
No one appeared for the intervener the Canadian Civil Liberties Association.
//Wilson J.//
The reasons of Wilson and L'Heureux-Dubé JJ. were delivered by
Wilson J. -- This is an appeal from the judgment of the Ontario Court of Appeal holding that the expenditure by a union of union dues extracted from non‑members pursuant to a mandatory check‑off clause in a collective agreement on union‑related causes did not violate either s. 2 (d) or s. 2 (b) of the Canadian Charter of Rights and Freedoms .
I. The Facts
Since 1974 the appellant has been a teaching master at the Haileybury School of Mines. He is a member of the academic staff bargaining unit represented by the respondent Union, OPSEU. He has never become a member of the respondent Union, nor has he been required to become a member. He has, however, been required to pay dues to the respondent Union. The dues are deducted from his pay cheque under the terms of the collective agreement between the respondent Council of Regents and OPSEU. The dues are paid into the general revenues of the Union and may be used for any purpose contemplated by the Union's constitution.
Article 4 of OPSEU's constitution sets out the aims and purposes of the organization. Specifically, the Union is required to regulate labour relations between its members and their employers, including such things as collective bargaining. General objectives of the Union include the advancement of the "common interests, economic, social and political, of the members and of all public employees, wherever possible, by all appropriate means".
Mr. Lavigne is opposed to the use of his dues to support causes which come within the broader aims of the Union's constitution. OPSEU made several contributions out of its general revenues to which the appellant objected. It is not necessary to list these contributions in any detail. Suffice it to say that donations were made to disarmament campaigns including the campaign against cruise missile testing, to a campaign opposing the expenditure of municipal funds for the SkyDome stadium in Toronto, to the National Union of Mine Workers in the United Kingdom in support of their strike, to a health care workers' union in Nicaragua, and tickets were purchased for events sponsored by the New Democratic Party. Mr. Lavigne has also drawn attention to the fact that OPSEU passed a resolution in favour of free choice with respect to abortion.
Under OPSEU's constitution certain percentages of the dues paid are paid to another organization, the National Union of Provincial Government Employees (NUPGE), which in turn pays dues to the Canadian Labour Congress (CLC). The respondent Union is also a member of the Ontario Federation of Labour (OFL). Each of these organizations, like the respondent Union, uses its dues to support union‑related causes.
The appellant brought an application for declaratory relief against the respondents. He sought a declaration that, in so far as ss. 51, 52 and 53 of the Colleges Collective Bargaining Act, R.S.O. 1980, c. 74, result in compulsory payment of dues which in turn may be expended on any of the above listed purposes, they violate ss. 2 (b) and 2 (d) of the Charter . In addition, the appellant sought declaratory relief that would require the respondent Union to account for money spent on listed purposes that he maintained did not relate to collective bargaining.
White J. held at trial in reasons delivered July 4, 1986 that the appellant's right to freedom of association was infringed and indicated that he was prepared to grant declaratory relief in regard to the compulsory payment of dues. White J. then asked for further submissions as to the form the remedy should take and on July 7, 1987, made specific orders as to the form of the declaratory relief. The respondents appealed to the Court of Appeal for Ontario which allowed the appeal and set aside the orders of the trial judge.
II. The Courts Below
Supreme Court of Ontario ((1986), 55 O.R. (2d) 449)
The trial judge first dealt with the issue of whether the Charter applied to the activity complained of by the appellant. He noted that the Charter does not apply to private activity but by s. 32 applies to, inter alia, "the legislature and government of each province in respect of all matters within the authority of the legislature of each province". It was his opinion that the Charter applies to actions of Crown agencies in certain cases. After examining the provisions of the relevant legislation and case law involving community colleges White J. held that the respondent Council of Regents was a Crown agency.
However, White J. noted that merely deciding that the respondent Council of Regents was a governmental actor did not dispose of the question whether the Charter reaches the activities complained of in this case. He held at p. 479 that:
. . . governmental action does include the entering into of a contract by a Crown agency pursuant to powers granted by statute in the context of the facts at bar. To hold otherwise would be to permit "government", as identified in s. 32(1) of the Charter , to impose terms in a contract that it could not impose by statute or regulation because they breach the Charter . Such an arrangement would defeat the purpose of the Charter .
White J. thus found that the alleged violations of the Charter flowed from the decision of the Council of Regents to agree to the inclusion of the Rand formula in the collective agreement. Because the Council could have rejected the Union's demand that the clause be included, and because it made this agreement as a government agent, government action within the meaning of the Charter was involved.
In response to the Union's argument that no government action was involved because s. 53 of the Colleges Collective Bargaining Act (upon which the applicant was relying) was permissive and not mandatory, White J. held at p. 481:
The applicant does not rely solely on s. 53 of the Colleges Collective Bargaining Act, however, and possibly this enabling section of the statute alone would not have been enough to justify Charter review of a clause contained in a collective agreement had a Crown agency not negotiated the contract. Absent a governmental actor in the contract negotiations, there would be a strong argument against the application of the Charter on the basis that the statutory provision left the decision of whether or not to include an agency shop clause in the collective agreement to the parties; the effect of the legislative provision would not be the forced payment of dues.
Turning to the application of s. 2 (d) of the Charter , White J. found that the guarantee of freedom of association included the right not to associate. He reviewed the case law in Canada and in the United States and concluded at p. 508 that "[i]f a governmental agent acts so as to force an individual to financially support a union when he opposes the union, its objects, and its methods, then his freedom of association has been abridged." It was his view that the combined operation of ss. 51 through 53 of the Colleges Collective Bargaining Act brought Mr. Lavigne into association with the Union. To White J., it was sufficient that the appellant had to contribute financially to the Union and it was not necessary in order to establish a violation of s. 2 (d) to show that he was forced to become a member of OPSEU.
With respect to s. 2 (b), however, the trial judge found that there was no infringement of the appellant's freedom of expression because the evidence did not establish that the ideology of the group was attributed to the appellant, nor did it establish that the appellant's freedom to express himself was restricted in any way as a result of paying the dues.
White J. then reviewed the legislation to see if the infringement of the appellant's s. 2 (d) right was justified under s. 1 of the Charter . He concluded that the infringement was sufficiently serious that it required the government to use the least intrusive means possible to achieve the legislative purpose. He concluded that dues paid under compulsion could only be used for the purpose which justified their imposition and not for other purposes. He reserved on the question of the appropriate remedy.
Supreme Court of Ontario ((1987), 60 O.R. (2d) 486)
After his decision holding that the appellant's s. 2 (d) right had been infringed, White J. issued his remedial order and his reasons therefor. He noted that the enforcement provisions of the Constitution Act, 1982 are contained in ss. 52 and 24 . He held that both of these sections require the court to consider s. 1 of the Charter in awarding an appropriate remedy.
Under s. 52 any law inconsistent with the Constitution is of no force and effect to the extent of the inconsistency. White J. held that the appellant was entitled to have ss. 51, 52 and 53(1) and (2) of the Colleges Collective Bargaining Act, which enabled the respondent Council to enter into the collective agreement, declared of no force and effect so far as they affected him.
With respect to s. 24(1) White J. noted that a court of competent jurisdiction may grant such remedy as it considers appropriate and just in the circumstances. He concluded that the declaratory relief was most appropriate in the circumstances. In considering the impact of s. 1 on his order White J. noted that the purpose of the impugned legislation was to promote industrial peace and avoid "free riders". He recognized that the compulsory payment of union dues, "the Rand formula", has generally achieved this purpose and is an accepted principle of labour law in Canada. Another factor to be taken into account in fashioning a remedy is that the invasion of the rights of the appellant should be minimized as much as possible. White J. stated at p. 506:
. . . I prefer to give what I consider to be due weight to the historical experience of the Rand formula in Canada; to choose an opt‑out factor for inclusion in the declaratory remedy that I shall grant; and to seek to apply the Oakes case to minimize the invasion of the applicant's freedom of association in structuring the remedy.
White J. concluded that the appellant was entitled to a declaration that the impugned sections of the Colleges Collective Bargaining Act and the provisions of any collective agreement authorized thereby are of no force and effect in so far as they compel him to pay dues to the Union for any of the purposes not directly related to collective bargaining. He found that most of the expenditures to which Mr. Lavigne had objected were impermissible, except for the contributions made to other unions. He approved of these expenditures on the basis that they were related to collective bargaining in that they promoted union solidarity. White J. also found it necessary, in order to prevent compulsory subsidization of political causes, that the Union keep detailed records of its expenditures and that these records be available to all members of the bargaining unit. He ordered the Union to establish an opt‑out mechanism for fees for dissenting employees.
There was substantial argument as to the question of costs before White J. The appellant's costs were underwritten by a group known as the National Citizens' Coalition (referred to as the NCC). The appellant had agreed to pay any costs awarded to him to the NCC and the NCC had agreed to discharge any award of costs against the appellant so far as it was able. White J. rejected the respondent Union's argument that the appellant was not entitled to costs because he had not suffered any pecuniary loss. He was of the opinion that "[t]o the extent that the N.C.C. or any other specific interest group puts responsible Charter litigation within the reach of the individual Canadian, they should not, even indirectly, be deterred" (p. 527). He did not consider this to be a case of divided success, but considered that the appellant was not entirely successful in his application. He awarded the appellant 60 per cent of his costs to be paid by the respondent Union and the interveners NUPGE, the CLC and the OFL.
Court of Appeal ((1989), 67 O.R. (2d) 536)
Referring to RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, the court noted that the Charter only applies to an exercise of or reliance upon government action. The court noted that, in order to determine whether or not there is "governmental action" such as to bring the Charter into play, it is first necessary to determine the status of the parties. The court agreed with the trial judge's finding that the respondent Council of Regents was a Crown agency. The court also considered it beyond serious dispute that OPSEU is a private entity. The court continued at p. 552:
As White J. pointed out, finding that the Council of Regents is a government body does not dispose of the question of whether the Charter reaches the activities complained of in this case; it is necessary to find governmental action inconsistent with the rights and freedoms set out in the Charter .
In determining whether or not there was "governmental action" that would bring the Charter into play the court found that the fact that the appellant sought declarations relating to the expenditure of funds rather than seeking to have the legislation itself declared unconstitutional was significant. The court held at pp. 556‑57:
There was no evidence that the Council of Regents was in any way involved in decisions relating to the expenditure of the funds received by O.P.S.E.U. pursuant to the mandatory check‑off clause. The mere making of the funds available to the union by the Council without direction of any kind as to use does not convert the union's expenditures into governmental action. The use of the dues by O.P.S.E.U. was a private activity by a private organization and hence beyond the reach o