Dunmore v. Ontario (Attorney General)

Dunmore v. Ontario (Attorney General)
Collection
Supreme Court Judgments
Date
2001-12-20
Neutral citation
2001 SCC 94
Report
[2001] 3 SCR 1016
Case number
27216
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 27216
Decision Content
Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94
Tom Dunmore, Salame Abdulhamid,
Walter Lumsden and Michael Doyle, on their
own behalf and on behalf of the United Food and
Commercial Workers International Union Appellants
v.
Attorney General for Ontario
and Fleming Chicks Respondents
and
Attorney General of Quebec,
Attorney General for Alberta,
Canadian Labour Congress and
Labour Issues Coordinating Committee (“LICC”) Interveners
Indexed as: Dunmore v. Ontario (Attorney General)
Neutral citation: 2001 SCC 94.
File No.: 27216.
2001: February 19; 2001: December 20.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for ontario
Constitutional law -- Charter of Rights -- Freedom of association -- Exclusion of agricultural workers from statutory labour relations regime -- Whether exclusion infringes freedom of association – If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1 , 2 (d) -- Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, s. 80 -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 3(b).
In 1994, the Ontario legislature enacted the Agricultural Labour Relations Act, 1994 (“ALRA”), which extended trade union and collective bargaining rights to agricultural workers. Prior to the adoption of this legislation, agricultural workers had always been excluded from Ontario’s labour relations regime. A year later, by virtue of s. 80 of the Labour Relations and Employment Statute Law Amendment Act, 1995 (“LRESLAA”), the legislature repealed the ALRA in its entirety, in effect subjecting agricultural workers to s. 3(b) of the Labour Relations Act, 1995 (“LRA”), which excluded them from the labour relations regime set out in the LRA. Section 80 also terminated any certification rights of trade unions, and any collective agreements certified, under the ALRA. The appellants brought an application challenging the repeal of the ALRA and their exclusion from the LRA, on the basis that it infringed their rights under ss. 2 (d) and 15(1) of the Canadian Charter of Rights and Freedoms . Both the Ontario Court (General Division) and the Ontario Court of Appeal upheld the challenged legislation.
Held (Major J. dissenting): The appeal should be allowed. The impugned legislation is unconstitutional.
Per McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ.: The purpose of s. 2 (d) of the Charter is to allow the achievement of individual potential through interpersonal relationships and collective action. This purpose commands a single inquiry: has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals? While the traditional four-part formulation of the content of freedom of association sheds light on this concept, it does not capture the full range of activities protected by s. 2 (d). In some cases s. 2 (d) should be extended to protect activities that are inherently collective in nature, in that they cannot be performed by individuals acting alone. Trade unions develop needs and priorities that are distinct from those of their members individually and cannot function if the law protects exclusively the lawful activities of individuals. The law must thus recognize that certain union activities may be central to freedom of association even though they are inconceivable on the individual level.
Ordinarily, the Charter does not oblige the state to take affirmative action to safeguard or facilitate the exercise of fundamental freedoms. There is no constitutional right to protective legislation per se. However, history has shown and Canada’s legislatures have recognized that a posture of government restraint in the area of labour relations will expose most workers not only to a range of unfair labour practices, but potentially to legal liability under common law inhibitions on combinations and restraints of trade. In order to make the freedom to organize meaningful, in this very particular context, s. 2 (d) of the Charter may impose a positive obligation on the state to extend protective legislation to unprotected groups. The distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime contributes substantially to the violation of protected freedoms.
Several considerations circumscribe the possibility of challenging underinclusion under s. 2 of the Charter : (1) claims of underinclusion should be grounded in fundamental Charter freedoms rather than in access to a particular statutory regime; (2) the evidentiary burden in cases where there is a challenge to underinclusive legislation is to demonstrate that exclusion from a statutory regime permits a substantial interference with the exercise of protected s. 2 (d) activity; and (3), in order to link the alleged Charter violation to state action, the context must be such that the state can be truly held accountable for any inability to exercise a fundamental freedom. The contribution of private actors to a violation of fundamental freedoms does not immunize the state from Charter review.
In order to establish a violation of s. 2 (d) of the Charter , the appellants must demonstrate that their claim relates to activities that fall within the range of activities protected by s. 2 (d) of the Charter , and that the impugned legislation has, either in purpose or effect, interfered with these activities. In this case, insofar as the appellants seek to establish and maintain an association of employees, their claim falls squarely within the protected ambit of s. 2 (d). Moreover, the effective exercise of the freedoms in s. 2 (d) require not only the exercise in association of the constitutional rights and freedoms and lawful rights of individuals, but the exercise of certain collective activities, such as making majority representations to one’s employer. Conflicting claims concerning the meaning of troubling comments in the legislature make it impossible to conclude that the exclusion of agricultural workers from the LRA was intended to infringe their freedom to organize, but the effect of the exclusion in s. 3(b) of the LRA is to infringe their right to freedom of association.
The LRA is clearly designed to safeguard the exercise of the freedom to associate rather than to provide a limited statutory entitlement to certain classes of citizens. Through the right to organize inscribed in s. 5 of the LRA and the protection offered against unfair labour practices, the legislation recognizes that without a statutory vehicle employee associations are, in many cases, impossible. Here, the appellants do not claim a constitutional right to general inclusion in the LRA, but simply a constitutional freedom to organize a trade association. This freedom to organize exists independently of any statutory enactment, although its effective exercise may require legislative protection in some cases. The appellants have met the evidentiary burden of showing that they are substantially incapable of exercising their fundamental freedom to organize without the LRA’s protective regime. While the mere fact of exclusion from protective legislation is not conclusive evidence of a Charter violation, the evidence indicates that, but for the brief period covered by the ALRA, there has never been an agricultural workers’ union in Ontario and agricultural workers have suffered repeated attacks on their efforts to unionize. The inability of agricultural workers to organize can be linked to state action. The exclusion of agricultural workers from the LRA functions not simply to permit private interferences with their fundamental freedoms, but to substantially reinforce such interferences. The inherent difficulties of organizing farm workers, combined with the threat of economic reprisal from employers, form only part of the reason why association is all but impossible in the agricultural sector in Ontario. Equally important is the message sent by the exclusion of agricultural workers from the LRA, which delegitimizes their associational activity and thereby contributes to its ultimate failure. The most palpable effect of the LRESLAA and the LRA is, therefore, to place a chilling effect on non-statutory union activity.
With respect to the s. 1 analysis, the evidence establishes that many farms in Ontario are family-owned and operated, and that the protection of the family farm is a pressing enough objective to warrant the infringement of s. 2 (d) of the Charter . The economic objective of ensuring farm productivity is also important. Agriculture occupies a volatile and highly competitive part of the private sector economy, experiences disproportionately thin profit margins and, due to its seasonal character, is particularly vulnerable to strikes and lockouts.
There is also a rational connection between the exclusion of agricultural workers from Ontario’s labour relations regime and the objective of protecting the family farm. Unionization leads to formalized labour-management relationships and gives rise to a relatively formal process of negotiation and dispute resolution. It is reasonable to speculate that unionization will threaten the flexibility and cooperation that is characteristic of the family farm. Yet this concern is only as great as the extent of the family farm structure in Ontario and does not necessarily apply to the right to form an agricultural association. The notion that employees should sacrifice their freedom to associate in order to maintain a flexible employment relationship should be carefully circumscribed, as it could, if left unchecked, justify restrictions on unionization in many sectors of the economy.
The wholesale exclusion of agricultural workers from Ontario’s labour relations regime does not minimally impair their right to freedom of association. The categorical exclusion of agricultural workers is unjustified where no satisfactory effort has been made to protect their basic right to form associations. The exclusion is overly broad as it denies the right of association to every sector of agriculture without distinction. The reliance on the family farm justification ignores an increasing trend in Canada towards corporate farming and complex agribusiness and does not justify the unqualified and total exclusion of all agricultural workers from Ontario’s labour relations regime. More importantly, no justification is offered for excluding agricultural workers from all aspects of unionization, in particular those protections that are necessary for the effective formation and maintenance of employee associations. Nothing in the record suggests that protecting agricultural workers from the legal and economic consequences of forming an association would pose a threat to the family farm structure. Consequently, the total exclusion of agricultural workers from Ontario’s labour relations regime is not justifiable under s. 1 of the Charter .
The appropriate remedy in this case is to declare the LRESLAA unconstitutional to the extent that it gives effect to the exclusion clause found in s. 3(b) of the LRA, and to declare s. 3(b) of the LRA unconstitutional. The declarations should be suspended for 18 months, thereby allowing amending legislation to be passed if the legislature sees fit to do so. Section 2 (d) of the Charter only requires the legislature to provide a statutory framework that is consistent with the principles established in this case. At a minimum, these principles require that the statutory freedom to organize in s. 5 of the LRA be extended to agricultural workers, along with protections judged essential to its meaningful exercise, such as freedom to assemble, freedom from interference, coercion and discrimination and freedom to make representations and to participate in the lawful activities of the association. The appropriate remedy does not require or forbid the inclusion of agricultural workers in a full collective bargaining regime, whether it be the LRA or a special regime applicable only to agricultural workers.
It is unnecessary to consider the status of occupational groups under s. 15(1) of the Charter .
Per L’Heureux-Dubé J.: The purpose of s. 80 of the LRESLAA and s. 3(b) of the LRA is to prevent agricultural workers from unionizing, and this purpose infringes s. 2 (d) of the Charter . In the record, there is clear evidence of intent on the part of the government of Ontario to breach the s. 2 (d) rights of agricultural workers, including repeated instances where government officials indicated that the impugned legislation’s intent was to hinder union-related activities in the agricultural sector. On a balance of probabilities, the evidence demonstrates that the legislature’s purpose in enacting the exclusion was to ensure that persons employed in agriculture remained vulnerable to management interference with their associational activities, in order to prevent the undesirable consequences which it had feared would result from agricultural workers’ labour associations. Furthermore, the evidence does not reveal any positive effects upon the associational freedom of agricultural workers stemming from their exclusion from the LRA. The reality of the labour market, which has led to the development of protective labour legislation, indicates that when the protection is removed without any restriction or qualification, associational rights are often infringed, or have the potential to be infringed, to an extent not confined to unionization activities. Consequently, it was in the reasonable contemplation of the government at the time of the enactment of the impugned legislation that the effect of the exclusion clause would be to affect associational freedoms beyond the realm of unionization, thus breaching s. 2 (d) Charter rights.
In the present case, there is a positive obligation on the government to provide legislative protection against unfair labour practices. A positive duty to assist excluded groups generally arises when the claimants are in practice unable to exercise a Charter right. In the case of agricultural workers in Ontario, the freedom to associate becomes meaningless in the absence of a duty of the State to take positive steps to ensure that this right is not a hollow one. The government has breached the s. 2 (d) rights of agricultural workers because it has enacted a new labour statute which leaves them perilously vulnerable to unfair labour practices. The absolute removal of LRA protection from agricultural workers has created a situation where employees have reason to fear retaliation against associational activity by employers. In light of the reality of the labour market, the failure of the Ontario legislature to spell out a regime defining which associational activities are to be protected from management retaliation has a chilling effect on freedom of association for agricultural workers. The chilling effect of the impugned provision has forced agricultural workers to abandon associational efforts and restrain themselves from further associational initiatives. The freedom of association of agricultural workers under the LRA can be characterized as a hollow right because it amounts to no more than the freedom to suffer serious adverse legal and economic consequences. In a constitutional democracy, not only must fundamental freedoms be protected from State action, they must also be given “breathing space”.
Since the impugned legislation infringes s. 2 (d), it is necessary to make but a single observation with respect to whether the exclusion of agricultural workers from the LRA constitutes discrimination under s. 15(1) of the Charter . The occupational status of agricultural workers constitutes an “analogous ground” for the purposes of an analysis under s. 15(1) . There is no reason why an occupational status cannot, in the right circumstances, identify a protected group. Employment is a fundamental aspect of an individual’s life and an essential component of identity, personal dignity, self-worth and emotional well-being. Agricultural workers generally suffer from disadvantage and the effect of the distinction made by their exclusion from the LRA is to devalue and marginalize them within Canadian society. Agricultural workers, in light of their relative status, low levels of skill and education, and limited employment and mobility, can change their occupational status only at great cost, if at all.
The impugned legislation is not justifiable under s. 1 of the Charter . While labour statutes, such as the LRA, fulfill important objectives in our society, s. 3(b) does not pursue a pressing and substantial concern justifying the breach of the appellants’ Charter rights. It cannot be argued that Ontario agriculture has unique characteristics which are incompatible with legislated collective bargaining. It is also difficult to accept that none of the LRA’s purposes, enumerated at s. 2 of the LRA, which speak to the basic characteristics required for the operation of a modern business, are inapplicable in the agricultural sector. At the very least, the expressions of intent found in s. 2 of the LRA would apply to factory-like agricultural enterprises. Without enunciating a constitutionally valid reason, one cannot countenance a breach of a Charter guaranteed fundamental freedom on grounds which appear to be based on a policy geared to enhance the economic well-being of private enterprises. The government is entitled to provide financial and other support to agricultural operations, including family farms. However, it is not open to the government to do so at the expense of the Charter rights of those who are employed in such activities, if such a policy choice cannot be demonstrably justified.
Even if the impugned legislation pursued a valid objective, the absoluteness of the exclusion clause, barring all persons employed in agriculture from all components of the LRA, speaks to the lack of proportionality between the perceived ills to be avoided and their remedy. First, a rational connection between the objective of securing the well-being of the agricultural sector in Ontario and the exclusion of persons employed in agriculture from all associational protections contained in the LRA has not been established. If the good labour management principles outlined in s. 2 of the LRA have a basis in fact, then barring all persons employed in agriculture from all the benefits under the LRA may have the opposite effect. Second, the complete exclusion of agricultural workers from the LRA does not minimally impair their Charter rights. Such a blunt measure can hardly be characterized as achieving a delicate balance among the interests of labour and those of management and the public. It weakens the case for deference to the legislature. This is further aggravated because those affected by the exclusion are not only vulnerable as employees but are also vulnerable as members of society with low income, little education and scant security or social recognition. The current law is not carefully tailored to balance the Charter freedoms of persons employed in agriculture in Ontario and the societal interest in harmonious relations in the labour market. While the important role that family farms play in Ontario agriculture must be recognized, such a role is not unique to Ontario. Further, both families and farms have evolved. There is no obvious connection between the exclusion of agricultural workers from the LRA and farmers or family farms. A city-based corporation could be operating an agricultural entity and benefit from the restrictions on the freedoms of association of its agricultural workers. Labour statutes in other provinces contain agricultural exemptions that are narrower than the one contained in the LRA. The objective of securing the well-being of the agricultural sector in Ontario can be achieved through a legislative mechanism that is less restrictive of free association than the existing complete exclusion of agricultural workers from the LRA.
Per Major J. (dissenting): The appellants failed to demonstrate that the impugned legislation has, either in purpose or effect, infringed activities protected by s. 2 (d) of the Charter . In particular, s. 2(d) does not impose a positive obligation of protection or inclusion on the state in this case. Prior to the enactment of the LRA, agricultural workers had historically faced significant difficulties organizing and the appellants did not establish that the state is causally responsible for the inability of agricultural workers to exercise a fundamental freedom.
Agricultural workers are not an analogous group for the purposes of s. 15(1) of the Charter and, as a result, the exclusion of agricultural workers from the LRA does not violate their equality rights.
Cases Cited
By Bastarache J.
Referred to: Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ferrell v. Ontario (Attorney General) (1997), 149 D.L.R. (4th) 335; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; R. v. Skinner, [1990] 1 S.C.R. 1235; Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, [1959] S.C.R. 206; McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718; R. v. Beaulac, [1999] 1 S.C.R. 768; Haig v. Canada, [1993] 2 S.C.R. 995; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Vriend v. Alberta, [1998] 1 S.C.R. 493; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; R. v. Oakes, [1986] 1 S.C.R. 103; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Wellington Mushroom Farm, [1980] O.L.R.B. Rep. May 813; Calvert-Dale Estates Ltd., [1971] O.L.R.B. Rep. Feb. 58; Spruceleigh Farms, [1972] O.L.R.B. Rep. Oct. 860; Cuddy Chicks Ltd., [1988] O.L.R.B. Rep. May 468, application for judicial review dismissed (1988), 66 O.R. (2d) 284, aff’d (1989), 70 O.R. (2d) 179, aff’d [1991] 2 S.C.R. 5; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; South Peace Farms and Oil, Chemical and Atomic Workers International Union, Local No. 9-686, [1977] 1 Can. L.R.B.R. 441; Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.
By L’Heureux-Dubé J.
Referred to: Haig v. Canada, [1993] 2 S.C.R. 995; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Native Women’s Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Cuddy Chicks Ltd., [1988] O.L.R.B. Rep. May 468; Cuddy Chicks Ltd., [1992] O.L.R.D. No. 1170 (QL); New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, aff’g (1983), 49 A.R. 194; Vriend v. Alberta, [1998] 1 S.C.R. 493; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; Egan v. Canada, [1995] 2 S.C.R. 513; R. v. Beaulac, [1999] 1 S.C.R. 768; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; McKinley v. BC Tel, [2001] 2 S.C.R. 161, 2001 SCC 38; R. v. Généreux, [1992] 1 S.C.R. 259; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; South Peace Farms and Oil, Chemical and Atomic Workers International Union, Local No. 9-686, [1977] 1 Can. L.R.B.R. 441; Wellington Mushroom Farm, [1980] O.L.R.B. Rep. May 813; Rathwell v. Rathwell, [1978] 2 S.C.R. 436.
By Major J. (dissenting)
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Haig v. Canada, [1993] 2 S.C.R. 995.
Statutes and Regulations Cited
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Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a), (b), (d), 15(1) , 32 .
Collective Bargaining Act, 1943, S.O. 1943, c. 4, s. 24 [rep. & sub. by Labour Relations Board Act, 1944, S.O. 1944, c. 29].
Convention (No. 11) concerning the Rights of Association and Combination of Agricultural Workers, 38 U.N.T.S. 153, Art. 1.
Convention (No. 87) concerning Freedom of Association and Protection of the Right to Organize, 67 U.N.T.S. 17, Arts. 2, 9, 10.
Convention (No. 141) concerning Organisations of Rural Workers and Their Role in Economic and Social Development, I.L.O. Official Bulletin, vol. LVIII, 1975, Series A, No. 1, p. 28, Art. 2 .
Corporations Tax Act, R.S.O. 1990, c. C.40, s. 1(2) “family farm corporation”.
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Employment Standards Act Regulations, R.R.O. 1990, Reg. 325, s. 3(1)(i).
Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41, s. 1(1) “farmer”.
Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 1(5)(a).
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Labour Code, R.S.Q., c. C-27, s. 21.
Labour Code of British Columbia Act, S.B.C. 1973, c. 122.
Labour Relations Act, R.S.O. 1980, c. 228, s. 2(b).
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Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, ss. 1(1) “agriculture”, 2, 3, 3(b), (e) [am. 1997, c. 4, s. 83], (f) [idem, c. 31, s. 151], 5, 13, 70, 72, 76, 86, 87, 88.
Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1, ss. 80, 81(1).
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National Labor Relations Act, July 5, 1935, c. 372, 49 Stat. 449 (29 U.S.C. §§ 151 to 169).
Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 3(2).
Tenant Protection Act, 1997, S.O. 1997, c. 24, s. 3(b).
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APPEAL from a judgment of the Ontario Court of Appeal (1999), 182 D.L.R. (4th) 471, 49 C.C.E.L. (2d) 29, [1999] O.J. No. 1104 (QL), upholding the decision of the Ontario Court (General Division) (1997), 155 D.L.R. (4th) 193, 37 O.R. (3d) 287, 49 C.C.E.L. (2d) 5, [1997] O.J. No. 4947 (QL). Appeal allowed, Major J. dissenting.
Chris G. Paliare and Martin J. Doane, for the appellants.
Richard J. K. Stewart, for the respondent the Attorney General for Ontario.
Alan L. W. D’Silva, Darrell L. Kloeze and Vincent C. Kazmierski, for the respondent Fleming Chicks.
Written submissions only by Renée Madore and Monique Rousseau, for the intervener the Attorney General of Quebec.
Rod Wiltshire, for the intervener the Attorney General for Alberta.
Steven Barrett, for the intervener the Canadian Labour Congress.
Written submissions only by John C. Murray and Jonathan L. Dye, for the intervener the Labour Issues Coordinating Committee.
The judgment of McLachlin C.J. and Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ. was delivered by
Bastarache J. --
I. Introduction
1 This appeal concerns the exclusion of agricultural workers from Ontario’s statutory labour relations regime. The appellants, individual farm workers and union organizers, challenge the exclusion as a violation of their freedom of association and equality rights under the Canadian Charter of Rights and Freedoms . In particular, they argue that the Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1 (“LRESLAA”), combined with s. 3(b) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”), prevents them from establishing, joining and participating in the lawful activities of a trade union. In addition, they claim that the LRESLAA and the LRA violate their equality rights under s. 15(1) of the Charter by denying them a statutory protection enjoyed by most occupational groups in Ontario.
2 This is the first time this Court has been asked to review the total exclusion of an occupational group from a statutory labour relations regime, where that group is not employed by the government and has demonstrated no independent ability to organize. For this reason, this appeal raises novel issues of state responsibility under s. 2 (d) of the Charter , notwithstanding its apparent similarity to recent labour relations jurisprudence. After considering these issues, I conclude that the total exclusion of agricultural workers from the LRA violates s. 2 (d) of the Charter and cannot be justified under s. 1. Accordingly, I conclude that, at a minimum, whatever protections are necessary to establish and maintain employee associations should be extended to persons employed in agriculture in Ontario. I am also of the view that it is not necessary to consider the status of agricultural workers under s. 15(1) of the Charter ; assuming without deciding the existence of a s. 15(1) violation, such a violation would not alter the remedy I propose.
II. Factual Background
3 Although agricultural workers have been excluded from Ontario’s labour relations regime since 1943, the impetus for this appeal was the passage of the LRESLAA. The LRESLAA was enacted pursuant to an initiative of Ontario’s Progressive Conservative government in 1995; it repealed the only statute ever to extend trade union and collective bargaining rights to Ontario’s agricultural workers. That short-lived statute, the Agricultural Labour Relations Act, 1994, S.O. 1994, c. 6 (“ALRA”), was enacted pursuant to an initiative of the New Democratic Party government in 1994 following the recommendations in the Report of the Task Force on Agricultural Labour Relations: Report to the Minister of Labour (June 1992). The ALRA lasted from June 23, 1994 to November 10, 1995, during which time the United Food and Commercial Workers Union (“UFCW”) was certified as the bargaining agent for approximately 200 workers at the Highline Produce Limited mushroom factory in Leamington, Ontario. The UFCW also filed two other certification applications during the period of the ALRA, one for the workers at the Kingsville Mushroom Farm Inc., and the other for the workers at the respondent Fleming Chicks. These certification activities came to an end when, with the passage of the LRESLAA in 1995, the ALRA was repealed in its entirety. In addition to terminating any agreements certified under the ALRA, the LRESLAA terminated any certification rights of trade unions and prohibited employers from punishing workers for any union activity conducted under the ALRA. The appellants brought an application within one week of the repeal of the ALRA, arguing that it infringed their rights under ss. 2 (d) and 15(1) of the Charter .
4 As indicated by the legislative record, the LRESLAA represents a small piece of the factual context surrounding this litigation. For over 50 years prior to the ALRA, and ever since its repeal, the Ontario government has excluded agricultural workers from its statutory labour relations regime. The first statute to effect this exclusion was the Collective Bargaining Act, 1943, S.O. 1943, c. 4, which was modelled on the American National Labor Relations Act (“Wagner Act”), July 5, 1935, c. 372, 49 Stat. 449 (29 U.S.C. §§ 151 to 169). Section 24 of the Collective Bargaining Act, 1943 contained a list of excluded classes, including “domestic servants”, “members of any police force”, certain other public employees, and “the industry of farming”. The most recent embodiment of Ontario’s labour relations policy, the LRA, excludes agricultural workers in the following terms:
3. This Act does not apply,
. . .
(b) to a person employed in agriculture, hunting or trapping;
The net effect of the LRESLAA was to re-subject agricultural workers to this exclusion clause. Thus, in addition to challenging the constitutionality of the LRESLAA, the appellants challenge the constitutionality of s. 3(b) of the LRA.
5 The various enactments dealing with agricultural workers’ right to unionize, the Wagner Act, the LRA, the ALRA and the LRESLAA, reflect highly divergent approaches to economic and labour policy. As noted by Sharpe J. (as he then was) in the Ontario Court (General Division), the current government in Ontario has “a very different perspective from that of its predecessor on appropriate economic and labour policy” and, indeed, rejects any attempt to include agricultural workers in its labour relations regime ((1997), 155 D.L.R. (4th) 193, at p. 199). Moreover, the affidavit evidence in this case “presents in stark contrast two conflicting views of an appropriate labour relations regime for agricultural workers in Ontario”, one denying the existence of any “industrial relations rationale” for the current exclusion, and the other maintaining that the collective bargaining model of the ALRA or the LRA would unduly threaten the province’s farm economy (pp. 201-2). This latter view is evidently shared by the Legislature of Alberta, which is the only other Canadian province to exclude agricultural workers from its labour relations regime. What is central to this appeal, however, is the constitutional effect of excluding agricultural workers from the LRA from the perspective of their freedom to associate. Given my conclusion that this exclusion violates s. 2 (d) of the Charter , the above evidence will provide an important foundation for the s. 1 analysis.
III. Relevant Statutory Provisions
6 Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c. 1
1.(1) The Labour Relations Act, 1995, as set out in Schedule A, is hereby enacted.
80.(1) The Agricultural Labour Relations Act, 1994 is repealed.
(2) On the day on which this section comes into force, a collective agreement ceases to apply to a person to whom that Act applied.
(3) On the day on which this section comes into force, a trade union certified under that Act or voluntarily recognized as the bargaining agent for employees to whom that Act applies ceases to be their bargaining agent.
(4) On the day on which this section comes into force, any proceeding commenced under that Act is terminated.
Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A
3. This A